Former Florida Supreme Court justice backs ‘Grim Reaper’ attorney
A former Florida Supreme Court justice and a former appellate court chief judge have lined up in support of a Santa Rosa Beach attorney who’s the focus of twin investigations after he sued Gov. Ron DeSantis for refusing to shut down state beaches last year amid the COVID-19 pandemic.
Daniel Uhlfelder garnered national headlines for donning a Grim Reaper costume to criticize DeSantis’ handling of the pandemic. As COVID-19 cases surged throughout the state in March 2020, Uhlfelder filed a lawsuit asking a judge to order the governor to close beaches and issue a “safer-at-home” order to curb the spread of the virus.
Leon County Circuit Judge Kevin Carroll in April 2020 found that he lacked the authority to force the governor to shut down beaches and dismissed the case but encouraged Uhlfelder to pursue an appeal.
But in February, a three-judge panel of the Tallahassee-based appeals court asked the Florida Bar to consider sanctions against Uhlfelder, accusing the attorney of using the lawsuit as a publicity stunt.
Days later, appellate Judges Brad Thomas, Susan Kelsey and Adam Tanenbaum took the rare step of ordering a state attorney to pursue sanctions against Uhlfelder because of a comment he made to a newspaper.
In the bar investigation, Uhlfelder’s lawyer has submitted affidavits from former Florida Supreme Court Chief Justice R. Fred Lewis and former 1st District Court of Appeal Chief Judge Robert Benton arguing that Uhlfelder did nothing wrong.
“It is my opinion and legal view that the lawsuit and appeal were not frivolous,” Lewis, who served on the Supreme Court for 21 years until his retirement in 2019, wrote in documents provided to The News Service of Florida by Uhlfelder. “I submit this affidavit because it is my view that legal action, the independence of counsel and requirements that lawyers be strong advocates are pillars of our democracy. The independence of the judiciary is also key to preserving our liberties and independence of counsel essential to our adversarial system.”
Lewis and Benton said Carroll praised Uhlfelder for filing the lawsuit and encouraged him to
file an appeal. Lewis also wrote that Uhlfelder was expressing his First Amendment rights by seeking action from the governor during a pandemic.
“When a citizen believes the governor is violating his constitutional duty to preserve the life and well-being of his citizens, he has the right to bring that claim before a court of general jurisdiction, and, if the trial court believes it cannot hear it but encourages an appeal, the Floridian has the right to seek an appeal of that decision,” the former Supreme Court justice wrote.
Lewis and Benton, who spent 17 years as an administrative law judge prior to his appointment to the Tallahassee-based appeals court in 1994, also noted that DeSantis’ handling of the pandemic has sparked numerous lawsuits, including others that wound up at the 1st District. None of the lawyers in any of those cases has been targeted for allegedly filing frivolous lawsuits, the former jurists said.
“I disagree with the view that the initial lawsuit and appeal were
frivolous. I am making this affidavit because I think the independence of the bar is one of the pillars of our democracy. Just as the independence of the judiciary is key to preserving our liberties, so is the independence of the bar (on whom the courts necessarily rely) essential to our system,” wrote Benton, who served 22 years on the appellate court.
In a Sept. 1 response to the bar grievance committee, Richard Greenberg, an attorney for Uhlfelder, echoed the arguments made by Benton and Lewis and warned that sanctions against Uhlfelder could set a dangerous precedent. DeSantis “does not get a blank check” during a public health emergency, Greenberg wrote.
The appellate panel’s action “raises the specter that if any attorney dares to question the governor’s authority he will be referred to The Florida Bar for discipline,” Greenberg wrote.
“If The Florida Bar disciplines Mr. Uhlfelder for this it will be going down a very dangerous road that history has shown is rife with
problems,” he added.
Greenberg also argued that Uhlfelder, who was admitted to the Florida Bar in 1998, did not violate rules governing attorneys’ actions and asked the grievance committee to “find no probable cause for any violation of the rules” regulating attorneys’ behavior.
“The regulation of the practice of lawyers is praiseworthy. Some lawyers lie, cheat and steal. Not Mr. Uhlfelder,” Greenberg wrote. “He was seeking to protect the public by seeking judicial review of the executive branch’s inaction. Fortunately, we do not live in a state or country where the executive’s actions and inactions are beyond question. Seeking judicial review, as Mr. Uhlfelder did, should not be chilled by a finding of probable cause.”
Uhlfelder, meanwhile, has added prominent First Amendment lawyer Rodney Smolla, the dean of Delaware Law School of Widener University, to the legal team trying to ward off potential sanctions sought by Panhandle State Attorney Ginger Bowden Madden at the behest of the appeals-court panel.
The panel made the rare move of directing Bowden Madden to ask a judge to consider penalties for “putatively unprofessional conduct” after Uhlfelder made comments to a newspaper following the panel’s decision to ask the bar to open its probe.
The News Service wrote about the Feb. 5 bar probe decision in a story that was published online by the Tallahassee Democrat, a News Service subscriber. The story, as published by the Democrat, also included comments that Uhlfelder made during a brief interview with the USA Today Network-Florida Capital Bureau, which is affiliated with the 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,” Uhlfelder said during the interview, referring to what is dubbed the Remove Ron political committee.
Walton County Circuit Judge Scott Duncan in July refused Uhlfelder’s request that the case against him be dismissed.