Lawsuit seeks to restore election canceled by timing of Polk circuit judge's retirement

Two local lawyers are trying to stop what they consider a ploy by a retiring judge to have his successor chosen by Gov. Ron DeSantis rather than voters.

Steve Pincket and Renee M. Reid are plaintiffs in a lawsuit filed May 7 asking a court to reinstate an election in August for the position being vacated by Circuit Judge Wayne Durden of the 10^th Judicial Circuit. The suit names DeSantis and Florida Secretary of State Cord Byrd as defendants.

Pincket and Reid were among four lawyers who planned to run for the circuit judge seat.

“This is probably the most significant constitutional issue, as to the judiciary, that we've seen in the last 20 years,” Pincket said.

Nick James, a Jacksonville attorney, filed the suit on behalf of Pincket and Reid in the Second Judicial Circuit in Leon County because DeSantis and Byrd, Florida’s top election official, are the defendants.

The 13-page complaint asserts that Durden, 65, announced in February his plans to retire but two days later retracted that statement and said he would seek re-election. Durden then opened a campaign account for the Group 14 election and deposited a loan of $100,000, the complaint says.

In April, Lakeland lawyer Greg Abaray became the first of four candidates filing to run, followed by Lakeland lawyer John Waters, Pincket and Reid. The week before qualifying began on April 22, Durden reversed course, sending a letter to DeSantis stating that he planned to retire, effective Dec. 31.

“By resigning in this way, Judge Durden sought to convert what would have been a judicial election into what is now a judicial appointment,” the lawsuit states.

The complaint quotes from Durden’s letter to DeSantis as proof that he timed his retirement to prevent an election that would determine his successor.

“Therefore, I wish to announce my resignation/retirement effective at 11:59 p.m. on December 31, 2024, a few days prior to the end (of) my current term which ends on January 6, 2025,” Durden wrote. “In line with current legal authority, it is my understanding that your acceptance of my announcement of retirement prior to the election qualifying period next week will result in an appointment of a successor by you to my position, which is my hope and desire.”

'Political power reach'

The complaint says that allowing Durden’s successor to be appointed rather than elected would violate two sections of the Florida Constitution. The suit asks the court to order the Division of Elections to accept Pincket and Reid’s qualifying documents and list them as candidates for an election in Group 14.

Abaray has since switched races and is challenging incumbent Judge Catherine Combee in Group 27. Waters withdrew his candidacy.

The defendants have 20 days to respond to the suit, Pincket said. The case has been assigned to Circuit Judge J. Lee Marsh, who was appointed by former Gov. Rick Scott in 2018.

Tracy Skeen, director of community relations for the 10^th Judicial Circuit, said that Durden was unavailable to comment on the lawsuit. DeSantis’ office did not respond to an email sent Thursday morning seeking comment.

If DeSantis were to appoint a replacement for Durden, that judge would not face an election for two years.

Polk County judge State commission drops one charge in investigation of John Flynn

In an interview, Pincket said that trial judges throughout Florida have increasingly timed their retirements for the final days before their terms would end, allowing a governor to appoint a successor and depriving voters of the chance to elect a new judge.

Trial judges serve terms of six years, and appointments of replacements are appropriate if a judge resigns or retires during the first 5½ years, said Pincket, a Lakeland resident.

“This is a recent push to exercise more influence over the judiciary in that last half of the sixth year of office, that one-twelfth part, and it's a political power reach,” Pincket said. “And it's happening at the expense of, ‘Well, let's go cancel the people's election.’”

Courts in Florida have previously considered similar questions about judicial elections. The complaint cites two cases in which the Florida Supreme Court asserted that judicial openings should be filled through elections rather than appointments when possible.

A case from 2014 involved a Jacksonville lawyer seeking to run for a seat being vacated by a judge. The lawyer, David Trotti, filed qualifying papers, but the election was canceled after the judge announced he would resign near the end of his term. The Secretary of State’s Office informed Trotti that then-Gov. Rick Scott would appoint a replacement.

When Trotti sued, a Circuit Court ruled against him, and Florida’s First District Court of Appeal in Tallahassee upheld that ruling in a 2-1 decision. The court stated that any judicial vacancy, even one of just a single day, enabled the governor to appoint a replacement. The new lawsuit contends that this position contradicted an earlier Supreme Court opinion that appointments are appropriate only if a judge’s resignation would create an “unreasonable vacancy” in the office.

In the next election cycle after the Trotti ruling from 2014, several judges submitted resignations before the qualifying period but effective days before their terms would end, the complaint says. Faced with complaints from would-be candidates, the Florida Supreme Court denied the petitions on technical grounds, but four justices questioned the soundness of the Trotti decision, the lawsuit says.

A tradition of academic ascent From Mulberry's migrant community to Stanford and Cornell

The complaint quotes from an opinion written by Justice Fred Lewis: “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.”

Lewis is now retired and leads the Justice Teaching Center at Florida Southern College in Lakeland.

Pincket served as plaintiff in a similar suit in 2016 after Circuit Judge Olin Shinholser, based in Highlands County, submitted a delayed retirement, giving then-Gov. Scott the chance to appoint a replacement and quash an election.

Previous challenges failed

While earlier legal challenges have failed, the complaint says the current situation differs in two ways. In previous cases, each plaintiff was a sole candidate and would have gained office without election, whereas the potential Group 14 election initially had four candidates and still has two.

“Additionally this case is distinguishable, because the intent of the outgoing Judge is clearly to deprive the public of an election,” the complaint says. “Although past resignations have appeared politically motivated; never have the facts been so crystal clear where as no reasonable person could conclude that the outgoing judge was not acting with particular malice towards the electoral process.”

Pincket said that retirements or resignations in the final months of a judge’s term should be the exception but are becoming more of the norm. He said the integrity of the judiciary branch, which is supposed to be independent from the executive branch, is at stake.

Florida voters have signaled their preference for elections of trial judges over the years, Pincket said. In 2000, voters rejected a ballot measure that would have abolished judicial elections in favor of appointments.

While appellate judges and Supreme Court justices are appointed, Pincket said it is important that Florida’s approximately 900 circuit and county court judges be elected.

“Trial judges serve the voters; they serve the community they live in,” he said. “They will see the jurors come in. They will see victims of crime come into their courtroom. They will see their constituents enter for civil matters, divorce and custodies, and they’re to serve those people.”

Judicial elections take place during the primary round on Aug. 20. The plaintiffs have requested an expedited calendar date that would allow the election to be included on ballots printed for the election.

Pincket worked in private practice for 35 years and joined the Public Defender’s Office for the 10^th Judicial Circuit two months ago. Reid has worked in the Public Defender’s Office since 1999.

The 10th Judicial Circuit, based in Bartow, handles criminal and civil cases for Polk, Hardee and Highlands counties.

Former Gov. Charlie Crist appointed Durden, a longtime prosecutor, to the Circuit Court in 2010. He is currently assigned to felony cases.

Gary White can be reached at gary.white@theledger.com or 863-802-7518. Follow on X @garywhite13.

This article originally appeared on The Ledger: Suit: Retiring Polk judge's successor should be elected, not appointed