Adam Richardson: The state constitutional aspects of Monique Worrell’s suspension

Ron DeSantis, Monique Worrell.

Struggling in his campaign for the Republican presidential nomination, Gov. Ron DeSantis visited Florida on Aug. 9 to suspend Monique Worrell, the elected Democratic state attorney for the 9th Judicial Circuit in Orlando and Osceola counties.

This is the second time in less than a year our Governor suspended a Democratic state attorney, the first being Andrew Warren in Tampa. DeSantis then returned to Iowa with a new, hopefully resonant, message blending anti-wokeness and law and order.

Suspending local officials is something our authoritarian governor likes to do. In fact, in his campaign book, “The Courage to Be Free,” he bragged about this power: “The governor … had another power that was particularly timely as I took office: the power to suspend elected officials at the county level.”

But in his zeal to exercise his power, and to exploit it for partisan aims, Gov. DeSantis grossly abused it.

The Governor’s suspension power

Article 4, subsection 7(a) of the Florida Constitution says, in part:

“By executive order stating the grounds and filed with the custodian of state records, the governor may suspend from office any state 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.”

DeSantis’ executive order suspending Worrell hangs on accusations of neglect of duty and incompetence, the specifics of which I’ll get to in a moment.

The Florida Supreme Court defined neglect and incompetence in the 1934 case State ex rel. Hardie v. Coleman:

Neglect of duty references the neglect or failure on the part of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law. It is not material whether the neglect be willful, through malice, ignorance or oversight, when such neglect is grave and the frequency of it is such as to endanger or threaten the public welfare, it is gross.

….

Incompetency as a ground for suspension and removal has reference to any physical, moral or intellectual quality, the lack of which incapacitates one to perform the duties of his office. Incompetency may arise from gross ignorance of official duties or gross carelessness in the discharge of them. It may also arise from lack of judgment and discretion or from a serious physical or mental defect not present at the time of election, though we do not imply that all physical and mental defects so arising would give ground for suspension.

The executive order

Consider the order suspending Worrell against these standards. At first, this 15-page order, not including exhibits, seems weighty. It’s not.

The thrust of the executive order is that Worrell has implemented “practice or policies” that have “prevented or discouraged” the prosecutors in her office from pursuing statutory mandatory minimum sentences in firearm and drug cases, from bringing felony juvenile cases, from pursuing statutory sentencing enhancements, from bringing as many child pornography counts against defendants as are supported by the evidence, and from seeking the withholding of adjudications of guilt in cases where statutes forbid it.

But in its 15 pages, the order never actually identifies any practices or policies, just vaguely gestures toward them. It never identifies actual cases where these things supposedly happened.

There are other deficiencies. For instance, allegations are sometimes based on comparing the number of referrals of certain kinds of cases by law enforcement agencies to the state attorney’s office with the number of mandatory minimum sentences ultimately imposed in, or incarceration rates for, that class of case.

There is no attempt to connect anything done or not done by Worrell’s office with those dispositions, let alone that they resulted from practice or policy. And maybe the Orlando-area agencies are just referral happy.

There are more fundamental problems. When the order describes incompetence, it says that “‘incompetence’ may arise from ‘gross ignorance of official duties or gross carelessness in the discharge of them’ or from ‘lack of judgment and discretion.’”

But this is an incomplete quotation of a recent case.

The order takes those phrases out of context and suggests that incompetence can arise from a policy dispute, not incapacity. There is not one indication in the executive order that Worrell suffers from an incapacity.

A likely fatal problem with the order’s charges of neglect is that they’re grounded on Worrell’s exercise of prosecutorial discretion. Florida courts have repeatedly recognized that “Under Florida’s constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.”

As one Florida court said: “The discretionary power of a prosecutor ‘in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause.’”

Prosecutorial discretion is an application of separation of powers; the idea is that the judiciary cannot interfere in this domain. Overlooked, however, is an independent constitutional basis for this discretion.

Article V, section 17, provides in part that “the state attorney shall be the prosecuting officer of all trial courts in that circuit and shall perform other duties prescribed by general law.”

It is hard to see how Worrell could lawfully be suspended for exercising an absolute discretion the Constitution confers on her. The executive order tries to evade the problem by pointing to the Legislature’s expressions of intent in the various statutes the order cites. Not one of them, however, requires a state attorney to file certain charges or pursue certain sentences.

When there are requirements, they fall on the courts.

A litigation strategy

What should Worrell do?

Many will say, avoid the Supreme Court of Florida. But we should presume it will apply the law in good faith. The right remedy is called a writ of quo warranto, which means “by what authority.”

Under Florida law, any citizen and taxpayer can use the remedy to challenge the lawfulness of a state officer’s exercise of authority.

Worrell should file a petition in the Supreme Court against the governor asking for that remedy. She should also join the usurper state attorney, Andrew Bain.

In another case, Gov. DeSantis argued the Supreme Court has expanded quo warranto beyond its historical use: testing the respondent’s title to an office. Joining Bain preempts that argument.

If Worrell files a petition, she’ll have to show the order doesn’t satisfy the constitutional requirement of “stating the grounds” of the suspension. As the Supreme Court explained in its opinion denying (correctly) Warren’s quo warranto petition as untimely, the Supreme Court’s role is a “limited” one that entails no more than “determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension.”

The allegations need only “bear some reasonable relation to the charge made against the officer.” The “some reasonable relation” standard is a low threshold to satisfy, and the executive order need only satisfy it “on the whole.”

On its face, the order suspending Worrell doesn’t pass muster under this low threshold.

The order doesn’t contain any allegations of fact supporting the idea that Worrell implemented certain, unidentified practices or policies. Even so, Gov. DeSantis’s order gets incompetence wrong.

And it’s hard to see how he can suspend Worrell for neglect when the offending decisions are constitutionally committed to her absolute discretion.

The Florida Supreme Court’s role

A very important issue in a Worrell quo warranto proceeding would be whether, despite its precedent, the Supreme Court has any authority to review a suspension order.

When Warren filed his petition, DeSantis said no. Citing federal law, he argued suspension was a nonjusticiable political question textually committed by the Constitution to our political branches, and not subject to judicially discoverable and manageable standards.

Although the court denied Warren’s petition as untimely, Justice Charles Canady noted in the majority opinion that “the text of article IV, section 7 does not attribute any role to the courts in suspension matters,” but conceded the court’s precedents established one. Justice Renatha Francis wrote a separate opinion sympathetic to the Governor’s position.

But the argument is mistaken.

The Florida Constitution has always granted the Supreme Court the jurisdiction to issue writs of quo warranto. The court held almost 100 years ago in the Hardie case that quo warranto is available to challenge the validity of a suspension order. The court developed an easy-to-apply standard that it has used ever since — in fact, one that is like the standard that trial courts use every day to determine if a complaint is legally sufficient.

 And when it adopted that standard in Hardie, the court explicitly recognized that the Constitution textually committed the suspension power to the executive and legislative branches and fashioned an appropriately deferential standard.

Of course, in doing so, the court also ensured the constitutional grant of quo warranto jurisdiction was given some force in the case of suspensions.

The people of Florida adopted the current Constitution in 1968. They retained the Supreme Court’s quo warranto jurisdiction while making only one change: limiting those against whom the court could issue the writ “to state officers and state agencies.”

The repetition of this grant of jurisdiction creates a presumption that the people intended to adopt the prior judicial interpretations of the provision allowing for the court’s narrow role in reviewing suspension orders.

Furthermore, since the Governor’s suspension power is one of his most important, saying the Supreme Court can’t even conduct a facial review of a suspension order would deprive that jurisdiction of significant effect. That would violate the rule of construction that “the Constitution shall be construed in such a manner as to give effect to every clause and every part thereof.”

Text, history and tradition strongly support the court’s limited role in ensuring the legal sufficiency of a suspension order. There isn’t anything like this in the federal system.

In Florida, an executive order of suspension rarely, if ever, fails the Florida Supreme Court’s highly deferential standard.

But in his arrogance and political desperation, Gov. DeSantis has written one that does. If DeSantis can’t stop himself from exceeding his authority, the court must.

Worrell should file a quo warranto petition asking the court to apply the Constitution and nearly a century of its precedents to invalidate the order suspending her from the office the voters of Orlando and Osceola elected her to.

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Adam Richardson practices civil appellate law at Burlington & Rockenbach, P.A.