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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