He labeled his ruling on recusal as his own decision unprompted by DeSantis’s motion, rather than admit that DeSantis had a point.
When Disney filed suit against Ron DeSantis in federal court, I noted some immediate bad news for the Florida governor: Disney had chosen the Tallahassee Division of the Northern District of Florida as the venue for its suit, and predictably drawn Chief Judge Mark Walker. Walker, an Obama appointee, has been a stridently vocal critic of DeSantis, writing against him in purple prose transparently designed to be quoted in the press. But yesterday, in a reversal of fortunes, Walker recused himself from the case.
Walker’s stated rationale is “relative within the third degree of relationship owns thirty shares of stock in Plaintiff’s parent corporation, The Walt Disney Company” — about $2,600 of stock at today’s prices. Walker cited a canon of judicial ethics under which “the size or dollar amount of the third-degree relative’s financial interest is irrelevant,” but noted that “a six-percent change in the value of The Walt Disney Company’s stock as a result of these proceedings would not be substantial . . . but a fifty-percent change in the stock’s value would be.” He used that dichotomy as an opportunity to yet again ratchet up the alarmism about DeSantis and Disney, citing threats to its $17 billion planned investments in Florida: “An adverse outcome for Plaintiff could also result in Defendants engaging in similar conduct, which could additionally impact Plaintiff. I am no speculator. But Plaintiff’s own allegations make clear that this case involves significant economic interests for its parent corporation.”
Now, the recusal rules can be fairly stringent for district judges, so long as the motion is made at the outset of the case before the judge has invested significant time in it. Unlike Supreme Court justices, a district judge who recuses can easily be replaced by another judge, so the rules do not impose a countervailing “duty to sit.” But it is hard to avoid the sense that Walker’s stated rationale is pretextual. DeSantis filed a motion demanding Walker’s recusal, citing specific examples of Walker unprompted bringing up the Disney controversy in other, unrelated DeSantis-related cases he’s been hearing. Walker went out of his way to deny that motion, arguing that there was a “chasm between my statements in this case and the conduct at issue in” prior cases regarding recusal, such as one where a judge had made statements directly to the press criticizing Jeb Bush. Walker sneered: “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.” He labeled his ruling on recusal as his own decision unprompted by the DeSantis motion, rather than admit that DeSantis had a point.
By doing it this way, Walker insulates his denial of the recusal motion from scrutiny by the Eleventh Circuit, which could produce a potentially embarrassing rebuke from the appeals court. And Walker’s DeSantis-bashing rulings have not fared well at the Eleventh Circuit; for example, his ruling against DeSantis on the new Florida voting laws — which he compared to the war on Ukraine — was reversed, with the appellate panel chiding Walker for misciting past cases and bluntly stating: “The district court did not heed our precedent explaining the proper scope of a historical inquiry.”
The Disney case is far from a slam dunk. I will get into this in more detail in a follow-up to this column, but first of all, most of the case is about the Central Florida Tourism Oversight Board’s revocation of Disney’s midnight contracts. Disney claims that these revocations violated the federal Contracts and Takings clauses and the First Amendment. But it appears that, as alleged in the parallel state case, there’s a strong argument that those contracts were invalid under state law, which would moot everything in the federal case except for Disney’s challenge to the original legislation revoking its control of the Reedy Creek Improvement District. After all, you can’t show a Contracts Clause violation, or get damages under the First Amendment or the Takings Clause, if all you lost was a contract that wasn’t enforceable. Moreover, because those claims rest on a foundation of contested questions of state law, the obvious next front in the federal case would be a motion for the federal court to abstain from hearing them until the state court can rule. And even on the Reedy Creek law claim, as Eugene Volokh has observed, Eleventh Circuit precedent may be less favorable to Disney than many commentators assume.
In any event, the case now goes from Walker to Allen Winsor, a Trump-appointed judge who served as solicitor general of Florida under Rick Scott and then as a state appeals judge in Florida. I can’t speak to Winsor’s political sympathies, but his background suggests that he is likely to take seriously arguments about not rushing to reach federal constitutional issues if there are serious questions of state-government law to be resolved first. That could be very good news for DeSantis.