Opinion
Case No. 2:00-CV-936-ST
May 16, 2002
ORDER DENYING RECUSAL AND ORDERING MAY 13, 2002 LETTER UNSEALED
This matter is before the court for consideration of issues raised by a letter from Plaintiff's counsel, dated and filed under seal on May 13, 2002 (the May 13, 2002 letter). On May 14, 2002, Deseret News Publishing and the MediaNews Defendants filed letters responding to the issues raised in the May 13, 2002 letter.
The May 13, 2002 letter requests disclosure from the court of any facts pertaining to potential grounds for disqualification and references 28 U.S.C. § 455, the Code of Conduct for Federal Judges and relevant case law. The court will construe the letter as a Motion pursuant to 28 U.S.C. § 455, order that it be unsealed and consider facts relevant to recusal. The May 13, 2002 letter and the May 14, 2002 responsive letters will be filed.
Plaintiff expresses concerns relating to three areas. First, Plaintiff represents that President Thomas S. Monson, a member of the First Presidency of The Church of Jesus Christ of Latter Day Saints, will be a witness whose credibility will be challenged. Second, Plaintiff seeks substantial compensatory and punitive damages from Deseret News Publishing, a wholly owned subsidiary of Deseret Management Corporation, which may be an asset held by the DMC Reserve Trust. Plaintiff represents that all members of The Church of Jesus Christ, and by implication, the presiding judge in this case, are the ultimate beneficiaries of that trust. Third, Plaintiff is concerned that the court gained independent knowledge of the facts or events at issue in this case or expressed an opinion about them while in prior government service. Plaintiff represents that Governor Leavitt testified in a deposition that he was telephoned by ATT's Chairman, Michael Armstrong, who told him the Deseret News would buy The Salt Lake Tribune. Plaintiff represents that Governor Leavitt said "he probably discussed this conversation with his staff."
The MediaNews Defendants and Deseret News Publishing dispute some of Plaintiff's representations. For the purposes of this motion, the court considers recusal based on Plaintiff's representations.
In evaluating all the facts relevant to the May 13, 2002 letter motion, the court finds as follows: I have no independent knowledge of any of the events at issue in this case. I have no bias or prejudice against or in favor of any party to this case. I am a member of The Church of Jesus Christ of Latter Day Saints. I have no personal relationship with President Monson. I have attended public meetings and public events where President Monson appeared. I do not have any financial interest in the subject matter of this case, or in a party to this case, or any other interest that could be substantially affected by its outcome.
During the time I served as a member of Governor Leavitt's staff I was aware that the Governor had a number of telephone conversations with Mr. Armstrong. To my knowledge, such conversations involved ATT's investment in Utah regarding the expansion of its cable network. I do not recall being informed of any telephone call or other communication by Mr. Armstrong to Governor Leavitt regarding a pending sale of The Salt Lake Tribune to the Deseret News. I believe that if I had been informed of such a communication I would have remembered it.
Section 455 provides as follows:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
* * *
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.28 U.S.C. § 455(a) and (b).
The standard for recusal pursuant to 28 U.S.C. § 455 is as follows.
[Defendants] rely on 28 U.S.C. § 455(a) and (b)(1) which requires a judge to disqualify himself if "his impartiality might reasonably be questioned" or if "he has a personal bias or prejudice concerning a party." The trial judge must recuse himself when there is the appearance of bias, regardless of whether there is actual bias. Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995). "The test is whether a reasonable person, knowing all the relevant facts, could harbor doubts about the judges impartiality." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). If the issue of whether § 455 requires disqualification is a close one, the judge must be recused. Nichols, 71 F.3d at 352.
On the other hand, a judge also has "as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require." Id. at 351. The recusal statue should not be construed so broadly as to become presumptive or to require recusal based on unsubstantiated suggestions of personal bias or prejudice. Seitzer v. Berry, 198 F.3d 1255, 1258 (10th Cir. 2000); see also United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) ("The statute is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice.").
Our determination in a recusal case is "extremely fact driven." Nichols, 71 F.3d at 352. . . . [C]ourts have consistently held that membership in a church does not create sufficient appearance of bias to require recusal. . . . In [Idaho v.] Freeman, for example, . . . the court reasoned that "religious beliefs or membership affiliation are presumed not to be relevant." [ 507 F. Supp. 706, 729 (D. Idaho 1981).]
Bryce v. Episcopal Church in the Diocese of Colorado, ___ F.3d ___, 2002 WL 797794 (10th Cir. April 30, 2002) (citations partially omitted).
The rule that religious affiliation is not sufficient grounds for recusal of judges has a constitutional dimension. The First Amendment to the United States Constitution guarantees free exercise of religion and prohibits religious tests as a qualification to any office, including judicial appointments. Id. art. VI, cl. 3; Freeman, 507 F. Supp. at 729. The rule is also "consistent with other associational biases cases, which have found that group membership alone is insufficient to create the appearance of bias." Bryce, 2002 WL 797792 *10. This rule is also followed in the courts of the State of Utah. See Treff v. Hinckley, 26 P.3d 212 (Utah 2001) (religious affiliation alone is not sufficient to show bias, prejudice or conflict of interest). Further, as illustrated by the court's rhetorical questions in Menora v. Illinois High School Ass., 527 F. Supp. 632, 633 (N.D. Ill. 1981), inquiry into the religious associations of judges could conceivably result in disqualification of all judges where the issue is raised.
Plaintiff's contentions regarding ownership of Deseret News Publishing is not materially different from the facts known in November 2001, when it filed its Fourth Amended Complaint seeking damages against Deseret News Publishing. Further, the contentions do not show grounds for recusal because they do not show that this judge has a financial interest in a party to the proceeding or other interest that would be substantially affected by the outcome of the proceedings.
In Nichols, supra, 71 F.3d at 351, the court set forth a nonexhaustive list of various matters not ordinarily sufficient to require § 455(a) recusal. Familiarity with or past professional or social associations with any witnesses in the circumstances of this case do not present grounds for disqualification. See, U.S. v. Alabama, 582 F. Supp. 1197, 1203-04 (N.D. Ala. 1984) (finding judge's past association with former senator who was current member of defendant's law firm an insufficient grounds for recusal). It will be the jury's, and not the court's, duty to determine the credibility of all witnesses on any issue of fact.
The court finds that no reasonable person knowing all of the relevant facts would harbor doubts about the court's impartiality in this case. Accordingly, the court will not recuse pursuant to 28 U.S.C. § 455. By this order, the court makes no determination for the purposes of 28 U.S.C. § 144. Accordingly, it is therefore
ORDERED that the letter dated and filed under seal on May 13, 2002, be UNSEALED and the letter and the May 14, 2002 response letters be filed. It is further
ORDERED that, pursuant to 28 U.S.C. § 455, the court will not recuse in this case.