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.