Andrew Warren, the twice-elected Florida prosecutor suspended by Gov. Ron DeSantis (R) for pledging not to enforce the state’s abortion laws, could have a tough time getting an order reinstating him as the state attorney for Florida’s 13th Judicial Circuit.
Warren’s lawsuit against DeSantis, filed Aug. 17 in the US District Court for the Northern District of Florida, alleges that the governor is punishing him for what amounts to protected speech about a difference of opinion.
But Florida governors have wide latitude to exercise their constitutionally explicit power to suspend state officials, Zachary Price, a professor at U.C. Hastings College of the Law told Bloomberg Law. The First Amendment may be of limited utility if Warren’s speech amounts to an official local policy that is at odds with statewide Florida law, he said.
Price, who has conducted extensive research around prosecutorial discretion and categorical nonenforcement decisions across the US, pointed out that Florida’s Supreme Court has been deferential to the governor’s constitutional suspension authority.
It upheld DeSantis’ decision to suspend the then-sheriff of Broward County, Scott Israel, following two mass shootings—one at the Fort-Lauderdale Hollywood International Airport on Jan. 6, 2017, and one at Marjory Stoneman Douglas High School on Feb. 14, 2018.
The executive order cited neglect of duty and incompetence, the same constitutionally enumerated grounds cited for suspending Warren.
The factual allegations underlying Israel’s suspension were based in part on reports prepared in the wake of the respective shootings, which the order said found that Israel failed to provide frequent-enough training for his deputies, among other things.
Israel argued that there wasn’t an “adequate factual predicate” to support the suspension, but the court said it had no role in reviewing the governor’s decision to suspend a state official except in the case of “arbitrary” or “blank” orders of suspension that aren’t supported by factual allegations.
Allegations that “bear some reasonable relation to the charge made against the officer” are sufficient, the court said.
The court’s circumscribed review was “due entirely” to the fact that Florida’s constitution “has set up its own special court to try the matter, namely the Senate,” it said.
DeSantis faces a relatively low hurdle in terms of the standard of judicial review, but the allegations must still reasonably relate to the claimed constitutional grounds.
Warren argues they don’t, and that the order violates his First and Fourteenth Amendment rights.
DeSantis’ order says Warren “demonstrated his incompetence and willful defiance of his duties as a state attorney as early as June 2021, when he signed a ‘Joint Statement’ with other elected prosecutors in support of gender-transition treatments for children and bathroom usage based on gender identity.”
But Florida has no law on gender-transition treatments for Warren to enforce, he says.
DeSantis’ order also relies on a joint statement signed by Warren this summer, in which the signing prosecutors say they won’t use their “offices’ resources to criminalize reproductive health decisions,” and pledge to exercise their “well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”
Warren says that he hasn’t been presented with any cases implicating Florida’s abortion laws.
The order therefore doesn’t “identify any actual conduct by Warren related to his official duties involving alleged criminal activity for seeking gender-affirming healthcare or abortion,” Warren’s complaint says.
Put another way, the joint statements are just statements, and more to the point, Warren argues, constitutionally protected speech.
The governor also cites two presumptive “non-prosecution” policies implemented by Warren’s office for certain criminal violations, including trespassing at a business location and disorderly conduct.
But those policies are just that, “presumptive,” Warren argues. He said prosecutors are still professionally and ethically obligated to exercise their discretion on a case-by-case-basis.
Critically, a blanket refusal to enforce the state’s abortion laws might not qualify as an exercise of prosecutorial discretion under Florida case law.
Although the joint statements Warren signed were “explicit in invoking the exercise of discretion as their foundation,” it’s not clear that language is good enough if the practical effect is nullification of a statewide law in the 13th Judicial Circuit.
In Ayala v. Scott, decided in 2017, a majority of the Florida Supreme Court said former Gov. Rick Scott hadn’t exceeded his authority when he reassigned death-penalty eligible cases after the former state attorney for the Ninth Judicial Circuit, Aramis Ayala, said she wouldn’t be seeking execution in any cases handled in her office.
By “effectively banning the death penalty in the Ninth Circuit—as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty—Ayala has exercised no discretion at all,” the court said.
The governor’s authority in that case stemmed from his constitutional duty to “take care that the laws be faithfully executed” along with a statute permitting the governor to assign state attorneys to other circuits if, for “good and sufficient reason,” the governor decides it would serve the interests of justice.
This feature was adapted from this week’s Bloomberg Law—Litigation newsletter. Bloomberg Law subscribers may sign up here.
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