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Date of Issue: August 18, 2010

Stoltzfus recall decision expected soon

Harry Stoltzfus, center, talks to his attorney, Richard Harrison, in the courtroom. Islander Photos: Bonner Joy

Anna Maria Commissioner Harry Stoltzfus, right, and attorney Richard Harrison, stand for the arrival of Circuit Court Judge Edward Nicholas for a hearing Aug. 12.

A circuit court decision was expected this week in Anna Maria Commissioner Harry Stoltzfus’ motion to halt a recall campaign against him.

A hearing on the motion took place before Circuit Court Judge Edward Nicholas at the Manatee County Judicial Center in Bradenton Aug. 12.

The decision may prove to be of great consequence in the city’s history, possibly having a long-term impact on the city’s political future.

 Nicholas heard almost three hours of arguments on both sides of the motion, but made no decision from the bench. He said he understood that “time was of the essence” and would make his decision promptly.

Attorney Richard Harrison, representing Stoltzfus, argued that the recall petition submitted by Anna Maria resident Bob Carter is “legally insufficient” because the allegations in the petition were not substantiated with facts.

He claimed the accusations were so vague that Stoltzfus was unable to identify them in his 200-word statement of defense that was required to be submitted with the committee’s second recall petition.

But it’s not up to Stoltzfus to decide if the allegations are sufficient to move the recall forward, it’s up to Nicholas.

Harrison cited case law in his claim that if one of the five charges in the committee’s petition is legally insufficient, the entire petition is invalid and there won’t be a recall election.

“Mr. (Alan) Moore (attorney for the recall committee) has to convince you that all allegations are valid,” Harrison told Nicholas. Harrison further claimed none of the petition claims are valid.

The recall petition accuses Stoltzfus of misfeasance and malfeasance.

Malfeasance is an unlawful or illegal act, while misfeasance is an act that is not illegal, but is improper or negligent, Harrison said.

“They are mutually exclusive,” he said.

Nowhere in the original petition signed by voters is misfeasance, malfeasance or any allegation substantiated, he claimed.

The recall petition states Stoltzfus sent e-mails that contained “libelous and inflammatory remarks” about city staff, citizens and professional consultants that violate the city’s policy against personal attacks and “expose the city to significant legal expense.”

The petition further states that Stoltzfus has been “abusing his authority,” has employed “evasive devices to intentionally circumvent state statutes,” and has “conspired with others to deceive citizens and bring financial harm” to the city by encouraging litigation against the city while hiding his involvement.

“His conduct cannot be legally justified and conflicts with state law,” the petition concluded.

Harrison claimed the petition is “vague and ambiguous,” and there are no facts or specific details of misfeasance or malfeasance. As a result, Harrison said, Stoltzfus wrote a generalized response because he “could not understand what he was being accused of.”

The defense statement is the “only meaningful opportunity for the commissioner to defend himself against the charges, but what in the world is he accused of?” Harrison asked the court.

“To understand (the petition), you would have to have a very active imagination,” Harrison told the judge.

Prior to the hearing, the committee submitted its memorandum of law containing a basis and case law to back up the recall petition.

While that might list the specifics of the charges against Stoltzfus, Harrison said that’s not the petition that Nicholas has to consider. At issue is what the original petition states, he said, not the memorandum of law.

Additionally, Harrison said he read the memorandum three times and was “confused and dumbfounded.”

Harrison said the hearing was not to argue the validity of the memorandum, but rather the legal justification for the petition.

Moore, however, had to convince Nicholas that the memorandum is part of the petition and “the issue should go to the voters,” Harrison argued.

“We disagree,” that the voters should decide, he said.

“They want to argue a completely different, hypothetical petition that no one has ever seen,” Harrison said.

While allowing voters to decide the issue “is tempting,” that’s a “legal trap,” he told Nicholas, and the other side has “baited you” with that argument.

Elected officials are not recalled because of opinions, Harrison argued.

Politics often divide a community, state or country, he said, “just read the newspapers.” But elected officials are not recalled because of someone’s opinion on the other side of an issue.

“That’s not how the democratic process works.” The democratic process took place last November when Stoltzfus was elected, Harrison said.

Fred Moore countered for the Recall Stoltzfus Committee, stating that the facts in the petition do not have to be substantiated in the petition. The state allows a maximum of 200 words in the petition. The memorandum of law explains the facts as alleged in the petition.

The recall petition does not have to prove anything beyond a shadow of a doubt, he said.

A recall election must rest on the petition’s “substantial compliance” with the recall statute. That statute does not require the recall committee to prove its allegations in the petition, Moore argued. That’s done in the memorandum of law and amended petition, he noted.

The petition raises suspicions and the memorandum supports those suspicions. That’s sufficient to have a recall election, he said.

The petition is legal according to the governing Florida statute, he said. “The petition, as a whole, substantially complies with the Florida statute,” Moore maintained.

Harrison, however, wanted the judge to consider each point in the original recall petition for misfeasance or malfeasance.

“There is no requirement in the statute” to prove misfeasance or malfeasance, Moore said. “What must be given are the grounds for misfeasance and malfeasance.”

The petition does that, Moore said.

When the recall petition and the memorandum of law are taken together, they “identify the acts that constitute misfeasance and malfeasance,” Moore said.

He told the judge not to “put blinders on” and simply look at the petition. “Look at the public records,” Moore said.

Stoltzfus has amended his complaint and Carter has amended his petition, but the hearing is not to “argue law,” Moore said. However, that’s what Harrison is doing, Moore claimed.

“The electorate is smart enough to know what the facts are. Let the voters decide. The petition is the petition. Remember, you are limited to 200 words in the petition.”

Moore agreed it would have been good to list all the facts in the petition, but there simply was not enough room. That’s why the memorandum of law was submitted.

Moore then challenged Harrison’s argument that Stoltzfus had rights as a private citizen to various opinions and actions.

When Stoltzfus was sworn into office, he agreed under oath to protect the city’s interests.

Agreeing to participate as a silent partner in a lawsuit against the city, as alleged in the memorandum of law, is “not keeping the best interests of the city at heart, it is improper and is putting the city at risk,” Moore said.

He urged Nicholas to “look at the petition as a whole” and review the amended complaint and the memorandum of law.

“We think you will deny the request and enter an injunction upholding the Sept. 7 election,” he concluded.

Nicholas said he had some relevant case law to study before making a decision, but he was already familiar with at least one Florida Supreme Court decision cited by Harrison.

“But the decision I make requires a lot of thought and should be a well-considered order. Time is of the essence, but the decision cannot be made without due consideration. I will rule just as soon as I can,” Nicholas said before adjourning the hearing.

Nicholas was expected to make a decision on the motion as early as Aug. 16, but after The Islander’s deadline.

Stoltzfus appeal denied

The Florida Second District Court of Appeal in Lakeland has denied a motion by Anna Maria Commissioner Harry Stoltzfus to have a May 24 ruling by Circuit Court Judge Ed Nicholas reviewed by the court.

The motion was made after Nicholas denied a request for an expedited hearing in Stoltzfus’ motion to have a recall petition filed against him by Bob Carter and the Recall Commissioner Stoltzfus committee declared invalid.

Appeals court clerk James Birkwell on Aug. 11 issued a brief statement denying the appeal as “moot” to the issue because Nicholas would hear the original motion to dismiss the recall petition.

That dismissal hearing was held Aug. 12, but Nicholas had not issued a ruling as of The Islander’s press deadline Aug. 16.

Regardless of Nicholas’ ruling, both sides have the option to appeal his decision.