Judicial Notice (08.20.22): Florida Man

The Stop WOKE Act gets stopped, a big name leaves Gibson Dunn, and other legal news from the week that was.

Governor Ron DeSantis of Florida (photo by Jeff Swensen via Getty Images).

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Getting old: isn’t it the worst? Aside from dying, I guess.

This week I went to the gym to take a class I’ve taken countless times, and I threw out my back. Public service announcement: if you’ve spent the whole day in front of your computer, don’t jump into an exercise class without warming up or stretching first.

My injured state is part of why I’ve been less prolific than usual this week. When you’re not feeling great, it’s hard to summon up the energy to work. And August is not a motivation-filled month; many of my readers are on vacation (and if you’re one of them, I hope you’re enjoying the time away).

On the bright side, my back is already feeling much better. And taking it easy for a few days has given me lots of time to follow the legal news, to which I now turn.

Lawyer of the Week: Andrew Warren.

Speaking of getting old, Florida—a destination of choice for retirees fleeing colder climes—dominated the news this week. Let’s start with Lawyer of the Week: Andrew Warren, State Attorney for Hillsborough County (Tampa).

Or make that former Hillsborough County State Attorney. After Warren joined other progressive prosecutors around the country in signing a pledge declaring that he wouldn’t enforce “prohibitions on sex change operations for minors” and “any laws related to protecting the right to life”—like Florida’s 15-week abortion ban—Governor Ron DeSantis, a top contender for the 2024 Republican presidential nomination, suspended Warren. DeSantis cited the Florida state constitution’s provision allowing him to “suspend from office… any county officer, for malfeasance, misfeasance, [or] neglect of duty.”

On Wednesday, Warren fought back, suing DeSantis in the Northern District of Florida (Tallahassee). Represented by Shumaker Loop & Kendrick and Perkins Coie, Warren alleges in his 28-page complaint that his suspension was unconstitutional. Specifically, Warren argues that he enjoys the prosecutorial discretion to decide which cases to bring and that DeSantis suspended him not for any valid reason, but for exercising his First Amendment rights.

In the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the balance of power between state and local officials when it comes to enforcing state abortion laws is now a critical issue. Almost 100 other prosecutors signed the same pledge that Warren signed, and several of them work in states led by Republican governors. So watch Warren and his lawsuit, a bellwether for how this issue gets sorted out in other states across the country.

On the celebrity-justice front, Amber Heard has hired new lawyers to appeal the verdict against her in the defamation case brought by her ex-husband, Johnny Depp. She’s turning to David Axelrod and Jay Brown Ward of Ballard Spahr, a top defense-side firm for media and First Amendment litigation. One of the lawyers who represented Heard at trial, Ben Rottenborn, will continue to represent Heard as co-counsel, while Elaine Charlson Bredehoft is exiting the case.

In memoriam:

• Andrew Maloney, the former U.S. Attorney (E.D.N.Y.) who successfully prosecuted Mafia boss John Gotti, passed away at 90.

• John Eastman—no, not that John Eastman, but the high-profile entertainment lawyer who represented such boldface names as Paul McCartney, Billy Joel, and Willem de Kooning—passed away at 83.

• Sebastian Graber—who argued before the Supreme Court less than six years out of law school, winning a landmark free-speech case allowing protest on the public sidewalks around SCOTUS—passed away at 70.

May they rest in peace.

Judge of the Week: Justice Juan Manuel Merchan.

Florida made headlines this week, as did everyone’s favorite Florida Man, former president Donald Trump. His legal troubles continue—and he’s having a hard time finding counsel, since any defense lawyer worth their salt is just saying no. And you can’t blame them: one former Trump attorney, Rudy Giuliani, is now a target in the criminal investigation into election interference in Georgia.

Trump’s latest negative news: Allen Weisselberg, former chief financial officer of the Trump Organization, pleaded guilty to all 15 felonies charged by the Manhattan District Attorney’s Office. He admitted to participating in a long-running scheme to avoid paying taxes on valuable, off-the-book perks, and agreed to testify against the Trump Organization at the company’s trial in October (but not against Trump personally). He must pay almost $2 million in taxes, penalties, and interest, and he will likely receive a five-month prison sentence, of which he’s expected to serve 100 days.

The New York Times published a behind-the-scenes look at the negotiations that led to the plea deal, which shows the important role played by Acting Justice Juan Merchan of New York Supreme Court:

Justice Merchan, a former prosecutor who has been on the bench for more than a decade, offered a crucial piece of guidance to Mr. Weisselberg’s team: He said he did not think that white-collar criminals deserved to be spared prison time. And if Mr. Weisselberg was convicted, the judge warned that he would order him into custody that same day. The only way to avoid serving time behind bars, the judge indicated, was if Mr. Weisselberg cooperated and pleaded guilty.

This information helped Weisselberg’s lawyers, Nicholas Gravante Jr. and Mary Mulligan, convince their client that taking the plea agreement was in his best interest. Neither side got exactly what they wanted—Weisselberg isn’t avoiding prison, while Manhattan DA Alvin Bragg isn’t getting testimony from Weisselberg against Trump personally—but that’s often the hallmark of a fair and reasonable deal.

A quick update on last week’s Judge of the Week: as I mentioned on Twitter, Judge David Hurd (N.D.N.Y.) got (justifiably) called out by Latinos for a Fair Judiciary for trying to “rescind” his decision to take senior status. It’s not just inappropriate as a matter of judicial ethics, which was my issue; it also effectively nixes the nomination of Jorge Alberto Rodriguez, “a highly qualified [nominee] who would also make history as the first Latino judge” on the Northern District. It would be great if Judge Hurd would reconsider, but I’m not holding my breath.

Ruling of the Week: Honeyfund.com, Inc. v. DeSantis.

Returning to the Sunshine State, Governor DeSantis, and the First Amendment, Chief Judge Mark Walker (N.D. Fla.) dealt a setback to one of the governor’s signature initiatives, the “Stop WOKE Act.” This Florida law, aimed at combating “woke indoctrination,” tries to tell both private businesses and public-sector educators how they can talk about sensitive topics related to race and sex. (“WOKE” is an acronym for “Wrongs to Our Kids and Employees.”)

In a lawsuit brought by two Florida businesses, the online wedding registry Honeyfund.com and Ben & Jerry’s franchisee Primo Partners, Judge Walker ruled that provisions of the law telling private employers how to teach diversity and inclusion violate the First Amendment. Here’s the opening of the 44-page opinion, widely quoted because of the Stranger Things reference (which I personally think works, but you might disagree; pop-culture references in opinions can be polarizing):

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.

Judge Walker then invites readers to compare NetChoice, LLC v. Moody, which enjoined parts of Florida’s law forcing social-media companies to host speech that violates their standards, with the Stop WOKE Act. Judge Walker was absolutely right to point out the ridiculousness here—and to enjoin enforcement of the Stop WOKE Act’s employer-focused provisions.

A DeSantis spokesperson told the Washington Post that the state plans to appeal, but I wouldn’t bet on reversal; I agree with the law professors who opined to the New York Times that Judge Walker got it right. And the Eleventh Circuit is not the Fifth Circuit; compare how the two courts ruled on similar Florida and Texas social-media laws, with the Eleventh Circuit (correctly) finding Florida’s law unconstitutional.

Alas, Judge Walker’s ruling doesn’t cover the Stop WOKE Act’s provisions targeting educators, which I view as similarly unconstitutional (as explained by the Foundation for Individual Rights and Expression). But a lawsuit was recently filed challenging those provisions too, which I don’t expect to survive First Amendment scrutiny.

Other noteworthy rulings: