You gotta Fight for your right to Party!

Take 2

The recall Lutz effort made it past the first hurdle.  You may remember the uphill battle that the recall committee has, but this one looks to be a war: Good Ole Boys vs. the Commish.  The Good Ole Boys struck first by turning in the application with 229 signatures.  Now we have to see where it goes from here.

The Truth will attempt to get a copy of the application with the names.  I am sure that analysis of the signatures will tell a lot.  But since it may take a few days, let’s try and guess what the counter offensive may look like.

First, I am guessing that Commissioner Lutz will petition the superior court under O.C.G.A. § 21-4-6(f) which says; “Such review shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or facts upon which such ground or grounds are based as set forth in such recall application.”  It goes on to say that “the review of such alleged fact or facts shall include a determination of whether probable cause exists to believe that such alleged fact or facts are true. The burden shall be on the petition chairperson to prove that such probable cause exists.”

The recall committee stated that “Lutz violated Georgia’s open meetings law.”  What is interesting is back on January 5th when the news was breaking, an independent attorney representing the Georgia Press Association and a partner in the Augusta law firm Hull Barrett said, “commissioners-elect, Lutz and Gibbs could meet with Bell as private citizens without an open meeting requirement”.

Assuming that the judge agrees with the Georgia Press Association attorney, and dismisses the case, will Commissioner Lutz take action against the recall committee?  Davis et al. v. Shavers {S97G1113 (269 Ga. 75)(495 SE2d 23)(1998)} could be a parallel case to Lutz v. Hulsey.  In the Shavers case, after a trial court found the legal sufficiency of the recall applications to be legally insufficient, Shavers brought suit against the committee for libel based upon statements made in the recall application against him and the court ruled in favor of the politician.

“As a general rule, statements regarding public figures are not absolutely privileged. Under OCGA 51-5-7 (9) and New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964), a public official or a candidate for public office may recover on his libel claim, so long as he demonstrates, by clear and convincing evidence, that the statements complained of were made with actual malice.”  I think an argument can be made that the statements against Commissioner Lutz were made with a desire to inflict injury, harm, or suffering.

The question becomes, does Commissioner Lutz have a case against the members of the committee, or the people who circulated the petition, or everyone that signed.  Either way, it looks like if this is dismissed, there could be some additional action.  Of course, then the burden of proof would be back on Commissioner Lutz.  Everyone, take your sides!

Hugh Hall County Akston

  3 comments for “You gotta Fight for your right to Party!

  1. gt183
    August 22, 2011 at 5:33 pm

    Awe snap! As usual, the attorneys will make all the money off this one.

  2. B
    August 23, 2011 at 11:05 am

    Hugh, I am surprised that you did not fully read the case law which you referenced. If you had, you would have read that the appellate court overturn the case both on principle as well as technicalities. The Appellate court states the following;

    “Permitting libel actions against individuals involved in the recall process will have a chilling effect on the exercise of this constitutional right to free speech. ” ‘Whatever is added to the field of libel is taken from the field of free debate.’ ” 19 Although the majority opinion acknowledges the importance of public criticism of elected officials, it undermines this recognition by granting only a conditional privilege to the statements in a recall application. “The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.” 20 As we have said previously, “if critics of government, be they citizens or press, speak only at the risk of being prosecuted for libel or slander, few will criticize government at all.” 21 The need for free and open debate concerning the performance of elected officials justifies granting absolute immunity to persons who seek the recall of a public official for misconduct in office.”

    Needless to say, Craig Lutz has no case and is again wasting the tax payers money as well as some of his rich friends money. Regardless of the recall effort, Mr. Lutz is a one term Commissioner and the citizens of South Hall County have certainly been educated on the real Craig Lutz.

    • The Truth
      August 24, 2011 at 3:09 pm

      You are quoting the dissenting opinion Mr. B. I think it is you who needs to read more.
      FLETCHER, Presiding Justice, dissenting.

Leave a Reply

Your email address will not be published. Required fields are marked *