Andrew Warren (bio here) is a former federal prosecutor, and currently the elected prosecuting attorney in Tampa, Florida.
He was suspended by Gov. Ron DeSantis (R) on August 4, 2022, for “neglect of duty” because he signed a letter saying he wouldn’t enforce GOP-enacted Florida prohibitions on abortions or certain transgender procedures for minors (see story here).
This article will be an exercise in logical deductive reasoning, as this one was. I’m asking you to follow along and work through this with me. Warren is asking a federal judge to reinstate him, claiming his free speech rights were violated.
Let’s start with the governor’s authority. The Florida constitution authorizes him to remove an elected county official for specified reasons. The relevant provision (read it in entirety here) says,
” … the governor may suspend from office … any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension.”
This is a given; if Warren neglected his duties, DeSantis can replace him. And inasmuch as that’s the justification DeSantis relied upon, it’s the only basis on which a court could uphold Warren’s suspension. If the evidence doesn’t show “neglect of duty,” Warren must be reinstated.
I think you have to start with the definition of “neglect of duty,” which will come from caselaw if there isn’t an applicable statutory definition. Frankly, I don’t know what this definition is, but I expect the parties’ briefs and the judge’s decision will address this matter.
I don’t know if this is helpful, but a Florida Law Review article in 1951 (read it here) addressed this in the context of a sheriff who was indicted “for neglect of duty and incompetency in office in that he knowingly permitted the gambling laws of the state to be violated in an open and notorious manner.”
The writer said, “The gist of the crime is any misconduct in breach of an official duty that injuriously affects public morality or obstructs or perverts public justice,” but noted, “The criminal offense charged in the instant case should not be confused with suspension or removal from office under the Florida Constitution.”
This is less than fully helpful in a couple of ways. The article is 71 years old, and doesn’t account for legal changes that may have occurred since then; and it involves a different (criminal) statute. The takeaway, though, is the sheriff was charged with neglect of duty for actually refusing to enforce the gambling laws.
Here, the prosecutor only stated an intention to not enforce Florida’s abortion and transgender laws. It’s clearly within the realm of free speech to say he disagrees with those laws and doesn’t think they should be enforced. But “neglect of duty” implies something more — not enforcing them. The governor may have jumped the gun.
If the court requires the governor to show an actual refusal to enforce those laws, which presumably would involve the police referring cases to the prosecutor which he doesn’t follow up on, there’s a further complication. Prosecutors simply don’t have to prosecute everything the police send to them, and in some circumstances it would be illegal and/or unethical to do so.
Prosecutors have broad latitude to decline cases, although it’s not limitless. It’s legitimate to decline a case if, in the prosecutor’s good-faith judgment, no crime was committed; the evidence is insufficient to persuade a jury of guilt beyond a reasonable doubt; or the defendant has an affirmative defense. Thus, to show “neglect of duty” based on refusing to enforce certain laws, I would think the governor has to show a systematic pattern of non-enforcement not based on the facts or strengths and weaknesses of the cases.
It takes a while to accumulate a demonstrable record of non-enforcement, and as these laws are new, such a record almost certainly doesn’t exist. And even if it does, knowing what we know about DeSantis, it’s unlikely he and his staff bothered to check. What mattered more to him was holding a press conference right before voters went to the polls to either re-elect him or elect his opponent.
So the make out a “neglect of duty” case against Warren, it’s likely that DeSantis has to argue that the letter itself constituted “neglect of duty” under Florida law, and that the mere statement injuriously affected public morality, or obstructed or perverted public justice, in such manner as to override freedom of speech.
We know DeSantis, who wants to be president, doesn’t believe in freedom of speech. He’s pushed for laws muzzling classroom teachers, university professors, and forcing national social media companies to publish conservative commentary. He’s being sued for all of these actions, and if he becomes president, I predict there will be a regular parade of lawyers to federal courthouses contesting First Amendment violations by his administration.
The question for us, in this thought exercise, is whether free speech collides with public duty; if it does, where that intersection is; and when the two are incompatible, which the courts should give greater weight. Should a prosecutor be allowed to say he’s not going to enforce laws he disagrees with? Do higher public authorities have to wait until he actually refuses to enforce them? Or is holding a public office a privilege that comes with an obligation to keep your mouth shut about certain matters?
To add some meat to this stew, let’s throw out this: Should an elected sheriff be removed from office for making racist remarks, or only for demonstrably racist policing? While the analogy isn’t exact, it’s broadly the same problem. If a sheriff can be removed for racist remarks, why shouldn’t a prosecutor be removed for saying he’s not going to enforce certain criminal laws?
It’s an interesting question, one that a federal court ultimately will answer, but my guess is DeSantis loses this one unless he shows actual non-enforcement.
Update (12/2/22): The federal judge hearing the case appeared skeptical of DeSantis’ actions in his questioning of the lawyers in the case. (Read story here.)