Ron DeSantis's unchecked, unlimited, unreviewable power over local government officials
State Attorney Andrew Warren is not going to get his job back—and no lawsuit will change that
On August 4, 2022, Florida Governor Ron DeSantis suspended Andrew Warren, the elected prosecutor for Hillsborough County, from office for “neglect of duty” and “incompetence.” The charges against Warren weren’t based on official misconduct, but instead, Warren’s decision to not prosecute certain classes of offenses—like those relating to abortion or the provision of gender-affirming services by doctors to trans youth. Across the country, coalitions of prosecutors organized through groups like Fair and Just Prosecution made similar decisions in the aftermath of Roe v. Wade’s demise.
Following his suspension of Warren, DeSantis appointed Republican Susan Lopez as State Attorney—and she immediately pulled back on some of the reforms that Warren adopted. In response, Warren filed a lawsuit in federal court in an effort to get reinstated as State Attorney for the 13th Judicial Circuit, arguing that DeSantis’s actions violated the Florida Constitution. The court agreed with Warren—but ultimately concluded that it had no power under the U.S. Constitution to reinstate him, and dismissed his lawsuit.
Warren has another option remaining: he can contest his suspension before the Florida Senate, which could reinstate him by majority vote. But this option is illusory for more than one reason. Not only did Republicans win a supermajority in the Florida Senate, meaning that Warren’s chances are slim, but whatever decision the Senate comes to is the end of the road.
Since 1868, the Florida Constitution has granted the Governor the power to remove local officials. The scope of these powers, and how they fit into the state’s vertical separation of powers, has differed over time, though. Under the 1868 Constitution, the Governor was empowered to remove county tax assessors and revenue collectors with Senate consent, and county treasurers, surveyors, school superintendents, and county commissioners for “wilful neglect of duty, or a violation of the criminal laws of the State, or for incompetency”—but the Governor was also responsible for appointing them in the first place.
The 1885 Constitution expanded these powers somewhat, granting the Governor the power to “remove any officer [who was] not liable to impeachment” for “malfeasance, or misfeasance, or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency,” subject to the Senate’s approval. Given that the only officers liable to impeachment under the 1885 Constitution were the Governor, executive branch officers, Supreme Court justices, and circuit court judges, this left a lot of offices liable to removal by the Governor. When the Florida Constitution was rewritten in 1968, these provisions were kept intact—but formalized. The 1968 rewrite provided that, when removing an officer, the Governor must issue an executive order “stating the grounds” and file it with the Secretary of State.
These provisions have long been given an extremely broad reach by the courts. In 1872, for example, the Governor’s removal of the Duval County Sheriff was challenged in court. The Florida Supreme Court explained how expansive the gubernatorial and senatorial powers were to remove officials just like the sheriff:
The power of removal here granted to the Governor and Senate is without limitation, is absolute, and is beyond the control of the judicial department of the government. The only question which we can determine in such cases is, is there such a power in the given case? Whether the power exists is a judicial question. If it does exist, however, and is without limitation, then we cannot listen to the complaints of the appointee urging that it has been exercised in his particular case in a despotic manner, purely from prejudice, passion or hate; because even if this be so, it is the act of a power beyond our control and with which we cannot interfere.
Our conclusion is, that the Governor and Senate have, in the case of a sheriff, the absolute power of removal, which they can exercise without notice to the officer and without giving any reason for their act, either to the officer or to any other department of the government.
(emphasis added).
Though the Florida Supreme Court has generally avoided invoking such expansive rhetoric in the other cases it’s decided on this subject, the practical result is no different. In State ex rel. Hardie v. Coleman, the Court explained that, although it could examine the “jurisdictional facts on which the Governor’s order of suspension was predicated,” this power was limited to evaluating whether “the order names one or more grounds embraced in the Constitution and clothes or supports it with alleged facts sufficient to constitute the grounds or cause of suspension[.]” In short, state courts aren’t authorized to match up the Governor’s allegations of misconduct with a factual analysis of the charges.
Similarly, courts are without power to evaluate the Senate’s action, either. It has repeatedly described the Senate, in reviewing the Governor’s suspension of an officer, as “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.” In Hardie, the Court observed that “[t]he matter of reviewing the charges and the evidence to support them is solely in the discretion of the Senate; and in doing this, it may adopt such rules of procedure as it sees fit. Its judgment in this is final, and will not be reviewed by the Courts.” (emphasis added).
Despite repeated requests by suspended officials to expand the judiciary’s role, the Florida Supreme Court has steadfastly refused these invitations. One of the more recent examples of this took place in the aftermath of the Parkland school shooting, when DeSantis suspended Broward County Sheriff Scott Israel. Israel requested that the Senate reinstate him, and filed suit in state court to challenge DeSantis’s authority. The Senate held off on Israel’s trial until the challenge was resolved by the courts. Here, again, the Florida Supreme Court dismissed Israel’s case—determining that “the Governor has satisfied the constitutional requirements . . . and has the authority to suspend Israel.” The Senate appointed a special master to review Israel’s suspension—and despite the special master’s recommendation that the Governor’s suspension order was insufficient, affirmed Israel’s removal on a mostly party-line vote.
As a result of this century-plus of uncritical deference by the state courts to gubernatorial suspensions, if Andrew Warren contested his removal as State Attorney in the Florida Senate and lost, the Senate’s decision would be final. Or, put more plainly, Ron DeSantis has the power to remove local officials on trumped-up charges, violating their constitutional rights and deviating from the Florida Constitution’s substantive requirements, and as long as that decision is rubber-stamped by the Republican supermajority in the State Senate, suspended officials have literally no available recourse.
And if we expect DeSantis to exercise this prerogative only in cases that truly demand it, we’ll be left wanting. Several weeks after Warren’s suspension, DeSantis suspended four members of the Broward County School Board, citing security failures relating to the Parkland school shooting. That the newly formed School Board consisted of a majority of DeSantis appointees just as DeSantis launched a statewide campaign to endorse school board candidates? Just a coincidence.
But none of this is an inevitable result of the state constitution’s text. There’s a plausible argument that, by limiting the Governor’s removal power to a list of specifically enumerated reasons—under the current text, “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony”—courts have a role to play in evaluating whether one of those conditions is actually met. Indeed, in Hardie, the Florida Supreme Court explained in some detail what each reason meant, and how it could be established, clearly demonstrating that these reasons aren’t totally incapable of being evaluated by courts.
There’s also no reason that the voters of Florida ought to accept the status quo as it is. Floridians can initiate constitutional amendments of their own design and drafting—and could safeguard their power to elect officials of their own choosing, free from the Governor’s interference. With courts unwilling to set aside suspensions even if they were done in a “despotic manner, purely from prejudice, passionate or hate,” if Floridians want to protect their local democracy, they’ll have to do it themselves.