Appellate court vacates prior ruling on Andrew Warren suspension; case sent back for remand

by | Jan 10, 2024



The Eleventh Circuit Court of Appeals on Wednesday vacated a lower court’s ruling on the suspension of State Attorney Andrew Warren by Gov. Ron DeSantis, recommending a reevaluation of the case, with questions raised about potential violations of First Amendment rights and political motivations.


The Eleventh Circuit Court of Appeals on Wednesday vacated a lower court’s ruling on the suspension of State Attorney Andrew Warren by Gov. Ron DeSantis.

In its filing, the appellate court did not issue a definitive ruling on Warren’s suspension. Rather, it recommended that the federal district court in Tallahassee, which had previously declined to order Warren’s return to office, should revisit specific aspects of the case.

The Eleventh Circuit asserts that Warren, who implemented new policies and advocated for various reforms during his tenure, was targeted by DeSantis, suspended via Executive Order, and subsequently replaced with a political ally of the governor.

To contest his ousting, Warren filed a lawsuit alleging that DeSantis suspended him in retaliation for First Amendment-protected activities, primarily his policies and advocacy. Following a bench trial, the district court identified six factors that motivated DeSantis to suspend Warren.

Despite finding that Warren’s protected activities had influenced DeSantis’s decision to suspend him, the district court ultimately rejected Warren’s claims. The court reasoned that even if the protected activity were set aside, DeSantis would have suspended Warren based on other unprotected activities, ostensibly reaching the conclusion that DeSantis had additional, non-First Amendment-related reasons to suspend Warren, which the court found valid.

Wednesday’s opinion now calls for a reevaluation of whether DeSantis’ decision to suspend Warren would have been the same, absent the consideration of Warren’s First Amendment activities. Further, the court addressed DeSantis’ argument regarding probable cause for Warren’s suspension, decisively concluding that there never was a probable cause to justify the suspension.

“The district court erred in concluding that the First Amendment did not protect the activities behind two of the other factors,” the filing reads. “We therefore vacate and remand. On remand, the district court should reconsider whether DeSantis would have made the same decision based solely on the unprotected activities.”

“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” the judges continued. “On remand, DeSantis must prove that unprotected activity, such as Warren’s actual performance or his policies, motivated him to suspend Warren”

In August 2022, DeSantis accused Warren of incompetence and abandonment of duty when he was dismissed from office. Notably, the governor claimed that Warren pledged not to enforce the state’s recently passed abortion law, as well as signed letters stating that he would not enforce laws prohibiting sex changes for minors.

The suspension has been highly politicized and seen as a flagship moment of action for DeSantis, who directly referenced his removal of Warren during a Republican primary debate.

The appellate court further questioned whether the governor’s mention of Warren’s suspension during the debate spurs additional questions as to whether the removal was motivated by political beliefs or affiliations, potentially infringing on their First Amendment rights to freedom of speech and association.

“During a recent presidential debate, DeSantis lamented that, in his view, other contenders for the Republican nomination weren’t “willing to stand up and fight back against what the Left is doing to this country.” As evidence that he would do so, DeSantis boasted that … he had “beat[en] George Soros when [he] removed two of his radical district attorneys,” the opinion states. “Andrew Warren was one of the DAs whom DeSantis removed. The question before us today is whether, in doing so, DeSantis violated the First Amendment.”

In a September 2022 interview with Warren, he criticized the timing of his suspension, suggesting that it was predicated on what he referred to as DeSantis’ political ambition to run for president.

“The Governor has made clear that he is focused not on the needs of Floridians, not on the safety of our communities … but on running for President in 2024,” Warren said. “That’s what this is about. A political stunt to further his political ambition.”

Following an appeal to the Florida Supreme Court last June, Warren’s case was dismissed after the justices cited an “unreasonable delay.”

The Court noted that Warren had filed a lawsuit in federal court shortly after his suspension, seeking a writ of quo warranto (a legal action to challenge someone’s right to hold office) based on the claim that the suspension order was insufficient under Florida law. However, when the federal court dismissed the challenge, Warren waited close to five months before filing the petition with the state Supreme Court, with Justices claiming they were not provided with any explanation for the delay. The court concluded that considering the circumstances, it was too late for them to review the case.

“[Warren] waited almost five months before finally petitioning this Court and requesting our “expeditious review” of his state-law claim”, said Justice Charles Canady in his written opinion. ” [The] Petitioner offers no explanation for the delay. We conclude that, under the circumstances of this case, the time for our review has passed.”

The opinion further explained that the power to suspend state officers, like Warren, is granted to the Governor under Article IV, Section 7 of the Florida Constitution, further elucidating that while the courts have a limited role in reviewing suspension orders, the primary check on the Governor’s actions is the Senate, which has the power to remove or reinstate suspended officials.

On Monday, Warren announced that he will not seek a third term in office, despite opening a campaign account in October. His decision was largely attributed to concerns that if he were reelected, DeSantis might again suspend him and appoint a political substitute, according to transmitted communications.

“I have been planning to run for re-election since the day I was suspended. But the governor has made clear that he does not care about the will of the voters or our democracy, and that he is willing to break state and federal law to keep me from serving as State Attorney,” Warren said.

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