Lee County judge rules he will not stop Fort Myers Beach recall election

Lee County Circuit Court Judge Kyle Cohen denied today a request for an emergency stay on the recall election from Fort Myers Beach Councilmember Karen Woodson and said he would not stop the recall election for Woodson and Town of Fort Myers Beach Councilmember John King.

“I am not going to stay an election that is basically already proceeding,” Cohen said.

Cohen said he found no precedent or authority for a trial court to do what Woodson had requested through her attorney Morgan Bentley, to stay the results of the election rather than the election itself.

Last week, Woodson filed an appeal of Cohen’s decision which dismissed her lawsuit to stop the recall election of her seat. The motion filed by Woodson sought a stay in the Nov. 4 recall election from the trial court pending her appeal to an appellate court or an order allowing the recall election to proceed but for the results of the recall to be tallied but sealed and only released to her, former Fort Myers Beach Ray Murphy (who heads the committee to recall Woodson) and the Lee County Supervisor of Elections pending her appeal of Judge Kyle Cohen’s decision to an appellate court.

“Both elections are going forward,” said attorney Michael Pizzi, who is representing Murphy and former town councilman Bill Veach (who heads the committee to recall King). Pizzi said he believed Cohen’s decision to deny Woodson’s emergency stay on the election and his statement that he would not stay the election, means the recall election will go forward for both King and Woodson.

“People should go out and vote,” Pizzi said.

As of Thursday morning, 538 votes had been received by the Lee County Supervisor of Elections in the Town of Fort Myers Beach recall election. There are 3,375 eligible registered voters in the town.

Pizzi told the court Thursday there was no precedent for a trial court stopping an election in progress.

“I don’t think there is any precedent for a trial court to do that,” Pizzi said. “Telling people their vote is not going to count is almost as bad as canceling the election,” Pizzi said in court. “Telling voters their vote is not going to count is anti-democratic.”

Attorney Morgan Bentley, who is representing King and Woodson, said he was still seeking a decision and final judgement from the court on King’s motion to stop the recall election after Cohen ruled against a motion to dismiss King’s case.

Cohen said he had only ruled on the motion to dismiss and there had been no further requests other than the motion to stay from Woodson. Bentley said he believed a final judgement was still necessary since Cohen had found one of the three allegations in the recall petitions for King was not legally sufficient.

Cohen said he was awaiting language on a final judgement regarding his decision on King.

Pizzi said he will be appealing the ruling by Cohen regarding King. Cohen had ruled against dismissing the case brought by King to stop his recall election. Veach had filed a motion to reconsider, which was also denied by Cohen.

King said that based on Cohen’s ruling on the petitions, he doesn’t think the voting on Tuesday will impact his seat.

“I’m still operating under the fact the recall petition against me was found to be insufficient. Therefore, pending the outcome of their District Court appeal, the votes regarding me don’t matter Tuesday,” King said.

The recall election also has three candidates vying to fill the seats of King and Woodson. Tom Brady, Rebecca Link and Ed Rood are on the Nov. 4 ballot in a separate ballot question. If a majority of voters elect to recall King and Woodson, the top two vote-getters would gain their seats. If only one of the councilmembers is recalled, the top vote-getter would replace that councilmember on the town council.

The recall election is the first in Lee County in more than 70 years.

King and Woodson are facing a recall for their seats based on allegations they violated the Sunshine Law by allegedly working together to court another law firm to attempt to replace former Town Attorney John Herin Jr. They are both accused of accepting unreported gifts from entities seeking land use approvals from the town. Woodson is separately accused of speaking with Vice Mayor Jim Atterholt about the Fort Myers Beach Pier in violation of the Sunshine Law. King faces a separate allegation of acting to influence the termination of multiple town contract employees. Cohen found that latter charge against King regarding town employees to be legally insufficient due to its vagueness. Cohen ruled that the recall petition should have named which employees had been subjected to King’s actions.

King and Woodson have denied all of the allegations against them.

“The motion from Karen was another blatant, taxpayer-funded attempt to avoid the voters,” Veach said. “Part of the motion was to allow the election, but seal the results from everyone but Karen and Ray. The judge refused the motion to stay the election, so the election goes forward as the ballots are printed.”

Veach said “this entire recall process is intended to put the power into the hands of the voters. The recall committees do not, and can not, take away their council seats. That power rests with the voters.”

The lawsuits by King and Woodson to stop the recall election are being funded by Fort Myers Beach taxpayers after the Town of Fort Myers Beach Council voted earlier this year to approve reimbursing them for any “reasonable attorney fees” to defend themselves against the recall. Those attorney fees have exceeded $20,000 according to town records.

In-person voting for the Fort Myers Beach recall election will take place Tuesday, Nov. 4 at the Fort Myers Beach Bay Oaks Recreational Center at 2731 Oak Street. Polls will be open from 7 a.m. to 7 p.m. Vote-by-mail dropoff ballots can be delivered to any Lee County Supervisor of Elections branch office before Election Day.

On Election Day, vote-by mail ballots can be dropped off at the Bonita Springs Branch Office at 25987 S Tamiami Trail, #105, the Lee County Elections Center at 13180 S Cleveland Avenue in Fort Myers or the main office of the Lee County Supervisor of Elections at the Melvin Morgan Constitutional Complex, 2480 Thompson Street, 3rd Floor, in Fort Myers.