FL justices reject Andrew Warren’s bid for reinstatment; he waited too long, they say

Ousted prosecutor still has an appeal pending before U.S. appeals court

By: - June 22, 2023 5:40 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

The Florida Supreme Court has overwhelmingly rejected a request by Andrew Warren, suspended by Gov. Ron DeSantis for alleged incompetence and neglect of duty, to be reinstated to the prosecutor’s job to which voters elected him twice.

Ruling 6-1 on Thursday, the court, in an opinion by Justice Charles Canady, wrote that Warren had waited too long to file with the court — more than six months following his suspension on Aug. 4 as state’s attorney for Hillsborough County.

The ruling noted that the court enjoys at best a marginal role in reviewing suspensions of public officials by a governor — namely, “determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension.” The Florida Constitution leaves ultimate power of review to the state Senate, it continued.

Gov. Ron DeSantis announced his suspension of Hillsborough County State Attorney Andrew Warren during a news conference in Tampa on Aug. 4, 2022. Source: Screenshot/Facebook

“Petitioner’s unreasonable delay does not necessarily leave him without any potential remedy. Indeed, the remedy that remains available is the one expressly contemplated by the Florida Constitution — i.e., proceedings in [t]he Senate,” Canady wrote.

Warren decried the outcome.

“This is an issue that is crucial for democracy in Florida. Rather than addressing the substance of the governor’s illegal action, the court cited a technicality and avoided a ruling on the merits of the case. We are extremely disappointed by today’s decision,” he said in a written statement.

DeSantis, a Republican, in part cited the Democratic prosecutor’s decision to sign two open letters circulated by a group of progressive prosecutors promising not to push cases of alleged illegal abortions after the U.S. Supreme Court reversed Roe v. Wade or any targeting provision of transgender care.

Those stands constituted “neglect of duty” and “incompetence” in the governor’s eyes and undermined the public’s faith in the rule of law.

‘Political benefit’

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. DeSantis has since begun running for president.

“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 outcome is under separate appeal to the U.S. Court of Appeals for the Eleventh Circuit.

In Tallahassee, Justice Renatha Francis signed Canady’ opinion, along with Chief Justice Carlos Muñiz and justices John Couriel, Jamie Grosshans, and Meredith Sasso, all placed on the court by DeSantis. Francis filed a separate concurring opinion questioning whether even the court’s limited authority to review official suspensions is too much.

“Delving into whether the suspension order’s allegations are reasonably related to an enumerated ground likely treads too far into an inherently political realm, the merits of which are textually committed to the Florida Senate,” she wrote.

Justice Jorge LaBarga of the Florida Supreme Court. Credit: Supreme Court

In a dissent, Justice Jorge Labarga noted that Warren was elected by a narrow margin in 2016 and reelected by a six-point margin in 2020.

“Given that this case involves the suspension of a then-sitting elected official — for whom a substantial portion of the term yet remains — I am unpersuaded by the majority’s conclusion that Warren’s petition is properly denied on the ground of unreasonable delay,” Larbarga wrote.

“We are deeply disappointed that the Florida Supreme Court refused to evaluate the merits of Mr. Warren’s illegal suspension and instead ruled against him on procedural grounds. As to those grounds, we share Justice Labarga’s view that the majority was wrong to avoid the merits of Mr. Warren’s challenge,” said Jean-Jaques Cabou, attorney for Warren.

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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.