Ousted Hillsborough prosecutor vs. DeSantis in court Monday. What could happen?

Suspended state attorney Andrew Warren will ask a federal judge to reinstate him to the office he was escorted out of last month.
Gov. Ron DeSantis, left, suspended Hillsborough County State Attorney Andrew Warren in August.
Gov. Ron DeSantis, left, suspended Hillsborough County State Attorney Andrew Warren in August. [ Times ]
Published Sept. 16, 2022

On a lobby wall inside a busy Tampa courthouse is a gallery of photographs of Hillsborough County state attorneys dating back decades.

A new face just went up: Susan Lopez, the judge who left the bench to take over the job after Gov. Ron DeSantis’ surprise removal of State Attorney Andrew Warren last month.

Now Warren, whose smiling picture currently sits below that of Lopez, is headed to court to try to get the job back.

At 9 a.m. Monday, lawyers for DeSantis and the ousted prosecutor are scheduled to face off before a federal judge in Tallahassee. Warren, a Democrat, has called his suspension a political stunt by the Republican governor and wants to be returned to office. DeSantis says Warren refused to enforce the law and his removal should stand.

Depending on what Senior U.S. District Judge Robert L. Hinkle decides, Warren could ultimately be back at his desk, or the governor’s suspension could prevail. Whatever happens could land in an appeals court, with a possible stay of the proceedings while it all plays out.

Warren was escorted from his offices by a sheriff’s deputy Aug. 4. At issue were statements he signed with other prosecutors — one pledging not to criminalize gender-affirming health care or transgender people, another to refrain from prosecuting those seeking or providing abortions. DeSantis also criticized an office policy on avoiding charges for certain low-level crimes.

Warren sued the governor, saying he’s had no such abortion or transgender cases to decide. Prosecutors routinely use discretion on whether to pursue charges, he said. Warren accused DeSantis of overstepping his authority and violating the free speech rights of a state attorney voters elected twice.

His request for a preliminary injunction asks the judge not only to order DeSantis to reinstate him, but to prohibit the governor from retaliating.

No witnesses will testify. Judge Hinkle has allotted each side 30 minutes — a seemingly short time to hash out legal issues that include the First Amendment. But Hinkle likely is already deeply familiar with the arguments, given the voluminous documents filed by both sides.

“Most federal judges are extraordinarily prepared,” said Joel Hirschhorn, an attorney with GrayRobinson in Miami.

Hinkle may have questions. It’s the norm for federal judges to interact with lawyers and ask for clarifications, said Louis Virelli, professor of law at Stetson University College of Law. In this case, “I would suspect a pretty active bench,” he said.

After the arguments, Hinkle could announce a decision, though those familiar with federal courtrooms don’t think so.

“I would find it highly doubtful he enters an order on the spot,” said Lara Fernandez, partner at Tampa’s Trenam Law. “Something like this I think the judge would be really thoughtful in his or her written opinion.”

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While a ruling from the bench would be atypical, Virelli said, the judge is probably aware of the matter’s time sensitivity.

“If the court determines that the suspension of Andrew Warren was unconstitutional, then there is very good reason to act quickly to reinstate him,” he said. “If the suspension was justified under the law, then it becomes less of an emergency.”

The judge could convene court without a hint of his decision, leaving lawyers to wait for his written ruling.

“We’re talking a couple of days,” predicted Florida International University professor of law Howard Wasserman. “It’s a high-profile case where what they’re asking for is by its nature temporary relief, so that temporary relief needs to come quickly.”

DeSantis’ attorneys also are expected to argue that this is a state and not a federal court matter.

Whichever side loses may appeal to the 11th Circuit Court in Atlanta.

Should Warren prevail in Tallahassee, DeSantis could ask for a stay while the matter is decided by the higher court. A stay means nothing would happen — such as Warren’s return to office — until the appeals court makes its decision.

Some considerations that could come up: Is the potential damage of an elected official continuing to not serve too great to stay the proceedings? Or, would returning Warren to office with the possibility that an appeals court could rule differently and he’d be out again mean a stay makes sense?

Other possible repercussions depending on what Hinkle decides: The fate of acting state attorney Lopez, appointed as a county judge by DeSantis in 2021. The day Warren was removed, Lopez resigned from the bench and was made state attorney by the governor.

Acting State Attorney Susan Lopez, top, is pictured on the lobby wall of the Pat Frank Courts Building in Tampa. Suspended State Attorney Andrew Warren is pictured at the bottom right.
Acting State Attorney Susan Lopez, top, is pictured on the lobby wall of the Pat Frank Courts Building in Tampa. Suspended State Attorney Andrew Warren is pictured at the bottom right. [ SUE CARLTON Times ]

Should Warren be reinstated, Lopez would be out of a job — although Hillsborough currently has two vacancies on the county bench up for gubernatorial appointment.

Asked whether she again would seek an appointment to a judgeship if Warren were returned to office, Lopez responded via email: “As a person of faith, I take great comfort in accepting the distinction between the things I can control and those that I cannot. The lawsuit is being well handled by the Governor’s very capable team. "

A DeSantis spokesperson did not respond to the specific question of whether in that scenario the governor would return Lopez to the bench.

Asked about Monday’s hearing, DeSantis’ spokesperson Bryan Griffin said via email: “All of our arguments and reasoning are contained within our legal filings, and we expect to prevail.”

“We’ve laid out our case. It’s clear the law is on our side,” said Warren’s Tampa attorney, David Singer. “We look forward to presenting the facts to the court on Monday.”

Warren plans to attend the hearing. DeSantis does not. Though reporters are expected to be in the courtroom, cameras won’t be allowed.