In re: MICHAEL LACEY v. United States District Court for the District of Arizona, Phoenix

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MICHAEL LACEY; JAMES
LARKIN; SCOTT SPEAR; JOHN
BRUNST; ANDREW PADILLA; JOYE
VAUGHT,
______________________________
MICHAEL LACEY; JAMES LARKIN;
SCOTT SPEAR; JOHN BRUNST;
ANDREW PADILLA; JOYE VAUGHT,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA,
PHOENIX,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
No. 20-73408
D.C. No. 2:18-cr-00422-SMB
MEMORANDUM*
Petition for Writ of Mandamus
FILED
APR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted March 3, 2021**
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior
District Judge.
Petitioners seek a writ of mandamus compelling The Honorable Susan M.
Brnovich to recuse herself from the criminal prosecution of persons associated
with a defunct website the government alleges was used as a forum for facilitating
prostitution services. The basis for recusal is the activity and comments of the
judge’s spouse, the Arizona Attorney General (AG).
In their motion for recusal, Petitioners specifically referenced the following
documents and statements attributed to the AG: (1) a Twitter “tweet” on August
19, 2020, describing a webinar scheduled for the following day; (2) a booklet
published in June of 2018 discussing human trafficking, including via social media
sites; and (3) a press release dated August 16, 2017, describing a letter sent by a
coalition of Attorneys General urging Congress to amend the Communications
Decency Act to eliminate immunity for websites promoting human trafficking, and
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
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the referenced letter. Petitioners also mentioned the AG’s “partnership” with
anti-trafficking organizations.
The district court found that these matters did not warrant recusal. The
district court deemed the motion untimely because it was filed more than 17
months after she was assigned to the case and after adverse rulings. Moreover, the
identity of the judge’s spouse, as well as the AG’s statements, had long been
matters of public record.
“Mandamus is a drastic and extraordinary remedy reserved only for really
extraordinary causes.” In re Grice, 974 F.3d 950, 954 (9th Cir. 2020) (internal
quotation marks omitted). Petitioners must show that their right to mandamus is
“clear and indisputable” and that the district court committed “clear error as a
matter of law.” Id.
As guidance in evaluating a petition for issuance of a writ of mandamus, we
consider five factors: whether (1) Petitioners have “no other adequate means, such
as a direct appeal, to attain the relief [they] desire[]”; (2) Petitioners “will be
damaged or prejudiced in a way not correctable on appeal”; (3) the “district court’s
order is clearly erroneous as a matter of law”; (4) the “order is an oft-repeated
error, or manifests a persistent disregard of the federal rules”; and (5) the “order
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raises new and important problems, or issues of law of first impression.” Bauman
v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977).
“While all the [Bauman] factors need not be present to issue the writ[,] the
absence of factor three—clear error as a matter of law—will always defeat a
petition for mandamus.” In re Swift Transportation Co. Inc., 830 F.3d 913, 916
(9th Cir. 2016) (citation and alteration omitted). Petitioners’ claim flounders on
this factor because the district court committed no clear error.1 See id.
PETITION DENIED.
1 The district court also did not abuse its discretion in striking the
declaration from a retired federal court judge who opined on the merits of recusal.
See Kaffaga v. Estate of Steinbeck, 938 F.3d 1006, 1016 n.6 (9th Cir. 2019)
(upholding exclusion of expert legal opinion).
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