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Judge In Disney v. DeSantis Case Disqualifies Himself

Judge In Disney v. DeSantis Case Disqualifies Himself

Judge Mark Walker taking himself off the case because of a relative owning 30 shares of Disney stock might end up being beneficial to DeSantis, or a case of “don’t wish too hard for something, you might get it.” Regardless, the alleged perception of bias in the case is gone.

The State of Florida and Ron DeSantis did not want U.S. District Court Judge Mark Walker on the case brought by Disney over Reedy Creek District changes. Walker is viewed as a particlarly liberal judge, and has ruled against DeSantis on the Stop Woke Act in an opinion that seemed more polemical than reasoned, including bombastic language with an analogy to George Orwell, as well as on the election integrity law, for which Walker was mostly reversed by the 11th Circuit.

On May 19, 2023, DeSantis filed a motion asking Judge Walker to recuse himself from the case because of statements made by the Judge in other cases about the Disney fight that DeSantis asserted cast doubt on the impartiality and perception of impartiality of Judge Walker. We covered that motion in DeSantis Seeks To Disqualify Judge In Disney Case.  The statements at issue were not about how the Judge would rule in the Disney case, but rather using Disney as an example of the state retaliating against political opponents. 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.

On June 1, 2023, Judge Walker denied the motion to disqualify but recused himself anyway because a relative owned 30 shares of Disney stock. In the Order, the Judge lambasted the motion as blatant judge shopping:

Defendants’ motion is without merit. My use of hypothetical questions referencing facts related to this case, in an earlier case also dealing with the motivations of political actors (including some of the same actors here), cannot raise a substantial doubt about my impartiality in the mind of a fully informed, disinterested lay person. As Plaintiff aptly notes, Defendants rely on cases involving “cartoonishly improper judicial conduct . . . .” ECF No. 43. Defendants cherry-pick language from these cases to support their position without acknowledging the wholly distinguishable context underlying each decision. For example, Defendants cite United States v. South Florida Water Management District, 290 F. Supp. 2d 1356, 1361 (S.D. Fla. 2003) for the assertion that an objective observer would have a significant doubt that I would treat Defendants impartially. What Defendants fail to acknowledge is that the court in that case found disqualification under § 455(a) required only where the judge in question gave several interviews to reporters and expressed his plain disfavor of legislation that ultimately came before him.1 ….

Without exploring all the other defects in the motion, for the reasons noted above and as thoughtfully outlined in Plaintiff’s response, Defendants’ motion is wholly without merit. In fact, I find the motion is nothing more than rank judge-shopping. Sadly, this practice has become all too common in this district. Cf. Common Cause Fla. v. Lee, Case No. 4:22-cv-109-AW-MAF, 2022 WL 2343366, at *1 (N.D. Fla. Apr. 6, 2022) (dismissing meritless motion to disqualify in a redistricting case)….

I think the Judge was right that it was judge shopping in the sense that conservatives/Republicans may not feel they get treated fairly before Judge Walker because the outcomes often are so predictable and the language in judicial opinions so often sounds like a campaign press release. So the state and DeSantis found a pretext to move to disqualify that was plausible even if not particularly strong.

But Judge Walker recused himself anyway for an unrelated reason, Disney stock ownership by a relative:

However, Defendants did get one thing right. That is, if a judge has doubts over whether disqualification is required, he should resolve those doubts in favor of disqualification. I have consistently followed this principle…. My ethical obligations are not limited to what the parties raise. Instead, I must evaluate all potential grounds for disqualification. Next, I explain why I must disqualify myself for reasons unrelated to Defendants’ meritless motion.

Although Defendant’s motion to disqualify is without merit, I must consider a separate question of whether I should disqualify myself. On Friday, May 26, 2023, I learned, and later confirmed, that a relative within the third degree of relationship owns thirty shares of stock in Plaintiff’s parent corporation, The Walt Disney Company. Upon learning this information, I became obligated to engage in a separate inquiry pursuant to the Code of Conduct for United States Judges to determine if the financial interest of my third-degree relative “could be substantially affected by the outcome of [this] proceeding.” Canon 3C(1)(d)(iii).3 I have engaged in that inquiry and determined that disqualification from this proceeding is required under the circumstances.

In Florida, a “third degree of relationship” includes:

“Third degree of relationship.” The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.

In a footnote to the Order, Judge Walker noted: “the Code of Conduct for Unites States Judges does not impose a duty
on judges to inquire into the financial interests of third-degree relatives,” but that “[o]nly when a judge becomes aware of the relevant financial interests of a third-degree relative must that judge determine whether the proceeding’s outcome could substantially affect the third-degree relative’s financial interests.” The Judge noted separately that the size of the investment was legally irrelevant: “Even so, Canon 3C is clear that the impact on the third-degree relative’s investment—not the amount of the investment—governs disqualification.”

Without ever saying who the relative was, Judge Walker explained that the outcome of the case could affect the price of Disney stock, and that the controversy already had:

I am no speculator. But Plaintiff’s [Disney’s] own allegations make clear that this case involves significant economic interests for its parent corporation, in which my third-degree relative owns stock….

Based on the language of Canon 3C(1)(d)(iii), the guidance provided by the Committee on Codes of Conduct, and the facts pertaining to this case, disqualification is required under the circumstances. To be clear, I do not think it likely that the outcome of this litigation would substantially affect The Walt Disney Company’s share price. Indeed, almost all of litigation involving Plaintiff is unlikely to have a substantial effect on The Walt Disney Company’s share price. Plaintiff is just one slice of the vast pie that makes up The Walt Disney Company. That said, Canon 3C(1)(d)(iii) requires me to apply an ambiguous standard—with the threshold of substantially affecting the share price being somewhere between a six- and fifty-percent change—to the present case. And here, Plaintiff has alleged that Defendant’s alleged retaliation has threatened its business operations, jeopardized its economic future in the region, and impacted its plan to invest billions of dollars in the region over the next decade….

Given the ambiguous standard I must apply under Canon 3C(1)(d)(iii), as well the number of unknown variables present in this case, I cannot say for sure that the outcome of these proceedings could not substantially affect the value of my family member’s financial interest in The Walt Disney Company, Plaintiff’s parent corporation. Even though I believe it is highly unlikely that these proceedings will have a substantial effect on The Walt Disney Company, I choose to err on the side of caution—which, here, is also the side of judicial integrity—and disqualify myself. Maintaining public trust in the judiciary is paramount, perhaps now more than ever in the history of our Republic.

While size supposedly doesn’t matter, given widespread ownership of Disney stock, including indirectly through mutual funds, it’s hard to see that this really was an ethical problem.

The case has been reassigned to Judge Allen C. Winsor, a Trump nominee. I don’t know anything about Judge Winsor, so I’m not going to speculate on how this does or does not affect the ultimate outcome. It might end up being beneficial to DeSantis, or a case of “don’t wish too hard for something, you might get it.”

Regardless, the alleged perception of bias in the case is gone.


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CountMontyC | June 4, 2023 at 10:36 am

I don’t see how any other judge could be any worse.
Furthermore I believe that the judge knew he had to recuse himself so looked for an excuse beyond the one the Desantis legal team requested. He knew that if he didn’t recuse that he would likely have been overturned on appeal based on his obvious bias alone.

Curious that the fact that the judge was nominated by a republican may not always be a good indicator due to picks resulting from a political compromise but the opposite almost never seems to be true; a democrat nominated judge can be counted on to be biased. Does anyone actually believe in Justice Roberts’ independent federal judiciary. Even Roberts?

    Danny in reply to Concise. | June 4, 2023 at 1:31 pm

    This is why you need to select senators who are the best chance to win your state.

    People like Mastriano (who is trying to get nominated in PA) and Masters are simply not viable candidates, and to pick viable people who could win the general election for the top of the ticket.

    This is relevant because by losing the senate we made sure there will be many more Democrat judges, perhaps all judicial vacancies filled by 2025.

      henrybowman in reply to Danny. | June 4, 2023 at 4:16 pm

      “This is why you need to select senators who are the best chance to win your state.”
      So then, Democrats.

        Danny in reply to henrybowman. | June 6, 2023 at 6:12 am

        A couple more Susan Collins in a couple more states and people here would be moaning and complaining about “MUH RINOSSSSS!!!!!!!!!!!!!!!” and Biden’s judges would not exist period.

        Not every state is Utah and Wyoming.

MoeHowardwasright | June 4, 2023 at 11:38 am

“Judge Shopping” Is this judge really using that line? What did he think Disney was doing when it filed in his district instead of the Central Florida district? Because they cater to the woke, the ill informed, mis-informed, low information crowd, he thinks that no one could ever see his comments maxing out the BS meter! Next is for the State to file a motion for the Northern District to give way to the Central District for trial. If the Republicans win all three arms of the government they need to start pruning the judicial tree. You don’t have to impeach, just defund some districts, create new districts, break up districts(looking at you 9th District). Also amend the Constitution so that District Judges that are overturned on appeal more than 4 times are automatically off the bench. That will rein them in and stop the abuse of the Constitution in my opinion. FJB

PrincetonAl | June 4, 2023 at 11:40 am

Expect Federal Court to put it on hold pending state outcome (which is probably the right answer)

… and avoids any hard decisions by the Federal judge, which is easy and something judges like to punt on high visibility cases when there is an easy out (not necessarily right)

“…it’s hard to see that this really was an ethical problem.”

It’s not. It’s a window into the resolve of DeSantis World to play hardball ‘by any means necessary.’

Disney is not magically entitled to special taxing district Reedy Creek. The Florida legislature giveth, and the Florida legislature tooketh away. This case should’ve never made it to court.

Crying about judge shopping and political punishment is the usual leftist poo flinging.

Play ball! – by any means necessary.

    Peabody in reply to LB1901. | June 4, 2023 at 1:23 pm

    Disney is not “magically” entitled to special taxing district Reedy Creek.

    I see what you did there.

    Danny in reply to LB1901. | June 4, 2023 at 1:29 pm

    30 shares of Disney isn’t exactly a fortune, and it isn’t exactly enough to make a claim of a relative being too biased to handle something involving Disney.

    He clearly made the recusal because he knew if he didn’t his overt bias from prior statements would be of extreme influence to appeals judges.

    healthguyfsu in reply to LB1901. | June 4, 2023 at 1:45 pm

    I’d bet that most people with a large, externally-managed portfolio have at least indirect holdings in Disney through index funds or ETFs. They are a megacap in the entertainment sector.

Frankly I think this is a wise choice by the Judge. I’m not a Lawyer but I do not think that a Judge would want to recuse himself because of prior statements suggesting bias. That’s bad for the reputation. Still, I don’t believe that a relative owning 30 shares of Disney would meet a reasonable man level as a basis for legally supportable charges of bias. Yet the Judge used that reason for recusal.

I think it’s a good enough excuse to get out of a bad spot though. If he didn’t recuse himself he would have to survive a bias challenge based on his old remarks. That’s never fun especially if you might lose and damage your reputation. Even if he survived, no matter what ruling he might make in the actual case he’ll be attacked and hassled for years afterward.

Who needs that? So he found an excuse and used it to duck the bullet; in a month or so, life will go back to normal for him.

The Packetman | June 4, 2023 at 1:10 pm

“I think the Judge was right that it was judge shopping …”

I disagree … it wasn’t so much ‘shopping’ as it was removing a clearly biased judge.

“But Judge Walker recused himself anyway for an unrelated reason …”

And he was a petty, whiney little bitch about it.

    Arrgh, you beat me to it. I had to listen to Legal Mindset’s vid from the beginning, and although there’s quite a bit of fluff in it (like podcasts tend to) the full context only makes the judge look worse. Five stars.

    healthguyfsu in reply to The Packetman. | June 4, 2023 at 1:46 pm

    Cannot upvote the petty whiny little bitch portion of your comment enough!

henrybowman | June 4, 2023 at 4:15 pm

“I cannot say for sure that the outcome of these proceedings could not substantially affect the value of my family member’s financial interest in The Walt Disney Company, Plaintiff’s parent corporation.”
Substantial is certainly the word I would use!
30 shares of DIS are worth $2,700.
Should Disney tank, this relative is likely to lose his… Dolphins season tickets.

angrywebmaster | June 4, 2023 at 6:02 pm

You should watch the youtube videos by Legal Mindset. he’s been covering this, (He is a lawyer who specializes in these districts like reedy creek)

He explains in detail that this wasn’t judge shopping, that the judge was biased and would have been thrown off the case on appeal.

henrybowman | June 4, 2023 at 7:02 pm

A judge allowed to play Six Degrees of Cousin Kevin’s Bacon can find a reason to recuse himself rom any case.

Recusing himself makes sense with his previous statements. Using a trivial reason vs the challenge reason is perhaps good legal defense since if he admitted bias (that is clearly on the record) he might set himself up for judicial censure.

But the complaining is petty and unprofessional.

Overall I find this very humorous. “There is no merit”, “ this is judge shopping”. Then grants it anyway on excessively trivial grounds.

Florida may still lose, but with a Republican appointed judge I’m much more comfortable that it would be because of the legal issues at hand and rather than the political opinions of the judge.

Just getting the case to be refereed fairly is a win in my book, whether it guarantees a win or not.