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Federal Judge Upholds DeSantis’s Suspension of State Attorney for ‘Neglect of Duty’

Federal Judge Upholds DeSantis’s Suspension of State Attorney for ‘Neglect of Duty’

Judge Hinkler found DeSantis violated the U.S. and Florida Constitution, but the Eleventh Amendment does not allow him to reinstate the attorney.

Judge Robert Hinkle upheld Florida Gov. Ron DeSantis’s suspension of Hillsborough County State Attorney Andrew Warren even though he found the move unconstitutional.

DeSantis suspended the George Soros-backed attorney in August after he said he would not enforce the laws banning child sex surgeries and abortions after 15 weeks.

DeSantis told Fox News after he suspended Warren that he thinks that “some of these prosecutors that have very militant agenda in terms of ideology have been able to get away with a lot in other states.”

Warren sued DeSantis, claiming the governor “abused his power when suspending him from office.” The lawsuit accused DeSantis of violating Warren’s First Amendment rights.

Hinkle’s 59-page concluded that DeSantis violated Warren’s First Amendment rights “by considering” the attorney’s “speech on matters of public concern” and “association with the Democratic Party” and “alleged association with Mr. Soros.”

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

Then Hinkle said the suspension “violated the Florida Constitution, and that violation did affect the outcome.” However, the Eleventh Amendment does not allow him to reinstate Warren

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

The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Look at how The Miami Herald framed the story.

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Comments

In other words another political activist jackass judge spewing his political BS before grudgingly admitting that yeah, DeSantis has the absolute right to do EXACTLY what he did.

    smalltownoklahoman in reply to Olinser. | January 20, 2023 at 7:20 pm

    Logged in just to thumbs up!

    Ghostrider in reply to Olinser. | January 21, 2023 at 4:21 am

    DeSantis is my governor. If I could, I would give you five thumbs up!

    Milhouse in reply to Olinser. | January 21, 2023 at 11:06 pm

    In other words another political activist jackass judge spewing his political BS before grudgingly admitting that yeah, DeSantis has the absolute right to do EXACTLY what he did.

    No, the judge did NOT admit that DeSantis had the right to do it. On the contrary, he ruled explicitly that DeSantis had no right to do so, but that the eleventh amendment prevents the court from ordering Warren’s reinstatement.

      4rdm2 in reply to Milhouse. | January 22, 2023 at 8:16 am

      Here comes the Milhouse hot take …

        Milhouse in reply to 4rdm2. | January 22, 2023 at 9:42 am

        Here comes the guy who judges every situation purely by whose ox is gored, and doesn’t understand that decent people don’t do that.

          4rdm2 in reply to Milhouse. | January 22, 2023 at 10:50 am

          You on the other hand seem to base your opinion on being edgy and claiming thing which are bizarre are true.

          Milhouse in reply to Milhouse. | January 22, 2023 at 11:14 am

          Care to supply a few examples?

          Have you read the opinion yet? Have you found any flaws in its reasoning? No, I didn’t think so. You don’t even see why you should have to read it before accusing the judge of lying.

All of Soros stooge prosecutors should be removed. The harm they inflict on citizens is staggering.

    Milhouse in reply to JohnSmith100. | January 21, 2023 at 11:08 pm

    The harm they do is great, but firing a prosecutor purely for his association with Soros is very obviously unconstitutional, which is why DeSantis absolutely denied doing so. The judge didn’t believe him.

Andrew Warren was suspended because he openly refused to do his job, not because of any protected speech.
This judge is full of it.

    smalltownoklahoman in reply to Exiliado. | January 20, 2023 at 7:22 pm

    Yup, which is being conveniently ignored by the press.

    Milhouse in reply to Exiliado. | January 21, 2023 at 11:10 pm

    No, he did not refuse to do his job. That is the whole point of this decision. Did you or anyone else here bother reading it?

    The judge wrote that had Warren in fact refused to do his job, had he even announced that he intended not to do his job, DeSantis would have had every right to suspend him. But the facts show that that wasn’t true.

      4rdm2 in reply to Milhouse. | January 22, 2023 at 8:17 am

      Milhouse do you ever grow tired of being contrary just for the heck of it?

        Milhouse in reply to 4rdm2. | January 22, 2023 at 9:44 am

        Do you ever tire of being a fundamentally dishonest person? Have you bothered to read the opinion? Of course not. Do you even understand why it matters, why reading it is relevant? Of course not. You don’t care what the truth is. Truth is a concept that doesn’t exist in your universe. That makes you a bad person.

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State…”

Why and how does the judge use this to deny jurisdiction to a federal court in this situation? Plaintiff is a Florida citizen, and not a citizen of “another State”. He is prosecuting a suit against his own state, not “another State”. To me, this prevents a federal court from hearing cases that involve complaints made against states by citizens from other states.
Can someone explain this?

    Russ from Winterset in reply to DaveGinOly. | January 20, 2023 at 5:37 pm

    I would assume that this judge is saying that the proper forum to have a dispute between a Floridian and the State of Florida would be a Florida State Court. The Feds can take over if it’s an interstate fight.

      That is what he’s saying. I just don’t understand his reliance upon the 11th Amendment, which does not appear (to me, at least) to prevent a state citizen from suing his own state in a federal court.

      Still confused.. The state prosecutor sued the state governor in federal court. Claiming 1st amendment violation for suspending him.
      IANAL, but I cant see that case in a federal court

        henrybowman in reply to iowan2. | January 20, 2023 at 7:08 pm

        He went to a federal court because he wanted to sue over the federal First Amendment, I get that. I also get that the judge didn’t want to intervene in a suit between a citizen and his own governor. But what I think everyone is saying is, why did the judge finger the 11th Amendment as his reason, as it seems to be entirely inapplicable to anything.

          Patrick Henry, the 2nd in reply to henrybowman. | January 21, 2023 at 9:44 am

          I mean it makes as much sense as the judges argument that its a 1st amendment violation .

          Judge doesn’t know what he is doing.

          Milhouse in reply to henrybowman. | January 21, 2023 at 11:20 pm

          I mean it makes as much sense as the judges argument that its a 1st amendment violation .

          Judge doesn’t know what he is doing.

          You clearly haven’t bothered reading the decision. If there are errors of reasoning in it, I couldn’t find them.

        4rdm2 in reply to iowan2. | January 21, 2023 at 5:47 am

        An attorney promising to refuse to enforce the law is not a first amendment issue in any way whatsoever.

          Milhouse in reply to 4rdm2. | January 21, 2023 at 11:12 pm

          Indeed it isn’t, and the judge explicitly agreed with you. But he found that Warren never did that, and that DeSantis’s office knew this, and that it wasn’t his real reason.

          4rdm2 in reply to 4rdm2. | January 22, 2023 at 8:19 am

          Milhouse he explicity and inarguably did, for anyone with third grade speech comprehension, Milhouse, regardless of what the judge errantly claimed.

          Milhouse in reply to 4rdm2. | January 22, 2023 at 9:48 am

          No, 4rdm2, he didn’t, as you’d know if you’d read the decision. I dare you to read it and find a flaw in its reasoning. You can’t. Because you’re a dishonest person who doesn’t even care about the truth, you only care whether someone is on your team or the other team.

          You’re exactly like Joy Behar or whatever her name is that the Alec Baldwin article above is about, who sees everything in terms of teams

    Milhouse in reply to DaveGinOly. | January 21, 2023 at 11:18 pm

    To me, this prevents a federal court from hearing cases that involve complaints made against states by citizens from other states.
    Can someone explain this?

    The 11th amendment is weird. Yes, the text says exactly what you quoted, but the federal courts have for over two centuries insisted on reading it as preventing them from hearing complaints by citizens against their own state, for violating state law.

    The way the courts have read it, you can sue your state for violating federal law, but not for violating state law.

    There were two findings here: DeSantis violated both the 1st amendment (which the court can do something about) and the Florida constitution (which it can’t).

    The 1st amendment violation is not actionable because DeSantis’s real motives included some six factors, some of which don’t violate the 1st amendment. Therefore, the court found, he would have done it even without the grounds that do violate the 1st amendment, so the court can’t do anything.

    Those non-violating grounds do violate the FL constitution, but that’s where the 11th amendment comes in.

I don’t know this judge, but this feels like a preemptive strike. He knew that the governor’s decision was lawful, but by adding the 1st Amendment violation language he has added a regime media/DNC talking point for down the road, an easily sold talking point for low-information voters (LIVs). Should DeSantis run for higher office in ’24 or ’28 the regime media/DNC will use this judge’s ruling as a cudgel against him – and for many LIVs it will be enough.

Again, preemptive strike.

    “an easily sold talking point for low-information voters (LIVs)”
    To be rabidly gobbled up by the Drive-By-Media (DBM’s)

    BierceAmbrose in reply to Telemachus. | January 21, 2023 at 6:15 pm

    Bingo.

    He got his findings of law in, but cannot be over-ruled because he let the guy he slimed “win.”

    Media aren’t the only “Democratic Party operatives with bylines.” Apparatchiks every one within The Apparatus.

    Milhouse in reply to Telemachus. | January 21, 2023 at 11:21 pm

    Odd that someone who didn’t bother reading the decision talks about “low information voters”.

    If there’s an error in the decision, I challenge you to find it. I just read through the whole thing and couldn’t find one.

Heh, and this basically gives DeSantis carte blanche to shitcan others, if he feels the need to. I love living in Florida.

(Well, except during the summer. Which is April through November.)

    OwenKellogg-Engineer in reply to Evil Otto. | January 20, 2023 at 8:38 pm

    Yep, we have only two seasons here: summer, and not-summer.

    Milhouse in reply to Evil Otto. | January 21, 2023 at 11:23 pm

    No, it doesn’t. It pretty much invites Warren to sue again in state court. And it puts DeSantis on notice that next time he suspends a prosecutor he’d best investigate first and make sure the grounds he cites are true.

      4rdm2 in reply to Milhouse. | January 22, 2023 at 8:20 am

      Why do you practically break your neck running to justify nonsense?

        Milhouse in reply to 4rdm2. | January 22, 2023 at 9:50 am

        You are the one who justifies nonsense exclusively on the basis of who says it. You are the one who speaks nonsense if it happens to be in favor of your team.

        If you think anything I’ve written is incorrect, why don’t you point out the errors? It’s because you can’t, and because you think whose ox is gored is an argument.

You don’t need to be a judge to understand what is written in the Florida Constitution which states in Article IV, section 7(a), that “the Governor to suspend any state officer not subject to impeachment or any county officer on any of the following grounds: malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.”

Warren had no recourse and the courts are not an option here in the Sunshine State.

    diver64 in reply to natdj. | January 21, 2023 at 5:56 am

    It would seem to me that publicly stating he would not uphold the law would be called neglect of duty.

    Milhouse in reply to natdj. | January 21, 2023 at 11:27 pm

    Natdj, Warren certainly had recourse. DeSantis violated the 1st amendment, and that overrides anything in the FL constitution. It is illegal for a governor to suspend someone in retaliation for his protected speech, no matter what the FL constitution says. The only reason the judge couldn’t order Warren reinstated on those grounds is that DeSantis would have fired him even without his protected speech.

    However he found that DeSantis also violated the FL constitution, because there was no “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony”. He couldn’t do anything about that, but a FL court can.

      4rdm2 in reply to Milhouse. | January 22, 2023 at 8:21 am

      Just because the judge ludicrously claimed those things doesn’t actually make them TRUE.

        Milhouse in reply to 4rdm2. | January 22, 2023 at 9:54 am

        Really?! How do you know? The judge didn’t claim those things, he found them, based on the evidence presented in court. If you have found a flaw in his reasoning, why don’t you point it out?

The anti-De Santis “findings” in the Judge’s decision are what are known as dicta. They are wholly irrelevant to the relief the judge actually ordered.

Because they are not relevant to the relief the judge actually granted, De Santis cannot challenge them on appeal. And because of that, those findings cannot be used against De Santis in any future judicial proceeding.

For those reasons, the Judge’s gratuitous decision to include those findings in his decision is a breach of judicial ethics. Unfortunately, because he is a federal judge, appointed for life, there is no effective mechanism–other than impeachment by Congress–for De Santis or others to obtain relief from this clear breach of judicial ethics.

The Republicans in the House should introduce articles of impeachment. But they almost certainly wont. And even if the did, he would never be convicted by the leftist dominated Senate.

    BierceAmbrose in reply to Wisewerds. | January 21, 2023 at 6:38 pm

    I was wondering if there’s a mechanism to get at this crap-weasel’s malfeasance. I mean the judge. So, yes, he was out of line. Yes, there’s a mechanism. And no, it won’t work in current craven federal configuration.

    I wonder what could be done here. Spit-ballin a bit…

    — Impeach him anyway, and use the fact that something this egregious went nowhere as its own issue? We gotta advance in The Senate somehow. Give non-incumbent candidates issues and talking points, and we might gain some ground.

    — Brand this guy forever more as The Judge Who’d Be Impeached if I Could Charge Him. DeSantis has to go measured and reasonable, tho no need for him to cede the issue. DeSantis comm shop, however, can go as over the top as they want.

    — Can you file a lawsuit against yourself? “Hey, I’ve been credibly accused of Civil Rights Violation against this guy. Filed a suit, so let’s find out…”

    — As a point of law, does a public official publicly declaring what they will do in their official capacity count as personal or official speech?

    — Could The Orange Crush be enticed to spout off on a slow news day. “This is why the eighty-kabillion Federal Judges I appointed are so important; Judges who stick to the law, don’t try to make the law; the most ever, great judges, the best judges; it was tremendous…”

      — As a point of law, does a public official publicly declaring what they will do in their official capacity count as personal or official speech?

      The judge addressed this. Warren was not speaking in his official capacity. He was speaking as a politician, not as a prosecutor. If he were speaking as part of his official duties then indeed it would not be protected.

      But the judge went further: had Warren said that he would never prosecute these cases, DeSantis could take that as an indication of intent to violate his duty, and he could suspend him for it.

      “If a school board can discipline a bus driver for driving drunk today, the school board can discipline the driver for promising to show up drunk tomorrow; the board need not wait for the driver to take the wheel. The First Amendment does not preclude a governor from taking whatever action is otherwise warranted in response to a state attorney’s statement that cases of a specific kind will not be prosecuted. […] This was not, however, Mr. Warren’s intended course. He made this clear in the FOX-13 interview. 95 His remarks in that interview were consistent with the discretion-in-every-case memorandum, which, unlike the FJP statement, had been trained on and circulated to every assistant state attorney. 96”

        BierceAmbrose in reply to Milhouse. | January 23, 2023 at 12:28 pm

        Well, that’s why I asked.

        I wonder if there’s a bright line threshold under law for official vs. personal or political speech? By Judges?

        Judges find all kinds of things to provision arguments they’d like to support, for findings they’d like to make; like the Affordable Care Act was a tax, and not a tax, and kind of a tax, and… Judges are similarly political or not, depending on what’s convenient.

        We’ll have another round of this with The Biden’s Secret Stashes (No, not Hunter’s spice racks.)

          The decision actually discusses that question. If you follow the link in the article and search for “capacity” you should find it.

          But more importantly, as I wrote above, the judge said that even when speaking in his private capacity, if he’d actually said that his office would never prosecute a certain category of crime then DeSantis would have been right to suspend him, just as a school board would be right to suspend a bus driver who says, even in a private capacity, that he intends to drive drunk.

    caseoftheblues in reply to gonzotx. | January 21, 2023 at 2:44 am

    Just sayin’ what?….what’s your point??

      Oh, I think you know. We have daily pro DeSantis articles here and really, never or so rarely pro Trump, or in support of President Trump

      I use to LOVE DeSantis, till he shoved the shiv into his mentors back, the honorable President Trump.

      I don’t do traitors.

      Yeah, he’s doing and saying all the right things, wants that MAGA vote, can’t get the Presidency without it, but his handlers will expect their cut, and he will deliver us onto them

      He had already shown who he is.

      You know, it’s said the Benedict Arnold was a great General and leader of men…till he tried to Shiv General
      Washington

      I believe that was about money too, if I recall right.

    healthguyfsu in reply to gonzotx. | January 21, 2023 at 3:35 am

    Doesn’t say what you think it does. Only one person of the entire field has announced their intentions.

If a State Attorney is stating that he/she will not enforce the laws of the State then I don’t understand why the Governor or Legislature can not remove them for fraud. Enforcing the laws is what they are for isn’t it and if they get elected then say “sorry, I don’t like the laws so I’m not enforcing them” that would be evidence that they defrauded the people of the State?

    Bingo, right there. If the State hires somebody to build a road and they don’t, along with making public statements that they’ll never build that road, they’re going to get fired. If the state hires somebody to prosecute criminals and they make public statements that they’re not going to do it, same thing.

    Milhouse in reply to diver64. | January 21, 2023 at 11:39 pm

    Not for fraud, but for likelihood that they will neglect their duty. The judge agrees with you on that. Had Warren instituted a blanket policy of not prosecuting certain offenses, DeSantis would have every right to suspend him. Even if he didn’t institute such a policy, but he said he would, the judge wrote that he could still be suspended. He analogized it to a school bus driver announcing that he intends to show up drunk tomorrow; the school board can suspend him now, and doesn’t need to wait until he actually does it.

    The problem here is that Warren never had such a policy, and explicitly denied that he would have one, and DeSantis’s office was aware of that.

I’ll need to read the full opinion, but I seriously question the Judge’s rationale on the First Amendment issue. Since America was founded, there has always been a consequence for “bad speech”, libel, slander and defamation, so long as it was allowed to be said. DeSantis didn’t prevent the State Attorney from speaking, he just found him unfit when he stated that he did not intend to do his job.
If I tell my boss I’m not going to do my job, I’m likely to get fired.

    Milhouse in reply to EBurke. | January 21, 2023 at 11:42 pm

    Do read the opinion. It’s thorough.

    It’s well established that retaliating for protected speech violates the first amendment.

    Libel, slander, and defamation are not protected speech. But what Warren said was core political speech, and is protected. Nevertheless, had he said he wasn’t going to do his job, then DeSantis could have suspended him, not because of his speech, but because of the likelihood that he would carry it out. But he didn’t say it, and publicly said the opposite, and DeSantis’s office knew this.

George_Kaplan | January 21, 2023 at 7:24 pm

So the Democrat judge of a federal court found that the Democrat complainant of an internal state grievance against a Republican governor was valid, he just couldn’t provide relief, not that he couldn’t intervene under the law or any other ‘technicality’?

DeSantis suspended the George Soros-backed attorney in August after he said he would not enforce the laws banning child sex surgeries and abortions after 15 weeks.

But did he say that? The most important basis of the judge’s opinion is his finding that Warren did not say that, and in fact never had such a policy. And that DeSantis could easily have found that out, had he bothered to investigate.

“Florida Governor Ron DeSantis suspended elected State Attorney Andrew H. Warren, ostensibly on the ground that Mr. Warren had blanket policies not to prosecute certain kinds of cases. The allegation was false. 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.”

“Just four days later, Mr. Warren made clear in an interview on local television station FOX-13 that he would exercise discretion whether to prosecute any abortion case that came to the office—none ever had—just as the office exercised discretion in every other case of every other kind.59 Mr. Warren said he would follow court rulings on the newly enacted Florida abortion statute, “HB5,” which banned abortions after 15 weeks of pregnancy.60 The Governor’s Office knew about Mr. Warren’s statements.61 Mr. Warren included HB5 in an office training session, complete with its effective date, and formally agreed, as a condition of his dismissal from a lawsuit challenging the statute’s validity under the Florida Constitution, that he would abide the ruling in the case, which is now on appeal. 62”

“The Governor asserts that the sole basis for the suspension was Mr. Warren’s adoption of blanket nonprosecution policies. But in fact there were no blanket nonprosecution policies, and the alleged but nonexistent blanket policies were not the sole basis of the suspension.”

“The assertion that the protected statements showed the conduct Mr. Warren would engage in is untrue and, in any event, would not change the protected speech into unprotected conduct. A speaker who says openly carrying an assault rifle should be legal has engaged in protected speech but has not engaged in conduct—has not committed the offense of openly carrying an assault rifle. A state attorney who says being transgender or providing abortions should not be a crime has engaged in protected speech but has not engaged in conduct—has not refused to prosecute transgender or abortion offenses. The Governor was no more entitled to infer what Mr. Warren would do, based on his political statements, than the Georgia House of Representatives was entitled to infer what Mr. Bond would do, based on his political statements.”

The judge acknowledged that had Warren actually announced a policy of not prosecuting abortions, the suspension would have been lawful:

“If a school board can discipline a bus driver for driving drunk today, the school board can discipline the driver for promising to show up drunk tomorrow; the board need not wait for the driver to take the wheel. The First Amendment does not preclude a governor from taking whatever action is otherwise warranted in response to a state attorney’s statement that cases of a specific kind will not be prosecuted. […] This was not, however, Mr. Warren’s intended course. He made this clear in the FOX-13 interview. 95 His remarks in that interview were consistent with the discretion-in-every-case memorandum, which, unlike the FJP statement, had been trained on and circulated to every assistant state attorney. 96”

“If this finding is incorrect—if the Governor was actually motivated, as he has claimed, only by his belief that Mr. Warren had blanket nonprosecution policies—the Governor can easily set it right. After a full and fair trial, the evidence establishes without genuine dispute that Mr. Warren had no blanket nonprosecution policies. The record establishes that, contrary to what the Governor said on the Carlson show,98 his staff did not conduct a thorough review and did not talk to line prosecutors throughout the state or in Mr. Warren’s office. With unlimited time and the full array of discovery available in federal litigation, the defense has been unable to identify even a single case in which discretion was not exercised. If the facts matter, the Governor can simply rescind the suspension. If he does not do so, it will be doubly clear that the alleged nonprosecution policies were not the real motivation for the suspension.”