U.S. judge skeptical of elected prosecutor’s suspension by DeSantis but declines to reinstate now

FL governor may have to testify on motive in suspending Andrew Warren

By: - September 19, 2022 2:08 pm

Andrew Warren addresses news reporters following a Sept. 19, 2022, hearing in his bid for reinstatement as state’s attorney for Hillsborough County. Gov. Ron DeSantis suspended him on Aug. 4, 2022. Credit: Michael Moline

A federal judge refused on Monday to reinstate Andrew Warren as state’s attorney for Hillsborough County, saying he first wants to fast-track a trial to better establish the motivation behind Gov. Ron DeSantis’ suspension of the elected prosecutor.

That sets up the prospect that the governor could be called to the stand to explain himself — and whether he acted from partisan motives — before the end of the year.

Hinkle also indicated he needs more information about the governor’s authority over Warren, elected by his county’s voters to two terms as top prosecutor.

“It’s in everybody’s interest to try this case just as soon as we can try this case,” U.S. District Judge Robert Hinkle of the Northern District of Florida said.

“It would be hard to imagine the governor not testifying. I think the judge was pretty clear that he felt what the governor has to say was quite relevant,” said J Cabou, a litigator from the Perkins Coie law firm, told reporters following a morning hearing before Hinkle.

Hinkle expressed worry about disrupting the prosecutor’s office’s operations by replacing Hillsborough County Judge Susan Lopez — whom DeSantis installed in Warren’s place after suspending him on Aug. 4 — and reinstating Warren. His words were “yo-yoing the process.”

The governor cited Warren’s signing of a letter circulated among prosecutors nationally in 2021 espousing “our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions.” The signatories promised to “exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”

In a second letter Warren signed, prosecutors vowed “to use our discretion and not promote the criminalization of gender-affirming healthcare or transgender people.”

It is beyond dispute that Warren never acted in any such case — Florida doesn’t even have a law criminalizing provisions of transgender care, although state health agencies have been moving on that front.

But, to DeSantis, Warren’s signing of the letters constituted misconduct worthy of suspension, pending a hearing before the Florida Senate.

Protected speech?

The question before Hinkle is whether that amounted to political speech protected by the First Amendment. Warren’s lawyers also raised a claim under the Florida Constitution, but Hinkle said U.S. Supreme Court precedent blocked him from deciding any matter of state law.

State Solicitor General Henry Whittaker argued the letters evinced Warren’s intention to ignore state laws including HB 5, Florida’s new 15-week abortion ban. Whether that law is enforceable under the Florida Constitution’s privacy clause is now before the Florida Supreme Court.

Also at issue are Warren’s “presumptive nonprosecution” policies for crimes including trespassing at a business location or disorderly conduct, or stemming from pedestrian or stops of bicycle riders. Members of the Black community had complained they were being disproportionately targeted in these cases.

However, the policy did stipulate that prosecutions in these cases could be justified if, “based on the facts and circumstances of the case, the public safety needs of the community outweigh the presumption not to file the case.”

Whittaker argued that, legitimate prosecutorial discredion aside, “Andrew Warren has no First Amendment right to say he’s not going to do his job,” adding later, “What he doesn’t have is the right to say that I am the law unto myself.”

Hinkle pushed back at times, noting that DeSantis, as governor, is not Warren’s boss.

“This is an elected official. He’s a constitutional officer,” the judge said, and the governor may lack authority to micromanage Warren’s prosecutorial policies.

“The governor is elected, too, by more people than Mr. Warren was,” Whittaker responded.

Hinkle indicated a trial would test whether DeSantis’ declared reason for suspending Warren was pretext for a political dispute.

Another issue is whether the federal court holds the authority to place Warren back in office. Whittaker argued that courts traditionally have shied away from that step.

To which Hinkle responded: “If the problem is removal from office for unconstitutional reasons, isn’t the remedy to put him back to work?”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.