By Jim Saunders, The News Service of Florida
TALLAHASSEE — An appeals court wants The Florida Bar to consider taking action against a Panhandle attorney who pursued a high-profile case seeking to force Gov. Ron DeSantis to close beaches because of the COVID-19 pandemic.
A panel of the 1st District Court of Appeal, in an order issued Friday, stopped short of imposing financial sanctions against Santa Rosa Beach attorney Daniel Uhlfelder and lawyers who represented him in an appeal of a circuit judge’s ruling in the case.
But the panel sharply criticized Uhlfelder and his lawyers, saying that “they knew or should have known that their ‘demands’ that the Governor ‘close the beaches’ were not validly asserted below (in the circuit court) or on appeal.”
“There was no good faith legal argument to support a claim for such relief in the trial court, and there was certainly no good faith basis to argue legal error on appeal,” said the order by Judge Brad Thomas and Judge Adam Tanenbaum. “Appellant (Uhlfelder) and his counsel undoubtedly used this court merely as a stage from which to act out their version of political theater. This was unprofessional and an abuse of the judicial process.”
In a concurring opinion, Judge Susan Kelsey indicated she wanted to go further, writing that she “would also impose significant monetary sanctions.”
Uhlfelder has drawn national attention by making public appearances dressed as the Grim Reaper and criticizing the state’s handling of the pandemic. He filed the lawsuit in late March, arguing that the governor should be required to close beaches statewide and issue a “safer at home” order to prevent the spread of the virus.
DeSantis issued a “safer at home” order but refused to close beaches statewide, though some local governments temporarily imposed beach closures.
Leon County Circuit Judge Kevin Carroll in April ruled against Uhlfelder, saying the state Constitution gives the governor discretion about handling emergencies.
“I believe that what I’m being asked to do is substitute my judgment for that of the governor on how to respond to this COVID crisis, which has been somewhat of a moving target,” Carroll said during a telephone hearing at the time. “There are 599 circuit judges in Florida at last count, and I don’t think we need to have 599 governors-in-waiting.”
Uhlfelder, represented by Tallahassee lawyers Gautier Kitchen and Marie Mattox, took the case to the 1st District Court of Appeal.
Thomas, Tanenbaum and Kelsey on Nov. 13 rejected the appeal and, in a somewhat unusual move, ordered Uhlfelder to “show cause … why this court should not impose sanctions, including attorney fees and costs, on him and counsel for filing this appeal, the initial brief, and the request for oral argument, which appear to be frivolous and/or filed in bad faith.”
Uhlfelder has disputed that the appeal was frivolous, pointing in part to comments that Carroll made when ruling against him. For example, Uhlfelder and his lawyers filed a Nov. 27 document at the appeals court that quoted Carroll as saying 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.”
Also, the document quoted Carroll as saying he was dismissing the case “with prejudice so that you can immediately take me to the First District. 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, then I’m glad to address it and go from there.”
Attorneys for DeSantis in December urged the Tallahassee-based court to impose sanctions on Uhlfelder and his lawyers.
In the order Friday, the appeals-court panel referred the issue to the Bar “for its consideration of whether Appellant and his counsel violated the Rules Regulating the Florida Bar. We encourage the Bar to take appropriate action to ensure that Appellant and his counsel understand their ethical obligations and proper roles as officers of the court.”
“To the extent determined necessary, we also encourage The Florida Bar to require Appellant and his counsel to undertake additional educational training the Bar may deem appropriate to ensure that Appellant and counsel comply with their ethical and professionalism obligations,” the order added.
Uhlfelder last month filed paperwork to establish a political committee named the Remove Ron committee and seeded it with a $50,000 contribution, according to information posted on the Florida Department of State website.