TAMPA, Fla. — Earlier this month two bombshells dropped in the case of Hillsborough County State Attorney Andrew Warren, who was booted from office by Florida Gov. Ron DeSantis and has been battling in the courts to win his job back.
Warren announced Jan. 8 he wouldn’t run in November because, he said, DeSantis would likely suspend him again if he won. It sounded like farewell.
But two days later, a federal appeals court ruled in Warren’s favor, raising the possibility of his return to office and setting off a flurry of questions about politics, procedure and what comes next.
—How did we get here?
In 2022, the Republican governor currently running for president announced the surprise suspension of Warren, a progressive Democrat focused on criminal justice reform. Flanked by law enforcement officers, DeSantis said Warren had refused to follow the law, citing two pledges he’d signed with other prosecutors around the nation promising not to pursue cases involving abortion or transgender health care.
He also pointed to Warren’s own policies that discouraged prosecuting certain low-level crimes and cases arising from police bicycle stops, a practice that has been tied to racial disparities in the criminal court system.
Warren spent the next 17 months trying to win back the job to which Hillsborough voters elected him twice. U.S. District Judge Robert Hinkle last year ruled that DeSantis violated Warren’s right to free speech as well as the state constitution, but the judge concluded he was unable to restore him to office.
It appeared Warren’s cause in the courts could be over.
—What happened last week?
After months of talk about Warren’s political future, he announced he would not run in 2024 against Suzy Lopez, the Republican former prosecutor the governor appointed to replace him.
Then, on Jan. 10, a three-judge panel from the 11th Circuit Court of Appeals issued its lengthy ruling that critiqued Hinkle’s analysis and refuted his conclusion that he was barred from restoring Warren to office. The appeals court kicked the case back to Hinkle’s court for further proceedings.
That opinion serves as a legal road map for what could happen next.
—What did the appeals court’s opinion say?
The ruling is complicated.
It focuses on Hinkle’s legal analysis, which identified several factors that motivated Warren’s suspension.
Hinkle, who was appointed to the federal bench in 1996 by President Bill Clinton, found that Warren’s political ties and his advocacy for criminal justice reform were protected by the First Amendment. But free speech did not shield Warren from other factors, the judge found, including his policies on low-level crimes and bike stops and his prosecutorial performance.
And even if those were protected by the First Amendment, the judge concluded he lacked the constitutional authority to restore Warren to office.
The appeals court judges disagreed, finding other factors in the suspension were indeed protected by the First Amendment.
They sent the case back for Hinkle to reconsider whether Warren’s policies and performance would have been enough for the governor to suspend him. They also noted, among other things, that Warren’s prosecutors had discretion in pursuing cases, and that DeSantis lacked probable cause for the suspension.
In a crucial footnote, the court disagreed that Hinkle didn’t have the power to reinstate Warren.
—Who were the three judges?
The ruling was authored by 11th Circuit Judge Jill Pryor, who was appointed to the court by former President Barack Obama. Judge Kevin Newsom, appointed by former President Donald Trump, concurred with Pryor’s opinion and also wrote his own. Senior U.S. District Judge Anne Conway, a George H.W. Bush appointee who was temporarily assigned to the appeals court, also heard the case but did not write her own opinion.
—Does that mean Warren could get back in office before the November election?
It’s all about timing.
Matters don’t generally move quickly in federal court, but Warren asked the appeals court to speed things up. On Thursday, despite objections from DeSantis’ lawyers, the court granted Warren’s request.
DeSantis’ attorneys indicated in court documents they plan to ask for a review by all 12 judges on the 11th Circuit. The court’s rules, however, discourage losing parties from making such requests unless the case presents an issue of exceptional importance.
The court’s order Thursday gives them until Jan. 25 to file a petition for that review.
Court documents also indicate DeSantis could seek a stay from the U.S. Supreme Court.
Via email, the governor’s office said this week that any comment would be contained in its legal filings.
—Will there be another hearing with testimony before Hinkle, or just a new ruling?
Lawyers say that’s the judge’s decision to make.
“It’s absolutely up to Judge Hinkle to decide how best to proceed,” said Jean-Jacques Cabou, one of Warren’s attorneys. “We certainly do not believe a hearing is necessary. … As far as we’re concerned, we hope he’s writing already.”
In an email last week, a spokesperson for the governor said they were still considering the court’s ruling, “but we will ensure that Florida’s sovereignty and constitution are respected.”
—Will this change Warren’s decision not to run in 2024?
Maybe.
In Warren’s request to speed up the case, his lawyers noted that he has a year left in his term and voters have been “deprived of the official they elected state attorney.”
Warren’s decision on whether to run “depends in significant part on the outcome of this litigation,” his lawyers wrote. Here, too, timing will be critical.
It sets up an unusual potential scenario: Warren gets back in office before the election, which could give him political advantage if he runs. He would need to catch up with Lopez, though, who has been campaigning for months. Warren has yet to raise any campaign funds.
“I think this decision opens all options for Andrew,” said Ione Townsend, chairperson of the Hillsborough County Democratic Party.
In the two days between Warren’s announcement that he would not run and the appeal’s court’s ruling in his favor, chatter abounded among Democratic politicos about who might launch a challenge to Lopez. One name that surfaced was former State Rep. Sean Shaw, but he announced last week he would run for Hillsborough County Commission.
Since then, no other Democrats besides Warren have been mentioned.
“In my view, Andrew is our leading candidate,” Townsend said.
Some say, though, that Warren’s sudden return to office could disrupt the criminal justice system.
“What everybody wants is stability in the courthouse,” said Tampa attorney Paul Sisco, a Lopez supporter. “The litigants want that. The lawyers want that. And we have that right now, candidly, with Ms. Lopez.”
—What does Lopez think of all this?
Lopez hasn’t directly addressed the latest developments. Her office last week issued a statement saying “she is singularly focused on keeping this community safe.”
Even before last week, though, Lopez seemed to anticipate a run against Warren. In her campaign, she’s spoken critically of his reformist style while touting her own prosecutorial philosophy that emphasizes steep penalties, heightened sympathy for victims and support for law enforcement.
“The community has a choice to make,” Lopez said at her November campaign kickoff. “Will we have a state attorney who follows the law? Or one who wants to experiment with the law?”
Ryan Smith, a consultant on Republican campaigns who is working with Lopez, said “the former state attorney wants to make everything about him and his issues.”
“That’s not what this is about,” said Smith. “This race is about who’s going to keep Hillsborough County safe” — and that’s Lopez, he said.
Lopez has drawn substantial support from the local legal and law enforcement communities. Her latest campaign finance totals released last week show that she has raised more than $250,000 in contributions to her campaign and a political action committee. That gives Lopez a significant head start if Warren changes his mind about running. He last fall filed campaign paperwork, but has not yet reported any financial contributions.
—How are others reacting to the latest in this case?
Last week’s turn of events has been the talk of political circles.
“The timing was amazing,” said Mark Proctor, a local Republican campaign consultant who works on judicial races. “The fact that within, what, 48 hours of him saying he’s not running, there’s a possibility he could get put back in office.”
“Timing is everything in politics,” he said.
Florida Democratic Party chairperson Nikki Fried praised the appellate court’s ruling and said she believed it would encourage Warren to rethink his decision not to run. She said she hoped to see a speedy resolution.
“The sooner these decisions get made and the people’s voice is heard once again, the better it is for people and democracy,” she said.
The head of the Hillsborough County’s Republican Party could not be reached by phone or email for comment this week.
“A state prosecutor’s declared commitment to not enforce the laws of this state is not protected by the U.S. Constitution,” DeSantis press secretary Jeremy Redfern, said in an emailed response to the Tampa Bay Times after the court ruling. “The federal appeals court is flat wrong to have concluded otherwise.”
On Monday morning at the Tampa Organization of Black Affairs 44th Annual Dr. Martin Luther King Jr. Leadership Breakfast — traditionally well attended by political office holders — observers noted that Warren was introduced as the state attorney, not the suspended state attorney, and Lopez as “acting” state attorney.
When a speaker later amended that to call Lopez simply the state attorney, there were murmurs in the crowd.
Attendees described the moment as awkward.
