A federal judge has determined that Florida Governor Ron DeSantis unconstitutionally suspended an elected state attorney who criticised the governor’s positions on abortion and transgender healthcare, but the judge said he did not have authority to return the prosecutor to office.
US District Judge Robert Hinkle said the governor had falsely accused Hillsborough State Attorney Andrew Warren of relying on a blanket policy to avoid prosecuting certain cases with which he disagreed.
”The allegation was false,” he wrote in a ruling issued on 20 January. “Mr Warren’s well-established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case. Any reasonable investigation would have confirmed this.”
Mr Warren was among more than 100 prosecutors and officials from across the US who pledged not to prosecute abortion providers and abortion patients in the wake of the US Supreme Court’s decision to strike down the constitutional right to abortion on 24 June of last year. Florida’s anti-abortion law outlaws the procedure at 15 weeks of pregnancy.
The state attorney for the Tampa area also signed another pledge to use “discretion and not promote the criminalization of gender-affirming healthcare or transgender people” as the DeSantis administration pursued its anti-LGBT+ agenda.
In a press conference surrounded by law enforcement on 4 August, 2020, the governor accused Mr Warren of failing to prosecute people accused of crimes to the fullest extent of his authority, reflecting what the governor called “incompetence and willful defiance of his duties.”
Mr Warren later accused Mr DeSantis of violating the state constitution and “throwing out the results of a free and fair election” by unjustly removing him from office without legal justification. Mr Warren was elected to office in 2016 and re-elected in 2020.
But Judge Hinkle concluded that the US Constitution prohibits a federal court from restoring Mr Warren to office.
The judge rejected Mr Warren’s arguments that the governor’s actions violated the First Amendement protections for free speech that required the court’s intervention, but he stressed that Mr Warren’s statements did constitute protected speech, and Mr DeSantis “would have made the same decision anyway, even without considering these things”.
“The First Amendment violations were not essential to the outcome and so do not entitle Mr Warren to relief in this action,” Judge Hinkle wrote. “The suspension also violated the Florida Constitution, and that violation did affect the outcome. But the 11th Amendment prohibits a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law.”
The governor appointed Susan Lopez – whom the governor appointed to a judge seat late last year – to take over Mr Warren’s role.
Judge Hinkle’s ruling found that Mr Warren’s record includes “not a hint of misconduct” and that he “was diligently and competently performing the job he was elected to perform, very much in the way he told voters he would perform it”.
The judge noted that “when the dust cleared” after his suspenion – including media events, the governor’s favourable coverage on Fox News and an appearance on Tucker Carlson’s programme – Mr DeSantis’s office received free media coverage to the tune of “$2.4 million in 14 days”.
His ruling follows a three-day trial in November, including testimony from members of the governor’s administration. When he announced Mr Warren’s suspension, the governor accused him of promoting a “basically woke” agenda that elevates his “own personal conception of, quote, ‘social justice’ over what the law requires of you”.
A draft of the order suspending him also included references to George Soros, according to court documents and trial testimony.
The Independent has requested comment from Mr Warren.
DeSantis spokesperson Taryn Finske said the judge’s ruling upheld the governor’s “decision to suspend Andrew Warren from office for neglect of duty and incompetence”.
“A win for the governor and a win for the people of Florida,” DeSantis press secretary Bryan Griffin added.
