On August 9, 2023, Florida Governor Ron DeSantis made a noteworthy announcement, suspending State Attorney Monique Worrell of the 9th Judicial Circuit. This decision was based on allegations of her neglecting her duty to diligently prosecute crimes within her jurisdiction.[i] The legal grounds for such suspension are outlined in Article IV, Section 7 of the Florida Constitution, which empowers the governor to suspend state and county officers for various reasons, including malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, or permanent inability to perform official duties.[ii]
Worrell, who served as the State Attorney for the Ninth Judicial Circuit Court encompassing Orange and Osceola county in Florida, became the second state attorney to be removed by Governor DeSantis. The first instance occurred on August 4, 2022, when Hillsborough County State Attorney Andrew Warren faced suspension.[iii] At that time, Governor DeSantis accused Warren of positioning himself above the law by pledging not to enforce certain laws related to abortion and gender-affirming care for minors despite Florida lacking specific legislation on gender-affirming care. Warren subsequently filed a federal lawsuit challenging his removal. In the Northern District of Florida, U.S. District Judge Robert Hinkle ruled that DeSantis had violated Warren’s First Amendment rights by removing him from office without evidence of misconduct or blanket refusal to prosecute certain crimes.[iv] However, the court concluded that 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 court found that the suspension violated the Florida Constitution, first and foremost, and that the suspension would have occurred even had there been no First Amendment violation. Since the First Amendment violation was not essential to the outcome, this case was deemed predominately a state matter.
Civil procedure matters aside, the defense in Warren v. DeSantis cited Ayala v. Scott, 224 So. 3d 755 (Fla. 2017) to assert that a blanket nonprosecution policy was a valid basis for suspension. In Ayala v. Scott, State Attorney Aramis Ayala stated that she would never pursue the death penalty. In response, then-Governor Rick Scott reassigned Ms. Ayala’s death-eligible cases to a different state attorney, and the Florida Supreme Court upheld the reassignment. However, nobody suggested Ms. Ayala could be suspended from office on this basis. Unlike Ms. Ayala, Mr. Warren never said he would not prosecute a case that deserved to be prosecuted, and he even repeatedly said that discretion would be exercised at every stage of every case. Unlike Ms. Ayala, Mr. Warren was suspended from office and did not have cases reassigned as an alternative.
Notably, the court in Warren v. DeSantis also highlighted the trend where reform prosecutors nationwide had drawn the attention of right-leaning public officials and the media by late 2021. In December 2021, Governor DeSantis asked a senior adviser, Larry Keefe, whether Florida had any such prosecutors—prosecutors who, in the governor’s right-leaning view, were not enforcing the law.[v] Ultimately, Mr. Keefe identified Mr. Warren as “the Florida prosecutor who had taken the mantle of a reform prosecutor.”[vi]
Fast forward to today, in the case of Monique Worrell’s suspension, Governor DeSantis claimed that her “neglect of duty” stemmed from her policies and practices, which allegedly allowed violent criminals to avoid the full consequences of their actions, thereby jeopardizing the safety of residents in Orange and Osceola counties.[vii] Subsequently, on September 6, 2023, Monique Worrell appealed to the Florida Supreme Court, seeking to overturn Governor DeSantis’s decision.[viii] Her legal team argued that disagreements between the governor and a state attorney regarding the lawful exercise of prosecutorial discretion does not constitute a basis for suspension, emphasizing that Worrell was elected to serve as state attorney, not to be governed by the governor. The petition requested the Supreme Court to rule that DeSantis had exceeded his constitutional authority and advocated for Worrell’s reinstatement with back pay.
It is essential to note that the judiciary’s role in reviewing such suspensions is limited, as articulated in Jackson v. DeSantis, 268 So. 3d 662, 663 (Fla. 2019). The Florida Constitution entrusts the governor with the discretion to suspend and remove officials, with the judiciary’s involvement being narrowly circumscribed. If a suspension order “names one or more of the grounds embraced in the Constitution and clothes or supports it with alleged facts sufficient to constitute the grounds or cause for suspension, it is sufficient.”[ix] Only in specific circumstances can the judiciary intervene in this process. The judiciary’s role is limited to determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension. Thus, “[a] mere arbitrary or blank order of suspension without supporting allegations of fact, even though it named one or more of the constitutional grounds of suspension, would not meet the requirements of the Constitution.”[x]
The Florida Supreme Court must entertain Ms. Worrell’s petition and restore her to her elected position. The court must establish a legal precedent affirming that the suspension of elected officials by the governor requires substantial justification and is subject to judicial examination. The absence of such a legal framework raises concerns about the potential for governors of one political affiliation to arbitrarily suspend officials from opposing parties and appoint replacements at their discretion. As noticed by the court in Warren v. DeSantis, a trend exists where reform prosecutors around the country are removed and replaced with an individual specifically chosen by the governor as opposed to a publicly elected official. This trend poses a significant threat and necessitates constraints.
While recognizing the political landscape, it remains essential to emphasize the suitability of judicial oversight in regulating executive suspensions in accordance with the Florida Constitution. This approach offers a more equitable and unbiased mechanism for assessing such suspensions, while preserving the democratic process’s integrity.
[i] See Fla. Exec. Order No. 23-160 (Aug. 9, 2023).
[ii] See Fla. Const. art. IV, § 7(a).
[iii] See Governor Ron DeSantis Suspends State Attorney Andrew Warren for Refusing to Enforce Florida Law, FLGov (Aug. 4, 2022), https://www.flgov.com/2022/08/04/governor-ron-desantis-suspends-state-attorney-andrew-warren-for-refusing-to-enforce-florida-law/.
[iv] Warren v. DeSantis, 29 Fla. L. Weekly Fed. D115 (U.S. N.D. Fla. January 20, 2023).
[v] See id.
[vi] Id.
[vii] See Governor Ron DeSantis Suspends State Attorney Monique Worrell for Neglect of Duty and Incompetence, FLGov (Aug. 9, 2023), https://www.flgov.com/2023/08/09/governor-ron-desantis-suspends-state-attorney-monique-worrell-for-neglect-of-duty-and-incompetence/.
[viii] See Alex Ebert, Prosecutor DeSantis Fired Sues to Get Her Elected Position, Bloomberg L. (Sept. 6, 2023, 6:04 PM), https://news.bloomberglaw.com/business-and-practice/prosecutor-desantis-fired-sues-to-get-her-elected-position-back.
[ix] Jackson v. DeSantis, 268 So. 3d 662, 663 (Fla. 2019) (quoting State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 133 (Fla. 1933).
[x] Israel v. DeSantis, 269 So. 3d 491, 495 (Fla. 2019) (quoting State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 133 (Fla. 1934)).
