Governor’s office makes it clear: No reinstatement for suspended prosecutor

By: - January 26, 2023 10:48 am

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

Gov. Ron DeSantis will not return suspended Andrew Warren to his post as the twice-elected state’s attorney for Hillsborough County.

That much is clear from a written statement issued by the governor’s office, emphasizing that “Mr. Warren remains suspended from the office he failed to serve.”

Warren asked DeSantis on Wednesday in a letter to reinstate him in light of the ruling from U.S. District Judge Robert Hinkle that demolished DeSantis’ arguments but concluded that he lacked authority to reinstall Warren.

“The facts are now known and the court’s findings are clear: I engaged in zero misconduct; the allegations in the executive order are false; and the suspension violates federal and state law,” Warren wrote in the letter Wednesday morning.

But in a written statement issued later Wednesday, DeSantis press secretary Bryan Griffin indicated the governor has not changed his mind.

“Andrew Warren, of all people, should understand the distinction between legal dicta and the holding of a court’s decision,” it reads.

“The failures that motivated the suspension were Mr. Warren’s actual performance — not advocacy — as a reform prosecutor.

“Mr. Warren signed a statement refusing to prosecute the laws of the land. Thus, the governor removed Mr. Warren for neglect of duty and incompetence. Public prosecutors cannot pick and choose which laws to enforce.

“In its lengthy opinion, the court attempted to usurp the Florida Senate’s constitutional authority to make a determination on Mr. Warren’s neglect of duty and incompetence. It is the Florida Senate that is to rightly serve as the ultimate factfinder in this case.

“We do not agree with the court’s dicta, which are merely opinions, and need not address them since the court ultimately determined it lacked jurisdiction and thus ruled in favor of the governor. Mr. Warren remains suspended from the office he failed to serve.”

By “dicta,” Griffin referred to major portions of Hinkle’s 59-page ruling, handed down on Jan. 20, dismantling DeSantis’ proffered reasons for suspending Warren on Aug. 4. Dicta are judicial asides that don’t carry the force of law.

Those reasons included that Warren had signed two statements circulated by a group of progressive prosecutors called Fair and Just Prosecution, expressing reluctance to prosecute crimes involving abortion or transgender therapy. The governor also referred to what he labeled “blanket policies” discouraging prosecution of certain low-level crimes.

‘Neglect of duty’

In an executive order suspending Warren, DeSantis calls all of this “neglect of duty” and incompetence,” grounds for his removal.

Hinkle, however, concluded that Warren never imposed any blanket policies because each case received individual review, and also that the abortion and transgender statements were never imposed as policy within the states’ attorney office.

However, Hinkle also concluded that he lacked authority to reinstate Warren because of the Eleventh Amendment, which restricts federal courts’ power to decide disputes involving state governments.

A Warren spokesman hasn’t responded yet to a question about what’s next. Theoretically, he could appeal Hinkle’s ruling to the U.S. Court of Appeals for the Eleventh Circuit, but that court has a conservative majority that has tended to back the Republican governor in legal disputes.

Warren also presumably could seek relief in the state courts or fight his case before the Senate, which the Florida Constitution empowers to review suspensions of public officials.

Senate President Kathleen Passidomo has declared that the body will not take up the issue “until a final determination of the litigation has been rendered and all appellate remedies have been exhausted.”

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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.