TAMPA – Expelled 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 prosecute certain criminal cases involving abortion and transgender minors. As the conservative Republican governor and progressive Democratic prosecutor brace for the inevitable battle to come, the Tampa Bay Times asked legal experts to join in the discussion.
DeSantis’ order on Thursday said a governor’s “executive responsibility” allows him to suspend any state official not subject to charges for acts that include dereliction of duty and incompetence. “Warren has effectively overturned these Florida criminal laws in the 13th Judicial Circuit, eroding the rule of law, encouraging lawlessness, and assuming the exclusive role of the Florida legislature to define criminal behavior,” his injunction said.
Some experts focused on a specific aspect of the executive order: While it said Warren neglected his duty and was incompetent for signing letters saying he would not enforce laws banning gender-affirming care for minors or restricting abortion, in fact his such cases have not come before him.
‘We haven’t had any. None of those cases have been submitted to us,” Warren said at a news conference hours after being escorted from his downtown offices. “We don’t expect those things to get to us.”
The question then becomes: Can someone be removed from office for something that didn’t actually happen?
“There is no case I know of where (Warren) refused to prosecute anyone,” said Clearwater First Amendment attorney Luke Lirot. “So right now it’s a direct retaliation for his political speech.”
“It just seems outrageous to me 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 views,” Lirot said.
Scott Stephens, a former Hillsborough circuit judge who is a Florida professor of constitutional law at Stetson University, said Warren’s removal should be looked at alongside the 2017 case of Aramis Ayala, who was then the Orlando prosecutor.
Ayala made headlines when she announced she would not seek the death penalty against Markeith Loyd, accused of murdering his pregnant ex-girlfriend and a police officer and triggering a massive manhunt, or in other murder cases.
In response, then-Gov. Rick Scott has assigned 29 cases from her office to another prosecutor. But Scott made no attempt to suspend or remove Ayala from her chosen position.
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“The important distinction in (the Warren) case is whether you do it, not whether you say it,” Stephens said. “The only action that has taken place is speaking.”
Stephens also said that as a prosecutor, Warren should not have made general statements about what he would or would not do.
“You have to look at it on a case-by-case basis,” he said. “That’s the nature of why you’re there.”
Joseph Cillo, a retired attorney and assistant professor of criminal justice at Saint Leo University, said he believes the governor was within his rights — and even obliged — to remove the prosecutor.
By publicly declaring that he would not prosecute certain acts considered illegal in Florida, Warren created the potential for 14th Amendment issues to deny 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 does that tell the general public?” he said. “There is a crime. If we don’t prosecute, that wrong action will have no consequences and will be repeated.”
Florida Association of Criminal Defense Lawyers president Ernie Chang said in a statement Friday that DeSantis had overstepped his authority. State attorneys have wide discretion in choosing which cases to prosecute, something that happens every day in the state, he said.
“Governor. DeSantis must allow elected prosecutors to do their job and respect the will of voters regarding the state attorneys they elect,” Chang said.
Scott Tozian, a Tampa attorney who has represented judges, prosecutors and attorneys, said the fact that Warren hadn’t really decided on the kinds of cases the governor pointed out will no doubt be a matter of debate as the case progresses.
“I think it will be a legal matter,” he said.
Warren’s attorney, David Singer of the Shumaker firm in Tampa, said the governor has “outlined in this order a number of things that the prosecutor could do that he believed the prosecutor could do. It’s based on letters Andrew signed and not on cases Andrew saw.”
The biggest problem, Singer said, is “none of the acts the governor describes happened.”
Singer planned to file a so-called subpoena quo guarantee motion – Latin for by any order or authority – already on Friday challenging the power of the governor to do what he did.
Lirot said: “The consequences of this dispute will be far-reaching.”
Times staff writer Ian Hodgson contributed to this report.