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‘This is not over.’ Judge says DeSantis was wrong, but declines to restore Andrew Warren to office

U.S. District Judge Robert L. Hinkle ruled that DeSantis violated the state constitution when he suspended the Hillsborough state attorney — but stopped short of returning Warren to office.
Former State Attorney Andrew Warren speaks during a news conference Friday, Jan. 20, 2023 in Tampa. U.S. District Judge Robert L. Hinkle ruled that DeSantis violated the state constitution when he suspended Warren but stopped short of returning Warren to office.
Former State Attorney Andrew Warren speaks during a news conference Friday, Jan. 20, 2023 in Tampa. U.S. District Judge Robert L. Hinkle ruled that DeSantis violated the state constitution when he suspended Warren but stopped short of returning Warren to office. [ CHRIS URSO | Times ]
Published Jan. 20|Updated Jan. 20

Despite concluding that Gov. Ron DeSantis violated the Florida Constitution and the First Amendment last year when he suspended Hillsborough State Attorney Andrew Warren, a federal judge ruled Friday that he didn’t have the power to restore Warren to office.

U.S. District Judge Robert L. Hinkle found that DeSantis suspended Warren based on the allegation that the state attorney had blanket policies not to prosecute certain kinds of cases.

”The allegation was false,” Hinkle wrote in a ruling issued Friday morning. “Mr. Warren’s well-established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case. Any reasonable investigation would have confirmed this.”

Yet Hinkle concluded that the U.S. Constitution prohibits a federal court from awarding the kind of relief Warren seeks — namely, to be restored to office.

Warren read a statement in a news conference Friday afternoon at the Ybor City law office of Swope, Rodante P.A. He called his suspension “a political stunt,” and “a cheap trick to add another misleading lie to the governor’s stump speech.”

“This is not over,” he said before walking off, taking no questions.

The governor’s office had yet to issue a formal statement about the ruling as of late Friday afternoon. But Bryan Griffin, a spokesperson for DeSantis tweeted: “A win for the governor and a win for the people of Florida.”

Susan Lopez, a former prosecutor and judge, was appointed by DeSantis to replace Warren. Her chief of staff sent a memo Friday to the state attorney’s office staff, including 130 prosecutors, saying that their work will continue.

“Many people will want to talk about the suspension, the lawsuit, and the ruling,” the memo stated. “We will instead continue to focus on the work of the agency.”

DeSantis suspended Warren from office Aug. 4, accusing him of neglecting his duties by refusing to enforce state laws. The governor pointed to statements Warren signed with other elected prosecutors throughout the nation pledging to refrain from prosecuting cases involving abortion or transgender health care. The governor cited Warren’s policies discouraging prosecution of certain low-level misdemeanors and cases arising from police stops of bicyclists, a practice that has been linked to racial disparities.

The governor announced the suspension in a news conference that had the air of a campaign rally. Standing with DeSantis were several local law enforcement officials including Hillsborough County Sheriff Chad Chronister and former Tampa police Chief Brian Dugan. Speakers voiced an assortment of complaints about Warren and his policies.

Two weeks after the suspension, Warren sued DeSantis in federal court, aiming to get his job back. He denied that he’d refused to enforce laws and said the suspension was political retaliation that violated his right to free speech.

He sought a judge’s order restoring him to office and barring DeSantis from taking any further action against him. He framed the lawsuit as a fight for democracy, emphasizing that Hillsborough County voters elected him twice.

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Related: The DeSantis/Warren battle: Takeaways from a Tallahassee courtroom

The case went to a trial before Hinkle in late November.

In his ruling Friday, the judge identified several factors he concluded were the governor’s motivation for the suspension. They included Warren’s pursuit of criminal justice reforms, his signing of the abortion pledge, his affiliation with the Democratic Party and reputed connection with liberal billionaire George Soros, and the political benefit the suspension would bring the governor.

The judge found no evidence that Warren was engaging in misconduct, or that his policies constituted blanket refusals to prosecute certain crimes.

“The assertion that Mr. Warren neglected his duty or was incompetent is incorrect,” Hinkle wrote. “This factual issue is not close.”

“So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much the way he told voters he would perform it,” the judge wrote.

The judge sharply criticized efforts the governor’s staff took to look into Warren’s performance — in particular, Larry Keefe, the governor’s public safety czar.

At trial, Keefe testified that DeSantis asked him in December 2021 if there were any Florida prosecutors who were not following the law. He said the governor railed against “woke” prosecutors in other states. Keefe talked to like-minded sheriffs, prosecutors and Republicans throughout the state, who all pointed to Warren. But he did not talk to Warren or anyone in the state attorney’s office about what was going on there.

The judge noted during the trial that Keefe’s inquiries seemed one-sided. And early drafts of the order to suspend Warren contained references to Soros, known for funding progressive prosecutors and liberal causes throughout the nation.

Ryan Newman, the governor’s general counsel, testified that he was initially skeptical of the need to remove Warren, but later became convinced that his actions amounted to a neglect of his duties as state attorney. Warren, Newman said, was “essentially inviting lawlessness.”

Warren’s decision to sign the abortion and transgender pledges provided justification for a suspension that was already in the works, the judge concluded. The governor’s main motivation was the political benefit of bringing down “a prosecutor whose performance did not match the Governor’s law-and-order agenda,” Hinkle wrote.

But Hinkle drew a distinction between things Warren said — which were protected by the First Amendment — and his conduct as an elected official, which is governed by state law. While the judge found that the governor’s action violated Warren’s free speech rights, he also found that the governor would have suspended Warren anyway based on his performance as a reform prosecutor.

The judge cited the 11th Amendment to the U.S. Constitution in concluding that he could not grant Warren’s request for reinstatement.

The amendment prohibits federal officials from forcing state actors to follow state laws.

But the judge did suggest one remedy:

“If the facts matter, the governor can simply rescind the suspension,” Hinkle wrote. “If he does not do so, it will be doubly clear that the alleged non-prosecution policies were not the real motivation for the suspension.”

Related: 'You've been suspended.' Ousted Tampa prosecutor testifies in DeSantis trial

Warren, in his Friday news conference, seized on the judge’s suggestion.

“Let’s see if the governor actually believes in the rule of law,” Warren said. “Let’s see if the governor actually is a man of his word. Let’s see what kind of man the governor actually is.”

Warren’s next steps, however, are unclear. He has options: He could file a lawsuit in state court, take his case to a federal appellate court, or go straight to the Florida Supreme Court.

Still, Warren may want to avoid continuing the fight in state court, as he would likely be facing judges appointed by DeSantis.

“As a general matter when suing governors, plaintiffs would prefer to be in federal court,” said Louis Virelli, a professor at Stetson University College of Law.

The ruling, largely favorable to Warren, ultimately falling in DeSantis’ favor, was a source of curiosity among Tampa’s Bay’s legal professionals.

Observed Tampa attorney Scott Tozian, who is not connected to the case: “Judge Hinkle did everything except reinstate Warren.”

The case drew national attention and has been the subject of much local speculation. At this week’s Dr. Martin Luther King Jr. parade in Tampa, both Warren and Lopez participated and threw beads to paradegoers, each identifying themselves as Hillsborough County State Attorney.

Lopez, testifying in a deposition in Warren’s lawsuit, said that she plans to be a candidate for the office in the next election.

Warren also could decide to run again.

“His ultimate path back to office may be up to the voters in 2024,” said Tampa attorney Gary Dolgin. “And I think he will win.”

Times Staff Writers Emily Mahoney and Natalie Weber contributed to this report.