By Dara Kam ©2023 The News Service of Florida
TALLAHASSEE — While finding that Gov. Ron DeSantis’ suspension of Hillsborough County State Attorney Andrew Warren violated the law, a federal judge on Friday grudgingly ruled that he lacked the power to reinstate the twice-elected Democrat.
Warren filed a lawsuit after DeSantis issued the suspension in an August executive order. In part, Warren argued that DeSantis violated First Amendment rights.
But in a 59-page ruling Friday, U.S. District Judge Robert Hinkle dismissed the case, while saying that DeSantis violated the Florida Constitution and the First Amendment.
“Disagreements about the proper prosecutorial approach are the stuff on which state-attorney elections properly turn. Disagreements like this are not the stuff on which suspensions properly turn,” Hinkle wrote.
Hinkle found that DeSantis violated the First Amendment by considering the prosecutor’s speech “on matters of public concern … as motivating factors in the decision to suspend him.” But Hinkle said the governor also based the suspension on factors involving Warren’s conduct — not speech. As a result, Hinkle ruled he could not overturn the suspension based on the First Amendment.
The judge also ruled that a federal court could not act on a violation of the Florida Constitution.
DeSantis’ Aug. 4 executive order accused the prosecutor of “incompetence and willful defiance of his duties.” The order pointed to a letter Warren 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
In Friday’s sharply worded ruling, Hinkle challenged DeSantis to resolve the issue.
“If the facts matter, the governor can simply rescind the suspension,” Hinkle wrote. “If he does not do so, it will be doubly clear that the alleged nonprosecution policies were not the real motivation for the suspension.”
Hinkle concluded that the governor and his aides targeted Warren because of the prosecutor’s left-leaning approach.
“In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor — a prosecutor whose performance did not match the governor’s law-and-order agenda — and the political benefit that would result. The actual facts — whether Mr. Warren actually had any blanket nonprosecution policies — did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution,” Hinkle wrote.
It was not immediately clear Friday whether Warren would appeal Hinkle’s decision. But speaking to reporters Friday afternoon, Warren pledged that “this is not over.”
“The truth is that Gov. DeSantis has used his power in suspending me not in the pursuit of justice, but in the pursuit of politics. The truth is that this suspension was never about the job that I did,” Warren, a Columbia Law School graduate, said. “The suspension was always a political stunt. A cheap trick to add one more misleading line to the governor stump speech.”
Warren accused DeSantis, who is widely seen as a potential Republican presidential candidate in 2024, of trying to score “political points” through his ouster.
“From the day I was suspended, I’ve said that the suspension was illegal. And although a judge said he couldn’t put me back into the office to which I was twice elected, a federal judge confirmed that the suspension was illegal,” Warren said.
Hinkle agreed with Warren’s arguments that DeSantis had violated his First Amendment rights and that he had done nothing wrong.
“The record includes not a hint of misconduct by Mr. Warren. So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much in the way he told voters he would perform it,” Hinkle’s ruling said. “Any minimally competent inquiry would have confirmed this. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect.”
Hinkle rejected arguments by DeSantis’ lawyers that the governor suspended the prosecutor for what they maintained were “blanket nonprosecution” policies, writing that the alleged policies did not exist.
The judge also found that DeSantis’ grounds for suspending the prosecutor didn’t meet the Florida Constitution’s threshold for a suspension, but the hamstrung federal court 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 said.
Warren has repeatedly said that the suspension could set a dangerous precedent if allowed to remain intact.
“The idea that a governor can break federal and state law to suspend an elected official should send shivers down the spine of anyone who cares about free speech, the integrity of our elections, or the rule of law — three core principles on which our democracy is built,” Warren said Friday, noting that DeSantis pointed to “the rule of law” when he announced the prosecutor’s suspension. “Let’s see if the governor actually believes in the rule of law. Let’s see if the governor is a man of his word. Let’s see what kind of man the governor actually is.”
Hinkle’s ruling also harshly condemned a cursory probe conducted by DeSantis adviser Larry Keefe, a former United States attorney who is known as the state’s “public safety czar.”
DeSantis initially asked Keefe if any state attorneys in Florida weren’t following the law. Testifying during a November trial in Warren’s case, Keeve said he launched an “ad hoc” inquiry by speaking to some law-enforcement officials in the state and found that “all roads were consistently leading to Mr. Warren.”
But Hinkle slammed Keefe’s inquiry.
“Mr. Keefe did not conduct an investigation or take a single note, because he was not looking for details or misconduct. There had been no hint of misconduct, and Mr. Keefe must have known, early in the process, that any search for misconduct was likely to come up empty,” Hinkle wrote. “Mr. Keefe did not look into these things because he already knew all he needed to know: Mr. Warren was the leading Florida reform prosecutor.”
The state Constitution allows the governor to suspend elected officials from office for “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence” and the inability to perform their official duties. The Florida Senate, where Republicans hold a supermajority, has the ultimate authority to remove elected officials. The Senate put consideration of Warren’s suspension on hold because of the lawsuit.
In a memo Friday, Senate President Kathleen Passidomo, R-Naples, said the issue would “remain in abeyance” until the litigation is completed.
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