‘Writing on the wall’ at prominent appeals court supports DeSantis’s pandemic agenda

By Noreen Marcus, FloridaBulldog.org

A Florida appellate judge who openly sneered at a COVID-19 precaution seems to be helping his court steer legal rulings toward political goals.

Judges are expected to set aside their biases when they rule. Today’s courts must umpire efforts to end a 100-year plague that has killed nearly 700,000 Americans, more than 50,000 of them in Florida.

But Judge Adam Tanenbaum of the First District Court of Appeal in Tallahassee has written or signed onto pandemic rulings that appear to rely on partisan spin and not on scientific facts.

Most recently, on Sept. 10, Tanenbaum was one of three judges who lifted for now Leon Circuit Judge John Cooper’s order rejecting the state ban on school mask mandates.

The First District panel hinted at defeat for parents who support such mandates. “We have serious doubts … [that] significantly militate against the likelihood of the [parents’] ultimate success in this appeal,” the court’s order says.

FIRST DISTRICT VERSUS UHLFELDER

“You can see the writing on the wall,” said a lawyer who appears in the First District and spoke to Florida Bulldog anonymously to protect clients. Translation: The mandates are doomed.

Tanenbaum wrote an opinion that attacks an Alachua County masking order directed at  businesses. Also, a three-judge panel including Tanenbaum threatened the career of Daniel Uhlfelder, a Panhandle lawyer who suggested in court papers that Gov. Ron DeSantis is risking lives for political gain.

Uhlfelder became widely known for stalking Florida beaches dressed as the Grim Reaper starting in May 2020, calling attention to what he considers DeSantis’s anemic pandemic response. Remove Ron is the name of his political action committee.

In March 2020 Uhlfelder had sued for an emergency order forcing the governor “to comply with his most basic constitutional duties to protect the health and welfare of Florida’s citizens.”

When his lawsuit reached the First District early this year, the court tossed the “frivolous” filing and referred him to the Florida Bar for punishment. A panel including Tanenbaum also took the extraordinary step of ordering a county prosecutor to charge Uhlfelder with criminal contempt.

JUSTICE LEWIS FOR THE DEFENSE

The panel even chided him for forcing DeSantis to defend his actions. By filing a “baseless” appeal, he “improperly consumed this court’s resources as well as those of the Governor and his staff,” the order says. To date nothing has come of the disciplinary proceeding or the criminal contempt charge.

Earlier this month retired Florida Supreme Court Justice R. Fred Lewis defended Uhlfelder with an affidavit.

“A citizen is being punished for seeking access to our Courts. This attempted punishment can be viewed as nothing less than as reprisal for his expression and is simply wrong,” Lewis wrote.

“The Florida Bar should not discipline a critic of the Governor … for calling into question the decisions the Governor has made and the action or inaction about COVID-19,” he wrote.

In a Florida Bulldog interview, Lewis declined to comment on other First District rulings. He cautioned against over-generalizing, saying, “It’s not good if we try to attribute to our judicial officers that because of a decision, there’s always something political about it.”

LAWYER: AYN RAND INFLUENCES JUDGE

Still, when Lewis heard the scornful rhetoric Tanenbaum used in a June 11 opinion, he responded.

“Speaking philosophically, we as jurists need to be very careful of the language that we use. Words mean something, there’s no doubt,” he said. “Jurists need to take heed of this lest we at some other day be required to eat our words.”

Tanenbaum began his June opinion by calling Alachua County’s masking rule “a yoke,” a product of government by “fiat” and a “diktat,” an unpopular edict from on high. He never acknowledges why a masking rule might be necessary: There’s a killer pandemic on the loose.

Instead of focusing on science and public health, the Tanenbaum opinion highlights the right to privacy and self-determination. The court ruled 2-1 in favor of a Gainesville nursery business owner who challenged his county’s mask mandate; the judges flagged their opinion for Florida Supreme Court review.

“He strikes me as that guy who insists on having a 2 a.m. conversation in a college dorm room about Ayn Rand and ‘The Fountainhead,’ “ the lawyer who appears in the First District said. “He never got over that.”

FIRST DISTRICT PATH TO HIGHEST COURT

Tanenbaum crafted a weak legal argument for a gratuitous opinion, according to the First District practitioner. Because DeSantis had already ordered all Florida counties to stop requiring masking in public places, the controversy was over, the lawyer said.

“They just can’t contain themselves,” the lawyer said. “It’s not a matter that needs to be decided in a court, it’s moot, but he [Tanenbaum] couldn’t stand the idea that he wasn’t gonna have a chance to express his libertarian point of view about privacy.”

The First District is the most prominent of the state’s second-tier appellate courts, a step below the Florida Supreme Court. Because it sits in the state capital, the 15 judges decide many weighty constitutional and administrative issues.

Ambitious First District judges know their career path will lead to the top of the state court hierarchy if the governor calls their name.

“They’re all measuring the drapes for their new offices at the Florida Supreme Court,” the insider said. The lawyer suggested First District judges may be inclined to regard politically charged cases as tryouts.

A FEDERALIST SOCIETY MAJORITY

DeSantis and the two Republican governors before him have sent conservatives to the First District and the Supreme Court. One badge of belonging is affiliation with the Federalist Society, a rightist think tank DeSantis uses to screen judicial candidates.

Eight of the First District’s 15 members are publicly associated with the Federalist Society. Chief Judge Lori Rowe and Judge Thomas Winokur have been described as active members of the group’s Tallahassee lawyers’ chapter.

Some of the judges have impeccable GOP credentials. Tanenbaum was general counsel to Republican House Speaker Richard Corcoran before DeSantis tapped him for the First District in October 2019. He had no judicial experience.

Lewis, an appointee of Democratic Gov. Lawton Chiles, said that at times during his 21 years on the Supreme Court, he had to set aside his own beliefs to rule as the law required–because that’s what judges must do.

“It gives me sleepless nights still,” Lewis said. “I felt horribly as I was writing it and every time I put pen to paper that was the legal result, that’s what it was.

“That brought me back to ground,” he said. “Had I done something different, I would not be following the rule of law and that would make me an outlier.”