It's on, but not for long: Suspended prosecutor sues DeSantis for "blatant abuse of power"

AP Photo/Chris O'Meara

Just wait until Andrew Warren gets around to reading Florida’s constitution. The suspended State Attorney in Florida’s 13th Judicial District sued Gov. Ron DeSantis today, claiming a “blatant abuse of power” in, um … taking Warren at his word, or something:

“This morning I filed a suit in federal court to challenge that blatant abuse of power by Governor DeSantis in suspending me as state attorney,” Warren said during a Wednesday morning press conference in Tallahassee. “There is so much more at stake here than my job.”

Warren’s lawsuit, filed in the U.S. District Court Northern District of Florida, alleges that DeSantis violated his First Amendment rights by suspending him for signing a pledge to not prosecute women for seeking abortions and his public statements opposing the criminalization of transgender people. He is asking the court to throw out DeSantis’ executive order used to suspended him and to rule governors are not allowed to take similar actions moving forward.

It also alleges DeSantis overstepped his authority to suspend elected officials from office because he did so with Warren only for signing pledges, rather than in response to an official action. The issue is likely now headed to the Republican-led Florida Senate, which would have to take action before Warren is formally removed from office.

“No decision on any case ever considered by Warren while in office was impacted by these statements,” wrote David B. Singer, an attorney representing Warren, in the lawsuit. “Statements of opinion on matters of public debate do not relate to incompetence within the meaning of the Florida Constitution.”

That is certainly a curious defense. It’s not as if DeSantis guessed that Warren would refuse to enforce new state laws regarding abortion and sex-change procedures on minors. Warren signed a public pledge to refuse those cases and then publicized that action as a means of political jousting in Florida. As the Florida Supreme Court made clear four years earlier, State Attorneys do not have that range of “prosecutorial discretion” because such policies do not involve discretion at all, but rather defiance of the laws passed by state legislatures.

Nor does the “I haven’t started yet” argument work in regard to the precedent set in Ayala v Scott in 2017, either. Then-governor Rick Scott used the same constitutional authority to remove Aramis Ayala from potential death-penalty cases because she had declared publicly that she would not pursue the death penalty in any such cases in the 9th Judicial District. Immediately after her press conference, Scott issued executive orders moving all such cases to the 5th Judicial District.

The state supreme court upheld Scott’s orders on a 5-2 decision, but even the dissent in this case doesn’t help Warren. The dissent argued that prosecutors might have rational reasons to avoid death-penalty results — and that it wasn’t as if Ayala had announced that she would have a blanket policy refusing to enforce the statutes themselves, the dissent distinguished. Emphasis mine:

When State Attorney Ayala announced that her office would not seek the death penalty in capital prosecutions, she acted well within the bounds of Florida law regarding the death penalty. She did not announce a refusal to prosecute the guilt of defendants charged with first-degree murder. Rather, State Attorney Ayala announced that she would not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments, many of which have emanated over the years from the United States Supreme Court. 5

Note well that neither the majority nor the dissent raised any issues with Scott taking action on the basis of public statements by Ayala or demanded they wait until some point when those intentions produced concrete results. DeSantis followed the path laid out in Ayala, clearly enough.

So what basis will this lawsuit claim otherwise? Now the argument that Warren apparently wants to make in court is that no one should take his signed pledges and public statements seriously. That’s one hell of an argument for an elected official to put in front of a judge, let alone your constituents.

Don’t expect it to work, either. In the first place, Ayala clearly laid out this precedent, and even a sympathetic judge would have trouble overlooking it. Most importantly, however, it’s not really a legal matter but a political issue at this stage. DeSantis clearly has the authority to do this, and it’s not up to a judge to determine whether he “abused” it in this instance. The state constitution makes clear that the proper venue to challenge this suspension is the state senate:

SECTION 7. Suspensions; filling office during suspensions.—

(a) By executive order stating the grounds and filed with the custodian of state records, the governor may suspend from office any state officer not subject to impeachment, any officer of the militia not in the active service of the United States, or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor.
(b) The senate may, in proceedings prescribed by law, remove from office or reinstate the suspended official and for such purpose the senate may be convened in special session by its president or by a majority of its membership.
(c) By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted and the office filled by appointment for the period of suspension, not to extend beyond the term, unless these powers are vested elsewhere by law or the municipal charter.

If Warren wants his job back, he has to make the political argument for abuse of power to that constitutional body. Warren will have to convince the Republican majority in the upper chamber that (a) he has the power to unilaterally negate statutes passed by the state legislature, (b) DeSantis “abused” his power by preventing Warren from exercising unconstitutional vetoes over legislative action, and (c) no one can trust what Warren pledges to do even when he signs his name to such petitions and publicly proclaims his fealty to those positions.

Have fun storming that castle, Mr. Warren. I’m sure Governor DeSantis appreciates the 2024 push.