Gov.-DeSantis-Suspended Tampa Prosecutor Andrew Warren's State-Law Challenge Fizzles on Timeliness Grounds

The federal law challenge, which was rejected by the District Court, is still on appeal to the Eleventh Circuit.

From Warren v. DeSantis, decided today by the Florida Supreme Court in an opinion written by Justice Canady (for more on the case, see this post):

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…. We agree with the Governor that the petition should be denied on the ground of unreasonable delay.

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 (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….

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. A suspension is done "[b]y executive order stating the grounds and filed with the custodian of state records." 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."

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." 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." The allegations need only "bear some reasonable relation to the charge made against the officer." The "some reasonable relation" standard is "a low threshold" to satisfy, and the executive order need only satisfy it "on the whole."

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." Our constitution has instead "made the senate the sole check upon any erroneous action on [the governor's] part."…

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, 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." …

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. The federal district court unsurprisingly dismissed Petitioner's state-law claim on Eleventh Amendment grounds. See Pennhurst ("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 the Eleventh Amendment.").

Four months later, on January 20, 2023, the federal district court entered an order that "dismissed on the merits with prejudice" Petitioner's First Amendment claim and that "direct[ed] entry of judgment for the Governor." The federal district court ultimately concluded that the Governor would have suspended Petitioner based solely on factors that are not protected by the First Amendment and, as a result, that Petitioner was not entitled to any relief.

Inexplicably, despite having previously dismissed Petitioner's state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various "conclusions" regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension "violated the Florida Constitution," and the federal district court purported to decide certain "factual issue[s]," including whether "Mr. Warren neglected his duty or was incompetent." The federal district court did so even though its "jurisdiction over [Petitioner's state-law] claim [was] barred by the Eleventh Amendment," and even though "[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer." At one point, the federal district court challenged the Governor to "simply rescind the suspension." And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as "heavily partisan."

Almost one month after the federal district court issued its merits order—extraneous comments and all—and more than six months after his suspension, Petitioner finally knocked on this Court's door and requested our "expeditious review." Although Petitioner in his petition for writ of quo warranto does challenge the facial sufficiency of the suspension order, Petitioner's primary argument relies on the principle of "collateral estoppel," or "issue preclusion." Specifically, Petitioner asserts that "a federal court has already held that the Executive Order is unconstitutional," and he argues that the federal court's "factual findings" are "[p]reclusive and [m]ust be [g]iven [e]ffect" by this Court. Petitioner's alternative petition for writ of mandamus relies entirely on "the District Court's Judgment."

Quite questionably, Petitioner presents his collateral estoppel arguments even though the federal district court dismissed all of Petitioner's claims. And Petitioner presents these arguments even though the federal district court's order on the merits is currently the subject of an appeal by Petitioner himself. But we need not further address Petitioner's arguments or the federal district court's orders. As explained next, we deny the petition due to Petitioner's unreasonable, unexplained delay….

Under article V, section 3(b)(8) of the Florida Constitution, this Court "[m]ay issue writs of … quo warranto to state officers and state agencies." "The term 'quo warranto' means 'by what authority' …." The writ "is the proper vehicle to challenge the 'power and authority' of a constitutional officer, such as the Governor." …

Although the writ of quo warranto—an extraordinary writ—is potentially available in various circumstances, "the granting of [an extraordinary] writ lies within the discretion of the court." … Given the nature of an extraordinary writ, there may be circumstances in which a court denies relief for "reasons other than the actual merits of the claim." For example, a petitioner who unreasonably delays filing a petition for writ of quo warranto may see that petition denied on that basis. See, e.g., Thompson v. DeSantis (Fla. 2020) (declining to "consider" the petitioner's claims for quo warranto and mandamus relief against the Chair of the Supreme Court Judicial Nominating Commission (JNC), where "the Petitioner waited nearly six months" to challenge the JNC's list of nominees to fill a judicial vacancy, and citing State ex rel. Pooser v. Wester (Fla. 1936), in which an unreasonable four-month delay precluded the grant of quo warranto relief). We conclude that this case involves unreasonable delay.

Here, within two weeks of his suspension, Petitioner sought a writ of quo warranto challenging the facial sufficiency of the suspension order. But Petitioner brought that claim in federal district court—a court that Petitioner should have known was wholly without jurisdiction to consider the claim. Indeed, just a few weeks later, that court informed Petitioner that his claim was "bar[red] … in federal court" and that any "relief" would have to be sought "in state court."

Yet Petitioner, who was ready to challenge the facial sufficiency of the suspension order within two weeks of his suspension, then waited almost five more months before bringing that claim in state court, all but ensuring that the 2023 regular session of the Florida Senate would come and go without any opportunity for that legislative body to potentially review the suspension. In now requesting our "expeditious review," Petitioner cites "the significant public interest," and he primarily relies on the purported "findings" of a federal judge who ultimately dismissed Petitioner's claims and whose final order was appealed by Petitioner himself. Under these circumstances involving such dilatory conduct by Petitioner, we decline to consider Petitioner's claims for relief against the Governor.

Whether Petitioner "invok[ed] this Court as a backup plan," as the Governor argues, or whether Petitioner had other reasons for the delay, we do not know. Petitioner is not saying. Petitioner's only reply on this point is that he "filed for relief in this Court promptly following judgment in the District Court" and that "no rule sets a time limit within which [he] was required to file his Petition." That is hardly persuasive.

Petitioner's unreasonable delay does not necessarily leave him without any potential remedy. Indeed, the remedy that remains available is the one expressly contemplated by the Florida Constitution—i.e., "proceedings" in "[t]he senate." "The Senate is nothing less than a court provided to examine into and determine whether or not the Governor exercises the power of suspension in keeping with the constitutional mandate." … There is no reason to doubt that the elected members comprising that legislative body will "be just" in carrying out their "solemn duty."

Justice Francis concurred, "solely to explore how [the] precedents [that asserted the Court's power to get involved in suspension proceedings], in vacillating on how much involvement we should have, demonstrate the thorniness of these suspension cases…. Incorporating the political question doctrine into our suspension review bolsters support for an approach that our review should be limited to ensuring that a governor took the necessary steps to exercise his power—producing a written order identifying an enumerated ground and filing it with the custodian."

Justice Labarga dissented:

Andrew Warren was first elected in November 2016 and assumed the office of State Attorney for the Thirteenth Judicial Circuit of Florida in January 2017. In the 2016 general election, he defeated the incumbent by a margin of less than one percent of the vote. Four years later, in the 2020 general election, he was reelected by a margin of more than six percentage points.

Before this Court then, is the issue of the suspension of a twice-elected prosecutor who was convincingly reelected to represent the interests of more than one million Floridians in the Thirteenth Judicial Circuit.

At the time of Warren's suspension in August 2022, he was eighteen months into his second four-year term. Even today, he still has roughly the same amount of time left in his term. Despite this amount of time remaining on the clock, this Court has denied Warren's petition on the grounds of untimeliness.

Given that this case involves the suspension of a then-sitting elected official—for whom a substantial portion of the term yet remains—I am unpersuaded by the majority's conclusion that Warren's petition is properly denied on the ground of unreasonable delay.