After being suspended by Gov. Ron DeSantis and losing an election bid to get his old job back, ousted Hillsborough County State Attorney Andrew Warren isn’t giving up on a court battle seeking vindication.
DeSantis suspended the twice-elected Democrat more than two years ago, accusing Warren of “incompetence and willful defiance of his duties.” The governor replaced Warren with Suzy Lopez, a former county judge who last month defeated Warren in the race for state attorney.
The 11th U.S. Circuit Court of Appeals three weeks ago directed lawyers for Warren and DeSantis to submit briefs about whether a lawsuit challenging the suspension is moot or will become moot in January, when the term Warren was elected to in 2020 will expire and Lopez’s new term begins.
Warren’s attorneys this week argued that his legal efforts to overturn the suspension should be allowed to proceed, arguing that, although Warren’s term will soon end, “this controversy will not.” Advancing the case, in part, could allow Warren to seek back pay for the time he was sidelined as prosecutor, they wrote.
READ MORE: Andrew Warren loses quest to become Hillsborough state attorney once again
Attorneys for DeSantis, meanwhile, urged the Atlanta-based court to find that Warren’s case is moot, arguing that it would be “inequitable” to remove Lopez just weeks before her new term and warning that reinstating Warren would “undermine the will of the voters” who elected her last month.
In a filing Tuesday, Warren’s attorneys argued that U.S. District Judge Robert Hinkle should be allowed to reconsider the case, as ordered in January by a panel of the appeals court.
“It has now been nearly two and a half years since Governor DeSantis illegally suspended Mr. Warren in retaliation for Mr. Warren’s political speech. The governor’s efforts to delay and evade judgment on his action have now consumed the remainder of Mr. Warren’s term in office. But while Mr. Warren’s term will soon expire, this controversy will not,” the filing said.
But DeSantis’ lawyers, in a filing Tuesday, called the case “prudentially moot.” Warren’s 2020 term is set to expire Jan. 7, which would make the case moot, the governor’s lawyers wrote. The court cannot reinstate Warren to a term that has ended, they argued.
“It would be inequitable, to say the least, to oust State Attorney Lopez and reinstall Warren in the waning month of the current electoral term. For either reason, the court should vacate both the panel opinion and the judgment below, and remand with instructions to dismiss,” the document said.
DeSantis’ 2022 suspension order, in part, pointed to Warren signing a national organization’s statement about refraining from prosecuting abortion cases.
The governor also targeted Warren for signing a statement that criticized laws restricting care for trangender people. In addition, DeSantis cited Warren policies that could limit prosecution of cases related to bicycle and pedestrian stops by police and certain low-level offenses.
Warren disputed the accusations about his performance and argued in a lawsuit that the suspension violated his First Amendment rights.
Hinkle in January 2023 ruled that the First Amendment protected Warren on two factors — his political affiliations and advocacy for criminal-justice reform. Nevertheless, he concluded that DeSantis would have suspended Warren based on other factors that were not protected by the First Amendment.
But in a win for Warren, a three-judge panel of the appeals court in January 2024 vacated Hinkle’s ruling. The panel said the suspension violated First Amendment protections in a series of ways and directed Hinkle to re-examine whether DeSantis had legitimate policy grounds to oust the prosecutor.
DeSantis’ lawyers, however, quickly asked the full appeals court to take up the dispute. Although Warren’s attorneys made attempts to speed up resolution of the case, it largely remained on hold. The full Atlanta-based court has not heard arguments.
With the lawsuit unresolved, Lopez received nearly 53 percent of the vote in the Nov. 5 election against Warren.
In their court filing Tuesday, Warren’s lawyers argued that the case needs to proceed to protect Warren from future retaliation by DeSantis.
“The crux of Mr. Warren’s claim in this case is that the governor must be enjoined from retaliating against him for engaging in protected speech. The need for that relief remains. Mr. Warren has dedicated his professional life to serving as a prosecutor. He has chosen to pursue that profession in state government in Florida and may choose that pursuit again in the near future, perhaps during the time that Governor DeSantis still holds office,” the document said.
In addition, DeSantis’ “violation of his (Warren’s) constitutional rights entitles Mr. Warren to other forms of relief, potentially including compensation for the time he has been unlawfully barred from office,” they said.
But the governor’s attorneys argued that, under state law, Warren could only be eligible for back pay if he is reinstated to his term of office, so a court ruling issued after his term expires would not trigger an award for lost wages.
“Reinstating Warren for the rest of the current state-attorney term would only sow ‘chaos and uncertainty’ within the state attorney’s office and undermine the will of the voters,” DeSantis’ lawyers wrote.
Warren “could make case-specific decisions to release dangerous criminals into the community, threatening public safety,” DeSantis’ lawyers contended.
“And more generally, he could usurp the office’s time and resources to reshape it in his image — flouting the will of the voters who rejected that image in the 2024 election,” DeSantis’ lawyers argued.
Reinstating Warren “at this late hour would benefit Warren little” because Lopez would dismantle any of his policies that were counter to hers, the governor’s lawyers said.
“That does not come close to justifying upending the state attorney’s office twice in a matter of weeks,” they added.
While DeSantis can suspend public officials, the Florida Senate has ultimate authority about whether to remove them from office. The Senate put the Warren issue on hold while the court battle played out.
Warren’s lawyers have argued repeatedly that his suspension thwarted the wishes of Hillsborough voters who elected him in 2016 and 2020.
“Mr. Warren brought this case and continues to pursue it because he believes — and the First Amendment guarantees — that he and other state elected officials have a right to speak on matters of public concern without fear that the governor will suspend them in retaliation. He sought reinstatement because, as this court explained, ‘(e)lections mean something.’” his lawyers wrote in Tuesday’s filing, referring to the three-judge panel’s ruling.
