Disney-DeSantis Feud Recusal a Possible Reply to Supreme Court

Welcome back to Opening Argument, a reported column where I dig into interesting legal controversies and questions that have divided circuit courts. Today: a look at a federal district court judge’s decision to step down from high-profile lawsuit Walt Disney brought against Florida Gov. Ron DeSantis.

It’s unlikely roughly $2,700 worth of Walt Disney Co. stock held by a distant relative would have swayed Judge Mark Walker to rule for the entertainment giant in its case against Florida Gov. Ron DeSantis (R).

Still, attorneys and legal scholars say it’s understandable why Walker chose to err on the side of caution and step down last week from the case over alleged government retaliation after he learned a relative “within the third degree of relationship” owns 30 shares in the company. Some say his order could even be read as a direct response to the ethical issues dogging the nation’s highest court.

Brian Toth, a Miami-based attorney who handles commercial litigation, said the moment isn’t lost on him or shouldn’t be lost on a reader of this opinion. He noted Walker said in recusing that “maintaining public trust in the judiciary is paramount, perhaps now more than ever in the history of our Republic.”

“Obviously we’re seeing in the news many ethical issues surrounding the Supreme Court and their disclosure and nondisclosure requirements and ambiguity about those,” Toth said in noting that “it’s certainly possible” Walker was thinking it’s better to be cautious now more than ever to maintain public trust.

Walker’s decision comes after ProPublica published stories in recent months that Justice Clarence Thomas failed to disclose tuition for his grandnephew’s private school education, lavish vacations, and the proceeds of a property deal all paid for by Republican donor Harlan Crow.

Despite calls from Democrats, the Supreme Court has not adopted a formal code of conduct like the one lower court judges are expected to use as guidance when ethics questions arise.

DeSantis, who is accused of punishing Walt Disney Parks and Resorts U.S. Inc. for criticizing legislation that limited classroom instruction on sexual orientation or gender identity, demanded Walker step down from the case last month but for different reasons.

He argued Walker had prejudged the case by using Disney as an example of state retaliation in other unrelated cases. In calling the allegations meritless, Walker, of the Northern District of Florida, said his use of hypothetical questions in earlier cases can’t raise substantial doubt about his impartiality.

Walker did, however, decide to recuse after learning of a family member’s investment in Disney. Stepping aside ensures the investment held by this distant relative won’t be used later as fodder by DeSantis or his allies to attack the fairness of the court proceedings.

“If you’re a trial level judge and you have other people who can step in for you, it’s sometimes better to not give people a talking point,” said former federal district Judge Jeremy Fogel, who now serves as executive director of the Berkeley Judicial Institute.

Recusing not only eliminates a line of attack but also keeps it from being raised as an issue on appeal to the US Court of Appeals for the Eleventh Circuit, where Toth said the case is assured to go.

Kathleen Clark, a law professor and legal ethics expert at Washington University in St. Louis School of Law, doesn’t think Walker is being overly cautious. Under the Judicial Code of Conduct, “it’s whether or not the outcome of this case could significantly affect the share price,” she said.

Walker said in his order he doesn’t think it will. He noted there is “no clear picture exists of how this case’s outcome will impact—whether positively or negatively—The Walt Disney Company’s share price” and the judicial code doesn’t clearly define when a relative is “substantially affected.”

While it’s true DeSantis is getting what he wanted with a Trump-appointed judge taking over the case, Clark said Walker had an obligation once he became aware his relative had this Disney stock to figure out whether or not the judicial code required this recusal and he convinced her it did.

Clark said there is a “distinct possibility” Walker was responding to the ethics issues at the Supreme Court, especially since the justices often fail to explain why they are or aren’t stepping down from a case.

“I don’t know, but that seems quite plausible to me,” she said.

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