Federal Judge Benchslaps Lawyer For ‘Frivolous,’ ‘Smoke And Mirrors’ Recusal Motion

Judge Mark E. Walker of the Northern District of Florida doesn’t pull his punches. Last year, for example, he lit into Florida in an election-law case for what he described as the state’s “obscene,” “undeclared war” on voting rights.

Don’t make Judge Walker angry; you won’t like him when he’s angry. And filing a frivolous motion seeking his recusal will make His Honor angry. From the colorful opening to his order (posted in full on the next page):

Apparently, Defendants also aspire to be magicians. Their grand finale? Attempting to make a new judge appear in my place out of thin air. Unfortunately for them, law isn’t magic; there must be a legal basis for my recusal. And, like David Copperfield’s tricks, their motion is nothing but smoke and mirrors.

Because Defendant’s Motion for Disqualification, ECF No. 65, is both factually and legally untenable, it is DENIED.

What were the grounds for the motion? From Law360:

Judge Walker said his brief stint in 1996 as an associate at Cummings Lawrence & Vezina, now known as Vezina Lawrence & Piscitelli PA, which is advising [plaintiff] Liberty [Mutual Insurance Co.], does not indicate bias, nor does a $100 donation from W. Robert Vezina III — out of nearly $114,000 Judge Walker raised in his unopposed state judicial campaign in 2007.

[Ed. note: Judge Walker would dispute the claim that the Cummings Lawrence is “now known” as Vezina Lawrence. See footnotes 2 and 3 of his order: “Although some of the attorneys left Cummings, Lawrence & Vezina to create Vezina, Lawrence & Piscitelli, they are unrelated entities.”]

Similarly, there was nothing substantive or unusual about two instances of communication between Liberty’s attorneys and the judge’s staff about an erroneous order and the logistics of a discovery hearing, particularly given his extremely heavy caseload, the order said.

To state the purported grounds for recusal is to refute them. Anyone familiar with the standards for disqualification knows that fleeting contacts from one or two decades ago, plus ex parte communications on administrative matters (which were promptly shared with opposing counsel), are not grounds for recusal. As Judge Walker puts it in the order:

The motion is frivolous and wholly without merit. This is not a close call.

But like the Ninth Circuit in yesterday’s “we will proceed to the merits… there are no merits” case, Judge Walker takes around 20 pages to explain — in excruciating detail, marshaling the relevant law and facts — why the motion must be denied.

In doing so, he ladles out ample judicial sauce. For example, on the law firm issue:

Defendants assert that this case is different because two attorneys at the Vezina law firm are also witnesses in this case. That argument is nonsensical and, unsurprisingly, Defendants have pointed to no authority establishing that I should recuse myself on that basis. In any event, facts matter. The attorneys that Defendants reference—Ms. Reynolds and Mr. Friedman—were not associated with Cummings, Lawrence & Vezina during my brief, long-ago tenure with that firm. For good reason; they hadn’t even started law school yet. To suggest that I am biased or that a reasonable, well-informed observer would question my impartiality on that basis is just silly.

On the campaign contribution:

[T]his case is about as easy as it gets. My judicial campaign raised $113,915.74. Approximately 126 individual attorneys and sixty-eight law firms made contributions. Mr. Vezina’s $100 contribution amounted to less than .1% of that total…. [Furthermore,] the ten-year gap from the contribution to now negates any doubt regarding my ability to adjudicate this case impartially.

And on the ex parte communication:

To be completely honest, I am not sure whether Defendants’ counsel did not adequately research the case law on this subject, or simply didn’t digest it. But the law on this topic is not rocket science. Some ex parte communications with counsel are forbidden. [Citations omitted.] Others—including those for scheduling, administrative, or emergency purposes—are not.

Defense counsel isn’t the only subject of Judge Walker’s ire. He’s also critical of our broken judicial-confirmation process — see footnote 1, noting how one one of the judges he clerked for got his commission two months after nomination, while today, nominees languish for months — and the treatment of the judiciary more generally. From the order’s conclusion:

In this age of shrinking federal budgets, congressional gridlock, and unfilled judicial seats, judges and their staff are notoriously overworked. Luckily, most attorneys are wise enough not to file nonsense motions. For those that aren’t, the threat of sanctions under 28 U.S.C. § 1927 is usually enough of a deterrent.

Defendants’ motion shows that isn’t always the case. It has no basis in law or fact. In fact, Defendants’ “‘ostrich-like tactic of pretending that potentially dispositive authority against [their] contention does not exist is as unprofessional as it is pointless.’” [Citation to Judge Richard Posner’s famous “ostrich opinion.”] Perhaps they should think twice before filing such a baseless motion. They risk being sanctioned if they don’t.

And, before Defendants file a motion for reconsideration arguing that it is odd that I issued this order on a weekend, I should note there is nothing unusual about issuing an order on a weekend. I work almost every weekend. This is the fifth order I issued today. The only thing that’s unusual is that I have a courtroom deputy that is so dedicated that she routinely pulls and posts orders for me every weekend.

Judge Walker issued his order on Saturday, April 1 — aka April Fools’ Day. But make no mistake: filing a frivolous motion in his court is no laughing matter.

(Flip to the next page to read Judge Walker’s blistering order.)

Fla. Judge Says Concrete Co.’s DQ Bid Is Just A Cheap Trick [Law360]
Liberty Mutual Looks To Fight Off Judge Recusal Bid [Law360]
Federal Judge Excoriates Florida’s “Obscene” “Undeclared War” on Voting Rights [Slate]

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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].