Legacy Candidate Scott Andringa Running to Succeed Father as County Court Judge
By Spartacus Thrace
R. Scott Andringa is already running for county court judge, even though the 2012 election is almost two years away. He is running for the seat currently occupied by his father.
Among the elected officials in Pinellas County up for election in 2012 is Judge of the County Court, Group 2, a seat currently occupied by Henry J. “Hank” Andringa, who is expected to retire in 2012. Until now, there has been considerable speculation as to who might run for this seat when it becomes vacant. That speculation ended December 13, 2010 when, with little fanfare, Andringa’s son, Attorney R. Scott Andringa, announced that he has entered the race to succeed his father when the next election is held, on November 6, 2012.
Robert Scott Andringa is a 1986 graduate of St. Petersburg High School, a 1990 graduate of Florida State University, and a 1992 graduate of Stetson Law School. He was admitted to the practice of law in Florida in 1993. He has worked as a prosecutor from 1993 to 2004 for the 6th Judicial Circuit in New Port Richey and from 2004 to 2006 in the 16th Judicial Circuit in Plantation Key. He is a solo practitioner doing business in Largo, Florida as R. Scott Andringa, Esquire, LLC, and Suncoast Arbitration & Mediation, Inc., handling administrative, civil, and criminal cases. He has been admitted to practice by The Florida Bar, the U.S. Middle District of Florida, the U.S. Court of Appeals for the 11th Circuit, and the U.S. Supreme Court. He also is a Florida Supreme Court-certified mediator in Circuit Civil, County, Family and Foreclosure cases.
In addition to being a member of The Florida Bar, Andringa is a member of the Clearwater Bar Association, the St. Petersburg Bar Association, the West Pasco Bar Association, the Tampa Chapter of the Federal Bar Association, the Pinellas County Trial Lawyers Association, the Barney Masterson Inn of Court, the Herbert Goldberg Criminal Law Inn of Court, and the Florida Association of Criminal Defense Lawyers. Andringa has an Avvo rating of 7.1 out of 10, equating to “very good.” He has not been rated by Martindale-Hubbell. The Better Business Bureau rates his law practice as “A.” He is not board-certified in any practice area.
Cancer has shaped Andringa’s life. His birth mother, Catherine Andringa, died on February 19, 1987 of the disease at age 42. He is a bona fide “cancer survivor” after having had a tumor removed from his shoulder some years ago. Andringa and Cheryl Ryder founded the Mom Foundation, Inc. to honor the memories of her mother (Linda Ryder) and his by providing health, comfort and encouragement to mothers suffering from cancer, to increase awareness of cancer affecting mothers, and to raise money for research into the causes, treatment and cure of cancers affecting mothers. Andringa has been a speaker at cancer fundraisers.
Andringa is known to have been married at least once. In April, 2000, Andringa, then 31 years of age, married Anna Michelle Gavlinski, age 22, whom he had met when she was a waitress at Hooters. On January 17, 2007 Andringa filed a petition in the Circuit Court in Pinellas County (UCN 522007DR000596XXFDFD) to divorce Gavlinski, and on April 13 of that year a final judgement of divorce was entered.
Andringa has a campaign website. He is on Twitter and as of December 25, 2010 had six followers. The Facebook page for his law practice, which appears to have been created in the first half of June, 2010, had only seven “likes” as of December 25, 2010 and no reviews. Sometime after July 20, 2010, Andringa created a blog, The Awful Truth, to promote his practice and, presumably, his judicial candidacy. He also is on LinkedIn.
Andringa’s actions as a trial attorney have also sparked controversy in some instances, none more so than in a case he tried while a prosecutor in Pasco County involving a defendant named Richard Paey.
The Case of Richard Paey
R. Scott Andringa will be explaining his actions in the Richard Paey case for the rest of his life.
Paey was a parapalegic with multiple sclerosis, who had an immense dependency on pain-killers and no prior criminal history. In order to obtain these painkillers in the quantities he felt he needed, Paey began to forge doctors’ prescriptions and fill these prescriptions at local pharmacies, and he got caught. Andringa prosecuted him for it.
One of the most important attributes of an effective prosecutor is the ability to exercise good judgment and self-restraint, and not over-charge a criminal defendant. Not over-charging a defendant is consistent with principles of using the minimum state force necessary to achieve a lawful objective and being frugal with the taxpayers’ money. This requires both maturity and a strong moral compass on the part of the prosecuting attorney. Filing unnecessarily high charges is an abuse of prosecutorial discretion that can cause unwarranted misery and suffering. This is not to say that prosecutors should never be thorough in their attempts to hold accused criminals responsible for their crimes, just that they should always operate within reasonable limits.
The ordinarily practice among prosecutors in Florida is to charge a person who passes forged prescriptions with Uttering a Forged Instrument (Sec. 831.02, F.S.), Obtaining a Controlled Substance by Fraud (Sec. 893.13(7)(a)9., F.S.), and/or simple Possession of a Controlled Substance (Sec. 893.13, F.S), all low-level third-degree felonies, and to seek a sentence that encompasses drug treatment if the defendant has either no prior criminal record or a minor one.
Florida also has a drug trafficking statute, Sec. 893.135, F.S., some of the provisions of which permit prosecutors to charge a defendant with drug trafficking on the basis of mere knowing possession of certain minimum quantities of specified controlled substances, and to require the court to impose certain minimum mandatory prison sentences and fines upon conviction for such possession, without having the burden of proving that the defendant attempted to put such controlled substances in commerce, or even contemplated doing so. In most cases prosecutors rely on this feature of the law to prosecute drug dealers who they know from the evidence, but cannot prove in court beyond a reasonable doubt, are engaged in drug commerce.
The drug trafficking minimum mandatories are be severe: All drug trafficking charges are first-degree felonies carrying a statutory maximum prison sentence of thirty (30) years. In the case of oxycodone, for a relevant example, possession of more than 4 grams but less than 14 grams carries a 3-year minimum mandatory prison sentence and a mandatory fine of $50,000; possession of more than 14 grams but less than 28 grams carries minimum mandatories of 15 years and $100,000; and for more than 28 grams the minimum mandatories are 25 years and $500,000. These minimum mandatories cannot be reduced or set aside by the sentencing judge, and must be imposed unless the prosecutor waives their imposition. This means that it is possible for a person who passes a single forged prescription to obtain a trafficking amount of a controlled substance, and therefore to be subject to being charged under the drug trafficking statute and its minimum mandatory sentencing provisions, over which the sentencing judge has no discretion.
While law enforcement officers will often arrest a person under the trafficking statute when that person is caught in possession of a trafficking amount of painkillers (in order to secure a high bond, increase the chances that the arrested will cooperate with the police investigation, and for other law enforcement purposes), it is in fact extremely rare for a prosecutor to formally charge that person with drug trafficking in the absence of clear evidence that the person caught was engaged, or intended to be engaged, in a commercial exchange of those drugs with another person. In Paey’s case, however, he was prosecuted for drug trafficking because, in the absence of any evidence that Paey was providing any of the drugs to others, Andringa believed that he was.
Two years after his arrest, and before he went to trial, Andringa and his prosecution colleagues offered Paey a plea bargain: If Paey would plead guilty to attempted trafficking, he would receive 3 years of community control followed by 5 years of probation. Paey, asserting his innocence and fearing that he would be sent to prison if he violated supervision, refused. What followed were three trials, the first ending in a mistrial on February 7, 2002, the second in a conviction that the judge threw out because of a procedural error on August 30, 2002, and the third in a conviction on March 4, 2004 after the jury foreman told his fellow jurors that the most Paey would get on conviction would be probation.
The facts, as summarized by Judge Douglas A. Wallace, writing for the two-judge majority in Paey v. State, 943 So. 2d 919 (Fla. Dist. Ct. App. 2d Dist. 2006), were as follows:
Shortly before his graduation from law school in 1985, Mr. Paey was involved in a calamitous automobile accident. As a result of the automobile accident and subsequent failed back surgeries, Mr. Paey suffers from severe and unremitting back pain. In 1990, Dr. Stephen Nurkiewicz began treating Mr. Paey in New Jersey, where the Paey family then lived. Dr. Nurkiewicz prescribed oxycodone (Percocet), hydrocodone (Lortab), and diazepam (Valium) for Mr. Paey to treat his chronic back pain. At the end of 1994, the Paey family moved to Pasco County, Florida. However, Dr. Nurkiewicz continued to act as Mr. Paey’s treating physician, and Mr. Paey returned to New Jersey on several occasions for office visits. On December 26, 1996, Dr. Nurkiewicz treated Mr. Paey for the last time. During this last office visit, Dr. Nurkiewicz gave Mr. Paey a prescription for oxycodone and a prescription for hydrocodone to be used in January 1997.
In 1997, Deputy Sheriff Bobby Joe Wright of the Pasco County Sheriff’s Office investigated an allegation of drug trafficking involving Mr. Paey. Deputy Wright had been contacted by a local pharmacist who was concerned that Mr. Paey was abusing prescription drugs. On February 24, 1997, Deputy Wright observed Mr. Paey fill a prescription for 100 pills of oxycodone at the pharmacy where the pharmacist who had contacted the deputy was employed. On March 5, 1997, Deputy Wright interviewed Dr. Nurkiewicz in New Jersey concerning how frequently he prescribed medications to Mr. Paey. Dr. Nurkiewicz denied issuing, writing, authorizing, or signing prescriptions for Mr. Paey after Mr. Paey’s last office visit. Afterwards, Deputy Wright obtained and executed a search warrant for Mr. Paey’s home. The search resulted in the seizure of the following items: miscellaneous pieces of paper cut into the size of prescription forms; blank prescription forms with Dr. Nurkiewicz’s name and address at the top; three prescription bottles; and an address book containing Dr. Nurkiewicz’s name, phone number, and Drug Enforcement Administration (DEA) number.
At trial, the State presented the testimony of six pharmacists from three different pharmacies. The testimony of these pharmacists established very substantial prescription activity by Mr. Paey during February and March 1997. On February 5, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone, a prescription for 100 pills of hydrocodone, and a prescription for 80 pills of diazepam. On February 7, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 80 pills of diazepam. On February 20, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 100 pills of hydrocodone. On February 24, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone. On February 27, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone, a prescription for 100 pills of hydrocodone, and a prescription for 80 pills of diazepam. On March 6, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 80 pills of diazepam. On March 10, 1997, Mr. Paey filled a prescription for 100 pills of oxycodone and a prescription for 100 pills of hydrocodone. To summarize, Mr. Paey filled prescriptions for 700 oxycodone pills, 400 hydrocodone pills, and 320 diazepam pills over the course of thirty-four days. Dr. Nurkiewicz, the State’s key witness, testified that he did not write any of these prescriptions.
A jury found Mr. Paey guilty of seven counts of trafficking in oxycodone, four counts of possession of hydrocodone, and four counts of obtaining or attempting to obtain a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. The trial court sentenced Mr. Paey to a twenty-five-year mandatory minimum prison sentence for each trafficking count in accordance with section 893.135(1)(c)(1)(c), Florida Statutes (Supp.1996). For each possession count and obtaining by fraud count, the trial court sentenced Mr. Paey to imprisonment for one year and one day. The trial court designated all of the sentences to be served concurrently.
Paey’s appellate attorney, John P. Flannery, argued that the sentence was cruel and unusual, and he called Andringa a “one-man prosecutorial misconduct machine.” The Second District Court of Appeal upheld the 25-year minimum mandatory sentence on legal grounds and Associate Judge James H. Seals wrote a scathing dissent, which stated in relevant part:
The language of Florida’s anti-drug trafficking statute is broad. It creates an expansive net designed to capture offenders even before the product gets to the streets. The upside of this broadly written statute is an anti-drug trafficking law that affords law enforcement optimal opportunity and capability for early interdiction-another logical public safety principle. The downside is the potential for law enforcement and prosecutors to expand the crime far beyond the limits of its logic and to use it irresponsibly, foolishly, recklessly, or even vindictively. The result might well be convictions and sentences that go beyond the bounds of decency, probity, and fair play-perhaps even into the realm of cruel and unusual. . . . The case here, plainly and simply, is about obtaining controlled substances by forgery and fraud. Nevertheless, the State Attorney’s Office of the Sixth Judicial Circuit elected to stretch Florida’s highly elastic anti-drug trafficking statute and elevated a third-degree felony, punishable by no more than five years of incarceration or probation, or some combination of the two, into a first-degree felony punishable by a minimum mandatory prison term of twenty-five years. Although this was Mr. Paey’s first conviction of any kind, the prosecution sought to have the court impose one of the heaviest nondeath penalties under state law instead of a penalty which could have (and should have) focused on supervision and treatment. . . . The State’s trial strategy was to concentrate solely on the possession element of drug trafficking. Its opening statement and closing argument concentrated solely on proving possession. No effort was made to prove by circumstantial evidence that Mr. Paey was either placing, attempting to place, or intending to place any of these pills into the underground stream of commerce. If the law had required the State to raise a reasonable hypothesis consistent with what the term trafficking connotes and implies, it could not have done so. The only reasonable hypothesis to be drawn from Mr. Paey’s possession of controlled substances were medical need (offered by the defense) and addiction (suggested by the prosecution). By avoiding efforts to prove Mr. Paey was actually involved in the manufacture, sale, or distribution of drugs-or that he was actually attempting or even intending to do same-one must conclude that the State had no proof. Nevertheless, the jury, not knowing what the penalties for the various charges would be [emphasis added], was able to find that the State met its burden of proof on all the elements of the crime of trafficking by possession. . . . When a sly and cunning attorney uses the unintended literal letter of the law to evade the just and transcending spirit and purposes of the law, we disapprovingly say the attorney has found a “loophole” in the law. We say the litigant has deliberately chosen to resort to the means of a hyper-rigid application of a law or rule-a “technicality,” if you will-to achieve self-serving ends reasonable people would characterize as a miscarriage of justice. The State, and ultimately the people of Florida, is the frequent victim of loopholes and legal technicalities, and we are outraged because justice is mocked and the law is made to look like an ass. Should the public think any differently when its own government and its own attorneys turn the table and evade a rule of law to the prejudice and detriment of one of its own constituents? Should not government be above that sort of thing?
The fallout from the Paey sentence was immediate, bruising, and persistent, and the case remains one of the worst blemishes on the Office of the State Attorney for the Sixth Judicial Circuit. The CBS show “60 Minutes” did an exposé of the case in which Andringa fared poorly, insisting as he did that a “reasonable inference” from the evidence was that Paey was selling the pills, even though no evidence was introduced by Andringa to prove that assertion. The New York Times, Nightline, and other national and international media outlets ran other stories critical of Andringa, the sentence, minimum mandatory sentencing, and prosecutors in general. Andringa angered activists opposed to minimum mandatory sentencing in drug cases, who saw his actions as those of an out-of-control prosecutor seeking punishment well out of proportion with the crimes Paey committed, as well as prosecutors and others in favor of minimum mandatory sentencing, who saw his actions as recklessly discrediting the use of minimum mandatory sentencing schemes.
Paey’s appeal having failed, Flannery filed a petition for clemency on Paey’s behalf, with a supporting memorandum excoriating Andringa, although not naming him directly, for his “vengeful rant” against Paey and for several other acts of prosecutorial misconduct during the trial. Sanity finally prevailed on September 20, 2007, when Governor Charlie Crist and a unanimous Cabinet voted to grant Paey a full pardon, after which the Governor ordered Paey’s immediate release.
Despite the storm, Andringa could see nothing wrong with what he had done and remained “proud” of his accomplishment. Although he acknowledged that the seven 25-year minimum mandatory sentences were “harsh,” he blamed Paey for refusing to accept a plea bargain that would have kept him out of prison. A few weeks after the last trial he explained his reasoning to Eric Snider of the Weekly Planet as follows:
As a trial lawyer, normally you charge the highest crime that you can prove. If it goes to trial, you might as well lean on that. Then there’s [the option] to plead the case out. I understand someone wanting to have their day in court. But they have to accept that with that there’s a risk, and in the case of Richard Paey it was a 25-year mandatory minimum, which he knowingly and willingly accepted.
While I have sympathy for him, the system did what it does. Everyone did their job. We made a decision based on laws passed by the Legislature and signed by the governor. We made the right filing decision as evidenced by the jury’s verdict. I don’t see this as an issue of whether our office did the right thing. I have no personal or professional regret about what we’ve done in this case.
John Tierney, who interviewed Andringa for a 2006 New York Times article, found Andringa scary, and thought that Andringa’s judgment was “warped.” Perhaps Tierney hit the nail on the head: If a prosecutor thinks that a minimum mandatory sentence is too harsh considering the offense, the defendant, and the circumstances of the crime, that prosecutor should waive the minimum mandatory as being the right thing to do, even after trial. That, however, requires a certain degree of maturity and good judgment that appears to have been lacking in the prosecution of this case.
Name Recognition, Endorsements and Ballot Position
Andringa’s campaign strategy appears to be that of getting into the race as early as possible to discourage others from seeking the same seat. This may work to keep some potential competitors away, but it is unlikely to keep all of them away. It also places him in the disadvantageous position of peaking too early and becoming old news, and it permits his opponents time to conduct all of the opposition research they need to before opening their own campaigns for the same seat.
Seeking the seat being vacated by his father is a smart decision, but it does not guarantee his victory. Name recognition will give Andringa an initial advantage with the voters, and he is likely to inherit his father’s political connections and fund-raising capabilities, but this advantage will not be an overwhelming one. For one thing, Judge Henry Andringa is not a well-known public figure, although one might now expect him to try to get his name in the media more often in order to elevate its recognizability. For another, judicial seats are not heirlooms and the seat he is seeking is not viewed by the voting public as “the Andringa seat.” He could, in fact, invite have a problem if significant numbers of voters perceive a sense on his part of hereditary entitlement to the seat. Coupled with this, Andringa the Younger tends to show his anger or frustration under pressure, and additional problems could arise from that source.
The year 2012 is a presidential election year, which means a larger-than-average voter turnout. Andringa, however, has no appreciable ties to any political party or organization and so it is unlikely that he will garner support from members of the local branches of either the Democrat or Republican parties or gain any measurable advantage from their respective get-out-the-vote (GOTV) efforts. This could place him at a disadvantage against a more politically-connected candidate, but that advantage can be overcome through hard work and good organization.
As of the end of December, Andringa lists no political endorsements of his candidacy on his campaign website, and the website itself has the feel of a one-man show. This is likely to change considerably as time goes on, but it cannot be assumed that political endorsements will come easy to him, notwithstanding his family’s political connections. This is primarily because Andringa is, by and large, just another average attorney, and most of the people who will be giving out judicial campaign endorsements will want to wait to see who else will be in the race before making their commitments.
Among the endorsements that can matter in this race will be that of the St. Petersburg Times, although it is probably unlikely that its editorial board will support a candidate with Andringa’s history and character. Other endorsements that can matter will be those of the police, fire, and teachers unions, but those organizations are likely to hold off issuing endorsements until mid-2012 at the earliest. The same can be said for the endorsements of prominent elected political figures. All of this means that the public endorsement feature of any 2012 judicial campaign is up for grabs and will be so for a very long time.
Another difficulty facing Andringa is that he is not popular among his peers: Some of those who have dealt with him in court have found him to be as sly as Judge Seals found him to be in the Paey case, and lacking to one degree or another in maturity, insight, and judgment. None of this, however, disqualifies him from becoming a county court judge, but it does mean that peer support will be slow in coming and that he will have to work very hard on his image between now and Election Day.
What may in the end prove to be Andringa’s greatest advantage is the accident of birth by which his last name begins with the first letter of the alphabet, almost guaranteeing him a position at the top of any list of candidates he is running against, which will be worth some percentage of votes in his favor. This will not guarantee him victory, however, as ballot position can be offset by hard work and smart campaigning.
With his early entrance into the race, Andringa has given himself a psychological advantage over anyone else who might be thinking about succeeding Andringa’s father as county court judge. At the same time, he also has set himself and his campaign up for the sort of in-depth scrutiny that few judicial candidates ever receive. Prospective opposing candidates now have the luxury of time to assess his and their chances of success in this race, and to plan accordingly. It also gives those across the nation who did not like what he did in the Paey case time to mobilize against him, although the true strength of that opposition remains to be seen. In any event, everything that Andringa says and does from now until Election Day will be viewed through the prism of judicial campaign politics. That could make for more controversy and, for Andringa, a rough road to November 2012.
Reactions to this post include the following:
Mark Draughn, Prosecutor Scott Andringa Tried to Put a Parapalegic Man in Prison for 25 Years for Having Too Many Pain Pills, Windypundit, December 30, 2010.
Radley Balko, Scott Andringa for Judge? Reason Online, January 3, 2011.