Prosecutor Suspended by DeSantis Loses Bid to Get Job Back (3)

A federal judge on Monday denied a motion to immediately reinstate a Florida prosecutor suspended by Gov. Ron DeSantis for pledging not to enforce the state’s abortion laws, allowing the case to proceed to trial.

The action followed a decision in Indiana to remove from an abortion case a prosecutor who, like his Florida counterpart, had declared in writing that he didn’t intend to press charges if that state’s new abortion law is violated.

In Florida, US District Judge Robert Hinkle denied Andrew Warren’s motion for a preliminary injunction. He also denied the state’s motion to dismiss Warren’s First Amendment claims, and granted the state’s motion to dismiss his state law claims.

“We look forward to a trial on the merits,” Warren said in a video posted to his Twitter account after Monday’s court hearing. “And, as the judge said, we especially look forward to the governor having to come into court—where facts and truth matter—and try to justify what he did.”

DeSantis’s spokeswoman, Taryn Fenske, said in an email that “we are pleased that the court denied Andrew Warren’s request for a preliminary injunction.”

“The Governor is entrusted by the people of Florida to utilize his constitutional powers and may suspend elected officials in Florida who refuse to enforce the law,” she wrote.

DeSantis (R) suspended the twice-elected prosecutor for Florida’s 13th Judicial Circuit in August, citing neglect of duty and incompetence.

Warren then sued, arguing the governor had overreached his authority and violated the prosecutor’s First Amendment rights. He asked the judge to order DeSantis to rescind the open-ended suspension and prohibit the governor from retaliating against him in the future.

Indiana Turf War

The Florida decision comes on the heels of an Indiana judge booting a prosecutor from a case challenging that state’s new near-total abortion ban.

Like Warren, Marion County Indiana Prosecutor Ryan Mears had signed the pledge to not bring criminal charges under abortion bans. Mears hired outside counsel to represent his office in the Indiana case, where his county is a defendant while he personally agrees with the plaintiffs.

Indiana Attorney General Todd Rokita (R) sought to consolidate the defense so his office could represent everyone and to deny the ability of Mears to muddy the waters.

Monroe County Circuit Court Special Judge Kelsey Blake Hanlon agreed with Rokita. “The Indiana Attorney General has the exclusive power to ‘defend all suits brought against state officers in their official relations,’” she said in her Friday order.

Hanlon held a Monday afternoon hearing in which abortion providers made their case for a preliminary injunction halting enforcement of the abortion law.

Indiana’s ban took effect last week. It makes abortion illegal except in cases of rape or incest within the first 10 weeks of pregnancy, in instances of a “lethal fetal anomaly,” or to prevent “any serious health risk” for pregnant patients, and comes with criminal and professional penalties for offending medical providers.

Plaintiffs represented by Indiana ACLU Legal Director Kenneth J. Falk argued that the rights to privacy and citizens’ control over their own bodies prevent the state from banning abortion. The state, represented by Solicitor General Thomas M. Fisher, argued that Indiana doesn’t have an explicit right to privacy in its Constitution, and the state has a legitimate interest in minimizing abortion to prevent the deaths of unborn children.

Florida law now bans abortions after 15 weeks, with some exceptions. Violators could face up to five years in prison. Physicians and other medical professionals could lose their licenses and face administrative fines of $10,000 for each violation.

The cases are Warren v. DeSantis, N.D. Fla., No. 4:22-cv-00302 and Planned Parenthood Great Northwest v. Members of the Med. Licensing Bd. of Idiana, Ind. Cir. Ct., No. 53C06-2208-PL-001756, order granting motion to strike 9/16/22.

To contact the reporters on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com; Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com

To contact the editor responsible for this story: Katherine Rizzo at krizzo@bgov.com