By Noreen Marcus, FloridaBulldog.org
A story that began with a lawyer dressed as the Grim Reaper roaming Florida beaches has developed into something even more weird and threatening.
The lawyer, Daniel Uhlfelder of Santa Rosa Beach in the Panhandle, tried in vain to turn public opinion against Gov. Ron DeSantis’s open-beaches policy at the start of the coronavirus pandemic.
“There’s this utter and complete disrespect for human life,” Uhlfelder explained in an interview The Times of Israel published in May. “So if I have to go as a Stanford-educated, highly successful, regular family man in a Grim Reaper suit to get a message across, I guess that’s the world we live in. It’s pretty sad.”
When his Grim Reaper performance art drew widespread attention but no results, Uhlfelder went to court.
Instead of debate, a debacle
He wanted an emergency order forcing DeSantis “to comply with his most basic constitutional duties to protect the health and welfare of Florida’s citizens during the current deadly global pandemic,” court documents say. One way to do this: close the beaches.
His lawsuit was supposed to spark debate about the limits of DeSantis’s power. Instead, Uhlfelder prompted a spectacular backlash in the First District Court of Appeal that has him fighting for his career.
What’s happening to Uhlfelder sends a warning to the legal profession, according to Neil Skene, a lawyer and former journalist who wrote a history of the Florida Supreme Court.
“The real concern is that the court has lost its objectivity about this,” Skene said.
“One of the burdens on a court that is all Republican is to raise the standard of their review if they want to be something other than a Republican court.”
A lost case and trouble to boot
To date COVID-19 has killed more than 33,700 Floridians. The number of deaths nationally exceeds 550,000.
Now that tens of millions of Americans have gotten life-saving vaccines, the pandemic may be finally winding down.
But it’s nowhere nearly over, says Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases. The virus is still spreading through crowds in public spaces, including beaches.
Yet Uhlfelder faces a Florida Bar grievance probe and a criminal contempt trial in front of a state court judge. He may be pilloried in public and could be disciplined for, essentially, trying to protect Floridians’ health.
Uhlfelder’s troubles escalated on Feb. 5, when the First District in Tallahassee slammed his lawsuit against DeSantis as “frivolous.” A three-judge panel tossed the suit and referred him and his lawyers, William Gautier Kitchen and Marie Mattox, to Bar ethics investigators.
Self-judging ‘criminal contempt’
Judges Bradford Thomas and Adam Tanenbaum agreed on the punishment. Judge Susan Kelsey wanted to go further and impose “significant monetary sanctions,” but she was outvoted.
“Baseless and personal attacks of an opponent may be commonplace in the political arena, but such attacks have no place in a court of law,” the court’s order says. “Appellant and his counsel are officers of this state’s courts; they knew or should have known that their ‘demands’ that the Governor ‘close the beaches’ were not validly asserted [in the trial court] below or on appeal.”
“Appellant and his counsel undoubtedly used this court merely as a stage from which to act out their version of political theater,” the order says. “This was unprofessional and an abuse of the judicial process.”
The judges’ indignant response didn’t end with a Bar discipline referral. Days later they told State Attorney Ginger Bowden Madden, the prosecutor in Uhlfelder’s home county (Walton), to initiate court proceedings against him for criminal contempt, punishable by a fine or a jail sentence.
What ‘Grim Reaper’ told reporter
The judges said Uhlfelder crossed over into criminal contempt when he vaguely suggested they were biased in favor of DeSantis. Perhaps coincidentally, all three were appointed by Republican governors — Thomas by Jeb Bush, Kelsey by Rick Scott and Tanenbaum by DeSantis.
Here is Uhlfelder’s factual, fateful comment as it appeared in the Feb. 6 Tallahassee Democrat: “I do find it interesting that this opinion attacking my critiques of Gov. DeSantis appeared just two days after I launched a [political] committee to remove Ron DeSantis.”
Madden, daughter of retired Florida State University football coach Bobby Bowden, is supposed to update the court on her progress in the criminal contempt case. The judges are keeping the DeSantis case open just so they can monitor what happens to Uhlfelder.
“Yet another barrier is broken, which is the independence of an elected state attorney to make a decision whether to file a case or not,” Skene said.
He said the judges are controlling a case in which they consider themselves the victims. “This is becoming a judge in your own case,” he said.
New standard for frivolous
Asked to comment for this story, Uhlfelder referred a reporter to attorney Richard Greenberg, who represents him in the disciplinary proceedings. Greenberg declined to discuss the situation, except to say Uhlfelder is “a passionate advocate but he did not do anything unethical.”
His client won’t back down. “He intends to fight this very vigorously and defend himself against these allegations,” Greenberg said.
Richard Bush, the attorney for Kitchen and Mattox, said he couldn’t talk about the confidential Bar investigations of his clients.
Skene said the typical case that fits the legal definition of “frivolous” is repetitive. “You get people who continue to file the same case over and over again,” such as inmates representing themselves to protest prison conditions.
But calling a single case “frivolous,” as happened in Uhlfelder vs. DeSantis, “is not something I heard of before.”
Case gave first judge insomnia
Notably, the first judge who handled Uhlfelder’s lawsuit didn’t treat it like a political stunt. Tallahassee Circuit Court Judge Kevin Carroll said he lost sleep over the case.
A year ago Carroll granted DeSantis’s motion to dismiss the suit after concluding that every governor needs a free hand to battle a public health menace. The judge didn’t address Uhlfelder’s arguments because, he said, he was powerless to do so.
Carroll admitted it was a tough decision.
“It’s one of those cases that you wake up when you — when your old dog who has to go outside at 2 in the morning wakes you up. Then you spend the next two-and-a-half hours thinking about the case,” Carroll said during a remote hearing, according to a court document.
Carroll also said Uhlfelder “has an understandable concern that he has raised here, and I believe he has pursued this matter in good faith and is seeking what he believes to be an appropriate response to the COVID crisis.”
Court slow-walked appeal
The judge invited the appellate court to quickly review his ruling “because I do think this is a matter of importance, and I think it’s a matter of time. And if the First District tells me that I’m wrong and I do have the authority [to decide the case], then I’m glad to address it and go from there.”
But the appellate court didn’t act swiftly; it waited for seven months while the pandemic spiked. The first clear signal that Thomas, Tanenbaum and Kelsey saw the case very differently than Carroll came on Nov. 13.
The panel ordered Uhlfelder to explain why he shouldn’t be sanctioned “for filing this appeal, the initial brief, and the request for oral argument, which appear to be frivolous and/or filed in bad faith.”
And when the judges issued their Feb. 5 order, they seemed as solicitous of DeSantis, the defendant, as they were of themselves. They wrote that Uhlfelder and his lawyers “improperly consumed this court’s resources as well as those of the Governor and his staff.”
At the same time, they want Bar regulators to consider whether Uhlfelder and his lawyers need remedial ethics training.
A little insulting, maybe? Uhlfelder, Kitchen and Mattox, all Bar members in good standing, have been practicing law for a total of 74 years.
wayne brody / April 6, 2021 9:50 am
The unabashed, reactionary political agenda of much of the Florida bench, particularly at the appellate and Supreme Court level, should scare us all at least as much as Uhlfelder’s grim reaper. His brave and generous public performance, and the subsequent lawsuit, brought awareness to the beach closure issue and the severity of the challenges facing us. It would have been worthwhile had such awareness saved only one life, but I’m sure it was far more effective than that. On the other hand, his berobed inquisitors are doing their vitriolic best to ensure that no member of the Florida bar, and – by extension – the general public, speaks up or out to demand that public officials perform their duty and protect the welfare of Floridians.
Elections have consequences, and this is what you get for allowing the likes of Scott and DeSantis (and hundreds more Scott/DeSantis/Trump wannabes) to run the State. The end may indeed be nigh, unless more of us step up to protect and exercise our rights, voting to restore some degree of decency, intellect, and responsibility to Florida’s government.
Nicholas Whiterhead / April 6, 2021 8:56 pm
The Florida “justice” system, has lost all credibility. It is today simply an organ of the Republican cabal that runs this state like a syndicate. It has been proven in nearly infinite ways and times in recent years that true justice, fairness, or even right and wrong no longer are even considered by these kangaroo courts. Their sole function today is to serve their corrupt masters.
Daniel J Kerness / April 7, 2021 7:00 pm
While I do not agree with Daniel Uhlfelder’s persepctive on closing beaches or any other public place at this time (or previously), I absolutely support him in his right to make the argument and bring the case. Based solely on my reading of this article, if anyone involved in this case should be facing a Bar complaint or ethics hearing in this case, it is those three judges. Despicable.
Dr. Wentzel / April 9, 2021 3:43 pm
Daniel Uhlfelder is a Leftist buffoon. Under the Florida State Constitution, the Governor cannot make law, that is the job of the Legislature. Stop using the courts to try to interfere with the lawful process of Government just because you want to throw a tantrum.
Michelle Williams / April 9, 2021 10:39 pm
Daniel!! 😂 you made a FOOL out of yourself again! Nobody cares what you think! Ok we get it you need a girlfriend but I saw your photo so I think that ship has sailed ! Hey what if you are a hero and you were right ! Thousands of people who went to the beach are dead NOW!!!! No? Oh wow, then you are just another Democrat party sad clown afterall!
Christina Garrison / April 22, 2021 5:21 pm
This story exemplifies the appalling manner in which Florida’s Judicial system operates. It’s literally mind-blowing to discover that this type of “judicial dysfunction” permeates outside of Broward County, which is disturbing enough on its own accounts. Its to the point that we should just give our Courts a new motto: “WITH THE LIBERTY TO JUST SHIT ON YA’LL”. Florida Courts do anything but provide Justice; instead, our sacred institutions founded upon the rights of its citizens to litigate legitimate actions concerning public health, safety, and welfare has become nothing more than an entity that wastes valuable time, resources, energy, and (in many cases), destroys innocent citizens’ lives for pursuing such entitled actions!
We need serious interventions, investigations, accountability, and reform before many constituents’ faith and confidence in the Judicial process is restored in Florida.
Goose / April 7, 2022 11:43 am
I don’t necessary agree with Uhlfelder on closing the beaches etc. However, how could making a public comment outside of court, insinuating improper bias by the judges, EVER amount to “criminal contempt”? “Criminal contempt” is outright defiance of the court or of a judicial order almost invariably in the actual presence of the judge. I.e. when someone who is in court physically threatens the judge, shouting, cursing (and won’t stop after being warned), or openly defies a lawful order of the court of some kind. None of those things even remotely occurred here.