Andrew Warren takes his job fight to the Florida Supreme Court

By Dara Kam ©2023 The News Service of Florida

TALLAHASSEE — Suspended Hillsborough County State Attorney Andrew Warren has asked the Florida Supreme Court to order Gov. Ron DeSantis to reinstate the prosecutor, arguing the governor “exceeded his powers” by ousting the twice-elected Democrat last year.

A petition filed Wednesday at the Supreme Court is the latest salvo in Warren’s attempt to get his job back after DeSantis issued the suspension Aug. 4 and accused the prosecutor of “incompetence” and “neglect of duty.”

Warren filed a federal lawsuit challenging his ouster, and U.S. District Judge Robert Hinkle last month ruled that the suspension violated the Florida Constitution and the U.S. Constitution. But Hinkle said he lacked the authority to reinstate the prosecutor. Warren on Tuesday notified the court that he intends to appeal the decision.

Wednesday’s petition, quoting liberally from Hinkle’s Jan. 20 decision, urged justices to find that DeSantis overstepped his authority and to order the governor to reinstate the state attorney, who was first elected in 2016 and re-elected in 2020.

“This (Supreme) Court’s final determination that the governor exceeded his power under Florida’s Constitution by issuing the executive order is necessary for the proper function of Florida’s government both now and in the future,” Warren’s lawyers wrote.

Hinkle’s ruling blasted DeSantis and his aides for failing to conduct a thorough investigation before ousting Warren.

“The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close … The record includes not a hint of misconduct by Mr. Warren,” Hinkle wrote.

Warren’s lawyers argued that the state Supreme Court should heed the federal judge’s findings.

“In sum, the governor used his solemn power under the Florida Constitution to suspend another elected official indefinitely from his elected office based on allegations of neglect of duty and incompetence that were never true and now have been conclusively proven false,” Warren’s lawyers wrote.

In an executive order suspending Warren, DeSantis pointed to a letter the prosecutor signed pledging to avoid enforcing a new law preventing abortions after 15 weeks of pregnancy.

Also, the governor targeted a statement Warren joined condemning the criminalization of transgender people and gender-affirming care. In addition, DeSantis cited Warren policies that could limit prosecution of cases related to bicycle and pedestrian stops by police and certain low-level offenses.

But Warren’s lawyers argued that DeSantis’ order “relies on proven falsehoods” and “fails to identify any duty that was neglected or any condition rendering Mr. Warren incompetent, within the meaning of the Florida Constitution.”

“The executive order merely takes issue with Mr. Warren’s policy choices and political views and speech, which are impermissible bases for suspension,” the lawyers wrote, adding that the order “further violates Florida law because it encroaches upon powers that belong exclusively to the people or to other branches of Florida’s government.”

Hinkle’s ruling found that DeSantis didn’t meet the Florida Constitution’s threshold for a suspension, but as a federal judge, he couldn’t do anything about it.

“These other factors could not properly be the basis for a suspension under the Florida Constitution — there were no blanket nonprosecution policies, no neglect of duty, and no incompetence — but … relief cannot be awarded in this federal action based solely on a violation of state law. And of critical importance: a violation of state law is not, without more, a violation of the United States Constitution,” the judge wrote.

Wednesday’s petition noted that Hinkle’s ruling said DeSantis “could easily set it right” by reinstating the prosecutor. But the governor ignored a Warren request to reverse the suspension.

Warren is seeking a “writ of quo warranto,” which means that the governor overstepped his authority, or, alternatively, a “writ of mandamus” ordering DeSantis to reinstate the prosecutor.

But Warren could face an uphill battle at the Supreme Court, where the Republican governor appointed four justices to join two conservative-leaning justices to form a solid majority.

The state court also has shown reluctance to overturn DeSantis suspensions.

Justices in 2019 unanimously refused to reinstate former Okaloosa County Superintendent of Schools Mary Beth Jackson and former Broward County Sheriff Scott Israel after DeSantis stripped them of their posts.

The court has a “limited role in reviewing the exercise of the suspension power,” which the Constitution “commits to the governor and which inherently involves ‘judgment and discretion,’” the justices ruled in Jackson’s appeal.

“As the lead attorney defending Governor DeSantis’ authority to suspend both Mary Beth Jackson & Scott Israel in front of FLSC (Florida Supreme Court), I can say with high confidence this political stunt will be met with the same fate: suspension upheld as constitutional, FL Senate is the ultimate court,” Nick Primrose, a former deputy general counsel for DeSantis, said in a Twitter post Thursday.

The Florida Senate has authority to remove suspended officials from office.

Warren’s lawyers, meanwhile, argued the prosecutor “was elected and re-elected after making and keeping numerous promises to voters about how he would perform his duties,” setting forth “a vision for his office that began with criminal justice reform, including focusing on long-term safety by balancing punishment, prevention, treatment, and rehabilitation.”

They acknowledged that Warren repeatedly spoke out on “matters of public importance” throughout his tenure and signed onto the joint statements about transgender health care and abortion.

“At no time while in office, though, has Mr. Warren had any policy, written or otherwise, of his office that applied specifically to cases involving abortion or transgender rights. Nor has Mr. Warren ever been referred a case for prosecution involving an abortion- or transgender-rights-related crime,” his lawyers argued.

The suspension came after DeSantis asked adviser Larry Keefe, a former United States attorney who is known as the state’s “public safety czar,” if any state attorneys weren’t following laws.

Testifying during a November trial in Warren’s case, Keeve said he launched an “ad hoc” inquiry by speaking to some law-enforcement officials and found that “all roads were consistently leading to Mr. Warren.”

Warren’s lawyers on Wednesday highlighted Hinkle’s condemnation of Keefe’s cursory probe.

“The sole purpose of their minimal research about Mr. Warren was to dig up ‘a pretext’ that could be used to ‘justify a decision already in the works on other grounds’ that the governor knew he could not lawfully say out loud,” they wrote.