Florida governor Ron DeSantis suspended Hillsborough County state attorney Andrew Warren for announcing his refusal to prosecute entire categories of cases. Warren, a Democrat, is angry and suing the Republican governor to get his job back. But DeSantis is on solid legal ground.
Warren’s effort faces three problems, which I have explained at length. One, Florida’s constitution gives DeSantis the explicit power to suspend a state attorney. Two, the permitted grounds for doing so include “neglect of duty,” and the Florida supreme court has construed that phrase broadly as far back as 1937 to include failure to prosecute classes of cases, and confirmed the breadth of that power as recently as a 2019 decision upholding a DeSantis suspension of a sheriff. Three, the Florida Supreme Court has also recognized since that 1937 case that all the governor has to do is announce legitimate grounds for suspension; by the explicit division of authority in the Florida constitution, deciding whether the facts support the governor’s conclusion is up to the state senate, not the courts. Florida’s Republican-run state senate is unlikely to sympathize with Warren.
Warren has filed suit seeking a writ of quo warranto under Florida law, the same remedy the courts denied in those previous cases. In an attempt to get around the clear Florida caselaw, however, Warren filed his suit in federal court, and tacked on a First Amendment claim. It won’t help him. Warren’s complaint and his press conference announcing it were full of florid rhetoric about how DeSantis is supposedly trying to “toss out the results of an election” by exercising a constitutional power of oversight, and this bit of nonsense: “Warren brings this lawsuit to confirm that the First Amendment still applies even though DeSantis is the Governor of Florida and that the Constitution of the State of Florida means what the courts say it means, not whatever DeSantis needs it to mean to silence his critics, promote his loyalists, and subvert the will of the voters.” Critics of DeSantis who call his move “fascist” and a sign of “autocracy” and ask, “Since when does the governor have veto power over the people’s choice?” should probably have read the Florida constitution and the cases. So should Warren and his lawyers at Perkins Coie before filing this stunt lawsuit.
First of all, the federal courts are still required to follow how state courts apply state law, including the Florida supreme court’s conclusion that examining the underlying facts is a task delegated to the state senate. Nothing in Warren’s complaint disputes that the failure or refusal to prosecute whole classes of cases is “neglect of duty” under settled Florida law. The best he can do is cite an Eleventh Circuit opinion from 2005 that describes the governor’s suspension and removal power as applying only in “extraordinary circumstances,” but that case did not involve a challenge to a suspension or removal; a judge deciding Warren’s case will be much more interested in what the Florida courts have said in deciding those cases in the past.
Wrapping himself in the banner of “prosecutorial discretion” will get Warren nowhere. As the Florida Supreme Court noted in Ayala v. Scott, upholding Rick Scott’s power under a similar provision to reassign potential death-penalty cases away from a prosecutor who ruled out seeking the death penalty:
Ayala and her amici urge this Court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion. We decline the invitation because by effectively banning the death penalty in [Florida’s] Ninth Circuit—as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty—Ayala has exercised no discretion at all. As New York’s high court cogently explained, “adopting a ‘blanket policy’” against the imposition of the death penalty is “in effect refusing to exercise discretion” and tantamount to a “functional veto” of state law authorizing prosecutors to pursue the death penalty in appropriate cases. . . . Under Florida law, Ayala’s blanket refusal to seek the death penalty in any eligible case, including a case that “absolutely deserves the death penalty” does not reflect an exercise of prosecutorial discretion; it embodies, at best, a misunderstanding of Florida law.
Warren contends that two of the policies cited by DeSantis — “presumptive non-enforcement for certain criminal violations, including trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution” and “against prosecuting crimes where the initial encounter between law enforcement and the defendant results from a non-criminal violation in connection with riding a bicycle or a pedestrian violation” — are merely presumptive guidelines and not blanket refusals to enforce the law. That is, however, precisely the sort of dispute that the law has assigned to be decided by the Florida senate, not the courts. In the 1937 case, there was no announced policy, just a conspicuous record of not prosecuting a particular offense (illegal gambling).
Warren’s theories don’t fare any better when recast as a First Amendment claim, under which he supposedly suffered retaliation for his public statements about what cases he would or wouldn’t prosecute. Under the Supreme Court’s decision in Garcia v. Ceballos (2006), the First Amendment does not protect public employees for speech about their jobs that arises from their jobs. Garcia also involved a prosecutor who objected to elements of a case he was supposed to prosecute. As the Court explained:
The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. . . . Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case. . . . When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. . . . The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. . . .
Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.
Warren’s complaint conspicuously does not allege or argue that he signed the public statements about not enforcing abortion and transgender laws in his capacity as a private citizen, much less that his office policies on presumptive nonenforcement were private speech that DeSantis could not properly use as a justification for his suspension. Indeed, Warren alleges that he signed the two public statements in his capacity as an elected official. He signed both of them as “Andrew Warren State Attorney, 13th Judicial Circuit (Tampa), Florida.” The joint statement on transgender laws states that its signatories “pledge to use our settled discretion and limited resources” as prosecutors to make decisions about what laws not to enforce. The joint statement on abortion laws is similarly framed:
Our obligation to exercise our discretion wisely requires us to focus prosecutorial resources on the child molester or rapist, not on prosecuting the victim or the healthcare professionals who provide that victim with needed care and treatment. . . . Our legislatures may decide to criminalize personal healthcare decisions, but we remain obligated to prosecute only those cases that serve the interests of justice and the people.
No responsible jurist could conclude that these were the statements of a private citizen under the Garcia standard. They are assertions about how the signatories propose to use government power.
This lawsuit is a joke, and if the courts do their job, it will be treated as one.