A Florida prosecutor suspended by Gov. DeSantis may have other avenues for reinstatement

In August, Hillsborough State’s Attorney Andrew Warren filed a lawsuit after Gov. Ron DeSantis suspended him for “negligence of duty.” That came after Warren signed a statement saying he would not enforce any state laws regarding abortion or transgender healthcare.

In the lawsuit, Warren claimed that DeSantis exceeded his powers and violated Warren’s First Amendment right to free speech.

A federal judge ruled Friday that the governor did in fact violate the First Amendment by suspending Warren, but he does not have the power to reinstate Warren.

We discuss the technicalities surrounding this case with Louis Virelli III, a professor at Stetson University School of Law.

For starters, why would Andrew Warren pursue this in federal court if the judge couldn’t reinstate him?

VIRELLI: So I don’t think it’s accurate to say that the judge knew in advance that he couldn’t have been reinstated. The judge’s decision not to reinstate Andrew Warren is based on the breadth of violations committed by Governor DeSantis. Ironically, because Governor DeSantis violated both the Florida and federal constitutions by suspending Andrew Warren, the federal court is stymied in his remedy.

    luis virelli

Stetson University School of Law


luis virelli

It cannot provide a remedy, according to the district court judge, because the federal violation was not the primary or exclusive issue with Andrew Warren’s suspension. Stated another way, the federal judge can remedy a state violation, regardless of what occurred, and because it appears to the judge that the state violation was at least equal in magnitude to the federal violation, then there is no remedy of the federal courts as to why. I would seek it in federal court.

That’s pretty standard. Generally speaking, plaintiffs prefer not to sue state government officials in their own courts if they can avoid it. But the federal courts have regularly been the forum of choice for civil rights cases. And this is a civil rights case, in a way, because the plaintiffs have seen suing government officials in their own court system as not a strategic advantage.

Then Judge Robert Hinkle found that Governor DeSantis violated his First Amendment rights at the federal level. What was the state law that he allegedly violated here?

It violated the state constitutional provision that says the governor can suspend an elected official primarily for negligence or incompetence. It is not a question of abandonment in the traditional colloquial sense. It really means someone’s literal refusal to do any part of her job, or his physical or mental incapacity, or lack of ability to do the job. And that’s what the federal judge said. And under no circumstances did Andrew Warren meet that standard.

And many of us who have been talking about this all along have said that Governor DeSantis violated the Florida constitution, as well as the First Amendment. Florida’s constitutional case is actually easier and more direct. But that case alone can only be brought in state court.

So what you’re saying is that violation of state law carries more legal weight than violation of the First Amendment?

Or it had enough legal weight that the federal judge couldn’t say, I’m just remedying a federal violation here. And therefore I can reinstate Andrew Warren. In the most important part of that ruling in the mind of the federal judge, there is absolutely no legal basis on which Governor DeSantis can suspend Andrew Warren. Put another way, Governor DeSantis violated both the federal constitution and the Florida Constitution by suspending Andrew Warren.

So what are the next steps that Mr. Warren can take here? Can he go back to federal court? Or would he have the same problems with them, not having the power to reinstate him there?

I think you have two options. One is to appeal to the federal appeals court. So it would be a direct trip through this federal system. And at that point, what you would be asking the federal appeals court to do is reverse the remedy decision to say, ‘No, the First Amendment violation was a sufficient factor here that you can actually remedy it and reinstate me. ‘. That is an option.

The other thing that you can do – and this is a bit unusual – and this is something that the federal judge specifically ordered you to do in the way that he entered this ruling – you can go to state court on Florida’s constitutional claim, even though you already He has litigated it once. Generally, in the United States, once a matter has been litigated, it cannot be litigated again. You are allowed to do it again, because the federal judge dismissed that claim without prejudice. And the reason he did it is because he thinks the claim has merit, but he just can’t fix it himself.

So what you are doing is legally creating the opportunity for Andrew Warren to get a second bite of Florida’s constitutional apple by going to state court. Now, of course, that puts Andrew Warren in a court system that he chose not to be in in the first place. But if that’s the only place he can get a remedy, maybe he’ll reconsider.

But if he went to the Florida Supreme Court, they’ve all been Republican appointees. Warren is a Democrat. DeSantis is a Republican. We have all that political game in there too.

One way to think about the challenge of going to state court and suing a state government official is that the two systems have something in common. The Florida Supreme Court – I think the majority right now has been appointed by Governor DeSantis. You would rather be in federal court and that is what Andrew Warren did.

Now, your remaining options are to appeal the federal remedy issue or go to state court and relitigate the Florida constitutional issue. I cannot imagine that it would be irrelevant to the Florida state courts if a federal court found unequivocally that Governor DeSantis violated the Florida Constitution, that they would not be bound by that decision.

And the other alternative is to go directly to the state senate.

That’s right. Know the political balance. But that’s another challenging topic. The Florida Senate all along could have acted, they could have impeached him, they could have taken the governor’s suspension and turned it into an actual impeachment.

And just to be perfectly clear, Andrew Warren is still the Hillsborough County State’s Attorney by law. I understand his name has been removed from the building. And that’s really unfortunate, because by law, he’s just suspended until the Senate does something else. So the Senate could have done that all along, or they could have rejected the governor’s suspension and reinstated him.

They chose, and I think reasonably, to wait until the judge made his decision. The judge was unequivocal on the legality of what Governor DeSantis did. So it will be interesting to see if the Senate takes that decision seriously, and does its part to make the legal situation a reality and overturn the suspension politically, which they are allowed to do.

Professor Virelli, may I have your opinion on the implications of this case? Do you think that issue may have a chilling effect on the ability of state prosecutors to exercise their prosecutorial discretion?

I think Governor DeSantis’s decision to suspend Andrew Warren has a chilling effect, or at least seems intended to. The district court judge basically said that the reason Governor DeSantis did this, according to the judge who tried the case who heard all the evidence, was that he was doing it for political purposes and to try to punish or embarrass disadvantage to progressives. prosecutors with whom he disagreed. So that will have an effect.

I think there is an opposite effect of the judge. Articulating so clearly what Governor DeSantis did was not allowed, it was illegal at the federal level and from a state constitutional perspective, and that is why I think talking about this decision in that way is so important.

If we are trying to understand the gubernatorial election, there is no doubt that after this decision, the gubernatorial election was unconstitutional. He was out of his power and in violation of the Florida Constitution. And many of us who have been evaluating this case, at first, were not surprised. So I think that will counteract the chill effect in that there’s not a lot of leeway for Governor DeSantis to say, in the future, I’m allowed to do this.

That means he won’t try and that’s where the voters, the Senate and the rest of us have to do our constitutional duty and decide what we think about it. And whether for or against, judge the governor, based on legal analysis by an impartial and objective district judge.

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