Opinion
Case No. 2:00-CV-936 ST
March 17, 2003
ORDER DENYING PLAINTIFF'S RENEWED MOTION TO RECUSE
This matter is before the court on Plaintiff's Motion, Pursuant to 28 U.S.C. § 455, for Full Disclosure of Facts Relevant to Recusal and for Recusal.
Plaintiff's original Motion to Recuse was denied by the May 16, 2002, Order Denying Recusal and Ordering the May 16, 2002 Letter Unsealed (the May 16, 2002 Order). Plaintiff did not appeal that ruling or seek its reconsideration. Plaintiff contends that this renewal of its recusal motion eight months after its original motion was denied is justified because (1) it learned new information from the May 16, 2002 Order; (2) a July 2002 newspaper report confirmed its previously-asserted position on the motivation of defendant ATT for its unsuccessful attempt to sell Kearns-Tribune to Deseret News Publishing; and (3) Plaintiff believes there was an insufficient disclosure of facts by the court eight months earlier. Plaintiff further contends that it did not renew its motion earlier because it was obtaining an expert opinion on the legal question of whether recusal is required in this case and also because it believed that, in the meantime, the court was divested of jurisdiction by two interlocutory appeals in this case.
Defendants all contend that the renewed motion is not timely, that recusal is not warranted by the facts of this case and is not appropriate under the statute or case law. Defendants also oppose the use of an expert opinion on the legal question of recusal. In the event recusal is granted, Defendants strenuously disagree that prior dispositive orders should be vacated.
Plaintiff moves for recusal and additional disclosures pursuant to 28 U.S.C. § 455 (a), (b)(1), (b)(4) and (d)(4).
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;
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(4) He knows that he, individually or as a fiduciary, . . . 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 . . .
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(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.
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(d) For the purposes of this section, the following words or phrases shall have the meaning indicated:
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(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
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(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization.28 U.S.C. § 455.
As noted in its May 16, 2002 Order, the standard for recusal pursuant to 28 U.S.C. § 455 is as follows.
28 U.S.C. § 455 (a) and (b)(1) require 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 judge's 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 statute should not be construed so broadly as to become presumptive or to require recusal based on unsubstantiated suggestions of personal bias or prejudice. Seltzer 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, 289 F.3d 648, 658-59 (10th Cir. 2002) (citations partially omitted).
As an initial matter, the court turns to Defendants' objections to Plaintiff's attempt to use its expert's opinion to define the requirements of § 455 and to establish whether recusal in this case is required by § 455. See Pl.'s Ex. 1 (Aff. of Professor Robert F. Drinan, S.J.). Notwithstanding Plaintiff's attempt to constitute its expert as an ad hoc court of appeals for the May 16, 2002 Order, it is neither appropriate nor helpful to submit expert opinions on issues of law. Specht v. Jensen, 853 F.2d 805, 807 (10th Cir. 1988) (holding that attorney's expert testimony on purely legal issues was inadmissible in jury trial because "the judge is the sole arbiter of the law and its applicability."); see also Simmons Foods, Inc. v. Capital City Bank, 2003 WL 361299 (10th Cir. Feb 20, 2003) (unpublished Order finding law professor's expert report was "inadmissible" legal opinion). Because the Drinan Affidavit must be disregarded, no purpose would be served by addressing the numerous and serious inaccuracies in its factual assumptions.
Next, the court must consider the timeliness of the Renewed Motion to Recuse. Plaintiff's position is that there is no timeliness requirement for Motions to Recuse under subsection (b) of § 455. Defendants contend that this Renewed Motion is merely an untimely motion to reconsider the May 16, 2002 Order. Defendants also contend that the filing of the Renewed Motion was purposely delayed in an attempt to gain tactical advantage in the event the court ruled in favor of Defendants on any issues.
The court notes that a tremendous amount of judicial resources have been expended during the eight months between the entry of the May 16, 2002 Order and the filing of the Renewed Motion to Recuse on January 22, 2003. During that time the court decided dispositive motions, granted leave to file additional dispositive motions, and heard and decided those additional motions. The court reviewed hundreds of pages of seated memoranda and exhibits and unsealed almost every page. The court certified a question on appeal pursuant to 28 U.S.C. § 1292 (b). Trial has been set, continued and re-set. During that time Plaintiff sought and obtained hearing on its motion for an injunction. While the court denied the injunction in large part, it did enjoin for several months certain actions involving the Tribune Assets pending the then-scheduled trial.
Although Plaintiff now contends that it believed that there was no jurisdiction in the case after the certification order, it is clear from the record that this is an entirely new position never advanced until immediately after the December 12, 2002 ruling against Plaintiff on its claim for specific performance. Even then, Plaintiff delayed filing the present Motion until shortly after receiving a negative ruling on its motion to vacate a prior ruling and stay this case. Plaintiff's current position on why it delayed renewing its recusal motion is so at odds with its actions and positions before this court during the period of delay that its position cannot be deemed credible.
Further, the facts which Plaintiff now advances as reasons for recusal were known to it at the time of the earlier motion. Plaintiff's attempt to create a new fact from the spin it is putting on subsequent news stories is sheer speculation and conjecture. As such, it is not grounds for recusal under § 455. Plaintiff also contends that the court failed to make full disclosure of all relevant facts. However, upon review of the May 16, 2002 Order, the court notes that it does contain full and responsive disclosure and clearly shows there is no grounds for recusal.
Based on the entire record, the court finds that the Renewed Motion is not timely. The court finds that timeliness is a requirement for motions under all subsections of § 455, especially where, as in this case, the motion is merely seeking reconsideration of the prior May 16, 2002 Order. Otherwise, a party could, as in this case, extensively litigate before a court while knowing any purported basis for recusal and then bring forward those reasons only in the event it fails to prevail on the merits — behavior commonly known as "sandbagging." See Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (Scalia, J, concurring) ("suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error" is "sandbagging").
However, even if the Renewed Motion were timely filed, there is no basis for recusal in this case. To a large extent, it appears this Renewed Motion is merely a fishing expedition. However, in the interest of laying Plaintiff's hollow theories for recusal to rest, I will amplify as follows. I have no personal relationship with any member of the First Presidency of The Church of Jesus Christ of Latter-day Saints (The Church of Jesus Christ), or any other member of its hierarchy. Before I became a judge, I had very limited interactions with some members of The Church of Jesus Christ's hierarchy, principally arising out of my various responsibilities in state government. Since I became a judge, I have had no relationship or dealings with any member of the hierarchy of The Church of Jesus Christ, including the First Presidency. I can say with complete confidence that if I were to pass the members of the First Presidency on the street, or meet them in a public place, they would not know or recognize me.
As a member, I do make voluntary financial contributions to The Church of Jesus Christ. In light of the amount of such contributions compared to the total of such contributions worldwide and the relationship of the parties to this case to the entity that I contribute to, no reasonable person could believe that any outcome of this case would in any way affect me personally, financially or in any other way.
I hold no position of leadership in The Church of Jesus Christ. I do teach an adult Sunday School class, and from time to time, a class of youth.
Regarding the purported conversation between Governor Leavitt and Michael Armstrong about the possibility of ATT selling the Tribune to the Desert News Publishing Company, a conversation that apparently took place sometime in mid or late October 1999 when I was Chief of Staff, as I stated before, I am confident that if the contents of such conversation had been passed on to me by the Governor, or anyone else, that I would have remembered it. The contemplated transaction of a sale of one of the two major daily papers to the other is not something that I, or any reasonable person, would have forgotten, had its possibility been conveyed to me. I never saw or heard about any form of a notice, press release or memorandum conveying such information during the time I was in state government.
Plaintiff has not shown that the information from the conversation was ever recounted by the Governor to any member of his staff. However, even if it had been, it was not conveyed to me, probably for the following reason — my nomination as a federal district court judge was approved by the Senate Judiciary Committee in late July 1999. Believing that events could then take place quickly, Governor Leavitt took immediate steps to name my successor.
My confirmation vote then took place on October 5, 1999. Expecting the Commission to be signed within days, the Governor introduced my successor to the staff and the public the very next day. My successor began to function immediately. I bade farewell to staff and members of the Governor's cabinet over the next couple of days. In addition to completing my work in state government, I also began the process of moving to the bench and setting up chambers. This continued for much of the month of October until my Commission was signed on Thursday, November 11, 1999. I was sworn in as a judge on Monday, November 15, 1999.
In the interim, although I was still technically the Chief of Staff to the Governor, my successor was also functioning in the role. We shared responsibilities for that period. Although I was still present in the Governor's Office, I represented the past. From October 6, 1999, forward, my successor was the future. It is possible that the Governor did share the content of a conversation about a proposed purchase of the newspaper with my successor, but I am confident that he did not share it with me.
Further, the information about the potential, but ultimately unconsummated, sale to Desert News Publishing is not a disputed fact in this case. Having had no contemporaneous knowledge of the possibility of the sale, much less of its motivation, it is not possible that I could ever be a witness to the same.
Because I have no personal involvement with Deseret News Publishing or those who direct its affairs and no personal knowledge of any of the facts of this case, disputed or otherwise, this case is not at all similar to the cases relied upon Plaintiff. In Lijeberg v. Health Servs. Acquisition, 486 U.S. 847, 870 (1988), the trial judge was also a trustee, and therefore a fiduciary within the meaning of § 455, of a university that had an interest in a case he was trying. He failed to remember this connection, and then, when he was reminded by events, failed to disclose his involvement as a fiduciary for the university. In this case, there is no such connection.
As I noted in the May 16, 2002 Order, I am a member of a church that, through several entities, has ownership interest in Deseret News Publishing — facts known to Plaintiff from the beginning of my work on the case. Such religious, associational or "group membership alone is insufficient to create the appearance of bias." Bryce, 289 F.3d at 659. See also Lunde v. Helms, 29 F.3d 367, 370-71 (8th Cir. 1994) (judge did not have "financial interest" in university because he made voluntary contributions to its law school).
Plaintiff attempts to distinguish Bryce, Lunde, and similar cases by arguing that this case does not involve membership alone, but that there is something more. However, other than speculation and conjecture, it has not shown what that something more could be. It is not personal knowledge of the facts, disputed or otherwise. It is not having, personally or as a fiduciary, any financial interest that could be substantially affected by the outcome. It is not any other interest that could be substantially affected by the outcome. in short, there is nothing more.
Plaintiff apparently has confused a commonly used term "active member" of The Church of Jesus Christ, roughly meaning a practicing member, with the term "or other active participant in the affairs of a party" as used in the definition found at § 455(d)(4). The terms are not comparable. "Active participant" in the context of the definition found at § 455(d)(4) is a catchall phrase meant to identify any directing, guiding, or advising role "in the affairs" of an entity of a type similar to those roles listed in the same sentence. The interpretation of "active participant" urged by Plaintiff would make recusal dependent upon the degree of a judge's participation in his or her religion's formal practices, disqualifying for example judges who are practicing Catholics, and therefore "active participants" in the "affairs of" their church under Plaintiff's interpretation, but not those who are not practicing Catholics. This would come perilously close to imposing a religious test as a qualification for office — an evil wisely prohibited by the Founders of this nation. U.S. Const. art VI.; see also Feminist Women's Health Center v. Codispoti, 69 F.3d 399 (9th Cir. 1995) ("either religious belief disqualifies or it does not" — attempted distinction based on fervency of beliefs is not workable for recusal purposes).
Having considered all matters filed in connection with this Motion, and having reviewed the entire record of this case, the court finds that this Renewed Motion is wholly without merit. Therefore, there is no reason for the court or the parties to expend further time and effort in a hearing. Accordingly, the court will deny Plaintiff's request for a hearing.
Finally, Plaintiff continues to make much of the fact that the court unsealed Plaintiff's May 13, 2002 letter inquiring about grounds for recusal, disclosed that there were no grounds and so ruled. The court recognizes that lawyers do have a right, in fact an obligation, to their client to inquire of a court's ability to be fair and impartial if they have a reasonable basis for questioning a judge's impartiality. McDraw, Inc. v. The CIT Group Equipment Financing, Inc., 994 F. Supp. 47, 459 (S.D. N.Y. 1997). aff'd, 138 F.3d 33 (2nd Cir. 1998). Questioning a judge's impartiality without a good faith basis and doing so in an undignified and disrespectful manner is inconsistent with a lawyers professional responsibility. Id.
The manner in which Plaintiff originally raised its questions, coupled with this meritless renewal after eight months and several adverse rulings raises questions about its good faith. A brief history of how the matter was initially raised with the court illustrates the point: The matter of recusal was first raised with the court when a letter was hand-delivered to chambers late in the afternoon of Monday, May 13, 2002. The letter was designated "Filed Under Seal."
I was not in chambers when the letter was delivered, nor was I in chambers the next day. Accordingly, the contents of the letter were not known to me. I did not know of the existence of the letter, or of the letter's contents, until chambers staff called me mid-afternoon on Tuesday, May 14, 2002, to inform me that one of Plaintiff's reporters had called chambers to ask if I wished to comment on the supposedly sealed letter. At my request, the letter was opened and read to me over the telephone.
This telephone conversation with staff came upon the heels of a report from my next-door neighbor that one of Plaintiff's reporters had visited with her that same afternoon and was inquiring as to my church affiliation and activity, what type of neighbor I was, what type of father I was, etc.
The Salt Lake Tribune, then managed exclusively by Plaintiff, ran a story on the sealed letter Wednesday morning, May 15, 2002, before I had personally even seen the purportedly sealed document.
This series of events, although not noted by the court in its May 16, 2002 Order, did then, and again now, raise serious questions about whether Plaintiff has raised the recusal issue in good faith, or merely in an effort to undermine the court and overturn its rulings as part of a rather clumsy attempt to shop for a more favorable judge. This skepticism of Plaintiff's motive created by the manner in which the matter was initially raised is enhanced, as noted above, by the disingenuous representations made in this latest filing, and by its meritlessness and timing. It is therefore
ORDERED that Plaintiff's Renewed Motion to Recuse is DENIED.