Judge blasts DeSantis over Warren suspension but says he’s powerless to reinstate him

‘The record includes not a hint of misconduct by Mr. Warren’

By: - January 20, 2023 1:08 pm

Suspended Hillsborough County prosecutor Andrew Warren addresses reporters on Nov. 29, 2022, Day One of his federal lawsuit against Gov. Rob DeSantis. Credit: Michael Moline

A federal judge has excoriated Gov. Ron DeSantis for suspending Hillsborough County prosecutor Andrew Warren, concluding that the governor violated the First Amendment in ousting Warren because of political differences and the anticipated “political benefit” to the governor.

However, in a ruling handed down Friday morning, U.S. District Judge Robert Hinkle concluded he lacked authority to give Warren what he wanted — reinstatement as state attorney — because he was bound by the Eleventh Amendment, which restricts federal courts’ power to decide disputes involving state governments.

So, even though the First Amendment shielded Warren’s political beliefs and affiliations, it did not shield his exercise of prosecutorial discretion, including policies the governor, as a self-styled “law and order” advocate, found objectionable.

“The governor violated the First Amendment by considering Mr. Warren’s speech on matters of public concern … as motivating factors in the decision to suspend him. The governor violated the First Amendment by considering Mr. Warren’s association with the Democratic Party and alleged association with Mr. [George] Soros as motivating factors in the decision,” Hinkle concluded.

“But the governor would have made the same decision anyway, even without considering these things. The First Amendment violations were not essential to the outcome and so do not entitle Mr. Warren to relief in this action,” the judge added.

“The suspension also violated the Florida Constitution, and that violation did affect the outcome. But the Eleventh Amendment prohibits a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law.”

Political clash

Warren, a Democrat, had been elected twice before DeSantis suspended him on Aug. 4 during a campaign-style news conference featuring a phalanx of sheriffs and other Warren critics. Warren is entitled to a hearing before the Florida Senate, but in the meantime has lost his job and income.

Gov. Ron DeSantis announcing the suspension of elected Hillsborough State Attorney Andrew Warren at the Hillsborough County Sheriff’s Office in Tampa, August 4, 2022. (Credit: Mitch Perry.)

The governor argued that Warren had signed statements promulgated by a group of progressive prosecutors called Fair and Just Prosecution opposing bringing charges in crimes involving abortion or transgender care. DeSantis also cited Warren policies establishing presumptions of nonprosecution against low-level crimes and those arising from bike or pedestrian stops; evidence produced at trial established a racial disparity in these arrests.

All of that, DeSantis insisted, constituted blanket policies and therefore neglect of duty, a firing offense.

Warren argued that he understood the abortion and transgender policies as an overall approach and not a blanket policy; the same went for the nonprosecution presumptions, as Warren explained in a local TV interview, and as his top aides also testified during a trial before Hinkle. His prosecutors continued to handle each case on its merits in the interest of public safety, he and his top aides testified. And the abortion and transgender statements never became office policy.

None of that really mattered to the governor and his aides, Hinkle observed.

“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.

Even so: “Running an office—making decisions—on the reform-prosecutor side of issues, rather than on the law-and-order side of issues, is conduct, not speech. And the governor is correct that when conduct is not protected, talking about it does not change that status — the talk may be protected, and ordinarily is, but the conduct is still conduct,” Hinkle wrote.

Desultory investigation

He noted that the entire affair began when DeSantis asked his legal aides whether any progressive prosecutors were serving in Florida. Larry Keefe, the former federal prosecutor turned DeSantis staffer, quickly identified Warren by asking his friends in law enforcement and through a Google search and targeted him, Hinkle wrote.

“Mr. Keefe was determined to bring about Mr. Warren’s suspension. As he put it, ‘I wanted this to happen.’ He wanted it to happen primarily because Mr. Warren was a reform prosecutor of the kind targeted by the governor and Mr. Keefe from the outset.”

George Soros. Credit: Niccolò Caranti via Creative Commons

Hinkle noted that one draft of Warren’s suspension order specifically mentioned his progressive approach and that he was loosely affiliated with Soros, the progressive financier.

“There it was, stripped of pretext: a motivating factor in Mr. Warren’s suspension was that he was a ‘progressive prosecutor.’ He was being supported by a contributor to, of all things, the Democratic Party,” Hinkle wrote.

The judge held Warren blameless in this episode. “The issue is close and could reasonably be decided either way,” Hinkle wrote.

“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. He had no blanket nonprosecution policies. Any minimally competent inquiry would have confirmed this. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close.”

But: “What mattered was not whether these were actually nonprosecution policies — they were not — but only whether the assertion could eventually be defended in the heavily partisan Florida Senate.  … [T]he governor did what he had been looking to do from the day he assigned the project to Mr. Keefe: he took down a reform prosecutor.”

Reaction

DeSantis press office hasn’t responded to a request for comment, but communications director Taryn Fenske welcomed the news on Twitter. “Today, Judge Hinkle upheld @GovRonDeSantis’ decision to suspend Andrew Warren from office for neglect of duty and incompetence,” she wrote, eliding the fact that Hinkle specifically found no such misconduct by the former prosecutor.

Warren, meanwhile, scheduled a news conference Friday afternoon to discuss the ruling.

Carlos Guillermo Smith, the former state House Democrat, responded to Fenske’s tweet, writing, “Today, Judge Hinkle declared that Governor Ron DeSantis violated the U.S. Constitution and the Florida Constitution with his abuses of power. But sure, pop open the champagne. It’s a win for authoritarianism!”

The progressive Public Rights Project issued a written statement by staff attorney Michael Adame.

“The implications of this case go beyond just Florida. DeSantis’s decision to remove Warren is part of a troubling and growing trend of states seeking to override the will of the people to elect leaders who represent their values when it comes to civil rights, workers’ rights, and public safety. DeSantis and other state officials across the country are trying to make playing with our rights part of their standard playbook. We must continue to challenge anyone who abuses their power and prioritizes cheap political wins over addressing the needs of their communities,” he said.

What’s next?

Bob Jarvis, a constitutional law professor at Nova Southeastern University Shepard Broad College of Law, had predicted the outcome, given the barrier posed by the Eleventh Amendment.

“It is interesting how far out of his way Judge Hinkle went to support Warren,” Jarvis wrote in an email to the Phoenix.

“Judge Hinkle’s ruling is 59 pages, most of which is unnecessary dicta [nondispositive commentary].  Indeed, most judges would have disposed of the case in 10 pages or less, especially given (as Judge Hinkle found at the very end of his ruling), that the Eleventh Amendment effectively bars these kinds of lawsuits. That Judge Hinkle went on and on reflects how deeply he disagrees with DeSantis (Judge Hinkle, of course, was appointed by President Bill Clinton),” he continued.

“I doubt that Warren appeals Judge Hinkle’s decision to the Eleventh Circuit.  If he does, there is no chance that it will reverse Judge Hinkle. Even if Warren gets incredibly lucky and draws a panel consisting of just the liberal members of the circuit, and they reverse Judge Hinkle, the full Eleventh Circuit will quickly reverse the panel.  And there is no chance that the U.S. Supreme Court, given its hard-right orientation, would ever find for Warren.”

Warren could pursue his case before the Florida Senate trial, “just to keep the issue before the public,” but that’s “a rubber stamp for DeSantis and Warren has no chance of receiving a fair trial.  That is an unfortunate consequence of how the Florida Senate has been gerrymandered,” Jarvis added.

“Thus, the real question is what does Warren do next politically?  He could run for re-election as state attorney, or he could take on U.S. Sen. Rick Scott when Scott’s seat comes up for election in 2024.  Of course, Warren could also exit public life, although I don’t think that is likely.”

Note: This story has been updated to include reaction to Hinkle’s ruling.

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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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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