Ohio Attorney General Dave Yost filed an amicus brief on Wednesday with the United States Court of Appeals for the 11th Circuit urging it to affirm states’ authority to remove local prosecutors who refuse to put the law ahead of their personal politics.
Yost claimed in a news release that states have a right to defend their constitutions against local prosecutors who, by pledging not to enforce laws they dislike, essentially wield veto power over lawfully enacted legislation.
“Prosecutors have no right to exercise a veto over an entire law. But some are acting as though they do – and they are breaking our system of government. The political preferences of a single prosecutor cannot be allowed to override a lawfully enacted statute,” Yost said.
Yost filed the brief in a case concerning Florida Governor Ron DeSantis‘ removal of a Democratic prosecutor from Tampa. DeSantis removed Andrew Warren, the state attorney for Hillsborough County, from his position in August after making commitments, one of which was to refrain from charging abortion cases as felonies in violation of Florida law. According to DeSantis, Warren’s termination resulted from “neglect of duty” as a prosecutor.
Last summer, Ohio Democrats Michael O’Malley, the prosecutor for Cuyahoga County, and Zach Klein, the city attorney of Columbus, signed a commitment that Warren signed pledging not to use their offices’ resources to enforce abortion bans.
Ohio’s Heart Beat Law prohibits abortion if an unborn baby has a detectable heartbeat or is around six weeks into a pregnancy. It is a fifth-degree felony punishable by up to one year in prison for law violations. The law is currently on hold while Democrats challenge it in court.
According to Klein, although his office does not handle felony cases, the City of Columbus will continue to use its prosecutorial discretion to put the safety and security of Columbus residents first by targeting violent crime, domestic violence, and “other serious crimes that threaten public safety far more than any personal healthcare decision ever would.”
Warren lost a federal lawsuit to get reinstated as Hillsborough County’s state attorney in January, claiming that DeSantis violated his First Amendment right to freedom of speech while also saying his pledges did not represent the prosecutorial policy of his office.
Warren said that he will challenge the lower court’s decision that dismissed his claim that the suspension violated the First Amendment.
The brief, co-signed by 15 other state attorney generals, encourages the appeals court to reject Warren’s claim of a First Amendment violation and says that an appeals court ruling would hinder states’ ability to protect their constitutional systems from wholesale prosecutorial abuse.
“The official punishes the misconduct the speech proves, not the prosecutor’s speech itself. Government employees do not have a First Amendment right not to enforce the law,” The brief says.
Specifically, the brief claims that the First Amendment free-speech clause doesn’t limit states’ ability to remove prosecutors who refuse to do their jobs.
“A world in which each prosecutor is free to ignore the law in favor of his or her own individual sense of what the law ought to be is a world where what will get you arrested depends on who’s in office – a government of individual prejudices, not a government of laws,” Yost said.
The co-signers on the brief sent Wednesday were the attorneys general from Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah, and West Virginia.
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Hannah Poling is a lead reporter at The Ohio Star and The Star News Network. Follow Hannah on Twitter @HannahPoling1. Email tips to [email protected]
Photo “Dave Yost” by Dave Yost.
