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Florida governor’s suspension of state attorney stands

A federal judge declined to reinstate the Hillsborough County prosecutor who pledged not to enforce the state’s abortion ban but criticized the suspension as unconstitutional.

TALLAHASSEE, Fla. (CN) — A federal judge upheld Florida Governor Ron DeSantis’ suspension of a state attorney on Friday, citing a lack of jurisdiction while still chiding the governor for violating the First Amendment and Florida Constitution.

In his 59-page opinion, U.S. District Judge Robert L. Hinkle wrote that the Republican governor’s suspension of Hillsborough County State Attorney Andrew Warren was based on “Mr. Warren’s speech on matters of public opinion.”

But Hinkle, a Bill Clinton appointee, conceded that the federal court did not have the authority to reverse the decision.

DeSantis removed Warren in August after the Tampa prosecutor signed onto a letter pledging to “refrain from prosecuting those who seek, provide or support abortions.” The letter from 90 prosecutors around the country came after the U.S. Supreme Court overruled Roe v. Wade and Florida’s newly passed 15-week abortion ban.

Warren, a Democrat first elected in 2016, also signed a statement condemning the criminalization of gender-affirming care for transgender people.

At the time, DeSantis accused Warren of “neglect of duty.”

Under the Florida Constitution, the governor has the power to suspend state officials for “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.”

DeSantis’ executive order cited a “blanket refusal” to enforce laws and “knowingly" allowing criminal activity.

“The role of the state attorney is to apply the law and enforce the law, not pick and choose which laws you like and which laws you don’t like,” the governor said at a press conference announcing the suspension. He was joined by sheriffs from around the state that blamed Warren for not prosecuting certain types of low-level misdemeanors.

Warren called the suspension a “political stunt” and “illegal overreach.”

“It spits in the face of voters of Hillsborough County who have twice elected me to serve them, not Ron DeSantis,” Warren said.

The Tampa prosecutor filed a federal lawsuit a few weeks later challenging the suspension. A trial was held last month.

In his decision on Friday, Hinkle wrote DeSantis clearly targeted Warren for his statements on abortion and transgender issues, and his association with the Democratic Party and reform prosecutor organizations.

“The suggestion that an elected state attorney has no First Amendment right to comment on matters of public concern, including transgender and abortion issues, is wrong,” the judge wrote. “Mr. Warren’s advocacy and his political affiliations were protected by the First Amendment. These were factors that, as a matter of federal law, could not properly be the basis of a suspension.”

“But the Governor would have made the same decision anyway, even without considering these things,” he continued. “The First Amendment violations were not essential to the outcome and so do not entitle Mr. Warren to relief in this action.”

Hinkle also found DeSantis violated the Florida Constitution because there was no evidence the state attorney instituted “blanket policies” to not prosecute cases in his office.

“The allegation was false,” the judge wrote. “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.”

“But the Eleventh Amendment prohibits a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law,” Hinkle wrote.

In a tweet following the judge’s ruling, DeSantis’ communication director Taryn Fenske wrote, “Today, Judge Hinkle upheld @GovRonDeSantis decision to suspend Andrew Warren from office for neglect of duty and incompetence.”

The governor’s office did not respond to a request for follow-up comments.

On Friday afternoon, Warren held a press conference slamming DeSantis for abusing his power.

“From the beginning, I’ve said that this case was bigger than just me,” he said. “The idea that the governor can break federal and state law to suspend an elected official should send shivers down the spine of anyone who cares about free speech, the integrity of our elections or the rule of law.”

Warren can continue his fight by appealing the judge’s ruling to the 11th Circuit or refile the lawsuit in state court. He can also attempt to persuade the Republican-majority Florida Senate to not approve the suspension, as that body has final say in his removal.

He did not indicate which route he would take, but finished his remarks by vowing, “This is not over.”

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