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

 Andrew Warren addresses the media after Friday's decision was released
Sky Lebron
WUSF Public Media
Andrew Warren addresses the media after Friday's decision was released

In August, Hillsborough State Attorney Andrew Warren filed a lawsuit after Gov. Ron DeSantis suspended him for "neglect of duty." That came after Warren signed a statement saying that he would not enforce any state laws regarding abortion or transgender health care.

In the suit, Warren claimed DeSantis exceeded his powers and violated Warren's First Amendment right to free speech.

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

We talk about the technicalities surrounding this case with Louis Virelli III, a professor at Stetson University College of Law.

Why would Andrew Warren pursue this in federal court to begin with if the judge could not have him reinstated?

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

 Louis Virelli
Stetson University College of Law
Louis Virelli

It can't provide a remedy, according to the district court judge, because the federal violation wasn't the primary or exclusive problem with the suspension of Andrew Warren. Put another way, the federal judge can remedy a state violation, even though what occurred, and because it appears to the judge that state violation was at least of equal magnitude to the federal violation, then there's no remedy from the federal courts as to why you would pursue 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 federal courts have regularly been the forum of choice for civil rights cases. And this is a civil rights case, in a way, because suing government officials in their own court system has been deemed by plaintiffs to be not a strategic advantage.

So Judge Robert Hinkle found that Gov. DeSantis violated his First Amendment rights on the federal level. What was the state law that he allegedly had violated here?

He violated the state constitutional provision that says the governor can suspend an elected official basically for negligence or incompetence. It's not a matter of neglect in the traditional colloquial sense. It really means someone's literal refusal to do any part of their job, or their physical or mental incapability, or lack of capability to do the work. And that's what the federal judge said. And there's under no circumstances that Andrew Warren met that standard.

And many of us who have been commenting on this the whole time had been saying that Gov. DeSantis violated the Florida constitution, as well as the First Amendment. The Florida 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 the violation of the state law carried more legal weight than the violation of the First Amendment?

Or carried enough legal weight that the federal judge couldn't say, I am only remedying a federal violation here. And therefore I can reinstate Andrew Warren. In the most important part of that ruling in the federal judge's mind, there is absolutely no legal basis upon which Gov. DeSantis could suspend Andrew Warren. Put another way, Gov. 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 he's got two choices. One is to appeal to the federal appellate court. So that would be a straight trip up through this federal system. And at that point, what he would be asking the federal appellate court to do is overturn the remedy decision to say, 'No, the First Amendment violation was enough of a factor here that you actually can remedy it and reinstate me.' That's one choice.

The other thing you can do - and this is a little unusual - and this is something that the federal judge specifically set him up to do in the way he issued this ruling - he can go to state court on the Florida constitutional claim, even though he's already litigated it once. Generally, in America, once you've litigated an issue, you don't get to do it again. He is allowed to do it again, because the federal judge dismissed that claim without prejudice. And the reason he did that is because he thinks the claim has merit, but he just can't fix it himself.

So what he is doing is legally creating the opportunity for Andrew Warren to have a second bite at the Florida 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 you can get a remedy, maybe he'll reconsider.

But if he went to the Florida Supreme Court, they have all been appointed by Republicans. Warren is a Democrat. DeSantis is a Republican. We have that whole political play there as well.

One way to think about the challenge with 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 a majority at this point have been appointed by Gov. DeSantis. You would prefer to be in federal court and that's what Andrew Warren did.

Now his remaining choices are to appeal the federal remedy issue or to go to state court and re-litigate the Florida constitutional question. I can't imagine it would be irrelevant to Florida state courts that a federal court found unequivocally the Gov. DeSantis violated the Florida Constitution, that they would not be bound by that decision.

And the other alternative is for him to go directly to the state Senate.

That's correct. He knows the political balancing. But that's another challenging issue. The Florida Senate all along could have acted, they could have either removed him, they could have taken the governor's suspension and made it an actual removal.

And to be perfectly clear, Andrew Warren is still the state attorney for Hillsborough County by law. I understand his name has been taken off the building. And that's really unfortunate, because by law, he is 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 in the legality of what Gov. DeSantis did. So it'll be interesting to see if the Senate takes that decision seriously - and sort of does their part to make the legal situation a reality and revoke the suspension politically, which they're allowed to do.

Professor Virelli, can I get your take on the implications of this case? Do you believe that issue can have a chilling effect on the ability of state attorneys to exercise their prosecutorial discretion?

I think Gov. DeSantis’ decision to suspend Andrew Warren has a chilling effect - or at least appears to be intended to. The district court judge basically said as much that the reason Gov. DeSantis did this, according to the judge who tried the case who heard all the evidence, was that he was doing it for political gain, and to try to punish or otherwise disadvantage progressive prosecutors that he disagreed with. So that will have an effect.

I do think there's a counter-effect of the judge. So clearly articulating that Gov. DeSantis did was impermissible, was illegal federally and from a state constitutional perspective, and that's why I think talking about this decision that way is so important.

If we are trying to understand the governor's choice, there is no question after this decision, the governor's choice was unconstitutional. It was outside of his power, and it violated the Florida Constitution. And many of us who've been evaluating this case, in the beginning, were not surprised. So I think that will counter the chilling effect in the sense that there isn't a lot of wiggle room for Gov. DeSantis to say, going forward, I am allowed to do this.

Now that does mean he's not going to try and that that's where the voters and the Senate and the rest of us sort of have to do our constitutional duty and decide what we think about that. And either pro or con, judge the governor, based on the legal analysis done by an impartial, objective district court judge.

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Steve Newborn is WUSF's assistant news director as well as a reporter and producer at WUSF covering environmental issues and politics in the Tampa Bay area.