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Sunday, January 14, 2024

Florida DA prevails (for the moment) in dispute with DeSantis

Andrew Warren, the Democratic state's attorney in Florida fighting his suspension by Ron DeSantis, prevailed (at least for the moment) in the Eleventh Circuit last week.

The court adopted a broad scope for elected officials' free-speech rights against elected officials with supervisor authority. It expressed "skeptic[ism]" as to whether Garcetti applies to elected officials. It declined to resolve that point, because even under Garcetti, an elected official occupies a unique employment space and can speak on matters of public import, under his office's auspices, without reducing them to policy and without them undermining his office. The court then held that DeSantis relied on four First Amendment-protected reasons in suspending Warren, rather than two, as the district court held. The court (and Judge Newsom in a concurrence) focused on the district court conclusion that Warren's support for a reform-prosecutor organization's statement was unprotected because the statement contained one sentence about committing to not enforcing new post-Dobbs abortion laws; the district court erred in pulling that sentence out of its broader context, where Warren never enacted any such blanket non-enforcement policy.

The Eleventh Circuit remanded for the district court to redo its analysis of whether DeSantis would have made the same decision based on the remaining two unprotected considerations--a policy of scrutinizing certain low-level arrests and Warren's general existence as a "reform prosecutor." This is why I say Warren prevailed for the moment. The district court may conclude DeSantis would have removed him for those reasons standing alone. In fact, the district court probably should conclude as such, since it is pretty obvious DeSantis targeted Warren (Judge Newsom's concurrence notes that Warren bragged about this during a GOP primary debate) and would remove him from office for any reason he can find--whether it's two or six. So I expect that DeSantis wins on remand and the Eleventh Circuit affirms, owing discretion to the trial court's balancing.

To be clear, suspending Warren for those two remaining reasons likely violates state law, which allows removal for "misfeasance, neglect, or incompetence." But the state-law validity of the removal is not relevant to the federal claims. Newsom drops a footnote admonishing the district court for "repeatedly" declaring that that the firing violated state law and insisting that "[o]n remand, the district court should avoid such unnecessary (and impermissible) asides regarding the consistency of Governor DeSantis’s conduct vis-à-vis Florida law." (I raised this point in a prior post and the Florida Supreme Court complained about it in denying a writ of quo warranto seeking reinstatement). Warren loses his First Amendment case if DeSantis would have fired him even in violation of state law. And I think it is clear DeSantis would have fired him no matter what--whether because he genuinely believes all reform prosecutors are misfeasant, neglectful, or incompetent and acted on that honest belief; because he believes a Republican-supermajority State Senate will sign off on his decision;* or because he wants the short-term political benefit (in running for president) and is willing to lose at the end of the day. (My money is on # 2 or # 3).

[*] Under state law, the governor suspends the local elected official, which sends the matter to a trial in the Senate. The Senate can affirm the governor's decision and remove the official or reject the governor's decision and reinstate the official.

And so we return to my point since this case began: The real issue is here is the suspension's state-law validity; the First Amendment is a sideshow that does not affect the outcome or allow Warren to return to office. My initial view holds--the district court should have abstained under Pullman or at least certified the state-law issues to the Florida Supreme Court.

Posted by Howard Wasserman on January 14, 2024 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


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