Interesting Article from Puck:
https://puck.news/iger-vs-desantis-the-next-steps/?_cio_id=f6c6060ec7a601e8f71a&utm_campaign=The+Daily+Courant+-+SUBSCRIBERS+(5/2/23)&utm_content=The+Daily+Courant+-+SUBSCRIBERS+(5/2/23)&utm_medium=email_action&utm_source=customer.io
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Iger vs. DeSantis: The Next Steps
Last week, Disney sued
Ron DeSantis over control of some very valuable swampland. The decision to go to court was
predictable, of course: C.E.O.
Bob Iger wants wide discretion on land use around Disney World, which covers some 43 square miles of Central Florida. And DeSantis, who
says he doesn’t believe in “old-guard corporate Republicanism,” won’t stop yapping about “woke ideology.” Now comes a case over the voiding of Disney’s developmental contracts—a reflection, the company claims, of how DeSantis is waging a “relentless campaign to weaponize government power against Disney in retaliation for expressing a political viewpoint unpopular with certain State officials.” (
Here’s the complaint.)
One thing about Disney’s legal action that has escaped commentary—even though it’s likely to become
the center of attention—is how O’Melveny litigation superstar
Daniel Petrocelli has managed to file this case in
federal court. Disney’s move makes tactical sense. The company, after all, surely wanted to bypass DeSantis-appointed judges, eventually at Florida’s Supreme Court. But can it?
Here’s where the 11th Amendment may come up. This constitutional addendum restricts the ability of citizens to bring suits against states in federal court. This bar, enacted at a time when states had debt problems and sovereignty was a paramount concern, can be puzzling. Four years ago, for instance, the Supreme Court wrestled with the hard-to-fathom yet evidently correct notion that states have immunity for their intellectual property thievery. “One might think that Walt Disney Pictures could sue a state for hosting an unlicensed screening of the studio’s blockbuster film
Pirates of the Caribbean (or any of its many sequels),” wrote now retired Supreme Court justice
Stephen Breyer, marveling at the
unanimous ruling by his colleagues. “Yet the court holds otherwise.”
Of course, the 11th Amendment isn’t impenetrable. There are ways around it, and Disney is steering its case towards the most legally famous (and most controversial) path by citing the
Ex Parte Young doctrine, which dates back to a
1908 case that held that state
officials could be sued in federal court to prevent them from enforcing unconstitutional laws. Notably, Disney isn’t shooting for damages in its power battle with DeSantis. That would be a sure loser under sovereign immunity precedent. Instead, the corporation aims for declaratory and injunctive relief to ensure that local officials honor previously recognized contracts.
DeSantis will probably respond that this stretches the
Ex Parte Young doctrine beyond what’s permissible. He’ll likely argue that land use is a local issue—and that despite the fact that the governor now appoints members to the oversight board, he has no real enforcement authority over these contracts. If that’s the DeSantis administration’s initial move to beat a First Amendment claim in federal court (while pushing a
parallel suit in state court), it won’t be the first time. In fact, that’s pretty similar to what DeSantis tried in
Dream Defenders, a 2021 case that dealt with a DeSantis-era anti-rioting law that came in the wake of Black Lives Matter protests. There, U.S. District Court Judge
Mark Walker rejected the governor’s challenge to being hauled into federal court, pointing out that DeSantis has the authority to call the state militia to respond to a “riot” and had actually done so. Walker
wrote, “Does Governor DeSantis really contend that no plaintiff in any case could ever have standing to sue him?”
Disney v. DeSantis, of course, has just been assigned to the very same Judge Walker, who also once called the Stop WOKE Act “positively dystopian.” (By filing in Tallahassee, Disney had a
35 percent chance at landing its case with Walker, the same probability of being stuck with
Trump appointee
Allen Winsor. Some magical fairy dust, I guess.)
Still, don’t shrug off this sovereign immunity issue just because of the judge. Anyone inclined to do so would be well-advised to heed DeSantis’s battle with
Andrew Warren, the Tampa-area district attorney whom the governor suspended, ostensibly for pledging not to prosecute certain low-level offenses. Warren went to federal court, claiming, like Disney, that the governor retaliated against him for speaking up on social issues (in his case, on abortion and transgender issues). In January, U.S. District Court Judge
Robert Hinkle—a
Clinton appointee—agreed that DeSantis was wrong to oust Warren yet nevertheless
ruled the 11th Amendment tied his hands. (Incidentally, Warren is scheduled to argue his appeal tomorrow at the 11th Circuit.)
If this situation starts going badly for Disney, the company may lean on its alternative claim that the Takings Clause of the Fifth Amendment prevents citizens from being deprived of property without just compensation. The Supreme Court
recently held that a Takings Clause claim
can be brought against a local government in federal court so it’s not a surprise to see Disney trot it out as a secondary legal theory in its complaint. Although, on further thought, is Disney really suggesting that DeSantis
stole Disney World? Now that’d be some villainy in the Magic Kingdom.
