A decision is due in the next few days on whether the leader of an effort to recall Craig Lutz’s election to the Hall County Board of Commissioners will have to pay for the attorney the commissioner used opposing the effort.
Lutz appeared in court Friday, his attorney Paul Stanley arguing that Kevin Kanieski should have to pay $12,587.96 to cover the cost of Lutz’s legal representation in the fight.
“Make my client whole,” Stanley asked the judge Friday in a Hall County courtroom. “Bring him back to zero, at least for the money he’s out of pocket.”
Judge Thomas Davis, the Gwinnett County judge who’s been assigned to the case, says he has little legal precedent to guide his decision, but promised he’d rule on the issue in the next few days.
Kanieski filed a petition with the Hall County Board of Elections in August 2011 seeking for an election to recall Lutz as commissioner.
Lutz was elected to the District 1 post, which represents South Hall, in 2010.
Representing himself in court Friday, Kanieski said little, only asking Davis why he should be penalized for what he said was exercising his rights to free speech under the U.S. Constitution.
The effort garnered 229 signatures in favor of an election to recall Lutz, who was installed as a commissioner in January 2011.
Kanieski withdrew the petition a week after Lutz challenged it in court.
Kanieski has shied away from commenting on the case and did not comment after Friday’s hearing. At the time the petition was withdrawn, he said the withdrawal was to give the group time “to prepare a new and stronger case for the court.”
Despite the petition’s withdrawal, Lutz’s original challenge went through court.
In a hearing in October 2011, Kanieski — who had the burden of proving cause for the recall effort — presented no evidence, according to an order Davis filed.
Davis ruled in Lutz’s favor.
“Even if (Kanieski’s) Application for Recall is evaluated on its face, it fails to identify with reasonable particularity the meeting or meetings which violated the Georgia open meetings laws, or the activities which represent a violation of (Lutz’s) oath of office, represent misconduct in office or represent acts of malfeasance while in office,” Davis wrote.
In a hearing over whether Kanieski should have to pay the legal fees Lutz incurred in the fight, Stanley argued in court Friday that the effort was only meant to harass Lutz and cause him fiscal harm.
“I’ll start off by saying I think the matter that’s before the court here is narrowed down as a conspiracy of fraud, misrepresentation and harassment,” Stanley said.
Stanley’s statement caused Davis to interrupt and ask the attorney, “You don’t think they were really trying to get rid of your client as a commissioner?”
Stanley said the members of the recall committee did intend to remove Lutz, but said there was a greater intent to harass him.
“I don’t think they ever believed they were going to prevail,” Stanley said.
He referred to conversations in a group created on the social media website Facebook titled “Recall Craig Lutz.”
Specifically, Stanley mentioned a comment by the group’s creator, Cliff McGlamry, that following Lutz’s request for judicial review the group could withdraw its recall petition and file a new one and “make process expensive and painful for them personally.”
Stanley said much of the money Lutz seeks to recover was spent “before the first hearing where Mr. Kanieski did not appear.” He said ignorance of the law should be no defense for group members who do not think the request reasonable.
Stanley said Kanieski should be responsible for Lutz’s legal fees. He also argued that, if the judge decided to cast the net of responsibility wider, other members of the recall group — Michael Parker, Robert “Bobby” Hulsey and McGlamry — should have to pay.
But Kanieski, when he had his chance, said the recall effort “never was personal.”
“It’s just something I felt I needed to do and I did it,” Kanieski told the judge. “I just felt this was something I had to do as a citizen and a voter.”