Projection: Disney's hand-picked judge reverses, recuses -- and accuses

Photo by Jordan Strauss/Invision/AP, File

And the New York Times offers its stenographic services as well. Disney filed a lawsuit against the State of Florida earlier this year over the dismantling of the Reedy Creek tax district, even before the state legislature arguably mooted the issue with new statutory authority for the replacement district. When they did so, they filed the suit in the Northern District rather than the Middle District, which covers Orlando and the tax district. Florida countersued in the Middle District.

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Why did Disney choose the Northern District? Its chief judge, Mark E. Walker, has long expressed hostility to Ron DeSantis and sympathy for Disney — even on the record in court. Disney clearly hoped Walker would use his authority to assign himself the case, which he did, and which prompted a motion for disqualification from the state. Walker refused to recuse over the bias evident in comments made in other cases, but decided that a “third degree” connection to a relative that owns a whopping 30 shares of Disney stock required that he step aside:

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.

What a hero! At any rate, whether one believes this or not, just remember that Disney sued Florida in Walker’s federal district, not the other way around. That makes what follows — and what the NYT regurgitated without any challenge to the context — one of the more amusing cases of political projection in recent memory:

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A federal judge in Florida disqualified himself from a court case brought by Disney against Gov. Ron DeSantis, but not before blasting the governor’s legal team for engaging in “rank judge shopping.”

Excuse me? How exactly do respondents engage in “rank judge shopping”? That’s precisely what Disney did by filing their lawsuit in the Northern District, where Walker could use his authority to assign himself to the case. The only action that respondents can take is to challenge the judge’s impartiality in the case, which was not difficult to do with Walker.

Their motion to disqualify, filed on May 19th, featured court transcripts from two different cases in which Walker’s comments more than suggested that he had prejudged the issues presented in this lawsuit. Read the whole motion, but this exchange in particular from the unrelated Falls v DeSantis seems pretty on point to their complaint:

THE COURT: Does it make any difference that in—just in recent
history when schools or entities or organizations have not complied
with what is demanded by Tallahassee that funding has been cut, for
example, the face mask? Does that make it any less speculative and less
conjectural?

MR. COOPER: Your Honor, I don’t think so because we certainly concede that there is the possibility of that form of enforcement against the institutions, and that is, as you say, a recent example of that authority being exercised by the—I guess here, the Board of Governors.

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.

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Not only does that give the appearance of prejudice, contra Walker’s ruling, it also gives evidence of substantive prejudice on the specifics of this case. This is precisely why Disney filed its lawsuit in Walker’s jurisdiction, and precisely why Walker assigned it to himself. His lame attack on the respondents for “rank judge shopping” is nothing more than a diversion from the very smelly arrangement that had Walker in charge of this case at all.

And that’s why Walker is posing a a Hero of the Republic for recusing himself on the grounds that a “third degree” relative owns a whopping 30 shares of Disney stock, which is a nonsense explanation. The real explanation is that a refusal to recuse would have gone straight to the 11th Circuit, which would have looked at Walker’s comments in the motion and not just reversed his refusal but might have started asking questions about how Walker got the case at all.

Now Disney’s in a jam. The case got reassigned to a new judge, one nominated by Donald Trump, although that won’t matter much. The big problem is that Disney can’t win on the law and it can’t win the public forum, and Walker is probably the only Plan B they had. At some point, Disney will have to come to grips with the fact that they killed their golden-egg goose in Reedy Creek by foolishly engaging in the kind of partisan and culture-war politics they had avoided for decades in order to maintain their privileged position. And they’d better start figuring out a way to exit gracefully from the fight, or at least recognize the First Rule of Holes.

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Addendum: Dan McLaughlin has the same sense of smell I do about Walker’s motives, and thinks this may present even bigger problems for Disney in the short run:

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.

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Ed Morrissey 11:27 PM | July 13, 2024
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