Warren v. DeSantis

653 F.Supp.3d 1118

Andrew H. WARREN, Plaintiff, v. Ron DESANTIS, Defendant.

CASE NO. 4:22cv302-RH-MAF

United States District Court, N.D. Florida, Tallahassee Division

Signed January 20, 2023

Alexis Danneman, Jean-Jacques Cabou, Margo Rose Casselman, Matthew Robert Koerner, Perkins Coie LLP, Phoenix, AZ, Matthew Thomas Newton, David Benjamin Singer, Shumaker Loop Kendrick LLP, Tampa, FL, Alexandra P. Swain, Samantha B. Singh, DeBevoise & Plimpton LLP, New York, NY, David Andrew O'Neil, DeBevoise & Plimpton LLP, Washington, DC, for Plaintiff.

Henry Charles Whitaker, James Hamilton Percival, II, Natalie Christmas, Florida

Attorney Generals Office Office of the Attorney General, Tallahassee, FL, Jeffrey Paul Desousa, Florida Attorney Generals Office Solicitor Generals Office, Tallahassee, FL, George Ty Levesque, Grayrobinson PA, Tallahassee, FL, David Matthew Costello, Florida Attorney General's Office, Tampa, FL, Jeffrey Michael Aaron, Gray Robinson PA, Orlando, FL, for Defendant.

Bryan David Hull, Howell Webster Melton, III, Jeffrey Wayne Warren, Bush Ross PA, Tampa, FL, Adam King, Lauren Jacobson Bernstein, Sarah B. Schnorrenberg, Sherry Safavi, Tania C. Matsuoka, Weil Gotshal & Manges LLP, New York, FL, Steven A. Newborn, Weil Gotshal & Manges LLP, Washington, DC, for Amicus Former Prosecutors Attorney General Judges United States Attorneys and Federal Officials and Current and Former Law Enforcement Officials and Leaders.

Morris Weinberg, Jr., Sara Lawson, Zuckerman Spaeder LLP, Tampa, FL, for Amicus Legal Scholars.

Adam G. Unikowsky, Jenner & Block LLP, Washington, DC, for Amici Constitution Revision Commission Members, State Constitutional Law Scholars.

Robert Wayne Evans, Allen Norton & Blue PA, Tallahassee, FL, for Amicus Florida Sheriff's Association.

ORDER ON THE MERITS

Robert L. Hinkle, United States District Judge

Florida Governor Ron DeSantis suspended elected State Attorney Andrew H. Warren, ostensibly on the ground that Mr. Warren had blanket policies not to prosecute certain kinds of cases. The allegation was false. Mr. Warren's well-established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case. Any reasonable investigation would have confirmed this.

Mr. Warren has sued the Governor. This order sets out the court's findings of fact and conclusions of law following a bench trial. The order concludes the suspension violated the Florida Constitution and was based in part on a violation of the First Amendment to the United States Constitution. But the Eleventh Amendment prohibits a federal court from awarding relief of the kind at issue against a state official based only on a violation of state law. And the suspension would have occurred even had there been no First Amendment violation—the First Amendment violation was not essential to the outcome. This order thus directs entry of judgment for the Governor.

I. Background

A. The Florida Constitutional Structure

Florida has 20 judicial circuits. As required by the Florida Constitution, each circuit has an elected state attorney who serves as the circuit's chief prosecutor. Fla. Const. art. V, § 17. A state attorney is part of the executive branch, but under Florida's unique constitutional structure, a state attorney is not an employee of, or supervised by, the governor. Instead, a state attorney is a constitutional officer—an officer of independent stature within Florida government. A "state attorney has complete discretion in making the decision to charge and prosecute" any given case. Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982).

As one would expect, it sometimes happens that a governor and state attorney are members of different political parties with divergent views on political issues affecting the prosecutorial function. A Florida governor, unlike, for example, the President of the United States, is stuck with the state attorneys the voters in the various circuits elect. Policy differences are an inevitable consequence of the system the Florida Constitution put in place.

To be sure, a governor may suspend certain officials, including state attorneys, for "malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony." Fla. Const. art. IV, § 7(a). Even so, "the power to remove is not analogous to the power to control." Whiley v. Scott, 79 So. 3d 702, 715 (Fla. 2011). Running a state attorney's office is the state attorney's job, not the governor's. A governor cannot properly suspend a state attorney based on policy differences.

B. The Suspension of Mr. Warren

Governor DeSantis suspended Mr. Warren by executive order on August 4, 2022. The order asserted four writings—two of which were attached to the order—constituted "blanket" nonprosecution policies. The order asserted blanket nonprosecution policies show both "neglect of duty" and "incompetence."

"Neglect of duty has reference to the neglect or failure on the part of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law." Israel v. DeSantis, 269 So. 3d 491, 496 (Fla. 2019) (quoting State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 133 (1934)). Incompetence " 'has reference to any physical, moral, or intellectual quality, the lack of which incapacitates one to perform the duties of his office' and 'may arise from gross ignorance of official duties or gross carelessness in the discharge of them . . . [or] from lack of judgment and discretion.' " Id. at 496 (quoting Hardie, 155 So. at 133).

In asserting a blanket nonprosecution policy was a valid basis for suspension, the Governor relied on Ayala v. Scott, 224 So. 3d 755 (Fla. 2017). That case arose from State Attorney Aramis Ayala's statement that she would never pursue the death penalty, even in cases that "absolutely deserve the death penalty." Id. at 759. Governor Rick Scott reassigned Ms. Ayala's death-eligible cases to a different state attorney, and the Florida Supreme Court upheld the reassignment. Nobody suggested Ms. Ayala could be suspended from office on this basis.

Mr. Warren never made a statement similar to Ms. Ayala's. He never said he would not prosecute a case that absolutely deserved to be prosecuted. Quite the contrary. He said repeatedly that discretion would be exercised at every stage of every case.

C. This Lawsuit

Mr. Warren filed this lawsuit challenging his suspension. He asserted two claims: first, a claim under 42 U.S.C. § 1983 and the First Amendment; and second, a state-law quo warranto claim based on the Florida Constitution. The complaint named the Governor as the sole defendant and sought declaratory and injunction relief, not damages.

Mr. Warren moved for a preliminary injunction. The Governor moved to dismiss. After full briefing and oral argument, the preliminary-injunction motion was denied without reaching the merits. The state-law claim was dismissed without prejudice as required by Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). That case held that the Eleventh Amendment bars any claim for injunctive relief based on state law against a state or against a state officer.

The First Amendment claim went forward. Each side conducted discovery. The Governor announced his decision not to call himself as a witness and not to call his chief of staff. The Governor moved to block his deposition and the chief of staff's and to prevent Mr. Warren from calling them as witnesses at trial. The motion was granted, so at the Governor's insistence, the record does not include his testimony or his chief of staff's.

Credibility determinations are made as are consistent with this order. The testimony of Mr. Warren and three chief assistant state attorneys—Jeria Bridget Wilds, Kimberly Hindman, and Renee Muratti—are credited in full. They answered questions directly, credibly, temperately, and based on personal knowledge. Had the Governor or his representatives checked, they could easily have learned the same information before the suspension.

D. Preview of the Issues

The case turns on issues of both fact and law.

The overriding factual issue is why the Governor did it—why he suspended Mr. Warren. The record establishes beyond doubt that six factors played a part. The more difficult factual question is which of the factors were essential to the outcome.

One factor in the suspension was Mr. Warren's general approach to the prosecutorial function—how he did his job. To facilitate discussion of this issue, a word is in order about terminology. Criminal law has generated differences of opinion for about as long as there has been criminal law. Some participants in the criminal justice system favor such things as less aggressive prosecution of nonviolent offenses, alternatives to cash bail, and shorter sentences. Others favor more aggressive prosecution, more pretrial detention, and longer sentences. There are countless permutations, and categorizing an individual as a reform advocate or left-leaning, on the one hand, or as a law-and-order proponent or right-leaning, on the other hand, is likely to be misleading on any specific issue. This order uses those terms not because they are precise but because they are as good as any others and are sufficient for present purpose to describe contrasting viewpoints on prosecutorial issues. Using this terminology, a factor in Mr. Warren's suspension was that he was a reform prosecutor.

A second factor in his suspension was his advocacy of reform-prosecutor positions, including his association with a left-leaning organization, Fair and Just Prosecution ("FJP"), and his joinder in four FJP statements. Two of the statements, which dealt with transgender and abortion issues, were attached to the executive order suspending him.

A third factor, listed separately because of its significance and...