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A nasty and expensive fight for control of Salt Lake City’s major daily newspaper, the Salt Lake Tribune, may be a harbinger of the unintended consequences that could flow from the “faith war” launched over appointment of federal judges. The close proximity of U.S. District Judge Ted Stewart in Salt Lake City to the Mormon Church has been the subject of two failed recusal efforts by former owners of the Tribune. Five siblings in the Catholic McCarthey family have been fighting an uphill battle to exercise a 1997 option to regain control of the Tribune. The three-way fight includes the publisher Dean Singleton of MediaNews Group Inc., buyer of the Tribune from AT&T Corp. over the family’s objections in 2001, and the Mormon Church-controlled Deseret News, the Tribune‘s chief competitor and for 50 years part of a joint operating agreement to share presses with the Tribune. Historic friction Historic friction existed between the Tribune and the Church of Jesus Christ of Latter-day Saints over the paper’s sometimes critical coverage of the church. Stewart, a Mormon who also teaches adult Sunday school classes, served as chief of staff for former Utah Governor Michael Leavitt, during a period in 1999 when the governor was briefed about the Deseret News plans to acquire the Tribune, according to papers filed by the McCartheys challenging Stewart presiding in the case. Leavitt, now secretary of Health and Human Services, has testified that he probably discussed the deal with his staff. Stewart has insisted he has no recollection of being part of the discussions, and was awaiting Senate confirmation to his federal judgeship at the time. Stewart declined comment for this article. Lawyers for the McCartheys argued in a 10th U.S. Circuit Court of Appeals effort to force Stewart to disclose personal details of his connection to the church, that the Deseret News and AT&T ultimately agreed to pursue selling the paper to Singleton because he was viewed as more sympathetic to the church. They brought in Father Robert Drinan, a former member of Congress, priest and legal ethicist who filed a 25-page affidavit saying that Stewart did not make adequate disclosures, and that his recusal is required under the Code of Conduct for U.S. Judges. Drinan said that it is the appearance of impropriety that governs judicial recusal. He said Stewart’s situation doesn’t really turn on religion; it is the link to participants in the litigation. The 10th Circuit refused to force Stewart to disclose his financial contributions to the church or dealings with church leaders-in essence submit to discovery through a mandamus proceeding. In re McCarthey, 368 F.3d 1266 (2004). “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,’ ” wrote Judge Seymour Kelly. Victor R. Marshall, a New Mexico attorney representing the McCartheys in the appeal, said, “The opinion seems to say that a judge does not have to disclose his connections to the parties and persons involved in the case, if those connections are religious. Whatever the 10th Circuit may have meant, this case will be taken as a green light by the people who want religion on the bench.” Not so, protested the lawyer for Singleton’s MediaNews Group, Kevin T. Baine, a partner at Williams & Connolly in Washington. “I think that [the recusal] is a dead letter. One thing is really clear, you’re not able to recuse a judge based on religious belief,” Baine said. Baine asked the judge two weeks ago to summarily dismiss the McCartheys’ claim that they have an option to purchase the paper and reject a challenge to the $355 million estimated value of the Tribune. Arguments will be heard in early summer on that question in MediaNews Group Inc. v. McCarthey, No. 03-CV-00176ST. An attorney for the Deseret News, David Jordan of Stoel Rives’ Salt Lake City office, did not return a call for comment. But in papers filed with the court, he argued that the option agreement expressly disavowed any separate oral agreement claimed by the McCartheys. The McCartheys’ attorney, Barney Gesas of Clyde Snow Sessions & Swenson in Salt Lake City, has not raised the recusal issue. “The McCartheys intend to press their rights in Judge Stewart’s court and still preserve their rights of appeal.”

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