Andrew Warren takes his suspension fight to a federal appeals court

By Dara Kam ©2023 The News Service of Florida

TALLAHASSEE — Suspended Hillsborough County State Attorney Andrew Warren will ask an Atlanta-based appeals court to review a federal judge’s ruling that cleared the twice-elected Democrat of wrongdoing but did not reinstate him to the job.

Gov. Ron DeSantis suspended Warren in August, accusing him of “incompetence and willful defiance of his duties.” Warren filed a lawsuit challenging the suspension, arguing that it was politically motivated and violated his speech rights.

U.S. District Judge Robert Hinkle last month ruled that DeSantis’ suspension violated the Florida Constitution and the U.S. Constitution’s First Amendment, but the judge said he lacked the authority to reverse the governor’s action.

Lawyers for Warren filed a notice Tuesday saying he intends to appeal the ruling to the 11th U.S. Circuit Court of Appeals. As is common, the notice did not include details of the upcoming appeal.

In his Jan. 20 ruling, Hinkle found that DeSantis violated the First Amendment by considering the prosecutor’s speech “on matters of public concern … as motivating factors in the decision to suspend him.” But the judge said the governor also based the suspension on factors involving Warren’s conduct — not speech. As a result, Hinkle ruled he could not overturn the suspension based on the First Amendment.

The judge also ruled that a federal court could not act on a violation of the Florida Constitution.

“The record includes not a hint of misconduct by Mr. Warren,” Hinkle’s 59-page ruling said.

DeSantis’ Aug. 4 executive order suspending Warren pointed to a letter the prosecutor signed pledging to avoid enforcing a new law preventing abortions after 15 weeks of pregnancy.

The governor also targeted a statement Warren joined condemning the criminalization of transgender people and gender-affirming care. In addition, DeSantis cited Warren policies that could limit prosecution of cases related to bicycle and pedestrian stops by police and certain low-level offenses

But, finding that Warren’s office had not embraced such non-prosecution policies, Hinkle challenged DeSantis to resolve the issue.

“If the facts matter, the governor can simply rescind the suspension,” Hinkle wrote. “If he does not do so, it will be doubly clear that the alleged non-prosecution policies were not the real motivation for the suspension.”

Hinkle concluded that the governor and his aides targeted Warren because of the prosecutor’s left-leaning approach.

“In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor — a prosecutor whose performance did not match the governor’s law-and-order agenda — and the political benefit that would result. The actual facts — whether Mr. Warren actually had any blanket non-prosecution policies — did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution,” Hinkle wrote.

Warren, pointing to Hinkle’s conclusions, asked DeSantis for reinstatement so he can serve the nearly two years remaining in his term.

“Duty requires you to accept the court’s findings that the executive order is illegal, even if that finding is perhaps unwelcome,” Warren wrote to the governor on Jan. 25.

But DeSantis repeatedly has defended his decision.

In response to Warren’s request for reinstatement, DeSantis’ press secretary Bryan Griffin said the state attorney’s fate is in the hands of the Florida Senate, which has the authority to remove suspended officials from office. The Senate has put consideration of Warren’s suspension on hold until the legal wrangling is resolved.

“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,” Griffin said.

In a recent episode of the Deeper Dive with Dara Kam podcast, Warren said he felt vindicated by Hinkle’s ruling.

“The court’s findings are crystal clear: I did my job extremely well and I did nothing wrong. The governor’s allegations against me are totally false and … as we’ve said from the beginning, this suspension broke the law. It violated both the United States and Florida Constitutions,” he said.