In re: McCarthey v.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 26 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT

In re:

PHILIP G. MCCARTHEY;
THOMAS K. MCCARTHEY;
SARAH J. MCCARTHEY;
SHAUN P. MCCARTHEY; No. 03-4269
MAUREEN P. MCCARTHEY,

Petitioners.
______________________________

KEARNS-TRIBUNE, LLC;
MEDIANEWS GROUP, INC.;
KEARNS-TRIBUNE CORP.,

Real Parties in Interest.

ON PETITION FOR A WRIT OF MANDAMUS
AND A WRIT OF PROHIBITION

Victor R. Marshall and Cindi L. Pearlman, Victor R. Marshall & Associates, P.C.,
Albuquerque, New Mexico, and Jean E. Dubofsky, Jean E. Dubofsky, P.C.,
Boulder, Colorado, and E. Barney Gesas, Clyde, Snow, Sessions & Swenson, Salt
Lake City, Utah, for Petitioners.

James S. Jardine and Allan T. Brinkerhoff, Ray, Quinney & Nebeker, Salt Lake
City, Utah, and Kevin T. Baine, Paul B. Gaffney and Suzanne H. Woods,
Williams & Connolly LLP, Washington, D.C., for Real Parties in Interest.
Before SEYMOUR , KELLY , and BRISCOE , Circuit Judges.

KELLY, Circuit Judge.

This matter arises out a continuing fight over the ownership and control of

The Salt Lake Tribune . See Salt Lake Tribune Publ’g Co. v. AT & T Corp. , 320

F.3d 1081, 1084-85 (10th Cir. 2003). In response to Petitioners’ requests, the

presiding judge, United States District Judge Ted Stewart, made various

disclosures and repeatedly declined to recuse. Petitioners now seek a writ of

mandamus to compel the district judge to fully disclose all facts about (1) his

financial contributions to the Church of Jesus Christ of Latter Day Saints (“the

Mormon Church”), any duty he may have as a member of the Church to uphold

the decisions of its Prophet and First Presidency, and any opinions he may have

formed about their credibility; (2) his past dealings with Mormon Church leaders,

authorities and officials, including all members of the First Presidency; (3)

information he may have garnered about Deseret News Publishing Company’s

desire to purchase The Salt Lake Tribune between July and October 1999, while

Judge Stewart was serving as Utah Governor Leavitt’s chief of staff, and any

opinions he may have formed about the issue; and (4) any other matters that the

parties might consider relevant to the issue of recusal under 28 U.S.C. §§ 144 and

455. They also request a writ of prohibition directing Judge Stewart to take no

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further action in the Kearns-Tribune case 1 until complete disclosures have been

made in the record and petitioners have been given a reasonable time to consider

whether to move for recusal. Because Petitioners have not satisfied their burden

to show the right to additional disclosure is clear and indisputable, we deny a writ

of mandamus and a writ of prohibition.

Mandamus is an extraordinary remedy, which will issue only upon a

showing (1) that petitioner has a “clear right to the relief sought,” (2) that the

respondent has “a plainly defined and peremptory duty . . . to do the action in

question,” and (3) that “no other adequate remedy [is] available.” Johnson v.

Rogers , 917 F.2d 1283, 1285 (10th Cir. 1990); Nichols v. Alley , 71 F.3d 347, 350

(10th Cir. 1995). The petitioner seeking the issuance of a writ of mandamus bears

the burden of showing that his or her right to the writ is “clear and indisputable.”

Id. The standards for reviewing petitions for writs of prohibition are similar

to the standards for reviewing petitions for writs of mandamus. See Univ. of Tex.

v. Vratil , 96 F.3d 1337, 1339 (10th Cir. 1996).

1
According to the district court docket sheet in the case underlying this
petition, Kearns-Tribune Corp. v. Philip McCarthey , No. 2:03cv-00176, was
originally assigned to another judge. At MediaNews’s request and over
Petitioners’ objection, Judge Stewart transferred the case to himself and closed it,
and all filing is now made through the lead case, Salt Lake Tribune Publishing
Co. v. AT&T Corp. , No. 2:00cv00936. Petitioners have clarified that they seek a
writ of prohibition only in the Kearns-Tribune case.

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 Judge Stewart has disclosed on the record that he has no independent

knowledge of any of the events at issue in this case arising from his service in

Utah state government or from anything else. He also disclosed that, although he

voluntarily contributes to his church, he has no present or contingent financial

interest in a party to, or the outcome of, this litigation. He has no leadership

position in his church. Finally, he has told the parties that he has no bias or

prejudice in favor of or against any party involved in this litigation.

Petitioners have not presented information to the contrary; the record facts

simply demonstrate no personal bias or prejudice, nor would a reasonable person

knowing these facts harbor doubts about the judge’s impartiality. Judge Stewart

has addressed Petitioners’ concerns regarding actual bias, extrajudicial knowledge

of events and persons, and participation in the affairs of a stakeholder.

Dissatisfied with his answers, Petitioners’ now seek disclosure (essentially,

discovery) to supply the factual basis for disqualification. Federal judges already

provide detailed financial disclosures and we decline to craft a procedure that

essentially will require district judges to submit to discovery (albeit in the form of

mandamus directing disclosure) when a party lacks an adequate factual basis for

disqualification on non-financial matters.

Disqualification under 28 U.S.C. § 144 places a substantial burden on the

moving party to demonstrate that the judge is not impartial, not a burden on the

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judge to prove that he is impartial. United States v. Burger, 964 F.2d 1065, 1070

(10th Cir. 1992). The affidavit of personal bias and prejudice need be timely,

sufficient, and accompanied by a certificate of good faith of counsel. 28 U.S.C.

§ 144. Section 144 provides no basis for what amounts to granting the

Petitioners’ request for discovery from the district judge. See Cheeves v. S.

Clays, Inc., 797 F. Supp. 1570, 1582 (M.D. Ga. 1992) (“Either the alleged bias

has already been manifested in some way within the knowledge, information or

belief of the party-affiant, or the effort to depose the judge would be a classic

fishing expedition.”).

28 U.S.C. § 455(a) provides no authority either. Under § 455(c), the

presiding judge must “inform himself about his personal and fiduciary financial

interests.” (emphasis added). That duty continues throughout the litigation.

United States v. Greenspan , 26 F.3d 1001, 1005-06 (10th Cir. 1994). The statute

thus places the judge under a self-enforcing obligation to recuse himself where

the proper legal grounds exist. Liljeberg v. Health Servs. Acquisition Corp., 486

U.S. 847, 867-68 (1988); Davis v. Bd. of Sch. Comm’rs, 517 F.2d 1044, 1051 (5th

Cir. 1975). A judge must make disclosure on the record of circumstances that

may give rise to a reasonable question about his impartiality, see Liljeberg, 486

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U.S. at 866, 868, but we conclude that responsibility has been satisfied in this

case given Judge Stewart’s responses to Petitioners requests. 2

Section 455 contains an objective standard: disqualification is appropriate

only where the reasonable person, were he to know all the circumstances, would

harbor doubts about the judge’s impartiality. Nichols, 71 F.3d at 351. There must

be a reasonable factual basis to question the judge’s impartiality. United States v.

Cooley, 1 F.3d 985, 993 (10th Cir. 1993). The scope of inquiry is limited to

outward manifestations and reasonable inferences drawn therefrom. Id. Section

455 does not require recusal based only on assumptions about a judge’s beliefs

that are not substantiated by the facts of record. See Nichols , 71 F.3d at 351;

Bryce v. Episcopal Church , 289 F.3d 648, 659-60 (10th Cir. 2002).

Section 455 does not provide for discovery, and no case we have reviewed

has endorsed such a procedure. There are sound policy reasons for not requiring

a district judge to be a target of discovery. First, a judge cannot testify as a

witness in a trial over which he presides. Fed. R. Evid. 605. Had Petitioners

truly been interested in following their suspicions, there are several avenues other

than obtaining discovery from the presiding judge, e.g., discovery from Governor

Leavitt, AT&T, or church officials. Absent some colorable factual basis,

2
The Real Parties in Interest argue that it is too late for Petitioners to
challenge any shortcomings in Judge Stewart’s disclosures. We decline to resolve
the matter on those grounds.

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discovery may not be ordered simply because Petitioners do not believe the

presiding judge. See United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir.

1992). As one court has noted in granting a motion to quash a subpoena to take

discovery from a presiding judge:

Embroiling the presiding judge in the adversarial processes of any
case is not only unseemly, it is calculated to give rise at the least to a
resulting appearance of bias against the aggressor litigant
although . . . that species of boot strap bias cannot be recognized, as
a matter of law, as a disqualifying circumstance. To do so would
simply invite manipulated harassment by any lawyer unscrupulous
enough to willingly embark on a course of conduct designed to
disqualify an otherwise impartial judge whose views are thought to
be adverse to the interests of the client. Such a tactic would, at
worst, cause an unjustified voluntary disqualification of the presiding
judge or, at least, cause endless delay in the litigation while those
maneuvers are in process.

Cheeves, 797 F. Supp. at 1582-83.

Finally, we note that merely because Judge Stewart belongs to and

contributes to the Mormon Church would never be enough to disqualify him.

Bryce, 289 F.3d at 660 (“[C]ourts have consistently held that membership in a

church does not create sufficient appearance of bias to require recusal.”); Singer

v. Waldman, 745 F.2d 606, 608 (10th Cir. 1984) (refusing to disqualify judge,

who was a Mormon, when plaintiff claimed that the case was “a challenge to the

theocratic power structure of Utah”).

Religious freedom is one of the Constitution’s most closely guarded values.

Torcaso v. Watkins, 367 U.S. 488, 491-92 (1961). The First Amendment

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prohibits congressional action respecting an establishment of religion, or

prohibiting its free exercise. Article VI, clause 3, provides that all governmental

officers be bound by an oath to support the Constitution, and that “no religious

Test shall ever be required as a Qualification to any Office or public Trust under

the United States.” Should we require federal judges to disclose the firmness of

their beliefs in religious doctrine, it is a very fine line before we enter the

“business of evaluating the relative merits of differing religious claims.” United

States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring); see also

Feminist Women’s Health Ctr. v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995).

The petition for a writ of mandamus and for a writ of prohibition is

DENIED.

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