By Audrey Sawyer
MONTGOMERY, AL — Questions of legality were brought up by a federal judge earlier this year regarding Gov. Ron DeSantis’s suspension of elected State Attorney Andrew Warren, claiming that the act of suspension is illegal.
And, Warren’s attorney, David O’Neil, advocated for Warren’s reinstatement in federal appeals court Tuesday. The court didn’t immediately rule, and said there is no timetable for when it will announce its ruling.
DeSantis had suspended Warren (two-time elected attorney for Hillsborough County/Tampa) Aug. 4, 2022.
In January, following a three-day trial last November, federal judge Robert Hinkle ruled DeSantis was in violation of both the U.S. and the Florida Constitutions for suspending Warren for politically motivated reasons and for publicity.
Hinkle wrote, “The record includes not a hint of misconduct from Warren.” Despite this, Hinkle maintained he does not possess the authority to reinstate Warren. The appeal is focused on whether a federal court does have authority when there are violations of both federal and state law.
Warren is also petitioning the Florida Supreme Court for reinstatement in a lawsuit. In April, attorneys for DeSantis urged the court to dismiss the petition, arguing the suspension was justified.
O’Neil began the Tuesday appeals court session by arguing the only issue before the district court is a “classic First Amendment violation.” O’Neil insisted Warren has been targeted because of his status as being known as a “woke” prosecutor, and that DeSantis only knew this because Warren defined himself in that way, with his ideas, speeches and associations.
Judge Kevin Newsom referenced the Warren pleading that stated the district court saw “controlling motivations were bringing down a reformed prosecutor, whose performance did not match governor’s law and agenda.” He suggests that they (district court) are seeing it about performance or conduct and not viewpoint.
O’Neil counters that the governor was motivated by the political boost of what he thought he would get by taking down a reformed prosecutor.
O’Neil told the court he is skeptical of the claims that it was based purely on conduct, pointing out that there were no witnesses at the trial that testified and it is about a case-based disagreement, adding the district court did, however, find DeSantis cannot identify a single case where Warren had failed to exercise discretion appropriately.
Regarding an abortion pledge which Warren had signed (pledge vowing to not prosecute individuals seeking abortion or gender affirmation), O’Neil notes Warren was only one signatory out of 90, and Florida law was not being addressed.
He added issues related to transgender care have never been illegal in Florida, and also that witnesses with decades of law enforcement said there have been no cases on abortion to even arrive to Warren.
O’Neil cited the ACLU, which provided a review to ultimate motivation finding, and that what’s needed is the protection of 1st Amendment rights, and that is a question for the court. He repeated the Florida governor did not approve of what Warren was saying, he punished him for it, and came up with a pretext.
O’Neil argues there to be a lack of evidence on the court finding the district court association as centered on conduct alone.
Judge Newsom admits to struggling with the testimonies and points out there is a sea of facts which can be used to cherry pick by both sides. The default move, he said, is to recognize what the district court found. In reading the district opinion, the court thought it was making findings of fact, he said.
DeSantis did come forward and said he suspended Warren because he made blanket statements, and, according to O’Neil, the court concluded it wasn’t true, and that it wasn’t true the governor was motivated by that rationale. He claims this is another way the governor’s counsel is trying to fudge it on “inadequate performance.”
Judge Jill Pryor inquired whether it would be a remand on the decision if they find themselves in disagreement with the district court on protections being protected. O’Neil says that there would be a remand, and Warren would be reinstated.
Henry Whitaker (representing DeSantis) argued Warren’s points depend on reading the district court’s opinions. He cites the passage of the district court reading, “Unprotected factors motivated suspension, Warren’s actual performance, not advocacy, as reformed prosecutor, the bike and low level offense policies.”
Whitaker argues that there is one factor in the suspension: how he did his job, talking about conduct, and not ideology.
Regarding the political opinion argument, Whitaker claims he does not think political opinion (suspending a prosecutor the governor thought was lawless) is a factor.
Whitaker states Warren is complaining of a lack of notice, but there was not any lack of notice, and that all evidence relating to his conduct was evidence that Warren himself presented.
Whitaker told the appeals court, “We didn’t separately note that he (Warren) thought his constituents would approve of it; there is abundant evidence that conduct is driving this decision. There does not need to be evidence to know he was suspended for his conduct.”
Judge Newsom cites Warren’s abortion pledge as “pretty close to what anyone would describe as a blanket statement.” The question, he explained, is “whether or not the abortion statement is or is not a true blue blanket no prosecution policy, and it is still conduct. This is still a policy of prosecution, still a policy of performance conduct,” he said.