11th Circuit will expedite Andrew Warren’s bid for reinstatement as prosecutor

By: - March 9, 2023 3:08 pm

Andrew Warren, suspended by Gov. Ron DeSantis, holds a news conference in Tallahassee on Aug. 17, 2022. Flanking him is his attorney, J Cabou. Credit: Michael Moline

A federal appeals court will fast track Andrew Warren’s constitutional challenge to his suspension by Gov. Ron DeSantis as state’s attorney for Hillsborough County, scheduling oral arguments on May 1.

The U.S. Court of Appeals for the Eleventh Circuit responded to a motion by the twice-elected prosecutor on Wednesday. The court set a deadline of next Monday for Warren’s legal team to file their appellate briefs. The state has until April 12 to reply and Warren may file additional arguments by April 26. The court will hear the case in its Montgomery, Ala., courthouse.

The Eleventh Circuit hears appeals from cases arising from Florida, Alabama, and Georgia.

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 suspended Warren on Aug. 4, subject to a hearing in the state Senate, alleging incompetence and neglect of duty tied to public statements Warren cosigned opposing criminalization of abortion and transgender health care, plus what DeSantis claimed were “blanket policies” against prosecuting some low-level crimes.

On Jan. 20, U.S. District Judge Robert Hinkle ruled that Warren never imposed any such blanket policies and that DeSantis acted for his own “political benefit,” seeking to stoke his reputation as a law-and-order governor taking down a progressive prosecutor.

“The record includes not a hint of misconduct by Mr. Warren,” Hinkle concluded.

In so doing, DeSantis violated both the Florida Constitution and the First Amendment to the U.S. Constitution, Hinkle wrote, but concluded he lacked authority to reinstate Warren. That’s the question the Eleventh Circuit will consider.

Florida proceedings

Meanwhile, Warren launched a separate appeal before the Florida Supreme Court on the state constitutional question. He drew support in late February in the form of a friend-of-the-court brief filed by eight constitutional experts, including three who served on the Florida Constitution Revision Commission in 1998.

They include Martha Barnett, former president of the American Bar Association; Bob Butterworth, a former state attorney general; and Ellen Freiden, who later would lead the Fair Districts Now drive to ban gerrymandering when redrawing political districts in the state.

The 25-page brief said, in part: “If governors were permitted to suspend state attorneys because of their prosecutorial priorities and replace them with attorneys whose priorities mirror their own, Florida’s electoral process for the office of state attorney — and potentially all elected state officers — would be virtually meaningless.”

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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.