Legal experts debate whether DeSantis' action against state attorney will hold up




  • In US
  • 2022-08-05 20:21:22Z
  • By Miami Herald
 

Ousted Hillsborough State Attorney Andrew Warren is out of a job because of something he said, not something he did.

Gov. Ron DeSantis dropped a bombshell when he removed Warren from office this week for pledging not to pursue certain criminal cases involving abortion and transgender minors. As the conservative Republican governor and the progressive Democratic prosecutor brace for the inevitable battle to come, the Tampa Bay Times asked legal experts to weigh in.

DeSantis' order on Thursday said a governor's "executive responsibility" allows him to suspend any state officer who is not subject to impeachment for acts that include neglect of duty and incompetence. "Warren has effectively nullified these Florida criminal laws in the 13th Judicial Circuit, thereby eroding the rule of law, encouraging lawlessness, and usurping the exclusive role of the Florida Legislature to define criminal conduct," his order said.

READ MORE: DeSantis suspends state attorney who opposed prosecuting abortion, sex reassignment crimes

Some experts focused on a specific aspect of the executive order: Though it said Warren neglected his duty and was incompetent because he had signed letters saying he would not enforce laws prohibiting gender-confirming care for minors or limiting abortion, in fact, no such cases have come before him.

"We've had none. None of those cases have been brought to us," Warren said at a news conference hours after he was escorted from his downtown offices. "We don't anticipate those cases being brought to us."

The only action has been from DeSantis

The question, then: Can someone be removed from office for something that has not actually happened?

"There is no case I'm aware of where [Warren] declined to prosecute anybody," said Clearwater First Amendment attorney Luke Lirot. "So at this point, it's directly retaliatory for his political speech."

"It just seems to me to be outrageous that the governor would take these steps to remove a properly elected official simply because they made statements that are inconsistent with the governor's political viewpoints," Lirot said.

Scott Stephens, a former Hillsborough circuit judge who is a professor of Florida Constitutional law at Stetson University, said Warren's removal should be looked at next to the 2017 case of Aramis Ayala, who was then the state attorney in Orlando.

Ayala made headlines when she announced she would not seek the death penalty against Markeith Loyd, accused of killing his pregnant ex-girlfriend and a police officer and causing a massive manhunt, or in other murder cases.

In response, then-Gov. Rick Scott reassigned 29 cases from her office to another state attorney. But Scott did not attempt to suspend or remove Ayala from her elected position.

"The important distinction in [the Warren] case is, it's whether you do it, not whether you say it," Stephens said. "The only action that's occurred is speaking."

Stephens also said that as state attorney, Warren should not have made blanket statements about what he would or would not do.

"You have to make it on a case-by-case basis," he said. "That's the nature of why you are there."

In defense of DeSantis' action

Joseph Cillo, a retired attorney and assistant professor of criminal justice at Saint Leo University, said he believes the governor was well within his rights - and even obligated - to remove the state attorney.

By publicly stating he wouldn't prosecute certain acts deemed illegal in Florida, Warren created the potential for 14th Amendment issues of denying people equal protection under the law, Cillo said.

"Not prosecuting people for crimes they've committed because you don't want to prosecute them, what is that saying to the general public?" he said. "There's a crime. If we're not going to prosecute, there's no consequence for that wrong action, and it will be repeated."

The president of the Florida Association of Criminal Defense Lawyers, Ernie Chang, said in a Friday statement that DeSantis had exceeded his authority. State attorneys have wide discretion in choosing what cases to prosecute, something that happens daily across the state, he said.

"Gov. DeSantis should allow elected prosecutors to do their jobs and should respect the will of voters regarding the state attorneys they elect," Chang said.

Scott Tozian, a Tampa attorney who has represented judges, prosecutors and lawyers, said the fact that Warren had not actually decided the kind of cases pointed out by the governor will no doubt be a point of discussion as the matter proceeds.

"I do think it will be a legal issue," he said.

Warren's attorney, David Singer of the Shumaker firm in Tampa, said the governor "outlined a number of things in this order that the state attorney might do, that he presumed the state attorney could do. It's based on letters Andrew has signed and not cases Andrew has seen."

The main problem, Singer said, is "that none of the acts that the governor is describing have occurred."

Singer planned to file what's called a writ of quo warranto motion - Latin for by what warrant or authority - as early as Friday challenging the governor's power to do what he did.

Said Lirot: "The repercussions of this dispute are going to be far-reaching."

Tampa Bay Times staff writer Ian Hodgson contributed to this report.

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