TALLAHASSEE — Saying that a lower-court judge “plainly encouraged” an appeal, a Northwest Florida attorney is disputing that his decision to continue pursuing a case against Gov. Ron DeSantis over COVID-19 beach closures was frivolous or in bad faith.
Santa Rosa Beach attorney Daniel Uhlfelder, who filed the lawsuit this spring to try to force DeSantis to close beaches statewide to prevent the spread of the disease, responded last week to an order by the 1st District Court of Appeal to show why he and his lawyers should not face sanctions for pursuing the appeal.
A panel of the Tallahassee-based appeals court on Nov. 13 rejected the case and suggested that the appeal and other documents filed by Uhlfelder “appear to be frivolous and/or filed in bad faith.”
But in the 19-page response Friday, Uhlfelder and lawyers Gautier Kitchen and Marie Mattox cited comments that Leon County Circuit Judge Kevin Carroll made in April when he ruled against Uhlfelder in the case. After that ruling, Uhlfelder appealed.
For example, the response quoted Carroll as saying that 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 response 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.”
The response focused, in part, on those comments to try to show that the appeal was not frivolous. The references to Carroll’s decision being “with prejudice” meant his decision was final at the circuit-court level.
“Not only did the trial court explicitly find that Mr. Uhlfelder was proceeding in good faith, but he also announced his intention to dismiss the case with prejudice to facilitate prompt consideration by this (appeals) court because of the importance of the question presented,” the response said. “The trial court explicitly recognized Mr. Uhlfelder’s legitimate ‘concern for the people of the state of Florida.’ While the learned trial judge did not explicitly direct Mr. Uhlfelder to take the appeal for which he and his lawyers now must show cause why they should not be sanctioned, the trial court plainly encouraged the appeal.”
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.
In ruling against Uhlfelder in April, Carroll said 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.”
Carroll also said that “second-guessing” DeSantis’ actions about beach closures and stay-at-home orders would violate separation-of-powers restrictions established by the Constitution.
In the Nov. 13 order rejecting the case, the appeals-court panel said it “reviewed the briefs and other filings in this case and finds that the appellant (Uhlfelder) fails to demonstrate even an arguable legal basis for reversal.” It raised the possibility of imposing sanctions, including attorney fees and costs, on Uhlfelder and his lawyers.
But the response Friday said the “gravamen of the ruling appealed was that the governor’s discretion in handling emergencies was not subject to judicial review. To argue otherwise on appeal was to present a substantial question for the (appeals) court’s consideration and decision. There was no intention to trifle with, insult, or otherwise demean the court.”
Also, it said similar cases have played out in other parts of the country.
“While this court does not agree that Mr. Uhlfelder’s requested relief was merited, the appeal, the initial brief and request for oral argument were not frivolous and were not filed in bad faith,” the response said. “From the beginning of this litigation and through the filing of this response, the world has been ravaged by the novel coronavirus and COVID-19. Citizens and attorneys across the country have sought relief in various courts with varying results to try to protect the health and well-being of individuals. As far as our research has revealed, no citizen or lawyer has been sanctioned for doing so.”