Florida Supreme Court rejects Andrew Warren’s attempt to have his suspension overturned

By Dara Kam ©2023 The News Service of Florida

TALLAHASSEE — The Florida Supreme Court on Thursday rejected an attempt by suspended Hillsborough County State Attorney Andrew Warren to get his job back, ruling that the twice-elected Democrat waited too long to bring the case.

Gov. Ron DeSantis suspended Warren on Aug. 4, accusing the prosecutor of “incompetence” and “neglect of duty.”

Warren filed a federal lawsuit in September challenging his removal from office, and U.S. District Judge Robert Hinkle in January ruled that the suspension violated the Florida Constitution and the U.S. Constitution. Hinkle, however, said he lacked the authority to reinstate the prosecutor. The Atlanta-based 11th U.S. Circuit Court of Appeals heard arguments in Warren’s appeal but has not issued a ruling.

Warren in February also asked the Florida Supreme Court to reinstate him, arguing that the governor “exceeded his powers” in the suspension.

Thursday’s 6-1 ruling, authored by Justice Charles Canady, said the Supreme Court has limited power to curb executive suspensions. But the decision, which derided some of Hinkle’s findings, focused on how long it took Warren to seek the Supreme Court’s review of his removal, rather than the merits of his suspension.

DeSantis appointed all of the justices who concurred with Canady’s opinion: Chief Justice Carlos Muniz and Justices John Couriel, Jamie Grosshans, Meredith Sasso and Renatha Francis, who also wrote a concurring opinion. Justice Jorge Labarga, who was appointed in 2009 by then-Gov. Charlie Crist, wrote a dissenting opinion.

“Almost one month after the federal district court issued its merits order — extraneous comments and all — and more than six months after his suspension, petitioner (Warren) finally knocked on this (Supreme) Court’s door and requested our ‘expeditious review,’” the majority opinion said.

Warren’s federal lawsuit, filed on Aug. 17, sought what is known as a “writ of quo warranto” challenging the “facial sufficiency” of his suspension. His lawsuit also alleged that the suspension violated his First Amendment speech rights. Hinkle quickly rejected the request for a writ of quo warranto but allowed the First Amendment challenge to proceed. The First Amendment issue resulted in the January ruling.

Canady said Warren should have known that the federal court could not decide the facial sufficiency issue and any relief would have to be sought in state court.

“Yet petitioner, who was ready to challenge the facial sufficiency of the suspension order within two weeks of his suspension, then waited almost five more months before bringing that claim in state court, all but ensuring that the 2023 regular session of the Florida Senate would come and go without any opportunity for that legislative body to potentially review the suspension,” Canady said.

Warren, who was first elected in 2016 and re-elected in 2020, said in a statement Thursday that the issue of his suspension is “crucial for democracy in Florida.”

“Rather than addressing the substance of the governor’s illegal action, the court cited a technicality and avoided a ruling on the merits of the case. We are extremely disappointed by today’s decision,” Warren said.

Labarga’s dissent took issue with the decision to reject Warren’s case, noting that the prosecutor would still have about 18 months left in his term if reinstated.

“Given that this case involves the suspension of a then-sitting elected official — for whom a substantial portion of the term yet remains — I am unpersuaded by the majority’s conclusion that Warren’s petition is properly denied on the ground of unreasonable delay,” Labarga wrote.

In a statement, Jean-Jaques Cabou, an attorney who represents Warren, pointed to Labarga’s dissent.

“We are deeply disappointed that the Florida Supreme Court refused to evaluate the merits of Mr. Warren’s illegal suspension and instead ruled against him on procedural grounds. As to those grounds, we share Justice Labarga’s view that the majority was wrong to avoid the merits of Mr. Warren’s challenge,” Cabou said.

The Florida Constitution gives the governor the authority to suspend elected officials. The ultimate decision about removal from office rests with the Florida Senate. Senate leaders put Warren’s case on hold, pending the outcome of his lawsuits.

The Constitution “has made the Senate the sole check upon any erroneous action on (the governor’s) part,” Thursday’s majority ruling said, quoting from an 1892 Florida Supreme Court decision.

“In now requesting our ‘expeditious review,’ petitioner cites ‘the significant public interest,’ and he primarily relies on the purported ‘findings’ of a federal judge who ultimately dismissed petitioner’s claims and whose final order was appealed by petitioner himself. Under these circumstances involving such dilatory conduct by petitioner, we decline to consider petitioner’s claims for relief against the governor,” Canady wrote.

Francis’ concurring opinion questioned the court’s authority to review the suspension.

“Incorporating the political question doctrine into our suspension review bolsters support for an approach that our review should be limited to ensuring that a governor took the necessary steps to exercise his power — producing a written order identifying an enumerated ground and filing it with the custodian,” she wrote. “Delving into whether the suspension order’s allegations are reasonably related to an enumerated ground likely treads too far into an inherently political realm, the merits of which are textually committed to the Florida Senate.”

In an executive order suspending Warren, DeSantis pointed to a letter the prosecutor signed pledging to avoid enforcing a 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 the 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.”

In a February episode of the “Deeper Dive with Dara Kam” podcast, Warren said he felt vindicated by Hinkle’s ruling, though he did not prevail in federal district court.

“The court’s findings are crystal clear: I did my job extremely well and I did nothing wrong. The governor’s allegations against me are totally false and … as we’ve said from the beginning, this suspension broke the law. It violated both the United States and Florida Constitutions,” he said.