DeSantis high court majority: DeSantis can easily oust people's elected prosecutors

The seven-justice, all-Republican-appointee Florida Supreme Court, including five Ron DeSantis appointees, expanded DeSantis’s power to overturn the will of the voters.

On a 6-1 vote Thursday, the Florida Supreme Court gave its governor all-but-unfettered power to remove locally elected prosecutors — a power that could quickly render Floridians’ “freedom” to “vote” for a prosecutor a fiction unless federal courts step in.

It is not the first Florida Supreme Court case examining the governor’s power to restrict elected prosecutors. And yet, Thursday’s decision — in light of the weakness of Gov. Ron DeSantis’s order suspending Monique Worrell from office as the state attorney for Orange and Osceola counties — is stunning for both its scope and potential consequences.

The per curiam ruling — meaning, “for the court,” but also meaning, “not under any one justice’s name” — creates an almost insurmountable burden under the state’s Constitution — specifically, Article IV, section 7 — for any challenger in the future:

Our review is thus deferential in two respects: we limit ourselves to confirming that the governor has specified the applicable grounds for suspension under article IV, section 7; and, in reviewing the factual allegations in the suspension order, we ask only whether those allegations bear a reasonable relation to the asserted basis for the suspension.

It is a stark escalation of the line of cases and, ultimately, of the governor’s power.

The seven-justice court consisting of all Republican appointees, including five DeSantis appointees, expanded DeSantis’s power to overturn the will of the voters in an alarmingly brief, 11-page ruling that represented the view of five of the justices.

One DeSantis appointee to the court, Justice Renatha Francis, would have gone even further, not considering such challenges at all — viewing them through the lens (as questionably stated as it is in Francis’s opinion) of the political question doctrine.

Justice Charles Canady — one of the two Charlie Crist appointees (from when he was a Republican and governor of the state) — joined the per curiam opinion, along with the other four DeSantis appointees: Chief Justice Carlos G. Muñiz and Justices John Couriel, Jamie Grosshans, and Meredith Sasso.

Justice Jorge Labarga, the other Crist appointee, was the sole dissenting justice.

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As noted above, this was the latest in a series of moves eviscerating voters’ rights to elect their prosecutors in Florida.

Previously, then-Gov. Rick Scott and later DeSantis reassigned capital cases under the jurisdiction of Aramis Ayala, who was then the prosecutor for Orange and Osceola counties, which includes Orlando, after she said that she would not seek the death penalty. The Florida Supreme Court upheld that decision on a 5-2 vote in 2017.

At that time, then-Justice Barbara Pariente, joined by then-Justice Peggy Quince, wrote in dissent:

This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices' resources, free from interference by a Governor who disagrees with their decisions.

And yet, that was just the beginning.

Less than five years later, DeSantis went further, suspending Andrew Warren, the Hillsborough County prosecutor, because of “blanket” policies of non-prosecution — under which discretion remained — and broad policy statements that Warren made about abortion and transgender care, which neither addressed nor implicated any cases in his office.

Instead of initially challenging the August 2022 move in state court — for now-obvious reasons — Warren went to federal court, arguing, among other claims, that DeSantis’s move violated Warren’s First Amendment rights.

In January of this year, the U.S. Court of Appeals for the Eleventh Circuit gave substantial credence to Warren’s First Amendment retaliation claim, sending his case back to the district court for review under standards that strongly benefit Warren’s claim. And yet, the federal case is not over, and Warren’s ability to bring any state claim was deemed untimely by the Florida Supreme Court last year. (Meanwhile, Warren is running for the voters to return him to office in spite of DeSantis.)

A year after suspending Warren, DeSantis went further still in suspending Worrell — while the federal case was pending. Not even claiming there were blanket policies at issue, DeSantis instead based the suspension on, more or less, vibes. As I wrote at the time, “It is all about DeSantis claiming Worrell has implemented prosecution or non-prosecution ‘practices or policies’ that are not the practices or policies DeSantis prefers.”

The policies didn’t exist in a similar way to the circumstances with Warren, let alone Ayala, so DeSantis just added in “practices” to his order overturning the will of the voters with Worrell. As a result, this is what we got from DeSantis’s order — which literally shows that there were prosecutions coming from her office:

And yet, on Thursday, the Florida Supreme Court’s unsigned majority opinion described the order as including “specific allegations running to fifteen pages.” It then quickly concluded that was plenty enough for them to pass their “deferential in two respects” test:

The Executive Order passes this test. It “names the grounds for [Worrell’s] suspension—neglect of duty and incompetence—and provides various factual allegations that reasonably relate to those grounds of suspension.”

The decision there is quoting from its own earlier opinion upholding the suspension of the sheriff who oversaw the response to the 2018 mass shooting at Marjory Stoneman Douglas High School where 17 students were killed. On Thursday, the Florida Supreme Court replaced his name with hers, equating, if not the rationale for the suspension, at least the governor’s right to do so.

Notably, the sheriff’s suspension followed the release of, as the court detailed on that opinion’s first page, “the Marjory Stoneman Douglas Public Safety Commission Report.” The Worrell suspension, as detailed above, followed DeSantis not liking Worrell’s policy decisions, which voters elected her to implement and could voice their dissatisfaction by voting her out if they so chose.

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After Thursday’s ruling, voters still elect prosecutors in Florida. That is the law. But, under Thursday’s ruling, the governor is free to overturn that on a whim.

Unless the federal courts — or, ultimately, enough Floridians — push back on it, policy differences, if put down on paper and cited as examples of “neglect of duty” or “incompetence,” are now almost certainly sufficient reasons to toss out the will of the voters when it comes to Florida’s prosecutors (and any other elected officials not subject to impeachment).

It was left to Labarga, alone, to call out what the court was doing.

Because the bedrock of our democracy is the right to elect our public officials in fair and open elections, the suspension of a duly elected constitutional officer must be viewed as an enormous undertaking that requires clear justification. At the very least, the allegations must be confined to the specific grounds permitted by article IV, section 7(a), and the official in question should be apprised of the specific allegations giving rise to the suspension to ensure an opportunity to mount a meaningful defense.

Even that, though, was too much for the justices appointed by DeSantis, along with Canady, to require of DeSantis on Thursday.