TALLAHASSEE — A federal choose on Monday refused to dismiss a lawsuit filed by suspended Hillsborough County State Attorney Andrew Warren but in addition rejected the Democrat’s request for a preliminary injunction to block the suspension by Gov. Ron DeSantis, saying the general public would not be served by “yo-yoing” prosecutors.
During an hour-long listening to, U.S. District Judge Robert Hinkle peppered a lawyer for DeSantis with questions on whether or not DeSantis overstepped his authority by suspending Warren and whether or not the governor violated Warren’s “protected” speech rights.
DeSantis on Aug. 4 issued an govt order suspending the twice-elected prosecutor, accusing Warren of “incompetence and willful defiance of his duties.”
DeSantis’ order pointed to a letter Warren signed pledging to keep away from implementing a brand new regulation stopping abortions after 15 weeks of being pregnant. Also, the governor focused a press release Warren joined condemning the criminalization of transgender individuals and gender-affirming care.
Warren’s lawsuit alleges DeSantis violated the suspended prosecutor’s First Amendment rights and contends the governor’s govt order “did not identify any actual conduct by Warren related to his official duties involving alleged criminal activity for seeking gender-affirming health care or abortion.”
Jean-Jacques Cabou, an lawyer for Warren, advised Hinkle that Warren, “an elected official, has to be free to express himself on issues of public importance.”
Cabou took problem with the proof DeSantis cited within the govt order.
“They don’t say what the governor says they said,” Cabou, an Arizona-based lawyer with the Perkins Coie LLP agency, advised the choose.
Hinkle advised Cabou that “one sentence” within the abortion assertion “seems to say we’re not going to prosecute any abortion case,” however Cabou mentioned “there was never such a case referred to” Warren.
Cabou mentioned “value statements” joined by Warren aren’t insurance policies that he acted on.
“Every case is evaluated on a case-by-case basis,” Cabou mentioned. “There’s no evidence to contradict this.”
But state Solicitor General Henry Whitaker, representing DeSantis, argued that Warren’s speech within the statements just isn’t protected as a result of “it is government speech.”
“Andrew Warren has no First Amendment right to say that he’s not going to do his job,” Whitaker advised Hinkle.
Hinkle repeatedly pressed Whitaker on the difficulty. The choose gave an instance of an elected official being suspended by the governor for telling voters which candidate to help.
“That can’t be right, can it?” he requested.
“I think it can,” Whitaker mentioned.
Hinkle additionally pointed to a U.S. Supreme Court ruling involving former civil-rights chief Julian Bond, who was elected to the Georgia legislature in 1965. The Georgia House of Representatives refused to permit Bond to take his seat after he signed onto a press release condemning the Vietnam War. The U.S. Supreme Court reinstated him two years later, affirming that the First Amendment protects elected officers’ freedom to communicate out on public points.
“The U.S. Supreme Court put Mr. Bond back in his position. You’re going to tell me I can’t do that,” Hinkle mentioned to Whitaker. “You really do think the governor is the state attorney’s boss?”
“He is his supervisor” in the identical sense that federal prosecutors reply to the president of the United States, Whitaker replied.
But, shaking his head, Hinkle famous that U.S. attorneys are appointed by the president — and are usually not elected state attorneys.
“The governor can’t go to a state attorney and start giving directions to the state attorney,” the choose mentioned.
“That’s not correct. … He supervises state attorneys in some respects,” Whitaker mentioned, including that the governor has the authority to assign instances to state attorneys. “The governor was elected by millions more people than Mr. Warren was.”
But Hinkle expressed concern a few governor’s skill to take away an elected official from workplace as a result of he disagreed with their coverage choices.
“I’m talking about politics, partisanship,” he mentioned. “Those things are all protected by the First Amendment, too.”
Hinkle requested Whitaker if an elected official is “speaking for the state of Florida” when he holds a rally.
“He doesn’t have a right … to say I am a law unto myself and I can’t be disciplined for it,” the solicitor normal responded.
The choose mentioned he had to contemplate the “real reason” behind Warren’s suspension, posing a hypothetical state of affairs during which a Republican governor eliminated a gaggle of Democratic state attorneys who take a softer stance on crime.
“The reason the governor acted was because Mr. Warren neglected his duties and demonstrated incompetence,” Whitaker mentioned.
Before ruling from the bench on the motions for dismissal and preliminary injunction Monday, Hinkle mentioned the case included only a “very preliminary record” and that DeSantis’ substitute for Warren, former Hillsborough County Judge Susan Lopez, already has taken on the position of lead prosecutor.
“I can’t reliably determine the facts at this point,” the choose mentioned, including that the “public can’t be served by yo-yoing this office.”
Hinkle granted DeSantis’ movement to dismiss elements of the lawsuit accusing the governor of violating the Florida Constitution, saying any treatment by a federal court docket on that problem “doesn’t work.”
But he refused to dismiss Warren’s lawsuit altogether.
“I think it’s clear that the complaint states First Amendment claims in which relief can be granted,” Hinkle mentioned.
The choose refused to grant Warren’s request for a preliminary injunction blocking DeSantis’ motion however mentioned he needs the case to be expedited.
“It’s in everybody’s interest to get this done just as quickly as possible,” he mentioned.
Speaking to reporters after the listening to, Warren mentioned he appears ahead to the trial, “where we can win this case and put me back in office to continue doing the work that I was elected to do.”
“There is so much more at stake than my job. This is about making sure that our elections have meaning, making sure that no one, not even the governor, can overturn an election, can silence the vote and voice of the people, or steal their vote,” he mentioned.
Warren’s suspension and authorized battle have drawn nationwide scrutiny, with greater than 100 authorized students from throughout the nation denouncing DeSantis’ motion and arguing that prosecutors have discretion over how to spend their assets.
But DeSantis, who’s operating for re-election this 12 months and is extensively seen as a frontrunner for the 2024 Republican presidential nomination, has defended his choice.
“In Florida, we actually said we are going to follow the law across the board, state and local. We had a prosecutor over in Tampa that had said he wasn’t going to enforce laws that he doesn’t like. So, we removed him from his post, and we said that’s not going to happen here,” DeSantis mentioned final month.
