This is a federal complaint filed in February 2003 against this mormon judge.
This is a complaint, per 28 U.S.C. § 372(c)(1), against Judge (Brian) Ted Stewart of the 10th District Court of Utah for “engaging in conduct prejudicial to the effective and expeditious administration of the business of the courts.” Specifically, Judge Stewart has established a pattern of acting improperly by not summarily recusing himself in two separate lawsuits when “his impartiality might be reasonably questioned.” (Which it WAS, by various independent, public sources.) Further, after effectively being petitioned to recuse in one of these suits “where he has a personal bias or prejudice concerning a party,” he refused to recuse himself. [Quotes from 28 U.S.C. §455(a) and (b)(1). See Appendices A & B.]
The crux of this complaint is that Judge Stewart, as a “Temple Mormon,” has an inherent “conflict of interest” (in layman's terms) because these two cases involve the Mormon Church and because he's bound by a secret oath he's sworn in the Mormon Temple to consecrate everything he has to The Mormon Church for building up the Church on earth and ushering in a Mormon theocracy.
Opening Statement
To wit, Judge Stewart, widely reported in Salt Lake and much of Utah to be Mormon (Exhibits 1 & 2), did not recuse himself from two recent high profile lawsuits directly involving and affecting the Mormon Church. [Yes, “courts have consistently held that membership in a church does not create sufficient appearance of bias to require recusal,” but I will show the Mormon Church is no ordinary church, and thus requires extraordinary consideration.
I will show in this complaint that “high level” membership in the Mormon Church DOES, on its face, create sufficient appearance of bias in cases involving the Church.] Considering that non-Mormons in Utah (a sizeable minority) are already suspicious and murmur about the power the Church wields there (Exhibits 3A-B; 8; 10A-C; 11; 12A-C) - and that Salt Lake is the headquarter and power base of the Church - the onus was on Judge Stewart to be extra cognizant of the public scrutiny these controversial cases would be under. He should have followed the precedent set in the early church, recorded in the Bible: “And in those days, there arose a murmuring of the Grecian Jews {a sizeable minority} against the Hebraic Jews, because their widows were neglected in the daily ministration {of food}.” To solve this problem, the early church placed Grecian Jews in charge of food distribution.
This was wise, for they not only addressed the meat problem, but also the meatier problem of murmuring, by removing all appearance of impropriety. Thus they maintained the people's trust. (Acts 6:1-5) Police departments follow this precedent today, assigning black police officers to predominately black neighborhoods to preclude charges from blacks of abuse by white officers. Likewise, Judge Stewart should have removed himself from these proceedings also, so as to avoid ANY appearance of impropriety, as required by Canon 2 in your Code of Conduct. (Appendix C) Had he done so, no one could claim “the fix is in.” But this, he did not do.
So those of us constantly vigilant must now ask, “Was it merely coincidental that Judge Stewart found in favor of his Church twice in both these suits?” Had he recused himself from the beginning, precluding my charge of prejudicial conduct, we would be spared this unpleasant inquiry. Respectfully, one has to be totally blind not to see even the appearance of impropriety here when a Mormon judge twice finds in favor of the Mormon Church. So I must now raise the ugly specter of wrongdoing.
Do two outcomes in a row favorable to one's Church merely reflect happenstance, the result of good law? Or do they reflect a sinister pattern? The fact that one decision was severely reversed on Appeal proves it can't be the former. (Docket 01-4111, Exhibit 7) As a minimum, it appears something other than the law influenced one of Judge Stewart's judgements. To those familiar with Mormonism, it's clear that Judge Stewart's “relationship” with his Church is what “influenced his judgement.” (Canon 2) This constitutes gross impropriety.
Now, “The test for appearance of impropriety” includes “knowledge of ALL the relevant circumstances that a reasonable inquiry would disclose.” (Canon 2A) When you know ALL the relevant facts about the Mormon Church - specifically, that Judge Stewart, like all high Mormons, has repeatedly sworn a secret oath in the Mormon Temple to dedicate everything with which he's been blessed (that includes his judgeship), to the Church of Jesus Christ of Latter-day Saints for the building up of the Church and establishing a Mormon theocracy - when you know this, you see that he is compromised.
The Temple oath makes it impossible for Judge Stewart to be impartial in ANY case involving his Church. His oath requires he find for his Church! [The specific oath is called the “Law of Consecration” in the Mormon Endowment Ceremony and quoted in several Affidavits from independent former Mormons. (Exhibits 4A-J) They also attest that the oath is secret, and is the same in all Mormon temples.] And it's not just this oath that biases him. There's also something in this for him.
Mormon doctrine teaches that everything Judge Stewart does for building up the Church in this life buys him a better “exaltation” (a better godhood) in the next life. (Exhibit 5A-B) In his mind, there is a de facto quid pro quo! He believes (for the purposes of law, “he knows”) he will be rewarded in the next life for helping the Church in this life! Thus he violated 28 U.S.C. §455(b) (4), which requires disqualification for “any other interest that could be substantially affected by the outcome of the proceeding.”
If Judge Stewart had been rewarded for his rulings with a deposit of U.S. dollars in a Swiss bank account, that would be blatantly criminal. Being rewarded for his rulings with a deposit of “spiritual dollars” in “The Bank of the Celestial Kingdom” is no less criminal.
In light of this knowledge, these two facts are enough to “create the perception in reasonable minds” that Judge Stewart's impartiality is severely “impaired.” (Canon 2A) But I realize a Judge has “home court advantage” and you likely require me to present a preponderance of evidence. This I will do.
Purpose
My purpose in making this complaint is threefold. First, I want Justice - as did our Founders. (U.S. Const. preamble. See Appendix D.) Second, I want the Integrity of the Judiciary upheld - for it's the last bastion of a lawful society. Neither of these will result without this last: I want Judge Stewart publicly rebuked and restrained - for his sake as well as others. Neither he, nor any Mormon, should ever again be allowed to rule on a case even remotely touching the Mormon Church or its demonstrable enemies. Your Code of Conduct desires this too.
I was pleased to read your Code of Conduct. High standards. I was particularly impressed that your Canon 2 echoes the Biblical canon that elders in the (Christian) church are to be “above reproach.” That is, men who've been entrusted with the lives of their flock (like judges, whose decisions affect millions) are to be held to a very high standard, not even giving “the appearance of impropriety.” The Biblical remedy when a man fails at this is to shame him publicly.
“Those who sin are to be rebuked publicly, so that the others may take warning. I charge you, in the sight of God and Christ Jesus and the elect angels, to keep these instructions without partiality, and to do nothing out of favoritism.” 1 Timothy 5:20
This I ask you to do. I'm not “Mormon bashing” but simply giving you “all the relevant facts” per your rules so you may make a reasonable, informed decision. This is a crucial aspect to this complaint, since much about Mormonism is not common knowledge outside of Utah. Most Americans, who only know of the Church via TV commercials, believe Mormonism is just another denomination of traditional Christianity. It is NOT! Clearly, the secret oaths taken in temples are not common knowledge nor traditional for most Americans.
Background & Discussion
The relevant cases are “Salt Lake Tribune Publishing Company, LLC vs. AT&T Broadband & The Deseret News” and “First Unitarian Church of Salt Lake City, et al. vs. Salt Lake City Corp with Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, Intervenor,” (a.k.a. “The Plaza case”), Docket numbers 2:00-CV-936ST and 2:99CV-912ST respectively. The Church is directly involved in the first by way of Deseret Management Corp (DMC), which owns Deseret News. DMC is a holding company of the Church, per their statement on the DMC website. (Exhibit 6) The Church is directly involved in the second as Intervenor. Even though the Appellate Court ruled against the Church in the Plaza case, the Church is still putting up a fight as of this writing. (Exhibit 7 & 8) That these are high-profile cases is stated in the court's own web page. (Exhibit 9) Additionally, both cases have garnered national attention (possibly worldwide) being reported in The Wall Street Journal, The Los Angeles Times, and as an AP story. The Plaza case was also covered on CNN. These articles give a fair presentation of the real issues involved, what's at stake for the Mormon Church, the public's perception of the Church and the power it wields there in Salt Lake.
The newspapers say it better than I can. On the Tribune case, from The Wall Street Journal: “But as with so many matters in Utah, the power behind the putsch - some five years in the making - was The Church of Jesus Christ of Latter-day Saints. Working secretly to avoid a public backlash, the Mormon Church wielded its clout to vanquish a publishing family that church leaders have long regarded as hostile to Mormons, according to documents freshly unsealed by a U.S. district court judge in Salt Lake City.” (Exhibit 10A) From the AP “No other publications has consistently caused as much consternation for the Mormon church as The Salt Lake Tribune, which has chronicled the religion for all but the first 24 years of the faith's history in Utah.” (Exhibit 10B) From a reporter for The Salt Lake Tribune, who had the perspective of working for The Deseret News: “Reporters there [Deseret] try to slough off that fact, but they know better.
They know that most of the meaty stories in Utah are linked somehow to the LDS Church. It may be subtle, such as how a bill gets heard and wends its way through the Legislature. And it may be less subtle, such as the genesis of the Mountain Meadows Massacre. The stories will never get told honestly by the Deseret News. Reporters are discouraged from choosing any story that criticizes the LDS church. Those who buck that system have had stories killed outright.” (Exhibit 10C)
As for the Plaza case, from the Los Angeles Times, “But it's more than a debate over civil liberties. In some ways this also is a dialogue over the soul of this city.” And note that “... ordinary residents [are] fed up with what they perceive as Mormon domination.” (Exhibit 11) In addition to these print reports, former Mormons and non-Mormons around the country also know the score, as evidenced by these exhibits. (Exhibits 12A-C) Question: When THE major newspaper in Salt Lake (The Tribune) publishes reasonable reports and Letters to the Editor claiming judicial bias, is that not sufficient to establish the appearance of impropriety, necessitating recusal?
The Church's motive in both these cases is the same: to silence dissidents. (Like the Church of Scientology's stated goal to “destroy” the “Enemy.”) The Biblical command is to win your enemies over, not silence them. The latter approach creates the suspicion that “you've got something to hide.” Given this atmosphere of distrust the Church has created, shouldn't a disinterested third party rule as Judge in these cases - as the law prescribes?
Judge Stewart admits he's a member of the Church, but insists he isn't biased. (Exhibit 13B) In the absence of knowledge about the peculiarities of Mormonism, some might argue that membership in the Church does not create sufficient appearance of bias to require recusal. But Judge Stewart is not just “any” Mormon - he is a “Temple Mormon.” (A higher degree of Mormon.) He's deemed worthy enough by his Leaders to receive a “Temple Recommend” which gives one permission to enter the Temple and participate in the Temple Ceremonies with its requisite oaths, covenants and obligations. Specifically, per the Affidavits in Exhibits 4A-J, in the “Endowment Ceremony,” he swore to keep the “Law of Consecration” - to use everything available to him to build up the Mormon Church on earth and usher in a Mormon-centric society in the future.
He would have first taken these oaths as a Mormon missionary, as all missionaries receive their Endowments before going on their mission. Later in life, he served in his ward's bishopric. (Exhibit 2) “In order to serve in the Bishopric he had to be a High Priest and have long ago received his own Endowments, and now be a regular temple attendee, as an example and part of his Ward activities,” according to Mr. Chuck Sackett, a former Temple Mormon, who could be called an “Expert” on the Church (credentials in Exhibit 4C, par. 2 - 4). It's unlikely a Mormon in Utah could be recommended to the bench without being considered “worthy” and having sworn allegiance to the Church. And since Senator Hatch, himself a Mormon, personally recommended Judge Stewart... (Exhibit 14)
Since the Ceremony is given in secret and, under solemn obligation, to be kept secret, none of these details is supposed to be known. And that brings up a subtle, but very important point of law.
Judge Stewart says in his Order Denying Recusal, “no reasonable person knowing ALL the facts would harbor doubts about the court's impartiality in this case.” (Exhibit 13F). This principle is found in Canon 2A which says “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of ALL the relevant circumstances a perception...” But we don't know ALL the facts! We can't! They're secret!
In light of the fact that we can never know ALL the facts to make an adequate assessment of Judge Stewart's partiality, we must err on the side of caution. While our criminal law assumes a person “innocent until proven guilty,” we cannot be quite so gracious when it comes to positions of power. We know that positions of power can be - and are - abused. Hence your rules on avoiding even the appearance of impropriety or bias. Without the light of full disclosure, we must “play it safe” and insist he recuse.
It's not an undue hardship to find a judge who has not taken secret oaths. There's no compelling reason why Judge Stewart had to take these cases and his insistence to remain raises suspicion. It's foundational in our country that government be transparent.
When it isn't, when we don't have all the facts, we have no real oversight and we, the people, become suspicious. This is the very scenario your Canons, Rules and the Law were meant to prevent. Therefore, Judge Stewart should have recused himself sua sponte from both these cases; was remiss for not doing so; and was doubly remiss for not recusing when petitioned by Plaintiffs in the Tribune case. Why didn't he? Shall we ask him?
With all due respect, while the Code of Conduct sets high standards, it falls short in implementing them. To wit, the concept of having a Judge (or anyone, for that matter) investigate themselves to see if they're biased is fatally flawed. On the assumption that evil men will seek positions of power for gain, and that the reason for lofty rules is to keep evil men from gain, the fatality is: only honorable men will recuse themselves! The dishonorable will not! Even if the subjective examination for impropriety is somehow truly objective, we all know how we feel when the FBI investigates itself and concludes it did nothing wrong. [It would be better to have other judges check for the appearance of impropriety when the claim is made as opposed to an “internal” introspective investigation.]
Putting “intent” aside for a moment, there's another issue, specific to these cases, about Judge Stewart deciding for himself whether he's biased or not. He may be unable, because he's trapped in a cult.
That's not meant as a pejorative, simply a statement of fact. (Exhibit 15A is a GOOGLE search for ‘Mormonism' and ‘cult' to get the pulse of the public.) Indeed, the Mormon Church meets many characteristics of a cult (Exhibit 15B). It's a distinct, monolithic organization with a clear power structure. It claims direct revelation from God. There are secret ceremonies. You are either “in” or “out” with severe spiritual and material penalties for leaving. (Ostracism, divorce, loss of employment.) And, it affects how you perceive the world in more than a few ways.
It's critical to understand this mind set because it so pervasively and subtlety affect a person's judgement when it comes to items touching his Church. First, understand the subjective nature of this dilemma. NO ONE who is in a cult knows they're in a cult. (If they knew they were in a cult, they'd get out.)
Unless one has been in a cult before, or knows someone trapped in one, it's hard to imagine how someone in a cult thinks. Probably the best example today is of the Cloning Cult - the Raelian's - who, while acknowledging that people say they are “wacko,” claim to be the most “rational of all.” Same claim from Scientologists. (Exhibits 15C-D) Judge Stewart has the freedom in this country to believe what he wants, but he does NOT have the freedom to sit on a case involving his Church.
While he may be as sincere as a Raelian, he is not a disinterested nor unbiased observer. And it's pointless to ask him if he has a conflict of interest. He'll give the same answer as the Raelian or Scientologist.
Mormonism claims divine revelation from God, complete with a “Living Prophet.” In fact, it claims to be the “One True Church” (and “all the others are wrong.”) Whether you believe their leaders speak for God or not doesn't matter - the important point is that Judge Stewart believes they do, and when his Church speaks, be it through “Prophet,” “Apostle” or “President,” (below) it's like God speaking to him. So if someone takes up a contrary position - as in a lawsuit - to what his leaders have ordained, that someone is dissenting against God. How does one escape being biased from that?
If you're not comfortable dealing with the religious aspects of my complaint, I will present yet another unique aspect to the Mormon Church - that it is, in fact, also a business. To wit, it's the largest employer in Utah. (Exhibit 16A) The Arizona Republic did a 4-day spread in 1991on the finances of this massive billion-dollar corporation. (Exhibit 16B-C) Their high-clergy automatically become Board Members in many of the Church owned companies, thus drawing a salary and benefits.
While most churches publish newsletters, this one publishes a for-profit Newspaper! While the Catholic church also is associated with money, it's not in the Life Insurance Business, Textile Industry, etc. like the Mormon Church.
Looking at it from this perspective, Judge Stewart, as a partner active in that business (he solicited new customers for two years on his mission), cannot be separate from that business. He will always have the appearance of doing what is best for the Corporation. He desires to see it grow, prosper, and “beat the competition.” Like any businessman, he desires that it squelch bad PR and dissidents, so as not to deter new customers.
It would be wrong for a judge who is a major shareholder in Microsoft to sit in a dispute between Microsoft and Netscape. Likewise, it's wrong for Judge Stewart to sit in a dispute between the Mormon Church and its rivals.
Rebutting Judge Stewart
I'm compelled to respond to four of Judge Stewart's reasons for not recusing himself on points pertaining to his membership in the Church. (Exhibit 13) First, he says he has “no personal relationship with President Monson.” (To be called as a witness.) The very fact that he addresses him by the title “President” (whereas a non-Mormon would not) speaks volumes. Mr. Monson is currently the #2 man in the Mormon Church! (Exhibit 17)
He serves their Living Prophet, which Mormons venerate like Catholics venerate the Pope. To him on the inside, he sees no conflict. To us on the outside, looking in, it's unseemly. Do you think he can he remain unbiased? Even if there's no actual bias, he must recuse when there's the appearance. 71 F.3d 347, 350 (10th Cir. 1995)
Is there not the appearance of bias here with “The President”? Second, Judge Stewart says, “I do not have any financial interest in the subject matter of this case, or any other interest that could be substantially affected by its outcome.” I'll grant the first - maybe. If, after retirement, Judge Stewart goes back into leadership in the Church (from whence he came), his salary depends on the finances of the Church. Competition from The Salt Lake Tribune might have curtailed the Church Corporation's profits. In the Plaza case, if Evangelical Christians continue their ministry there, Church membership and consequently, tithing, may also suffer. So he might suffer financially in the future if the Church loses. I've previously addressed the second issue - that of “other interests.” Anything he does now to help his Church buys him a better exaltation later. He does have an interest.
Third, with all due respect, I think Judge Stewart sets up a straw man and then grasps at straws. He cites the First Amendment and claims his right to be a Judge. NO ONE is denying his First Amendment right to be a Judge. Judge Stewart IS in fact a Judge irrespective of his religion. What we ARE saying is that he should not adjudicate any case involving his Church any more than a judge who's a Scientologist should adjudicate a case involving the Church of Scientology. Your rules anticipated occasional random juxtapositions, and, to make sure they truly are random (and not contrived) your rules require the Judge bow out.
Forth, Judge Stewart cites the Episcopal case as precedent for his action. I've already presented examples of some peculiar aspects of Mormonism that are outside the norm of most people's religious experience, upon which your previous ruling (on membership in a church not being sufficient for recusal) was based.
The Episcopal church is not at all like the Mormon Church. The Episcopal church is not monolithic, no one thinks it a cult, and it doesn't have secret ceremonies and secret oaths about ushering in a theocracy. Therefore, rulings written about the former do not summarily apply to ‘The Latter.'
In the end, Judge Stewart assesses himself and says, “The court finds that no reasonable person knowing all of the relevant facts would harbor doubts about the court's impartiality in this case.” Respectfully, this is called “poisoning the well” and demonstrates the main problem asking people to see their own biases.
CONCLUSION
I've presented a lot of information as to why I harbor GREAT doubts about Judge Stewart's impartiality in these two cases. I'm not alone. Am I to conclude that the only logical conclusion left me is that 'm “unreasonable” or don't know “all of the relevant facts”? Is there no other possibility? What do YOU think? I pray you act.
The Saint
Phoenix, Arizona