Warren v. DeSantis

365 So.3d 1137

Andrew H. WARREN, Petitioner, v. Ron DESANTIS, Governor, Respondent.

No. SC2023-0247

Supreme Court of Florida.

June 22, 2023

David B. Singer and Matthew T. Newton of Older Lundy Koch & Martino, Tampa, Florida; Jean-Jacques Cabou, Alexis E. Danneman, and Margo R. Casselman of Perkins Coie LLP, Phoenix, Arizona; and David O'Neil of Debevoise & Plimpton LLP, Washington, District of Columbia, for Petitioner, The Honorable Andrew H. Warren

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa and Daniel William Bell, Chief Deputy Solicitors General, David M. Costello, Deputy Solicitor General, and Robert Scott Schenck, Solicitor General Fellow, Office of the Attorney General, Tallahassee, Florida; Ryan Newman, General Counsel, and Ray Treadwell, Chief Deputy General Counsel, Executive Office of the Governor, Tallahassee, Florida; and George T. Levesque and Jeff Aaron of GrayRobinson, P.A., Tallahassee, Florida, for Respondent, The Honorable Ron DeSantis, in his Official Capacity as Governor of Florida

Lawrence J. Dougherty of Guerra King, P.A., Tampa, Florida, for Amici Curiae Constitution Revision Commission Members and State Constitutional Law Scholars

Robert Wayne Evans and Benjamin M. Lagos of Allen, Norton & Blue, P.A., on behalf of Florida Sheriffs Association, Tallahassee, Florida; J. David Marsey, of Rumberger Kirk & Caldwell, on behalf of the Florida Police Chiefs Association, Tallahassee, Florida; and Arthur Ivan Jacobs of Jacobs Scholz & Wyler, LLC, on behalf of Florida Prosecuting Attorneys Association, Fernandina Beach, Florida, for Amici Curiae Florida Sheriffs Association, Florida Police Chiefs Association, and Florida Prosecuting Attorneys Association

CANADY, J.

On August 4, 2022, Governor Ron DeSantis issued Executive Order 22-176 suspending Petitioner Andrew H. Warren, the elected State Attorney for the Thirteenth Judicial Circuit of the State of Florida, on the grounds of "neglect of duty" and "incompetence." More than six months later, Petitioner filed a petition in this Court arguing that the Governor lacked authority to issue the Executive Order and requesting the issuance of a writ of quo warranto directed to the Governor and alternatively seeking a writ of mandamus commanding the Governor to reinstate him. After the filing of the petition, our Court sought briefing from the parties, which concluded on May 4, 2023. We agree with the Governor that the petition should be denied on the ground of unreasonable delay. ¹

Within two weeks of his suspension, Petitioner filed suit in federal district court seeking, among other things, a writ of quo warranto on the ground that the suspension order was facially insufficient under Florida law. Quite predictably, the federal district court promptly dismissed that state-law claim after concluding that the Eleventh Amendment to the United States Constitution barred that claim from being brought in federal court. See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Petitioner then waited almost five months before finally petitioning this Court and requesting our "expeditious review" of his state-law claim. Petitioner offers no explanation for the delay. We conclude that, under the circumstances of this case, the time for our review has passed.

I.

Article IV, section 7 of the Florida Constitution grants "the governor" the power to "suspend from office any state officer not subject to impeachment" and enumerates the grounds for suspension, including "neglect of duty" and "incompetence." Art. IV, § 7(a), Fla. Const. ² A suspension is done "[b]y executive order stating the grounds and filed with the custodian of state records." Id. Article IV, section 7 then grants "[t]he senate" the power to, "in proceedings prescribed by law, remove from office or reinstate the suspended official." Art. IV, § 7(b), Fla. Const.

Although the text of article IV, section 7 does not attribute any role to the courts in suspension matters, our precedents recognize a narrow judicial role in reviewing the face of a suspension order to determine if it satisfies the constitutional requirement of " ‘stating the grounds’ of the officer's suspension." Israel v. Desantis , 269 So. 3d 491, 495 (Fla. 2019) (quoting art. IV, § 7(a), Fla. Const.). That is a "limited" role that entails no more than "determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension." Id. (citing State ex rel. Hardie v. Coleman , 115 Fla. 119, 155 So. 129, 133 (1934) ). The allegations need only "bear some reasonable relation to the charge made against the officer." Id. at 496 (quoting Hardie , 155 So. at 133 ). The "some reasonable relation" standard is "a low threshold" to satisfy, id. , and the executive order need only satisfy it "on the whole," id. (quoting Hardie , 155 So. at 133 ).

Indeed, we have previously said that the courts are not a "check upon any erroneous [suspension] action on [the governor's] part," including "[a]ny mere error of judgment, whether free from or attended by improper motive." State ex rel. Lamar v. Johnson , 30 Fla. 433, 11 So. 845, 852 (1892). Our constitution has instead "made the senate the sole check upon any erroneous action on [the governor's] part." Id. ; see Hardie , 155 So. at 134 ("The matter of reviewing the [suspension] charges and the evidence to support them is solely in the discretion of the Senate ...."); State ex rel. Kelly v. Sullivan , 52 So. 2d 422, 425 (Fla. 1951) ("It is the function of the Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer ....").

II.

The August 4, 2022, Executive Order suspending Petitioner for "neglect of duty" and "incompetence" cites as the factual basis for the suspension two Joint Statements signed by Petitioner and other elected prosecutors from around the country, ³ as well as two presumptive non-enforcement policies purportedly instituted by Petitioner.

In the first Joint Statement, the signatories "pledge[d]" to, among other things, "use [their] discretion and not promote the criminalization of gender-affirming healthcare or transgender people." In the second Joint Statement, the signatories asserted that, among other things, they "decline to use [their] offices’ resources to criminalize reproductive health decisions and commit to exercise [their] well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions."

Regarding Petitioner's two policies, the Executive Order describes the first as a policy "of presumptive non-enforcement for certain criminal violations, including trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution." The Executive Order describes the second as a policy "against prosecuting crimes where the initial encounter between law enforcement and the defendant results from a non-criminal violation in connection with riding a bicycle or a pedestrian violation," including "crimes of misdemeanor resisting arrest without violence—for example, fleeing from a law enforcement officer."

After addressing the Joint Statements and policies, the Executive Order concludes that Petitioner's "avowed refusal to enforce certain criminal laws on a non-individualized, category-wide basis of his choosing is a neglect of duty in violation of his oath of office." The Executive Order explains that the "neglect of duty is not excused by prosecutorial discretion, because [Petitioner's] blanket policies ensure that he will exercise no discretion at all in entire categories of criminal cases." The Executive Order also concludes that Petitioner's "public proclamations of non-enforcement further demonstrate his incompetence and lack of judgment arising from his gross ignorance of his official duties."

III.

Because Petitioner's unreasonable delay ultimately forms the basis for our decision to deny his petition, we review the more-than-six-month gap between Petitioner's suspension and his filing of the instant petition, and we briefly examine the federal district court proceedings which constitute the backdrop for Petitioner's dilatory conduct and on which Petitioner primarily relies in attacking the suspension.

On August 17, 2022—only thirteen days after his suspension—Petitioner filed suit against the Governor in the United States District Court for the Northern District of Florida. Petitioner sought injunctive and declaratory relief, including a preliminary injunction. Petitioner raised two claims. Claim I alleged a violation of the First Amendment, specifically that the Joint Statements were protected speech and that suspending Petitioner because he signed the Joint Statements was retaliation for Petitioner exercising his First Amendment rights. Claim II sought a writ of quo warranto "under Florida State Law" and alleged that the bases for suspension did not reasonably relate to either "incompetence" or "neglect of duty" and thus were "facially insufficient." The Governor filed a consolidated motion to dismiss and response in opposition to the motion for preliminary injunction.

On September 29, 2022, the federal district court entered an order that in relevant part dismissed without prejudice Petitioner's state-law claim and allowed only the First Amendment claim to proceed. Warren v. DeSantis , No. 4:22cv302-RH-MAF, 631 F.Supp.3d 1188, 1191-92 (N.D. Fla. Sept. 29, 2022). The federal district court unsurprisingly dismissed Petitioner's state-law claim on Eleventh Amendment grounds. See Pennhurst , 465 U.S. at 121, 104 S.Ct. 900 ("A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment.... [A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by...