KELLY v. DAVIS et al

Filing 326

ORDER OF RECUSAL: Plaintiffs motion, ECF No. 323 , is DENIED. However, for other reasons articulated here, I recuse myself from furtherparticipation in this case. JUDGE MARK E WALKER recused. Case reassigned to SENIOR JUDGE ROGER VINSON for all further proceedings. Signed by JUDGE MARK E WALKER on 8/24/2015. (dac)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

BARBARA ANN KELLY,
Plaintiff,
v.

Case No. 3:10cv392-MW/EMT

ROBERT DAVIS, SEASIDE
COMMUNITY DEVELOPMENT
CORP., SEASIDE COMMUNITY
REALTY, INC., SEASIDE I
HOMEOWNERS ASSOCATION,
INC., & TOWN COUNCIL, INC.,
Defendants.
___________________________/
RECUSAL ORDER
Plaintiff Barbara Ann Kelly moves for my disqualification as presiding
district judge under 28 U.S.C. § 455(a) and (b)(5)(iii). ECF No. 323. The motion
is untimely given that it comes more than two years after Plaintiff learned of the
asserted grounds and did not bring them to the attention of this Court until after
unfavorable rulings. It is also without merit in fact or law. For the reasons that
follow, the motion is denied. For reasons not suggested by Plaintiff, I choose to
voluntarily recuse myself from this case; namely, Plaintiff’s unfounded attacks on
my wife’s character in the motion for disqualification.

1

I
On February 16, 2012, the President nominated me to serve as a district
judge on this Court. The Senate confirmed my nomination on December 6, 2012.
I received my commission the next day.
On December 21, 2012, an administrative order reassigned me to preside
over almost 200 already pending cases. ECF No. 133. This case was among them.
In brief, Ms. Kelly brought a number of claims related to her purchase of a
property in the Seaside, Florida, community. I refer to the property as Lot 13. I
refer to this case, 3:10cv392, as the “Seaside federal case.”
The same administrative order assigned me to preside over another case with
the same plaintiff along with her husband, Barbara Ann Kelly & Gregory Brian
Myers v. Regions Bank, 3:11cv252 (N.D. Fla.) (“Regions federal case”).
On December 23, 2012, I left for a preplanned trip out of the country. I
returned to the office on January 3, 2013, and immediately began reviewing the
cases to which I had been assigned. When reviewing the hundreds of cases
assigned to me for potential conflicts, I learned that lawyers from the firm Holland
& Knight were representing Regions Bank in the Regions federal case. Though
she had not entered an appearance in that case, my wife Karen Walker is the senior
partner in charge of the Tallahassee, Florida, office of Holland & Knight. So the
first and only order I issued in the Regions federal case was to disqualify myself. I

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explained at the time that I was doing so because my “spouse is a partner with
Holland & Knight, LLP.” Case No. 3:11-cv-252, ECF No. 134 (Jan. 4. 2013). I
did so within forty-eight hours of discovering the conflict.
Because I immediately disqualified myself from the Regions federal case, I
did not review its substance. At a glance, it concerns claims by Ms. Kelly and Mr.
Myers against Regions Bank relating to a loan modification on a different property
in Seaside, referred to here as Lot 6.
For more than two years, I presided over this case with no objection from
any party. It had an extensive set of summary-judgment motions. For the most
part, Defendants won and Plaintiff lost. Specifically, on July 17, 2014, I denied
Plaintiff’s motion for partial summary judgment against Defendant Seaside I
Homeowners’ Association. ECF No. 279. I also granted summary judgment in
favor of Defendants Town Council, Inc., and Seaside I Homeowners’ Association
as to Counts VII and VIII. ECF No. 278. On August 26, 2014, I denied Plaintiff’s
partial summary judgment motion against Defendant Seaside Community
Development Corporation (SCDC). ECF No. 294. On January 14, 2015, I granted
the remaining Defendants’ summary judgment motion on all counts except certain
parts of the declaratory-judgment claim, Count IX. ECF No. 308. I have ordered
further briefing those claims for declaratory relief, which are still pending.

3

II
Plaintiff has now moved for disqualification. ECF No. 323. Apart from
what I have already described, she asserts the following grounds.
On July 29, 2010, Regions Bank filed a complaint in state court styled
Regions Bank v. Gregory Brian Myers, Barbara Ann Kelly, Seaside III
Neighborhood Association, Inc., Case No. 10-CA-001162 (“Regions state case”).
ECF No. 323, at 3. Although the record of that case is not before this Court,
Defendants say that Regions Bank sought foreclosure on Lot 6. ECF No. 324. On
October 7, 2010, Ms. Kelly filed her complaint in the Seaside federal case. On
May 24, 2011, Ms. Kelly and Mr. Myers filed their complaint in the Regions
federal case.
During a June 6, 2012, deposition in the Seaside federal case, Defendants’
attorneys asked Mr. Myers about Lot 6, which he and Ms. Kelly jointly own.
Defendants’ attorneys also asked Mr. Myers about Lot 3 in the Watercolor
community. According to the transcript, Mr. Myers stated that “Regents Bank”
held mortgages on those properties and sought foreclosure. ECF No. 217-2, at 10.
Amidst lengthy errata, Mr. Myers says this is a spelling error; that it should say
“Regions.” ECF No. 217-2, at 69.

4

In reproducing the question-and-answer in her motion, Ms. Kelly switched
out the word “Regents” in two places and inserted “Regions.” ECF No. 323, at 4.
The actual transcript reads thus:
Q: Lot 6, Seaside 14, that is a lot in Seaside?
A: Correct.
Q: And how is that titled?
A: As stated, Tenants by the Entirety.
Q: All right. And is there still mortgage in favor of Regent’s Bank?
A: There’s a mortgage secured on that lot. Regents Bank is the lender.
ECF No. 217-2, at 10. Ms. Kelly’s motion says this:
Q: Lot 6, Seaside 14, that is a lot in Seaside?
A: Correct.
Q: And how is that titled?
A: As stated, Tenants by the Entirety.
Q: All right. And is there still mortgage in favor of Regions’s [sic] Bank?
A: There’s a mortgage secured on that lot. Regions Bank is the lender.
Q: And that is in foreclosure?
A: Yes.
Id. The term sic is properly used “following a word misspelled or wrongly used in
the original.” Chicago Manual of Style § 13.59. So it would have been proper to
reproduce the text as “Regent’s [sic] Bank.” If there is to be a substitution for the
corrected word, that must be indicated by brackets. See id. § 13.58. That is, it
would have been proper to reproduce it as “[Region’s] Bank.”
Defendants submitted portions of this deposition in support of their
summary-judgment motion. So far as I can tell from the record, Regions Bank has

5

no interest in the property at issue in this case, Lot 13. Ms. Kelly does not suggest
otherwise in her motion.
On August 29, 2012, Defendant SCDC moved in the Seaside federal case to
compel Ms. Kelly to produce tax returns for 2004 and 2009. ECF No. 173. The
motion referenced the Regions federal case. Id. On September 19, 2012, the
assigned magistrate judge granted the motion to compel, concluding that the tax
returns were relevant to Plaintiff’s claims and SCDC’s defense that Plaintiff did
not have financial resources to complete construction of a house on Lot 13. ECF
No. 183. In so doing, the magistrate judge mentioned in a footnote that Ms. Kelly
had brought predatory lending claims in the Regions federal case, and noted it
concerned Lot 6. Id. at 2 n.1.
On November 13, 2012, a lawyer at Holland & Knight sent an email to
Plaintiffs’ attorney in the Regions federal case. Ms. Kelly offers what appears to
be a redacted version of the email. The Holland & Knight lawyer says this:
Please advise by Wednesday whether you intend to meet that
obligation by the end of the week. If not, we will move to strike the
supplemental Myers Declaration, identify for the Court . . . the
discovery abuses in our motion, and advise defense counsel in the
other action of Myers’ tactics.
ECF No. 323-3 at 2. According to Plaintiff, the “other action” referenced is
the Seaside federal case. ECF No. 323, at 5.

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In the Regions federal case, Regions Bank moved for summary judgment on
October 18, 2012. No. 3:11cv252, ECF No. 106. In support, Regions Bank
attached excerpts of Mr. Myers’s deposition testimony in which he discussed Lot
13. This is the full exchange:
Q Talking about Lot 13 that your wife purchased shortly after the Lot
6, there's litigation involving that case; correct?
A Correct.
Q And without getting into too many details, can you just generally
give us in one or two sentences, the nature of that lawsuit?
A I think I already summarized that for you. You asked me about that
earlier.
Q Well, I'm asking it now. What is the nature of the lawsuit regarding
Lot 13?
A Breach of contract.
Q And your wife has accused the developers of Seaside of being
engaged in a criminal scheme; is that correct?
A I can’t answer that. You’d have to ask her attorney.
Q You’ve not seen the letter or helped your wife prepare a letter to a
Doris Goldstein that references a criminal scheme?
A It’s a crime in the state of Florida to sell lots that are not properly
platted. Seaside Community Development Corporation, Robert Davis,
Seaside Community Realty and others, in my opinion, were fully
aware that those lots were not properly platted and they are not
properly platted. And Walton County has indicated they are not
properly platted. And that is a crime in the state of Florida to sell lots
that are not properly platted. So to the extent it is a crime and they
acted together, you could characterize that as a criminal scheme.
7

Case No. 3:11cv252, ECF No. 107-2, at 23.
On December 14, 2012, several Defendants in the Seaside federal case
moved for summary judgment. ECF No. 216. In footnote 2 of the accompanying
statement of facts, those Defendants cited Mr. Myers’s deposition and also material
from the Regions federal case, as follows:
While it appears clear from her testimony Ms. Kelly testified she was
a homemaker, Defendants have learned of evidence subsequent to her
deposition of October 6, 2011[,] suggesting that Ms. Kelly owned a
mortgage brokering firm called MetFund and employed her husband
at that firm from 1995 to 2007. Ms. Kelly is the president of this
corporation. (See Deposition of Greg Myers, Volume 4, 853:20 to
853:24. See also, generally, Barbara Ann Kelly and Gregory Myers v.
Regions Bank, Case No. [3]:11cv252-MCR/EMT, Doc. 107, Regions
Bank Statement of Undisputed Facts.)
ECF No. 217, at 2 n.2. Ms. Kelly says that “[i]t is apparent that Regions Bank
Statement of Undisputed Facts was injected surreptitiously into the Seaside Federal
Case in an effort to prejudice Ms. Kelly in the eyes of Ms. Walker’s spouse, Judge
Walker.” ECF No. 323, at 7 (footnote omitted).
Unless Defendants are clairvoyant, that is obviously false. The
administrative order assigning me to both cases was not entered until a week later.
See ECF No. 224 (dated December 21, 2012). Plaintiff’s lawyer ought to more
carefully consider the facts arranged chronologically in his own motion before
suggesting that opposing counsel had such a motive.

8

All of this occurred, of course, before these cases were assigned to me on
December 21, 2012. Before I returned to the office on January 3, 2013, on January
2, 2013, Ms. Kelly and Mr. Myers were apparently considering a motion for my
recusal from the Regions federal case. A lawyer at Holland & Knight sent an
email to Plaintiff’s attorney stating “If you can wait until Monday, [a lawyer in the
Tallahassee office of Holland & Knight] can check with Karen Walker to see if
there is a set procedure.” ECF No. 323-5, at 2. Ms. Kelly says that “it may be
reasonably inferred . . . that Ms. Walker engaged in ex parte communications with
Judge Walker concerning Judge Walker’s ‘procedure’ for disqualifying himself
from the Regions Federal Case.” ECF No. 323, at 7–8 (footnotes omitted). Ms.
Kelly goes on to say “[i]t is not known at this time whether any ex parte
communications, if any, between Ms. Walker and Judge Walker included any
advice from Ms. Walker concerning Judge Walker’s disqualification in the
Regions Federal Case or the Seaside Federal Case.” Id. n.13.
I most certainly did not discuss either case with my wife. Moreover, it is not
reasonable to infer otherwise from that email.
Lastly, Ms. Kelly cites an October 4, 2013, notice of supplemental authority
which Defendant SCDC filed in the Seaside federal case in support of its
summary-judgment motion. ECF No. 271. The supplemental authority is an order
issued by the chief district judge presiding over the Regions federal case. The

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chief district judge denied Ms. Kelly and Mr. Myers’s partial-summary-judgment
motion and granted Regions Bank’s summary-judgment motion. The order
mentions Ms. Kelly’s purchase of Lot 13 in its opening paragraph. It then
describes how Ms. Kelly and Mr. Myers had three mortgage loans from Regions
Bank on three other properties. Nothing in the order suggests that Regions Bank
has ever held any interest in Lot 13.1
Based on those facts, Plaintiff asserts that I should be disqualified because
my wife has “an interest that could be substantially affected by the outcome of the
proceeding,” 28 U.S.C. § 455(b)(5)(iii), and my impartiality might reasonably
questioned under 28 U.S.C § 455(a).
III
A disqualification motion presents a more sensitive issue than most others
that come before a judge. The parties to a case deserve an impartial judge. The
public should have confidence in the integrity of the judicial process. The danger
of parties abusing the process to get a judge more to their liking is always present.
The hardest part is that the judge must realize that instead of judging others, one is
judging his or her own impartiality. Ruling on that sort of issue requires selfreflection, candor, and humility. This is, after all, a “government of laws, and not
of men.” Marbury v. Madison, 5 U.S. 137, 163 (1803).
1

The order is found in the record of the Regions federal case at 3:11cv252, ECF No.
172. It is also found in the record of Seaside federal case, 3:10cv392, ECF No. 271-1.
10

“It has been stated on numerous occasions that when a judge harbors any
doubts concerning whether his disqualification is required he should resolve the
doubt in favor of disqualification.” Parker v. Connors Steel Co., 855 F.2d 1510,
1524 (11th Cir. 1988). Yet disqualification must be “supported by some factual
basis.” United States v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999) (per
curiam). It “cannot be based on ‘unsupported, irrational or highly tenuous
speculation.’ ” Id. (quoting In re United States, 666 F.2d 690, 694 (1st Cir.1981)).
“Courts should take special care in reviewing recusal claims so as to prevent
parties from ‘abus[ing] § 455 for a dilatory and litigious purpose based on little or
no substantiated basis.’ ” Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir. 2004)
(quoting Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1409 n.8
(5th Cir.1994)).
A
A motion to disqualify a judge under § 455(a) or (b) must be timely made.
Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997); United States v. Slay,
714 F.2d 1093, 1094 (11th Cir. 1983) (per curiam). This is so because those rules
are not meant “to allow counsel to make a game of the federal judiciary’s ethical
obligations.” Delesdernier v. Porterie, 666 F.2d 116, 121 (5th Cir. 1982). Indeed,
the “reason most often given for applying a timeliness requirement to recusal
motions is that ‘[t]he judicial process can hardly tolerate the practice of a litigant

11

with knowledge of circumstances suggesting possible bias or prejudice holding
back, while calling upon the court for hopefully favorable rulings, and then seeking
recusal when they are not forthcoming.’ ” In re Kensington Int’l Ltd., 368 F.3d
289, 312 (3d Cir. 2004) (quoting Smith v. Danyo, 585 F.2d 83, 86 (3d Cir.1978)).
In other words, a party “may not lie in wait, raising the recusal issue only after
learning the court’s ruling on the merits.” Phillips v. Amoco Oil Co., 799 F.2d
1464, 1472 (11th Cir. 1986). The rule is that a motion to disqualify “must be filed
within a reasonable time after the grounds for the motion are ascertained.”
Summers, 119 F.3d at 921. If the facts are known, waiting until after an adverse
decision is “too late.” Id.
Plaintiff’s motion for disqualification is untimely. Almost every fact that
she asserts in support of her motion was known to her when this case was assigned
to me more than two years and a half years ago. The notice of supplemental
authority came later, but Plaintiff said nothing about it. Most importantly, Plaintiff
did not seek disqualification until after this Court ruled against her.
Plaintiff asserts that the issue is not waived because “there was no disclosure
on the record.” ECF No. 323, at 13. That is plainly wrong. The facts Plaintiff
identifies were known to her more than two years ago. Most of those asserted
grounds are in the records of the cases. The only things that were not in the record
were the emails between the lawyers. Plaintiff knew of these. I did not. Nor

12

could I know of them. Thus, there was nothing for me to disclose. Plaintiff did
not bring them to this Court’s attention. If there was a failure to disclose, it was
Plaintiff that failed to disclose.
The Eleventh Circuit has squarely rejected the identical tactic:
In other words, [the plaintiff’s attorney] made a carefully thought out,
coldly calculated, eyes open decision not to raise the issue and instead
to gamble on winning anyway. The recusal provision was intended to
be a shield, not a sword. An issue involving recusal cannot be used as
an insurance policy to be cashed in if a party’s assessment of his
litigation risks turns out to be off and a loss occurs. Plaintiffs waived
the issue.
Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Florida, Inc., 140 F.3d 898,
913 (11th Cir. 1998).
Plaintiff’s motion comes at least two years too late. I conclude that it is
untimely and Plaintiff has waived the issue of disqualification.
B
Even if the disqualification motion were timely, it is wholly without merit.
This is not a close call.
Among other reasons, a judge must disqualify himself whenever the judge’s
spouse “[i]s known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). In

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Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980),2 the court
reasoned that “a partner’s interest in the outcome of any matter handled by his law
firm is substantially greater than that of an associate or an employee.” Id. at 1113.
The court said the “outcome of any proceeding handled by a law firm may affect
the partners’ financial interests as well as certain noneconomic interests, including
the reputation and goodwill of the firm.” Id. The court held that “when a partner in
a law firm is related to a judge within the third degree, that partner will always be
‘known by the judge to have an interest that could be substantially affected by the
outcome’ of a proceeding involving the partner’s law firm.” Id. (emphasis added).
It was for this reason that I immediately disqualified myself from the
Regions federal case; it involved a law firm in which my spouse is a partner. But I
do not know of any interest of my wife that could be substantially affected by the
outcome of this proceeding. 28 U.S.C. § 455 (b)(5)(iii). Ms. Kelly has certainly
pointed to none. She says that Regions Bank has “a significant financial interest in
numerous properties in Seaside.” She has not described that interest. And she has
not said how any ruling by this Court might substantially affect such an interest.
Even if she had, the inquiry is not Regions Bank’s interest.

2

See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981).
14

The proper inquiry is the interest of the judge’s family member. My wife’s
law firm is not “handling” this case. The fact that Defendants cited portions of the
record of Regions federal case in the Seaside federal case does not make my wife’s
law firm involved in this case. In many of the cases rejecting a disqualification
motion, the judge has a family member working for a law firm that represents a
party in unrelated matters, but that law firm is not representing the party in the case
before the court. See, e.g., In re Medtronic, Inc. Sprint Fidelis Leads Products
Liab. Litig., 601 F. Supp. 2d 1120 (D. Minn. 2009) (Kyle, J.). Here, of course,
Regions Bank is not a party. And my wife’s law firm is not representing any party.
What Plaintiff asks this Court to do is go one step further and find it is improper
for a judge’s spouse to belong to a firm that represents another party which is not
involved in the litigation and has no identifiable interest in the litigation.
The argument seems to be that Regions Bank might steer its legal business
elsewhere because of this Court’s rulings. I agree with Judge Kyle’s assessment of
this type of argument. According to Plaintiff, my wife could be affected if this
Court were to rule in a particular way that hurts Regions Bank (though Plaintiff
does not say how); if Regions Bank then retaliated by withdrawing business from
Holland & Knight; if the removal of that business impaired my wife’s financial
interests; and if that impairment were substantial. See id. at 1125–26. The other
side of the argument is that my wife could be affected if this Court were to rule in a

15

particular way benefiting Regions Bank (again, Plaintiff does not say how); if
Regions Bank rewarded Holland & Knight by funneling it more business; if the
additional business enhanced my wife’s financial interests; and if that enhancement
were substantial. Id. I also agree with Judge Kyle’s conclusion that this theory is a
“hypothetical house of cards.” Id.
Plaintiff says that Regions Bank is an important, long-term client of Holland
& Knight. If that is so “it seems particularly unlikely that any ruling the Court
might make in this case, whether favorable or unfavorable to [the non-party
Regions Bank], would have an impact on the quantum of business the firm
receives.” Id. at 1125. Regions Bank is presumed to know that it would be
improper for this Court to be influenced by Regions Bank’s relationship with
Holland & Knight. See id. It cannot reasonably be expected to think less of a firm
because of rulings in this case. Id. “Simply put, it is not reasonable to accept
Plaintiff[’s] argument that the outcome of the proceeding adversely would affect
[Holland & Knight’s] relationship with [Regions Bank].” Id.
Ms. Kelly has pointed to no authority suggesting that § 455(b)(5)(iii)
requires disqualification whenever a judge’s spouse’s law firm’s client who is not a
party to a case might somehow be impacted by a ruling. It is simply “unreasonable
and speculative to conclude” that the outcome of this proceeding would

16

substantially affect my spouse’s interests. See Microsoft Corp. v. United States,
530 U.S. 1301, 1302 (2000) (Statement of Rehnquist, C.J.).
I conclude that disqualification is not required by § 455(b)(5)(iii).
C
More broadly, under 28 U.S.C. § 455(a), a judge must “disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.” The
standard is “whether an objective, disinterested, lay observer fully informed of the
facts underlying the grounds on which recusal was sought would entertain a
significant doubt about the judge's impartiality.” See United States v. Kelly, 888
F.2d 732, 744–45 (11th Cir. 1989). The question is how those facts would appear
to a “well-informed, thoughtful and objective observer, rather than the
hypersensitive, cynical, and suspicious person.” United States v. Jordan, 49 F.3d
152, 156 (5th Cir. 1995). Put another way:
[W]hen considering disqualification, the district court is not to use the
standard of “Caesar’s wife,” the standard of mere suspicion. That is
because the disqualification decision must reflect not only the need to
secure public confidence through proceedings that appear impartial,
but also the need to prevent parties from too easily obtaining the
disqualification of a judge, thereby potentially manipulating the
system for strategic reasons, perhaps to obtain a judge more to their
liking.
In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989). Indeed, “[t]he care with
which these rules are drafted should make a court hesitate to treat the general
language of § 455(a) as a bar to judicial service whenever a relative has something
17

to do with a party.” Matter of Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 839
F.2d 1226, 1229 (7th Cir. 1988). The point applies with even more force when the
relative has nothing to do with any party to the case.
By way of example, Hammer v. Sam’s East, Inc., 754 F.3d 492 (8th Cir.
2014), addressed a similar set of circumstances. The plaintiffs asserted that two
retail stores violated federal law by printing too many digits of credit card numbers
on receipts. Id. at 495. The district judge’s son worked as a lawyer in a firm
representing a company that partnered with the retailers to finance credit for the
retailer’s customers. Id. at 503. The district judge declined to recuse himself. On
appeal, the court held that the “nature of the alleged conflict is simply too remote,
speculative, and contingent to give rise to a situation in which the judge’s
impartiality might reasonably be questioned by a member of the public.” Id. at 504
(internal quotation marks omitted). The court noted that (1) the finance company
was not a party; (2) there was little possibility it would become a party; (3) the
judge’s son was in no way involved with the case; and (4) no lawyer in that firm
had ever appeared in the case in any capacity. The court said that the plaintiff’s
counsel “seems to be grasping at straws blowing in the wind in order to litigate this
case further.” Id.
The same is true here. Regions Bank is not a party to this case. There is
little if any possibility of it becoming a party. My wife’s firm is not involved in

18

this case. Ms. Kelly has not identified any interest of Regions Bank, Holland &
Knight, or my wife that could be affected by the outcome of this case. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 857 (1988). Even if
she had, remote, speculative, and contingent considerations are not grounds for
disqualification. The Seventh Circuit explained this well:
Judges regularly sit in cases that could affect their well-being
tangentially. A judge who owns a house could be affected by a
decision influencing the rate of interest, a judge who owns stock in the
coal industry could be affected by a decision in a case concerning
nuclear power, and so on. These indirect effects do not cause
informed, reasonable observers to doubt a judge’s disinterest.
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 839 F.2d at 1229 (Easterbrook, J.).
For these reasons, I conclude that an objective observer, informed of the
relevant facts, would not find that my participation in this case gives rise to an
appearance of partiality. Disqualification is not required under 28 U.S.C. § 455(a).
IV
I conclude that the motion contains no facts or law supporting
disqualification. Ironically, I will recuse myself because of the false accusations
made by Plaintiff’s lawyer.
A federal judge must have a “sticks and stones” approach to things. And for
good reason; a judge without the stomach for unfounded criticism should not be a
judge. I expected criticism as a state court judge. I expect criticism as a federal
judge. It is part of the job. I understand, too, that a lawyer’s considered decision
19

to ask a judge to disqualify herself or himself is not an easy one to make. A lawyer
must sometimes ask for that relief. A judge presented with such a request must not
take undue offense.
The issue here, though, is the ungentlemanly, unprofessional, and
completely unfounded attacks on my wife’s character. I refer to two assertions in
the motion. It says “it may be reasonably inferred . . . that Ms. Walker engaged in
ex parte communications with Judge Walker concerning Judge Walker’s
‘procedure’ for disqualifying himself from the Regions Federal Case.” ECF No.
323, at 7–8 (footnotes omitted). It goes on to say “[i]t is not known at this time
whether any ex parte communications, if any, between Ms. Walker and Judge
Walker included any advice from Ms. Walker concerning Judge Walker’s
disqualification in the Regions Federal Case or the Seaside Federal Case.” Id.
n.13.
Again, I expressly reject those assertions as completely false. There was no
ex parte communication. It is not reasonable to infer that there was from that
email. Counsel for plaintiff falsely suggested that my wife lobbied me on behalf of
a client in violation of numerous rules of professional conduct for lucre or malice.
That counsel included some language of qualification fools no one; the intent was
to smear without cause. To be sure, Plaintiff’s lawyer presented no factual basis

20

for such an assertion. Obviously, this is a not-so-clever ploy to re-litigate
unfavorable rulings rather than properly appeal them to the Eleventh Circuit.
When I was a practicing lawyer, I would not lightly imply that a fellow
lawyer or a judge had behaved unethically. A useful guide is the Preamble to the
Rule Regulating the Florida Bar: “A lawyer should use the law’s procedures only
for legitimate purposes and not to harass or intimidate others. A lawyer should
demonstrate respect for the legal system and those who serve it, including . . . other
lawyers.” A lawyer upholds those principles by, for example, complying with
Federal Rule of Civil Procedure 11(b) and not presenting a motion “for any
improper purpose” or making factual contentions without evidentiary support.
Plaintiff’s lawyer that signed the disqualification motion should take note of his
duties under Rule 11. See, e.g., Drake v. Birmingham Bd of Educ., 476 F. Supp. 2d
1341, 1348 (N.D. Ala. 2007).
I am a relatively new federal judge. I did not expect baseless attacks such as
these to be leveled by a member of the bar of this Court. Frankly, I was offended.
Under the rules of professional conduct, a lawyer should not make such baseless
attacks. Where I come from, a gentleman would not.
The passage of time brings perspective. But I am concerned about my
ability to completely set aside my initial reaction to this motion. A good judge

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should engage in self-reflection in determining whether to remain on a case. And,
I strive to be a good judge.
A good example is found in United States v. Meyerson, 677 F. Supp. 1309
(S.D.N.Y. 1988). The district judge found there was no basis for disqualification.
Yet he chose to recuse himself for these reasons:
The people of the United States and the defendants are entitled to as
fair a trial as any judge in the district can give them. I resent the
unsupported assertions of the United States Attorney and his tactics in
attempting to disqualify me. They apparently arise from a belief that
my understanding of the law and the proper conduct of an attorney for
the government would hamper the way he wants to prosecute this
case. I doubt that I can any longer maintain that impartiality and the
appearance of impartiality which are necessary to the proper
administration of justice. I am pleased that in this district I can thus
indulge myself, because there are so many other judges who are
eminently qualified to rule upon the motions and preside at any trial of
this case.
Id. at 1315.
Perhaps if the false accusations were aimed solely at me, it would be
different. But they were aimed at my wife as well. I love my wife. I admire her
industry, judgment, and integrity. I have known no finer person. I deeply resent
the unprofessional attack on her character. It would be disingenuous for me to say
otherwise.
In all likelihood, I could and would fairly resolve whatever issues needed to
be resolved to conclude this case. But close questions should be resolved in favor
of recusal. In the end, I think it is best to let another judge take over this case.
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I am troubled to reward Plaintiff for this behavior. However, I am relieved
of those concerns by confidence in my colleagues on this Court to preside over the
remainder of this case, and judge it fairly and wisely.
For these reasons,
IT IS ORDERED:
1. Plaintiff’s motion, ECF No. 323, is DENIED.
2. However, for other reasons articulated here, I recuse myself from further
participation in this case.
SO ORDERED on August 24, 2015.
s/Mark E. Walker
United States District Judge

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