DeSantis Seeks To Disqualify Judge In Disney Case

DeSantis Seeks To Disqualify Judge In Disney Case

We previously covered Disney’s lawsuit against DeSantis and Florida over the Reedy Creek fight, Disney sues DeSantis and Florida over Reedy Creek District Control. (Subsequently a First Amended Complaint was filed adding more DeSantis statements to the allegations.)

I noted in that post:

The case is assigned to Chief Judge Mark Walker, who has ruled against other legislation promoted by DeSantis, such as the “Stop Woke Act,” using bombastic language including an analogy to George Orwell.

Judge Walker has a long history of ruling against Republican Governors, including Rick Scott and now Ron DeSantis on a host of initiatives, including election integrity law, for which Walker was mostly reversed by the 11th Circuit, and the Stop Woke Act which is on appeal. The judge’s history is why so many people assume DeSantis will lose the Disney case in the trial court, hoping for reversal on appeal.

DeSantis has just filed a Motion to Disqualify Judge Walker claiming that statements by the judge outside of Disney case about the Disney case indicate the outcome has been prejudged, creating an appearance of bias.

DeSantis moves to disqualify federal judge Mark Walker in the retaliation lawsuit Disney brought v FL because “two previous times, in two unrelated cases, the Court sua sponte offered ‘Disney’ as an example of state retaliation.”

Walker has frequently ruled against DeSantis pic.twitter.com/2PzeToKKBU

— Marc Caputo (@MarcACaputo) May 19, 2023

From the Motion:

Defendants move to disqualify Chief Judge Mark E. Walker (the Court) under 28 U.S.C. § 455(a) because the Court’s impartiality in this matter might reasonably be questioned. This case involves claims that Defendants retaliated against Walt Disney Parks and Resorts U.S., Inc. based on Disney’s viewpoints. Yet two previous times, in two unrelated cases, the Court sua sponte offered “Disney” as an examples of state retaliation. Those remarks—each derived from extrajudicial sources—were on the record, in open court, and could reasonably imply that the Court has prejudged the retaliation question here. Because that question is now before this Court, and because that question involves highly publicized matters of great interest to Florida’s citizens, the Court should disqualify itself to prevent even the appearance of impropriety

The examples in the motion are not of the judge sayings how he’ll rule in the Disney case, but rather using Disney as an example of the state retaliating against political opponents:

In Link v. Corcoran, No. 4:21-cv-271-MW-MAF (N.D. Fla.), the plaintiffs moved for a preliminary injunction on the ground that the defendants—state education officials—would punish the plaintiffs for the results of their “intellectual freedom and viewpoint diversity” surveys. Link, DE75 at 4. The plaintiffs argued that “[g]overnment reprisal is not a speculative risk” because “Governor DeSantis and Commissioner Corcoran have practically promised retaliation against Plaintiffs’ speech.” Id. at 21. At the preliminary-injunction hearing on April 1, 2022—amidst ongoing public speculation about the potential dissolution of Disney’s hand-picked local government, the Reedy Creek Improvement District (RCID), DE25 at 19–20—this Court discussed justiciability and whether the plaintiffs had shown a reasonable fear of First Amendment retaliation. Link, DE91 at 15–24. Specifically, the Court questioned how the surveys alone posed a threat to the plaintiffs’ speech, because the statute at issue did not specify any “punitive measures that will be taken” by the Legislature or any other government entity based on the survey results. Id. at 15–18.

The Court then used the State’s contemplated dissolution of Disney’s special district as an example of retaliatory conduct:

***

THE COURT: …. What’s in the record, for example—is there anything in the record that says we are now going to take away Disney’s special status because they’re woke? ….

In the second case, according to the motion, Disney once again was used as an example of state retaliation:

On the same day that SB 4C became law, the plaintiffs in Falls v. DeSantis, No. 4:22-cv-166-MW-MJF (N.D. Fla.), similarly moved for a preliminary injunction based, in part, on the argument that the state-level defendants would take enforcement action against the plaintiffs’ schools if the plaintiffs expressed opinions that violated the Individual Freedom Act, 6 thus chilling their speech. See Falls, DE4 at 49 (“[M]ost teachers and employers will choose to err on the side of caution and either avoid these topics altogether or espouse ideas with which Florida’s conservative politicians agree, rather than risk discipline, loss of funding, or a lawsuit.”).

At the preliminary-injunction hearing on June 21, 2022, this Court discussed the potential chilling effect of the State’s enforcement action ….

Turning to the defendants’ counsel, the Court continued:

***

THE COURT: And then Disney is going to lose its status because—arguably, because they made a statement that run afoul—ran afoul of state policy of the controlling party. At what point do you stack so many examples where punitive actions are taken if you don’t do what you are told that suddenly it no longer becomes conjectural and you pass that threshold so you can establish standing? It’s no longer fanciful or conjectural.

These examples showed, the motion argued, that a reasonable person would believe the court had already decided that the Reedy Creek actions by the state were retaliation — a key issue to be litigated in the Disney case. This, the state argued, created an appearance of impropriety requiring disqualification under the applicable statute:

The Court’s unprompted suggestion, on two separate occasions, that the State punished Disney by eliminating its “special status” gives an appearance of partiality that would lead a reasonable observer to question whether the Court is predisposed to ruling that the State retaliated against Disney….

The Court’s comments seemingly reflect its opinion on whether the State punished Disney’s speech by revoking Disney’s “special status.” That the Court made such statements gives the impression, at a minimum, that it has “an uncommon interest and degree of personal involvement in the subject matter” such that “a reasonable person would harbor a justified doubt as to [the Court’s] impartiality.” …. For these reasons, “an objective observer would reasonably doubt” that Defendants “would be treated impartially” before this Court.

Making a motion to disqualify is a big deal. You only do that as a last resort when you thing the case is rigged against you.

So what’s going to happen? 11th Circuit, here we come.

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