South Florida Sun-Sentinel (Sunday)
Suspension of state attorney was unconstitutional
When Gov. Ron DeSantis abruptly suspended Hillsborough State Attorney Andrew Warren last month, it quickly became clear the governor had overstepped his authority.
In fact, the governor’s suspension is unconstitutional. We feel confident a federal judge will agree, overturn Warren’s suspension, and reinstate the duly elected state attorney to get back to the important work voters elected him to do. How can we be so certain? We served on Florida’s Constitution Revision Commission in 1997-1998. We carefully reviewed and debated the portion of the Florida Constitution that DeSantis relied upon to suspend Warren. We know what that section means and how it is intended to be applied — and it does not give DeSantis the authority to do what he did.
That’s why we submitted a legal brief urging the presiding judge to find that DeSantis exceeded his authority and that his suspension of Warren should be overturned. A hearing on Warren’s legal challenge is scheduled for later this month.
DeSantis’ suspension of Warren is unprecedented and politically motivated. Here’s the bottom line: If governors were permitted to suspend elected state attorneys because of their prosecutorial priorities and replace them with allies whose priorities mirror their own — or worse, associates who would allow the governor to control whom they choose to prosecute — Florida’s elections for state attorney, and potentially all elected officers, would be virtually meaningless.
In his executive order suspending Warren, DeSantis relies on the authority of the governor to remove elected officials from office for “neglect of duty” and “incompetence” as outlined in the Florida Constitution. The governor cites two value statements signed by Warren and dozens of other prosecutors from around the country regarding their concerns about the criminalization of gender-transition treatments and abortion.
In fact, Warren has not had a single case come to his desk regarding either issue. Florida does not even have a state law regarding gender-transition treatments. And no cases have come to the State Attorney’s Office in Tampa regarding abortion restrictions. Indeed, the first and only court to have evaluated the recent 15-week abortion ban found that it violated Florida’s Constitution. How can it be “neglect of duty” for a person who swears to uphold the law to announce he’s opposed to an unconstitutional law? Clearly, it’s not.
Even the governor’s own executive order does not allege Warren acted on the opinions expressed in the value statements. Without any action, he cannot have committed one of the sins that would authorize the governor to suspend him under settled Florida constitutional law.
We know what “incompetence” and “neglect of duty” mean in the state Constitution. It’s definitely not this. The grounds the governor invokes for suspending Warren are deeply rooted in Florida’s constitutional history going back more than 150 years.
In the Florida Constitution, “neglect of duty” and “incompetence” have long been understood to concern mandatory responsibilities of public office. The allegations made in the governor’s executive order do not concern decisions Warren has made regarding whether to prosecute any particular instance of criminal activity. Instead, the order focuses on what Warren might decide in the future. That’s just not right.
Our court brief cites another major reason why the governor’s suspension of Warren is unconstitutional: Even assuming DeSantis’ interpretation of the Florida Constitution is possible (and we are confident it is not), that interpretation would improperly conflict with Warren’s First Amendment free speech rights under the U.S. Constitution.
DeSantis clearly exceeded his authority in suspending Warren. His executive order misinterprets a portion of the Florida Constitution we know particularly well, and it violates Warren’s free speech rights under the U.S. Constitution.
No Florida governor, no matter their political party, should be able to remove from office a duly elected state attorney simply because they disagree with that state attorney’s opinions. That is an egregious violation of the will of the voters, and the courts should find the governor’s suspension is unconstitutional and let Andrew Warren return to work.
Bob Butterworth served as Florida attorney general from 1987 to 2002. Ellen Freidin led the successful effort to pass the Fair Districts constitutional amendments in 2010. They each served as members of the 1997-1998 Florida Constitution Revision Commission.