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Judge favors free speech arguments in Warren vs. DeSantis case

The case of the ousted Hillsborough state attorney is heading for a federal trial in November.
State Attorney Andrew Warren, right, and Governor Ron DeSantis, left.
State Attorney Andrew Warren, right, and Governor Ron DeSantis, left. [ Times ]
Published Sep. 30|Updated Sep. 30

The federal judge considering Andrew Warren’s challenge to his suspension by Gov. Ron DeSantis declined in a written order Thursday to immediately reinstate the ousted state attorney, but appeared to favor Warren’s arguments that his removal violated his free speech rights.

The governor is not Warren’s boss, the judge opined, and has no right to tell him how to do his job.

In a 29-page order filed Thursday, U.S. District Judge Robert Hinkle elaborated on thoughts he expressed amid arguments in the case two weeks ago, including his preference for Warren and DeSantis to hash out the case in a trial.

“When the facts are known, the case could come out either way,” Hinkle wrote.

Warren, who was twice elected to be the top prosecutor in Hillsborough County, was escorted from his office Aug. 4 by an armed sheriff’s deputy. It happened after DeSantis signed an executive order suspending him from office.

The governor’s reasons included Warren having signed onto a pair of written statements with other elected prosecutors and law enforcement officials throughout the nation in which they pledged not to prosecute cases involving abortion or transgender health care. The governor also cited policies Warren enacted within his office that discouraged prosecutions of certain low-level crimes.

DeSantis appointed Susan Lopez, a Hillsborough County judge and former longtime Tampa prosecutor, to replace Warren as state attorney. Her first acts included reversing some of Warren’s policies.

Warren sued in federal court, alleging that the governor’s action was retaliation for his expression of free speech. He also argued that the suspension exceeded the governor’s authority. Lawyers for DeSantis asked for the case to be dismissed.

Judge Hinkle heard arguments from both sides Sept. 19. He declined a request from Warren for an order that would block the suspension and restore him to office while the case continued. He indicated he wanted to avoid the destabilizing effect of reinstating Warren only for an appeals court to possibly overturn the decision.

He reiterated as much in his order Thursday.

“Changes at the top of any enterprise can be disruptive,” Hinkle wrote. “The Governor has replaced Mr. Warren with a new state attorney, and she has made substantial changes. If Mr. Warren is to be reinstated, it should happen once. Reinstating him now, when it cannot be predicted with confidence that he will ultimately prevail in the litigation, risks further disruption.”

The judge’s order also addressed some of the issues raised in the lawsuit.

Of Warren’s signing onto the statements about transgender and abortion issues, the judge wrote that Warren’s support for the statements were not an official action by him. The statements themselves contained speech protected by the First Amendment, the judge said.

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There was scant evidence presented that Warren had expressed a blanket refusal to prosecute certain cases, the judge found.

He also wrote that Warren was accountable to the people who elected him, not the governor.

“Elected officials are beholden to their constituents, not to some other elected official, even if the other official ranks higher,” Hinkle wrote. “Here, for example, the governor was not Mr. Warren’s boss and had no right to dictate how Mr. Warren did his job — whom he hired, what policies he adopted, or any of the myriad other policy matters a state attorney must address.”

On Friday, Hinkle also issued a scheduling order, listing various deadlines for Warren and DeSantis as they prepare for a trial before the judge. He set a Nov. 29 trial date.

Related: Will Gov. DeSantis get deposed and questioned on the witness stand?

Meanwhile, DeSantis’ lawyers have suggested a way to speedily resolve the case: Let him take it to an appeals court.

DeSantis argues in court documents that there is a substantial difference of opinion on the First Amendment question.

”Under Florida law, State Attorneys are not roving elected free agents — they are state employees who speak and act for the State of Florida as prosecutors,” the governor’s brief contends.

Getting that First Amendment question answered by the appeals court could “obviate the need for a costly expedited trial,” the governor argues, and could “shuttle this case to resolution.”

Times Staff Writer Sue Carlton contributed to this report.

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