DeSantis argues Andrew Warren suspension is a political question, not for courts to decide

By: - April 4, 2023 4:48 pm

Andrew Warren addressed reporters at a press conference in Tampa on Jan.20, 2023 (photo credit: Mitch Perry)

Attorneys for Gov. Ron DeSantis have asked the Florida Supreme Court to reject suspended Hillsborough County State’s Attorney Andrew Warren’s request for reinstatement, arguing that the courts have no legitimate role in what’s at essence a political dispute.

In a brief filed this week with the court, they argue that the justices should reject Warren’s case out of hand, in part because he failed to file it expeditiously, waiting for eight months from the date of his suspension in August — all while an interim state attorney continued to prosecute cases in his jurisdiction.

They also argue that, under the Florida Constitution’s separation of powers, suspension is a political question for the governor and Senate to decide, not the court. That document gives the Senate the power to sustain or reverse a suspension. Senate leaders have placed the matter on hold while Warren’s legal challenges continue.

“In the end, Mr. Warren must direct his claims to the only constitutional body with the power to hear them: the Senate. It is for that chamber, not this court — and certainly not a federal court — to decide whether Mr. Warren’s stated refusals to enforce Florida criminal law constitute neglect of duty and incompetence,” the brief argues.

DeSantis suspended Warren on Aug. 4, 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.

U.S. District Judge Robert Hinkle ruled on Jan. 20 that Warren never imposed any such blanket policies and that DeSantis acted for his own “political benefit,” to build his reputation as a law-and-order governor taking down a progressive prosecutor. Hinkle found “not a hint of misconduct” by Warren, but concluded he lacked authority to order his reinstatement.

‘Quintessential political question’

Warren subsequently filed appeals both with the Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit. Both appeals remain pending.

Warren, twice elected by his county’s voters, argues he was deploying his legitimate prosecutorial discretion to decide how to press cases.

The court has a duty to decide whether DeSantis properly set forth “allegations of fact relating to one of the constitutionally enumerated grounds of suspension,” Warren’s attorneys argued in an earlier brief, and has constitutional room to do so.

“Put differently, it is the job of the courts, if asked, to say whether the facial allegations in an executive order fall within this court’s definitions of the enumerated categories of offenses for which the Constitution permits suspension. If they are not, or, if as discussed above the executive order is otherwise ‘arbitrary,’” and therefore improper, that brief reads.

Apart from reinstatement, he seeks an order preventing the governor from retaliating against him.

A group of constitutional scholars has backed Warren in a friend-of-the court brief, arguing, “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.”

The Florida Association of Sheriffs has asked permission to file its own brief in support of DeSantis but that hasn’t appeared in the docket yet.

But the case “presents quintessential political question,” the governor’s lawyers argue.

“Article IV, Section 7 authorizes the governor to suspend an official for enumerated grounds and grants the Senate the sole power to remove. As with impeachment, the Constitution leaves it to the political branches to determine what constitutes ‘neglect of duty’ or ‘incompetence,’ the grounds for which Mr. Warren was suspended. This court should now make clear what it has often implied: the validity of a suspension and removal is a non-justiciable political question,” the brief reads.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

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.