If a hearing into the legality of Anna Sullivan’s appointment to the Bartow County Board of Education isn’t held before the July 31 primary election, the whole issue will be moot, said one local resident who filed the complaint against Sullivan in Bartow County Superior Court.

“If the judge does not delay a hearing, a final decision, longer than July 31, then we reasonably expect her to be removed from the board based on our understanding of the law,” said Paul Nally who, along with Gail Engelhardt, filed the lawsuit against Sullivan. “If opposing council tries to muddy that water and introduce facts that are arguable but not (the) law, the judge could set a jury trial at the next available date. That likely would happen after July 31.”

Sullivan is running against former board member Greg Bowen in a special election for the seat and the primary election, both of which will be decided at the end of the month. Nally sent Cartersville Patch a memo that Sullivan’s attorney submitted to the court clerk’s office, stating he would be out of the office until July 27.

According to a defense and answer document filed in Bartow County Superior Court, Sullivan’s attorney, Todd Hatcher, listed 11 defenses, including stating that the plaintiffs waited until June to challenge Sullivan’s appointment, which occurred in February.

“Moreover, ballots for the special election on July 30, 2012, have already been mailed out indicating that the defendant is the incumbent,” the document states. “It would be inequitable and cost the taxpayers of Bartow County unnecessary expense to re-issue the ballots and/or hold another special election.”

Hatcher declined to comment on the case because it is a pending legal matter.

If the civil case isn’t heard before the election, Nally said a criminal case would not be affected. He said Sullivan committed the offense of theft by taking when she was appointed to the seat because she took the seat, which Nally said belongs to the residents of her district.

“It was an unlawful taking,” Nally said. “If she unlawfully took the position, if others unlawfully gave her the position and deprived the citizens of Post 5 a fair, intangible right to vote, their property right, then it becomes a situation which fulfills the elements of the crime of theft. Now, do any of the judges here want us to be criminally prosecuting Anna, who is a very well thought of lady in her community? A very active lady in her community? The wife of a very respected doctor? Of course, they don’t. But, I’m not concerned with what judges want. I’m concerned with what the Grand Jury thinks in the matter.”

Although Nally said he planned to file a criminal complaint in federal court against Sullivan, a complaint sent to Cartersville Patch was related to an incident in which he claims he was escorted out of the Grand Jury room by four armed deputies when trying to testify and put him in a holding cell.

On Monday, he filed the complaint in U.S. District Court in Gainesville, listing the Bartow County School Board Attorney Boyd Pettit, Superior Court Judge Shephard Howell, Magistrate Judge Thomas Moseley and Sheriff Clark Millsap among the defendants.

At the end of the document is a criminal complaint filed against Pettit, who Nally claims advised the board to appoint Sullivan, which he said was illegal. According to the complaint, that “in turn, disposed of the right of the elective franchise of all the citizens of the Post 5 (Adairsville-Kingston) area.”

Although Nally tried to file a criminal complaint, a spokesman for the U.S. Attorney’s Office in Atlanta said that private individuals cannot file a criminal complaint with the clerk of court, as criminal complaints must be presented to and approved by a federal magistrate judge.  Otherwise, a criminal case must be considered first by a federal grand jury, which must vote to return an indictment before a criminal case begins, the spokesman said. 

On Nally’s complaint, the word “criminal” on the cover sheet had been crossed out and replaced with “civil”. The complaint was also given a civil case number.

“Individuals with information about a federal crime should contact the relevant federal investigative agency to provide this information or refer a matter for investigation,” the court’s spokesman said.