Fight over suspended Tampa-area state prosecutor headed to trial

TALLAHASSEE — A federal choose on Monday refused to dismiss a lawsuit filed by suspended Hillsborough County State Attorney Andrew Warren but additionally 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 government 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 imposing a brand new legislation stopping abortions after 15 weeks of being pregnant. Also, the governor focused an announcement Warren joined condemning the criminalization of transgender folks and gender-affirming care.

Warren’s lawsuit alleges DeSantis violated the suspended prosecutor’s First Amendment rights and contends the governor’s government 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, instructed Hinkle that Warren, “an elected official, has to be free to express himself on issues of public importance.”

Cabou took concern with the proof DeSantis cited within the government order.

“They don’t say what the governor says they said,” Cabou, an Arizona-based lawyer with the Perkins Coie LLP agency, instructed the choose.

Hinkle instructed Cabou that “one sentence” within the abortion assertion “seems to say we’re not going to prosecute any abortion case,” however Cabou stated “there was never such a case referred to” Warren.

Cabou stated “value statements” joined by Warren aren’t insurance policies that he acted on.

“Every case is evaluated on a case-by-case basis,” Cabou stated. “There’s no evidence to contradict this.”

But state Solicitor General Henry Whitaker, representing DeSantis, argued that Warren’s speech within the statements shouldn’t be 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 instructed Hinkle.

Hinkle repeatedly pressed Whitaker on the problem. The choose gave an instance of an elected official being suspended by the governor for telling voters which candidate to assist.

“That can’t be right, can it?” he requested.

“I think it can,” Whitaker stated.

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 enable Bond to take his seat after he signed onto an announcement 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 stated 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 answer 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 usually are not elected state attorneys.

“The governor can’t go to a state attorney and start giving directions to the state attorney,” the choose stated.

“That’s not correct. … He supervises state attorneys in some respects,” Whitaker stated, including that the governor has the authority to assign circumstances to state attorneys. “The governor was elected by millions more people than Mr. Warren was.”

But Hinkle expressed concern a couple of governor’s capacity to take away an elected official from office as a result of he disagreed with their coverage selections.

“I’m talking about politics, partisanship,” he stated. “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 basic responded.

The choose stated he had to take into account the “real reason” behind Warren’s suspension, posing a hypothetical state of affairs by which a Republican governor eliminated a bunch 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 stated.

Before ruling from the bench on the motions for dismissal and preliminary injunction Monday, Hinkle stated 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 function of lead prosecutor.

“I can’t reliably determine the facts at this point,” the choose stated, including that the “public can’t be served by yo-yoing this office.”

Hinkle granted DeSantis’ movement to dismiss components of the lawsuit accusing the governor of violating the Florida Constitution, saying any treatment by a federal court docket on that concern “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 stated.

The choose refused to grant Warren’s request for a preliminary injunction blocking DeSantis’ motion however stated he needs the case to be expedited.

“It’s in everybody’s interest to get this done just as quickly as possible,” he stated.

Speaking to reporters after the listening to, Warren stated 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 stated.

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 resources.

But DeSantis, who’s operating for re-election this year and is broadly seen as a frontrunner for the 2024 Republican presidential nomination, has defended his resolution.

“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 stated final month. 

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