Suspended state’s attorney Andrew Warren accuses Gov. Ron DeSantis in a legal brief of asserting authority to punish independently elected officials as if they were patronage employees or political aides, in violation of First Amendment protections.
Warren levels the charge in a 40-page pleading filed Thursday with the U.S. Court of Appeals for the Eleventh Circuit, which will hear oral arguments next week in its Montgomery, Ala., courthouse in the twice-elected Hillsborough County prosecutor’s challenge to DeSantis’ Aug. 4 executive order suspending him for alleged incompetence and neglect of duty.
The pleading points to a brief filed with the appeal court on DeSantis’ behalf on April 12, in which the governor’s legal team argues that officials in policymaking positions enjoy fewer First Amendment protections than do rank-and-file public employees.
Warren’s brief objects to that argument.
“To state what should be obvious, a state attorney in Florida may effectively perform her duties whether she is a Republican, Democrat, or a member of no party. Such officials are not the governor’s confidential aides who must share his political beliefs and party commitments,” it reads.
“The people of Florida could have designed such a system, but they chose instead to make the job of state attorney a separately elected constitutional office that is responsible to the electorate of his circuit. Under the Florida Constitution, the governor may suspend the state attorney only for very narrow and specific reasons, and partisan fealty to the governor is not one of them.”
‘Blanklet policies’
The governor suspended Warren on Aug. 4, subject to a hearing in the state Senate, citing public statements, circulated by the reform group Fair and Justice Prosecution (FJP) that Warren cosigned, opposing criminalization of abortion and transgender health care, plus what DeSantis claimed were “blanket policies” against prosecuting some low-level crimes.
On Jan. 20, U.S. District Judge Robert Hinkle in Tallahassee ruled following a three-day trial that Warren never imposed any blanket policies and that DeSantis acted for his own “political benefit,” seeking to stoke his reputation as a law-and-order governor taking down a progressive prosecutor.
“[T]he alleged nonprosecution policies were not the real motivation for the suspension,” Hinkle wrote, but rather a “pretext to justify the suspension under the Florida Constitution.” Also, “The FJP statements were a way to justify a decision already in the works on other grounds.”
“The record includes not a hint of misconduct by Mr. Warren,” Hinkle concluded.
The judge concluded that DeSantis violated both the Florida Constitution and the First Amendment to the U.S. Constitution but that he lacked authority to reinstate Warren.
Since Hinkle didn’t reinstate him as he asked, Warren is appealing that decision both to the Eleventh Circuit and the Florida Supreme Court, as it touches upon matters of both federal and state constitutional protections.
DeSantis has argued that Warren’s pledges and policies evidenced a lack of respect for state law and encouraged lawlessness.
As for free speech, shielding low-level public employees from retaliation for their politics is justified because “discipline based on party affiliation could coerce them to compromise their politics without sufficient justification,” the DeSantis brief says.
However, “the court has never extended that limited exception beyond low-level public employees,” the brief continues.
‘Rough and tumble’
“[T]he First Amendment does not shield governmental policymakers from the rough-and-tumble of partisan politics. Such officials exercise discretion concerning issues of public importance, wield the final authority of the government, and deal with the sort of decisions about which there are political debates. When managing such policymaking officials, politics may fairly be considered.”
That contention fundamentally misstates First Amendment law.
Warren’s appellate brief replies:
“That contention fundamentally misstates First Amendment law. The relevant question in determining the permissibility of a patronage dismissal is not whether an official formulates policy, but instead whether party affiliation is an appropriate requirement for the effective performance of the public office involved.”
Attorneys for the state argue in their own 81-page appellate brief filed on April 12 that DeSantis was fully justified in suspending Warren.
“The abortion and transgender pledges teem with promises not to enforce certain Florida laws. If the public, FJP’s promotional materials, FJP’s director, and Mr. Warren’s own chief of staff took them to mean that Mr. Warren would not prosecute various state crimes, surely the governor reasonably could too,” they wrote.
“The same goes for Mr. Warren’s presumptive non-prosecution policies. In issuing them, Mr. Warren refused to exercise case-by-case discretion absent the presence of a self-imposed additional element not found in the relevant statutes — the presence of a public safety risk.
“Those pronouncements, on their face, created a reasonable belief that Mr. Warren was refusing to exercise case by-case prosecutorial discretion — a belief bolstered by the many Florida law enforcement officials who identified Mr. Warren as a prosecutor who refused to enforce Florida law, and by the sheriff in Mr. Warren’s jurisdiction who confirmed that consensus,” their brief continues.
Reasonableness
“In response to all this, the district court concluded that the governor’s belief was unreasonable because he conducted a deficient inquiry into whether Mr. Warren truly intended to follow through on these statements. But reasonableness does not require an investigator to ask a defendant who confesses if he really meant it.”
The governor’s brief argues that speech uttered as part of an official’s duties constitutes governmental, not personal, speech, and therefore isn’t protected by the First Amendment.
“First, Mr. Warren was a state employee,” it says. “As with other state employees, Mr. Warren was also held accountable by other government officials. The governor could suspend him for cause, and the Senate could remove him.”
Second, Warren issued his statements and policies in furtherance of his official duties. “Indeed, Mr. Warren’s duties included developing and announcing prosecutorial priorities … and these statements pronounced his official prosecutorial intentions,” the governor’s brief says.
Hinkle ruled that, even though DeSantis violated the First Amendment, the suspension could stand because the governor had other, legitimate, causes for punishing Warren. He also cited the Eleventh Amendment, which bars federal judges from ordering state officials to act under state law.
But Warren’s team writes in their appellate brief that Judge Hinkle, back in Tallahassee, rejected DeSantis’ four reasons for acting: the abortion pledge, the transgender pledge, the presumption of nonprosecution for quality-of-life misdemeanors, and a similar presumption against charges arising from bike or pedestrian stops that allegedly targeted Black citizens.
“The defendant [DeSantis] must prove not only that he would have fired the plaintiff for the reasons he asserted and pled, but also that he could have done so. After all, the defendant can hardly object to reinstatement if he lacked legal authority to fire the plaintiff anyway, regardless of speech,” the Warren brief says.
“That is the situation here. The district court [Hinkle] concluded that the governor had no authority under the Florida Constitution to remove Mr. Warren for the reasons that actually motivated him,” it adds.
‘Viewpoint-discriminatory termination’
The trial court ruling “vividly describes a politically motivated, viewpoint-discriminatory termination,” ranging from DeSantis asking aides to find a prosecutor with links to billionaire philanthropist George Soros “to his crowing about how the suspension ‘sent a signal that the Soros model’ would ‘not fly in the Sunshine State.’”
DeSantis’ description of Warren as a prosecutor who “refuse[s] to enforce the law,” the Warren brief argues, “is a barely coded reference to a prosecutor who is ‘Soros-backed,’ ‘leftist,’ or ‘woke’ — in short, a prosecutor associated with an ideology that the governor abhors and has sought to promote himself by denigrating. The district court’s findings describe, in detail, classic viewpoint discrimination by the governor.”
Hinkle had noted that DeSantis legal aide Larry Keefe, who looked into the matter for the governor, didn’t conduct an earnest investigation but just asked his law enforcement pals about Warren, never asked Warren about his policies, and spoke to no one in Warren’s office who might have explained them.
“The hunt the governor commissioned was focused entirely on finding someone who had a reform prosecutor approach — a viewpoint about the role of a prosecutor in the criminal justice system — and that ideologically driven search, not any disagreement with actual case decisions, was what placed Mr. Warren in the governor’s crosshairs,” Warren’s brief asserts.
Even at the news conference announcing the suspension, the brief continues, DeSantis described his action “as part of the fight against the ‘woke mind virus’ and punishment for a ‘leftist politician.’”
It adds:
“It is simply not plausible to conclude that Gov. DeSantis would have suspended Mr. Warren if he were the governor’s political ally. The governor’s motivations cannot be separated from his animus toward Mr. Warren’s speech, his associations, and his political affiliations; the fact that Mr. Warren spoke out about the two ‘culture war’ issues on which the governor has defined himself; and the political opportunity the governor saw in ‘bringing down’ the leader of an ideology that the governor has built his national profile disparaging.”
This article originally appeared in florida phoenix