Looking into the implications of the Andrew Warren trial

A federal judge will soon decide whether Hillsborough State Attorney Andrew Warren was unjustly suspended by Gov. DeSantis earlier this year.

A trial in Tallahassee wrapped up on Thursday, and a decision is expected later this month. DeSantis suspended Warren over his signing of statements that said he would not pursue criminal charges against seekers or providers of abortion or gender transition treatments. Warren is suing to be reinstated.

The Florida Bar

We talk about the legal implications of the trial with Judge Scott Stephens. He is retired from Florida's 13th Circuit Court and is now an adjunct professor at Stetson University College of Law.

I'd like to ask you very generally, about the importance of this Andrew Warren case and kind of how it goes beyond just the political realm into maybe the future of the whole State Attorney system.

JUDGE STEPHENS: It was kind of unexpected. Traditionally, it had been the case that people would not use the authority of the governor for actions that could be accused of being political, like this one clearly has been accused of that. I don't have anything to do with any of the political stuff. I can only tell you that if they set the legal precedent that the governor can basically reject somebody because they say something he doesn't like, that has the potential of affecting a lot of the way a lot of cases around the around the state are dealt with. And it might make some of the prosecutors a little bit less comfortable that they have the authority to make their own decisions about who to prosecute or not prosecute, in any given case.

So this is the concept of prosecutorial discretion. Like police officers, prosecutors basically have the power to decide whether to charge somebody based on their interpretation of the law. Does that put that whole concept at risk?

I don't know that it goes far enough to say it puts that whole the whole concept of prosecutorial discretion at risk. Ironically, part of the reason for it is the claim that Mr. Warren abandoned his discretion, and just decided to follow a hard and fast rule under all circumstances. Warren, of course, disputes that. And Warren points out correctly, that the time to find out whether he would really exercise his discretion or not exercising discretion has not arrived. And that so far, all that exists in the public record is the some sort of a political pledge to take a certain political position.

And I think in one case, if you read Judge Hinkle's earlier order, he found that the one thing that Warren said he would do or not do, had to do with, I think, the new abortion law that was passed. So, you know, many of the cases that are supposed to be included in this case will never happen. And as a result, it's kind of hard to see from a legal standpoint, why anybody would feel the need.

There's no administrative or legal imperative for suspending Warren, right? It's, so if it's going to be explained at all, it has to be explained as being a political move. And that's where my ability to come in on it goes away or ends. So all I can do is say that there's no legal reason why it had to be done. Because nothing, literally nothing had happened. And there's no administrative reason, because the governor doesn't have really the power. I guess we're going to find out but the governor doesn't really have the power to police the speech of the various other entities in state government, right?

Some people are saying this is basically a violation of his First Amendment free speech rights. They say this will have a chilling effect on what prosecutors say, rather than what they do. Do you believe that's true? And have you seen any other cases like this, either in Florida across the nation?

Well, the closest case we saw to this one was Aramis Ayala, this case in the Florida Supreme Court. And she had sent out some sort of communication that said she wasn't going to seek the death penalty in any of her cases. And there were 29 pending cases that were eligible for the death penalty to be sought, pending in her circuit. So when she said that the governor, Gov. Scott, at the time, he transferred those cases to another state attorney. He didn't take away your job, he took away just some of the cases and transferred to somebody else. There's a statute that permits that. And the court held that he didn't do anything wrong by transferring those cases.

And, you know, it's kind of similar to this case, because all I did was say something. The difference is she had live cases, the cases that were involved, that were involved their action or inaction to be taken, right then. And the governor gave them to another state attorney to do that. And that was upheld by the court.

So that's the closest thing we've seen that didn't involve removing somebody from their office. It didn't involve basically a regime change in the State Attorney's office over something that hasn't happened yet. So I was surprised to see that, until I started looking at the other things, and realizing this is all part of a series of things that aren't done for any legal or administrative reason.

That's about power, though. And some people care more about power than about their country or the Constitution or anything else. So I'm not saying who because I don't know. I don't know how how this case is going to come out.

That's what I was going to ask you, Judge Stephens, if you have a prediction based on you following what's been going on in Tallahassee with this case, whether you think the judge will rule on one side or the other?

Well, originally, there were two issues. One being the First Amendment issue. And the other one being an issue under the Florida Constitution, Article Four, that the federal judge correctly dismissed the state law question, because you can't adjudicate that particular kind of state law question in federal court, because the state has sovereign immunity so that that one's gone, there won't be an appeal, I don't think of that, of that. Warren could bring that case in state court, in fact, he could bring it directly in the Supreme Court of Florida, if they would tolerate it, which they may or may not.

Now, the First Amendment case is much harder to predict, because we don't have any examples of people who openly discriminate against people because they don't like what they said. And it has historically been a constitutional principle that all Americans followed and cherished, that the government can't take action against somebody because they don't like what they said. I guess it might not be a constitutional principle anymore. Because there's no way around the fact that, you know, if the fellow said something that actually caused some sort of current issue that they could point to, then that would give more substance. Right now, it just looks like he's just trying to retaliate for something that he didn't like.

And, you know, given that we saw that with the Disney case, in my opinion, (was) more egregious, because Disney was private, a private company taking a mild political position on a thing that interests them, because they're the biggest employer in the state, biggest private employer in the state, I think. And suddenly, they're finding the state legislature of Florida declaring war on them because they said something about not liking a certain bill, which by the way, another federal judge has held unconstitutional.

I would expect [Judge Hinkle] probably would see things in favor of the plaintiff, in favor of Andrew Warren in this case, but then that doesn't decide the case. The case is decided by the appeals court at the 11th Circuit in Atlanta, but it's very hard to predict what will happen there. Because it consists of probably a dozen members and every case is decided by a panel of three. And you don't know who's going to be on the panel until you get to the oral argument.

Is there's anything else you'd like to wrap up on?

Warren's people tried to send some things out there about his interim successor, Susan Lopez. She was a prosecutor who appeared in front of me when I was in the criminal bench for a few years. She's a dedicated public servant. She's not one of these political players, and doesn't deserve the kind of criticism that she's been getting.