183 Legal Scholars File Briefs Opposing Suspension Of State Attorney

TAMPA, FL — The wagons are circling around ousted Hillsborough County State Attorney Andrew Warren. In three legal briefs filed this week in federal court, 183 legal experts, former Supreme Court justices and Florida constitutional scholars say Gov. Ron DeSantis' suspension of Warren from office was illegal.

The “amicus," or "friend of the court" briefs, were presented to federal court Judge Robert Hinkle, who is overseeing the lawsuit filed by Warren Aug. 17 to overturn DeSantis' suspension of him. DeSantis' response to the lawsuit is due Friday.

Amicus briefs are filed by third parties who wish to give the judge their unique perspectives on a legal case.

On Aug. 4, DeSantis issued an order removing Warren from his twice-elected position as the state attorney for Hillsborough County.

DeSantis stated in his executive order of suspension that Warren's suspension was "due to neglect of duty, incompetence and willful defiance of his duties as early as June 2021 when he signed a joint statement with other elected prosecutors in support of gender-transition treatments for children and bathroom usage based on gender identity."

That joint statement is contrary to DeSantis's stated intention to prohibit gender-transition treatments for minors.

DeSantis also took Warren to task for signing a pledge not to prosecute doctors and women involved in abortions that violate the state’s 15-week ban, a ban that DeSantis championed and the 2022 Legislature passed.

DeSantis cites Article IV of the Florida Constitution as legal justification for removing Warren from office.

See related stories:

• Lawsuit Filed Against DeSantis Over FL State Attorney's Ouster
• Ousted FL State Attorney Says He's Not Going Down Without A Fight
• Florida Senate Halts Effort To Oust Hillsborough State Attorney
• Ousted Prosecutor's Lawsuit Against DeSantis To Move Quickly

Members of Florida's 1997-98 Constitution Revision Commission, who wrote Article IV, stated in their amicus brief to Hinkle that "the governor's allegations against (Warren) are nowhere near sufficient" to meet the standards they laid out when they revised that portion of the constitution 25 years ago.

Among the eight commission members who signed the amicus were former Florida Attorney General Bob Butterworth, former American Bar Association President Martha Barnett and former Fair Districts Florida Chairwoman Ellen Freidin.

“If governors were permitted to suspend state attorneys because of their prosecutorial priorities and replace them with attorneys whose priorities mirror their own, Florida’s electoral process for the office of state attorney—and potentially all elected state officers—would be virtually meaningless,” they said in their brief.

In his executive order, DeSantis claims Warren's public opposition to his policies constitutes "neglect of duty" and "incompetence," two of the legal reasons under the state constitution for suspending an elected official from office.

The commission members said that claim is an overreach that flies in the face of the limited power they intended. They maintained that a difference of opinon does not meet the legal definition for either neglect of duty or incompetence.

"Andrew Warren exercised his First Amendment right to state opinions that are contrary to the governor’s opinions on several policy issues," the commission wrote. "The order does not even allege that Warren has acted on those opinions. Without such action, he cannot have committed one of the sins that would authorize the governor to suspend him under settled Florida constitutional law."

The governor’s power is not “arbitrary;" it is “guarded by constitutional limitations which should be strictly followed,” said the commission, citing a Florida Supreme Court precedent from 1934.

“If governors were permitted to suspend state attorneys because of their prosecutorial priorities and replace them with attorneys whose priorities mirror their own, Florida’s electoral process for the office of state attorney—and potentially all elected state officers—would be virtually meaningless,” They wrote.

The commission's amicus brief joins two others filed this week that outline additional reason DeSantis' actions are illegal.

In another brief, more than 60 judges, prosecutors and legal experts — including three former Florida Supreme Court justices, said DeSantis' action “erodes confidence in the administration of justice” by overturning the voters’ twice-elected choice and limiting his independent judgment to do the job he was elected to do.

They said DeSantis’ order runs the risk that any state attorney can be suspended if a governor disagrees with his or her priorities, adding that it would eliminate "prosecutorial independence" and “strip communities of their prerogative” to elect leaders they feel is best-suited for the job.

"Prosecutorial independence—the authority to decide whom and what to charge and how to use inherently limited resources—is a hallmark of our legal system and the pursuit of justice," they wrote.

They added that the governor’s actions endanger public safety by undermining the authority of the prosecutors, public defenders, judges and others who make up the judicial system.

A group of 115 legal scholars from across the country with expertise in legal ethics, professional responsibility and criminal procedures filed an amicus brief as well.

They contend that Warren not only has a First Amendment right to speak out on issues, he has a responsibility to do so as an elected official.

While DeSantis cited Warren’s statements on abortion and gender-affirming care as reasons to suspend him, the academics said those statements are “consistent with State Attorney Warren’s professional duty to actively participate in efforts which he believes stimulate reform or improvement of the criminal justice system.

“Suspending State Attorney Warren for what can only be characterized as purely partisan reasons runs counter to professional standards of conduct, usurps the will and power of the electorate, and eviscerates the carefully crafted separation of powers erected in the Florida Constitution,” they wrote.

To cover the costs of his court fight to reverse DeSantis' abuse of power, Warren has established a legal fund. Contributions can only be used for expenses directly connected with Warren’s legal case and are not tax-deductible. Under Florida law, contributions above $100 will be reported on Warren’s quarterly gift disclosure form.