FORT SCOTT, Kan. — A Bourbon County judge's order removing three recall organizers as defendants in County Clerk Susan Walker's lawsuit has drawn an immediate challenge, with one organizer arguing the dismissal should not have been entered while a state-mandated freeze on court proceedings was in effect.
District Judge Richard M. Fisher Jr. signed an order on May 29 granting Walker's request to drop the recall committee — Kyle R. Parks, Kevin Wagner and Lyle K. Owenby — as defendants in her suit challenging the recall petition. Her attorney had sought the dismissal a day earlier, after Walker amended the lawsuit to remove the committee and leave Bourbon County Attorney James Crux as the only remaining defendant.
Just over two hours after it was entered, recall committee member Kevin Wagner filed a motion to set Fisher's order aside. His attorney, Patrick B. Hughes, argued that the court acted before Wagner's deadline to respond and while an automatic stay was in place.
Hughes wrote that whether the dismissal motion violated the stay "may be important to the later question of sanctions, but the point now is that the stay exists."
Financial and Legal Stakes for Walker
Wagner contends Walker dropped the committee to limit her exposure under the Kansas Public Speech Protection Act. That statute can require a plaintiff who improperly sues over protected speech, association or petitioning to pay the defendant's litigation costs and reasonable attorney fees, and it allows courts to impose additional sanctions intended to deter similar suits.
Wagner also argues his own claim survives regardless of what happens to the other committee members, as he has already incurred legal fees, and the court has yet to decide whether Walker must cover them or whether sanctions apply.
Rights to Due Process
Wagner's motion contends that because Walker's amended lawsuit still asks the court to decide whether the recall petition was prematurely circulated and whether it meets legal requirements, the committee members have a due-process interest in defending it. Removing them, he argues, would leave them with no right to notice and no opportunity to be heard, present evidence or cross-examine witnesses.
Wagner’s motion also states that if the committee is excluded from the case, the court's judgment will not bind its members. If Walker wins, the committee could file its own lawsuit against Crux — and if it prevails, he could be left with obligations that contradict the ruling in the current case.
"In practical terms this is yet another effort to silence the recall committee," Hughes wrote. "This time, rather than attempting to silence them in the streets, she is attempting to silence them in the courtroom."
As of June 4, Fisher had not ruled on Wagner's motion to set aside the dismissal.
