Retiring judge requests governor appoint successor in letter, attorney files suit seeking election

By Karen Kidd | Aug 11, 2016

LAKELAND – The attorney for a Lakeland man fighting for the chance run for judge on the 10th Judicial Circuit Court says he suspects the way that bench, and others, is being vacated amounts to election tampering and is unconstitutional.

"If the governor is telling seated judges how to write their letters of resignation so their seat can be appointed and bypass the election process, in my opinion that is election tampering," Nick James of James and Snider in Jacksonville said during a Florida Record telephone interview. "I would be interested to know if anyone, from a state attorney's perspective, is going to investigate that."

Neither the office of Gov. Rick Scott nor that of state Attorney General Pam Bondi responded to Florida Record requests for comment.

James represents Lakeland attorney Steve Pincket, who has been shut out of an election bid for retiring Judge Olin W. Shinholser's seat on the 10th Judicial Circuit for Hardee, Highlands and Polk counties because of the wording of that judge's letter of resignation.

The wording is similar to other letters of resignation sent to the governor's office by retiring judges in the 12th and 7th judicial circuits, according to court documents. It is the wording of those letters that is allowing the governor to appoint replacements in those vacancies, which normally would be decided by popular vote, a gubernatorial power upheld by the Florida Supreme Court in June.

James added that he is not aware that anyone is investigating how the retiring judges' letters of resignation came to be worded and that Pincket's own case is still moving forward. "So we don't have all the facts to support that," James said. "Not yet."

Shinholser told Highlands Today in February that his decision to retire was the result of a worrisome visit with a cardiologist in late January. Shinholser turned in his resignation to Gov. Scott the following April.

The governor's website page for circuit and county court vacancies presently lists 19 vacancies created by judges resigning, including Judge Shinholser's 10th Judicial Circuit seat. Of those, links to 10 of the judges' letters of resignation are included on the website. Shinholser's letter of resignation is not included.

Pincket was among three attorneys who filed to run for judicial seats, only to find those elections canceled because Gov. Scott had received post-dated letters of resignation from the retiring judges. In each case, the seated judge announced his decision to resign before the end of candidates' qualifying period but specifically said in their letters to the governor that their resignations would be effective at year's end, only days before the end of their judicial terms.

Under these circumstances and state law, their successors must be appointed by the governor, rather than elected by registered voters.

The other two attorneys who found themselves shut out of elections were Elizabeth M. Boyle and Michael H. Lambert, who wanted to run for the seats of retiring 12th Judicial Circuit Judge Scott Brownell and 7th Judicial Circuit Judge Joseph Will respectively. Boyle, a private attorney and wife of former Bradenton Police Chief Michael Radzilowski, filed in April to run for the 12th Judicial Circuit seat. Lambert, a criminal defense attorney with a practice in Daytona Beach, also filed within candidates' qualifying period for the 7th Judicial Circuit seat.

In May, all three attorneys asked the state Supreme Court to force Florida Secretary of State Ken Detzner to reinstate elections in the 7th, 10th and 12th judicial circuits. The following month, the Florida Supreme Court handed down its ruling upholding the governor's power to appoint replacements for the three circuit courts. While the vote was unanimous, four of the seven justices concurred in result only, stating in their opinions that existing case law does not reflect the spirit of the Florida's constitution.

“While I may even agree that the merit selection and retention of judges is far superior to the election of judges, the citizens of Florida clearly disagree,” Justice R. Fred Lewis wrote in his concurring opinion. “Thus, it is truly a sad day for Floridians when their trial court judges may manipulate the electoral process and prioritize their personal preferences over those espoused in the very Constitution they swore to defend.”

The opinion handed down in Pincket's case referred to Shinholser's letter of resignation.

"The trial judge has made his intentions clear - he prefers his vacancy to be filled by appointment rather than election," that opinion said. "As he stated in his letter of resignation: 'It is my belief based upon years of observation that the appointment process is superior to the election process in the judicial context.'"

"Although individual judges may prefer the merit selection system for all judges rather than contested elections, no individual judge should be able to circumvent the intent of the provisions of the Florida Constitution that state the election of county and circuit judges 'shall be preserved'.”

That is precisely what has happened in the 10th Judicial Circuit, James said.

"It would appear that someone told him [Shinholser] how to write his letter of resignation," he said.

Last month, Gov. Scott appointed 47-year-old assistant state attorney David V. Ward of Sebring to replace Shinholser, despite Pincket's ongoing litigation and motion for declaratory and injunctive relief file in Leon County Circuit Civil Court against the governor and secretary of state. The governor announced his appointment of Ward before the court could rule on that motion, James said.

"Unfortunately, the state has delayed this case as much as they can," he said.

A hearing is scheduled for Aug. 15, during which James said he plans to ask the court to consider his motion to expedite the case. It's no longer possible for the judicial seat to be decided in this month's election because ballots already have been printed, James said.

"We would have to have a special election in this case, and there is precedent for that," he said.

The bill for such a special election would be footed by taxpayers but James placed the fault for that firmly on Gov. Scott.

"That certainly will cost the taxpayers’ money and it is unfortunate that this is the path the governor has taken," he said.

That special election is more than just getting Pincket onto the 10th Judicial Circuit bench, James said.

"Mr. Pincket certainly wants the job," he said. "On that court or another, I think he would do a great job. But this isn't just about that. It's unconstitutional to take away the people's right to vote. We're fighting to get that back."

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