Re Inquiry of a Judge

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 19
IN THE
SUPREME COURT OF THE STATE OF UTAH
In re INQUIRY OF A JUDGE:
THE HONORABLE JUDGE MICHAEL KWAN
No. 20171041
Filed May 22, 2019
Original Proceeding in this Court
Attorneys:
Alex G. Peterson, Salt Lake City, for Judicial Conduct Commission
Gregory G. Skordas, Salt Lake City, for Judge Michael Kwan
JUSTICE PEARCE authored the opinion of the Court, in which
JUSTICE PETERSEN, JUDGE POHLMAN, JUDGE HARRIS,
and JUDGE HAGEN joined.
Having recused themselves, CHIEF JUSTICE DURRANT,
ASSOCIATE CHIEF JUSTICE LEE, and JUSTICE HIMONAS
do not participate herein.
COURT OF APPEALS JUDGES JILL M. POHLMAN, RYAN M. HARRIS,
and DIANA HAGEN sat.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 This judicial discipline proceeding requires us to decide the
appropriate sanction for a judge who has engaged in repeated
misconduct. Judge Michael Kwan acknowledges that he violated the
Utah Code of Judicial Conduct when he made seemingly shirty and
politically charged comments to a defendant in his courtroom. Judge
Kwan similarly admits that he violated the code of conduct when he
lost his temper with a member of the court’s staff and improperly
used his judicial authority to seek that individual’s removal from the
premises. Moreover, in response to questions at oral argument,
Judge Kwan conceded that an online post critical of then-presidential
candidate Donald Trump also violated the code of conduct. But
In re INQUIRY OF A JUDGE
Opinion of the Court
Judge Kwan argues that the six-month suspension the Judicial
Conduct Commission (JCC) recommends is inappropriate. He claims
that sanction rests, in part, on an unlawful attempt to regulate his
constitutionally protected speech, and he asserts that a less severe
penalty is all that is warranted.
¶2 Judge Kwan raises important First Amendment questions,
but he fails to address our case law holding that a judicial
disciplinary proceeding is an improper venue to press those
constitutional claims. Bound by our precedent, we therefore do not
address the constitutional questions, and we limit our consideration
to that portion of Judge Kwan’s online speech that he concedes we
can permissibly sanction. That statement, coupled with the other
misconduct before us, as well as Judge Kwan’s history of prior
discipline, convinces us that a six-month suspension without pay is
the appropriate sanction.
BACKGROUND
History of Misconduct
¶3 Judge Kwan has served as a justice court judge for the City of
Taylorsville for the past two decades. On multiple occasions, the JCC
has reviewed allegations that Judge Kwan violated various
provisions of the Utah Code of Judicial Conduct. As a result of the
JCC’s investigations into those allegations, Judge Kwan has received
two letters of education from the JCC and two public reprimands
from this court. The Utah State Bar Ethics Advisory Opinion
Committee has also issued two opinions relating to Judge Kwan—
one not expressly naming him but directed to his conduct, and
another issued in response to his questions regarding, among other
things, rules limiting judicial commentary on statements made by a
candidate for political office. See Utah State Bar Ethics Advisory
Committee, Informal Opinion 16-02 (2016); Utah State Bar Ethics
Advisory Committee, Informal Opinion 15–01 (2015).
¶4 This guidance has been animated by two general concerns
regarding Judge Kwan’s behavior: his improper use of judicial
authority and his inappropriate political commentary. The JCC’s
letters of education addressed Judge Kwan’s abuse of judicial
authority, which manifested in improperly revoking probation,
imposing jail in absentia, and ordering excessive bail. The letters
were issued in response to complaints the presiding judge of the
Taylorsville Justice Court lodged against Judge Kwan. The
complaints followed multiple letters from the presiding judge to
Judge Kwan, raising concerns about the manner in which he handled
his cases. And in its communications, the JCC advised Judge Kwan
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of its concerns that he had issued several warrants with excessive
bail amounts and had not followed Utah law when revoking
probation.
¶5 Our first public reprimand addressed Judge Kwan’s crass in-
court reference to sexual conduct and a former president of the
United States. During the underlying proceeding before the JCC
concerning that comment, Judge Kwan acknowledged that the Utah
Code of Judicial Conduct requires judges to be patient, dignified,
and courteous to those with whom the judge deals in an official
capacity. See UTAH CODE JUD. CONDUCT R. 2.8(B). He also
acknowledged that his comments violated that requirement and
constituted conduct prejudicial to the administration of justice.
¶6 Our second public reprimand addressed political activities
associated with Judge Kwan’s service as president of a nonprofit
organization. The organization took public positions on a range of
issues, criticized candidates for political office, and posted articles
and press releases online that included Judge Kwan’s name and
judicial title.
¶7 During the underlying proceeding before the JCC regarding
that conduct, Judge Kwan again acknowledged that he had engaged
in conduct prejudicial to the administration of justice and had
violated several rules of the Utah Code of Judicial Conduct. Among
those rules were rule 1.2, which provides that “[a] judge . . . shall not
undermine . . . public confidence in the independence, integrity, and
impartiality of the judiciary and shall avoid impropriety and the
appearance of impropriety,” UTAH CODE JUDICIAL CONDUCT R. 1.2,
and Canon 4, which provides that “a judge . . . shall not engage in
political . . . activity that is inconsistent with the independence,
integrity, or impartiality of the judiciary,” id. Canon 4.
¶8 During that same JCC proceeding, Judge Kwan
acknowledged receiving guidance from the Utah State Bar Ethics
Advisory Opinion Committee on these issues. That committee issued
two informal opinions addressing Judge Kwan’s service as president
of the nonprofit organization. The first opinion addressed “whether
a full-time justice court judge may ethically serve as the national
president of an organization dedicated to advancing the social,
political, and economic well-being of a specific ethnic group.” Utah
State Bar Ethics Advisory Committee, Informal Opinion 15–01 at 1
(2015). Concluding that a judge may not, the opinion cited several
principles regarding judicial service, including the obligation to not
undermine public confidence in the independence and impartiality
of the judiciary. Id. at 4–5. The opinion tied that obligation directly to
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Utah Code of Judicial Conduct Rule 4.1(A)(3), which provides that a
judge shall not publicly endorse or oppose a candidate for any public
office. Id. at 4. The opinion then expressly advised that “[a] judge
may not make any public statements that can be viewed as opposing
or supporting a political candidate.” Id. at 5.
¶9 The second informal opinion addressed the same topic,
responding to questions Judge Kwan posed. Utah State Bar Ethics
Advisory Committee, Informal Opinion 16-02 (2016). Among other
things, Judge Kwan asked whether a judge may “criticize or
commend statements made by a candidate for political office” if the
judge does not “endorse[] or oppose[] the candidate.” Id. at 1. The
opinion reiterated that a judge is obligated to “uphold the integrity
of the judiciary” and refrain from engaging in activities that would
“undermine public confidence” in its independence and impartiality.
Id. at 3. The opinion then responded that “[w]hen an individual is
running for public office, a judge’s public comments either praising
or criticizing that individual can be reasonably viewed as support or
opposition.” Id. The opinion thus concluded, in response to the
question noted above, that “a judge’s comments commending or
criticizing a political candidate . . . can reasonably be viewed as
endorsing or opposing the candidate.” Id. at 4.
Current Allegations
¶10 After the Utah State Bar issued these opinions, and shortly
after we handed down our second public reprimand, the JCC began
investigating additional potential misconduct. Specifically, the JCC
investigated allegations that Judge Kwan: (1) made political
statements in court, (2) handled a dispute with court personnel
inappropriately, and (3) posted political comments online. During
the investigation, Judge Kwan conceded that he had engaged in the
behavior underlying the allegations.
In-Court Political Statements
¶11 In January 2017, while presiding over a hearing, Judge
Kwan launched into an exchange with a defendant that appeared to
demean the defendant and included political commentary regarding
President Trump’s immigration and tax policies:
Judge: So, what happened with your fine payments?
Defendant: So, I, just, live paycheck to paycheck . . . .
Judge: Ok. So, when you set up the pay plan you were
hoping you would have the money and it didn’t pan
out that way?
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Defendant: And I did not call, but I plan on when I get
my taxes to just pay off all my court fines, because I
cannot end up in jail again for not complying.
Judge: You do realize that we have a new president,
and you think we are getting any money back?
Defendant: I hope.
Judge: You hope?
Defendant: I pray and I cross my fingers.
Judge: Ok. Prayer might be the answer. ‘Cause, he just
signed an order to start building the wall and he has no
money to do that, and so if you think you are going to
get taxes back this year, uh-yeah, maybe, maybe not.
But don’t worry[,] there is a tax cut for the wealthy so if
you make over $500,000 you’re getting a tax cut. You’re
right[] there[,] right? Pretty close? All[]right, so do you
have a plan? Other than just get the tax cut and pay it
off? 1
Dispute with Court Personnel
¶12 In February 2017, Judge Kwan learned that an
administrative staff member had been promoted without his
involvement. In response, Judge Kwan confronted the Clerk of Court
in a manner that multiple witnesses described as “angry” and
“screaming.” A short time later, Judge Kwan submitted a written
notice for disciplinary action with respect to the Clerk of Court,
threatened to put her on unpaid suspension pending termination,
and directed her to be escorted from the premises via an email
understood by its recipients to be a judicial order—in part because
the email included a signature block indicating that it was a judicial
order.2
_____________________________________________________________
1 Judge Kwan contends that this was intended to be funny, not
rude. It is an immutable and universal rule that judges are not as
funny as they think they are. If someone laughs at a judge’s joke,
there is a decent chance that the laughter was dictated by the
courtroom’s power dynamic and not by a genuine belief that the joke
was funny.
2 Judge Kwan testified before the JCC that the signature block
was unintentionally included in the email. The JCC did not find that
assertion credible based upon “Judge Kwan’s Stipulation, [his]
(continued . . .)
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Online Political Comments
¶13 During 2016, Judge Kwan repeatedly posted comments and
shared articles on his Facebook and LinkedIn accounts regarding
then-presidential candidate Donald Trump. 3 Judge Kwan continued
to post comments and articles regarding Donald Trump following
the presidential election. Over that same period, between mid-2016
and early 2017, Judge Kwan posted comments or shared articles on
several other topics including immigration, gun violence, and voter
participation.
¶14 On November 8, 2016, for example, Judge Kwan wrote a
lengthy post on voter participation, which opened, “Dear Generation
X and Millennial Voters, So many people have tried to convince you
of the importance of your participation in this year’s election. . . . Let
me join in the effort . . . by giving you the cold, hard truth: You have
to vote to stop your elders from screwing up your future!” Judge
Kwan continued, “What kind of future do you want? Want help
with your student loan debt? Want affordable tuition? Affordable
health insurance? . . . Grab a friend and Go Vote.”
¶15 With respect to Donald Trump, Judge Kwan’s postings
were laden with blunt, and sometimes indelicate, criticism. In July
2016, for example, Judge Kwan posted an article entitled “Ghazala
Khan: Trump criticized my silence. He knows nothing about true
sacrifice.” Above the article’s headline, Judge Kwan added,
“Checkmate.”
¶16 On September 26, 2016, the night of the first presidential
debate between candidates Donald Trump and Hillary Clinton,
Judge Kwan wrote:
answers during his testimony, and [his] demeanor during
testimony.” Judge Kwan has not challenged this finding, and we see
no reason to disagree with it.
3 Judge Kwan’s Facebook account was “private,” but Judge Kwan
does not assert that this exempts those comments from regulation
under the Utah Code of Judicial Conduct. In addition, Judge Kwan
has not elaborated on the “limited number of friends” allegedly
given access to his Facebook account or suggested that those
individuals would not share his comments or postings more widely.
Instead, Judge Kwan has acknowledged that “his posts [might] be
reposted by his friends.”
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Opinion of the Court
Contradictory: person who got rich by not paying
people for their work but complains about NATO not
paying their fair share.
Food for thought: If a person tries to show their ties to
a community by talking about their investments and
properties and not about the people of the
community, it speaks to that person’s priorities.
Quick question: Is the fact that the IRS has audited
you almost every year when your peers hardly ever
or never have been, something to be proud of? What
does that say . . . about your business practices?
Wish she said: “Donald, I’m used to having a man
interrupt and dismiss me when I speak because
egotistical men hav[e] been trying to do that to me for
my entire career.”
¶17 On November 11, 2016, three days after the presidential
election, Judge Kwan remarked, “Think I’ll go to the shelter to adopt
a cat before the President-Elect grabs them all . . . .”
¶18 On January 20, 2017, the day President Trump was
inaugurated, Judge Kwan commented, “Welcome to governing. Will
you dig your heels in and spend the next four years undermining
our country’s reputation and standing in the world? . . . Will you
continue to demonstrate your inability to govern and political
incompetence?”
¶19 On February 13, 2017, Judge Kwan posted, “Welcome to
the beginning of the fascist takeover.” He continued, “[W]e need to
. . . be diligent in questioning Congressional Republicans if they are
going to be the American Reichstag and refuse to stand up for the
Constitution, refuse to uphold their oath of office and enable the
tyrants to consolidate their power.”
¶20 Again, these are illustrative examples—not a
comprehensive recitation—of the comments and articles shared
online by Judge Kwan that referenced Donald Trump and a range of
other topics between mid-2016 and early 2017.
Proceeding Before the JCC
¶21 The JCC brought formal charges against Judge Kwan,
alleging that his conduct was “prejudicial to the administration of
justice.” See UTAH CONST. art. VIII, § 13 (authorizing the sanction of
judicial “conduct prejudicial to the administration of justice which
brings a judicial office into disrepute”). The JCC also alleged that
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Judge Kwan’s conduct violated various provisions of the Utah Code
of Judicial Conduct.
¶22 In particular, the JCC alleged that Judge Kwan’s in-court
political statements violated rules 1.2, 2.8, and 4.1. See UTAH CODE
JUD. CONDUCT R. 1.2 (2017) (“A judge . . . shall not undermine . . .
public confidence in the independence, integrity, and impartiality of
the judiciary and shall avoid impropriety and the appearance of
impropriety.”); id. 2.8(B) (“A judge shall be patient, dignified, and
courteous to litigants, . . . court staff, . . . and others with whom the
judge deals in an official capacity . . . .”); id. 4.1(A)(10) (“Except as
permitted in this Canon, a judge . . . shall not . . . make any statement
that would reasonably be expected to affect the outcome or impair
the fairness of a matter pending or impending in any court . . . .”).
¶23 With respect to the dispute with court personnel, the JCC
alleged that Judge Kwan violated rules 1.1, 1.3, and 2.8. See id. 1.1
(“A judge shall comply with the law.”); id. 1.3 (“A judge shall not
abuse the prestige of judicial office to advance the personal or
economic interests of the judge . . . .”); id. 2.8(B).
¶24 And based on the online postings, the JCC alleged that
Judge Kwan violated rules 1.2, 3.1, 4.1(A)(3), and 4.1(A)(10). See id.
1.2; id. 3.1 (“[W]hen engaging in extrajudicial activities, a judge shall
not: (A) participate in activities that will interfere with the proper
performance of the judge’s judicial duties; (B) participate in activities
that will lead to unreasonably frequent disqualification of the judge;
[or] (C) participate in activities that would appear to a reasonable
person to undermine the judge’s independence, integrity, or
impartiality . . . .”); id. 4.1(A)(3) (“Except as permitted in this Canon,
a judge . . . shall not . . . publicly endorse or oppose a candidate for
any public office . . . .”); id. 4.1(A)(10).
¶25 As noted above, Judge Kwan acknowledged engaging in
the conduct, and he also conceded that some of that conduct violated
the Utah Code of Judicial Conduct. He characterized his in-court
political statements as an inappropriate attempt at humor, and he
admitted that the statements violated rules 1.2 and 2.8. Similarly,
regarding his dispute with court personnel, Judge Kwan noted that
his conduct was improper and agreed that it violated rule 2.8.
¶26 But with respect to his online political commentary, Judge
Kwan raised a constitutional challenge. He asserted that, under the
First Amendment, his “comments on social media about elected
officials’ policies and social and political issues” were
“constitutionally protected speech.” Judge Kwan claimed that
restrictions on social commentary or political dialogue “must survive
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a strict scrutiny analysis, i.e., [the restrictions] must be narrowly
tailored to achieve a compelling state interest.” Under that standard,
Judge Kwan argued that the JCC could not constitutionally regulate
speech addressing social or political issues or “public officials in
general,” but only speech addressing “candidates for public office,”
if that speech “expressly criticizes or praises [the] individual political
candidate.”
¶27 In Judge Kwan’s view, his statements leading up to the
presidential election were largely “social commentary or humor.” He
asserted that while some of those statements could be “construed” as
applying to then-presidential candidate Donald Trump, none were
“expressly” critical of him. On that basis, Judge Kwan argued that
sanctioning him for those statements would violate his First
Amendment rights.
¶28 Judge Kwan characterized his post-election statements as
“more direct, critical, and strident” with respect to Donald Trump,
but contended those comments did not address a candidate for office
and were “synonymous with [Judge Kwan’s] views on issues such as
racism, civil rights, the plight of refugees, and constitutional limits
on the executive branch.” Thus, he claimed, his post-election
statements were also “protected under the First Amendment.”
¶29 Following a hearing, the JCC entered findings of fact and
conclusions of law and determined that Judge Kwan’s conduct was
prejudicial to the administration of justice. In addition, the JCC
concluded that Judge Kwan’s in-court political statements violated
Utah Code of Judicial Conduct Rules 1.2, 2.8, and 4.1(A)(10); his
conduct stemming from the dispute with court personnel violated
rules 1.3 and 2.8; and his online postings violated rules 1.2, 3.1,
4.1(A)(3), and 4.1(A)(10).
¶30 The JCC did not weigh in on the constitutional issues. The
JCC opined that “making conclusions of law about the degree to
which the requirements of the Utah Code of Judicial Conduct must
yield to, or be reconciled with, the First Amendment, is beyond the
scope of the [JCC’s] authority.” The JCC recognized, however, that
Judge Kwan had “acknowledge[d] in his arguments that judicial
speech which endorse[s] political candidates may be prohibited.”
And the JCC limited its consideration to online postings by Judge
Kwan that it concluded could be “viewed as endorsing or opposing”
Donald Trump, during the period in which Donald Trump was a
presidential candidate.
¶31 To determine the appropriate sanction, the JCC considered
a number of factors, including the public and private forums in
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which the conduct occurred, the deliberate (as opposed to
spontaneous) nature of the online postings, the appearance of
impropriety and actual impropriety that occurred, the historical
pattern of misconduct, the prior guidance issued and prior sanctions
imposed, and “the potential and actual harm to the public’s
perception of fairness and impartiality in Utah’s judicial system.”
¶32 After “considering all of these factors,” the JCC determined
that “six months suspension without pay is the most appropriate
sanction for [Judge Kwan’s] violations of the Utah Code of Judicial
Conduct.” The JCC issued an order providing that Judge Kwan be
suspended without pay for six months.
Proceeding Before This Court
¶33 An order of the JCC does not become effective until this
court reviews and implements it. UTAH CONST. art. VIII, § 13. Before
us, Judge Kwan takes many of the same positions he maintained
before the JCC. He concedes that his in-court political statement
violated Utah Code of Judicial Conduct Rules 1.2 and 2.8. Likewise,
he agrees that his handling of his dispute with court personnel was
improper and violated rule 2.8.
¶34 Judge Kwan also reiterates the constitutional challenge he
raised before the JCC regarding his online commentary. Without
tailoring his arguments to the specific speech underlying the JCC’s
order, Judge Kwan addresses his numerous online postings and
asserts that his “comments on social media about elected officials’
policies and social and political issues are constitutionally protected
speech.” Judge Kwan claims strict scrutiny applies and, under that
standard, speech that might be “construed” as critical of a candidate
is protected, while “[s]peech that expressly criticizes or praises an
individual candidate” may constitutionally be barred.
¶35 Judge Kwan thus designates “the independence and
impartiality of the judiciary” as “a compelling state interest,” and
stipulates that restricting speech regarding political candidates,
“partisan politics and public elections is [a] narrowly focused” and
constitutional practice. As he puts it, “[s]peech regarding political or
social issues is protected,” but “speech that is reasonably and
objectively a partisan political statement for or against a political
candidate is not.”
¶36 In that vein, Judge Kwan fervently defends his asserted
right to speak on political or social issues, particularly those of
personal interest to him. Accordingly, he argues the JCC must make
“an objective assessment of [his] comments to determine if [they] fall
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within the narrow scope of speech that is not protected because it
endorses or opposes a political candidate for office,” under the
express endorsement or opposition standard he has articulated.
Judge Kwan claims the JCC failed to engage in this type of analysis
and, as a result, ordered a sanction “wholly disproportionate” to his
conduct.
STANDARD OF REVIEW
¶37 The Utah Constitution provides that “[p]rior to the
implementation of any” JCC order, this court “shall review the
[JCC’s] proceedings as to both law and fact. [This] court may also
permit the introduction of additional evidence. After its review, [this
court] shall, as it finds just and proper, issue its order implementing,
rejecting, or modifying the [JCC’s] order.” UTAH CONST. art. VIII,
§ 13. Under this framework, the JCC “acts in a role more akin to an
independent advisory committee” than to “an independent body
with the power to impose consequences on a judge.” In re Anderson,
2004 UT 7, ¶ 10, 82 P.3d 1134 (per curiam). Accordingly, the JCC’s
findings of fact and conclusions of law are not binding on this court,
id. ¶ 11, and the JCC’s recommended sanction receives no deference,
In re Worthen, 926 P.2d 853, 865 (Utah 1996).
¶38 We recognize and appreciate, however, the significant
contributions of the JCC’s investigatory proceedings and accord its
findings, conclusions, and recommendations a “significant degree of
respect.” In re Anderson, 2004 UT 7, ¶ 11. But, in the end, the
constitutional responsibility to impose discipline rests with this
court.
ANALYSIS
I. The Constitutional Questions
¶39 Judge Kwan raises a number of interesting and important
constitutional issues—questions that, under our precedent, we
cannot resolve in this action. Although neither the JCC nor Judge
Kwan addresses the matter, we have repeatedly held that a judge
may not raise a constitutional challenge for the first time in a judicial
disciplinary proceeding. E.g., In re Christensen, 2013 UT 30, ¶¶ 8–10,
304 P.3d 835; In re Anderson, 2004 UT 7, ¶¶ 63–67, 82 P.3d 1134. We
have stated that
the appropriate standard of behavior for a judge is to
observe the law as it exists at the time, and if he seeks
to challenge it, to set forth his reasoning in a record of
decision in a case before him or to bring an action
seeking a declaratory judgment at the time the law’s
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requirements allegedly infringe on his constitutional
rights.
In re Anderson, 2004 UT 7, ¶ 66.
¶40 When applying this principle, we have reviewed the record
for evidence of a constitutional objection contemporaneous with the
alleged infraction. E.g., In re Christensen, 2013 UT 30, ¶ 10 (“Before
disciplinary proceedings commenced, Judge Christensen did not
allege formally or informally that the [law] was unconstitutional.
Nor do the record or the briefs suggest that Judge Christensen’s
violation of the statute was causally related to or even temporally
correlated with his belief that the law was unconstitutional.”); In re
Anderson, 2004 UT 7, ¶ 65 (“[B]y failing to record his constitutional
objection . . . in the cases before him, or in an action for declaratory
judgment, Judge Anderson has failed to register his objection in any
way contemporaneous with his refusal to observe the statutory
requirements. He has therefore given us no reason to believe that
constitutional principle motivated that refusal.”).
¶41 Absent such evidence, we have concluded that a judge has
“no recourse” to raise the constitutional objection in the disciplinary
proceeding. In re Anderson, 2004 UT 7, ¶¶ 64–67 (“Judge Anderson
cannot . . . excuse his failure to obey the statute’s requirements after
the fact by applying a rationale attacking those deadlines when that
rationale plainly played no role in his refusal to observe the statutory
deadlines for adjudicating cases.”); see also In re Christensen, 2013 UT
30, ¶¶ 8–10 (“[T]he record and the briefs suggest that only after the
JCC issued formal charges against Judge Christensen did he
formulate a constitutional justification for his actions. This is
unacceptable behavior for a judge.”).
¶42 We have applied this rule in an effort to maintain public
confidence in the integrity of our judges and our system of law. As
we noted in In re Christensen, “The public’s respect for the judiciary is
a necessary element of the rule of law,” and “[w]hen judges ignore
the law with no apparent justification, they undermine public
confidence in the integrity of the judiciary.” 2013 UT 30, ¶ 9 (citation
omitted) (internal quotation marks omitted). “Judges are accordingly
held to a higher standard of compliance with the law than is the
general public.” Id. We have therefore required judges to raise
constitutional objections at the time a violation occurs if they want to
challenge the constitutionality of the regulation before us.
¶43 In other words, we have required judges who fail to abide
by laws or rules to put the public on notice that their violation is
based on a principled contention that the law or rule is, itself,
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unlawful. Without such notice, a judge may appear to violate laws or
rules at will, in disregard of the legal system they are charged with
administering. And when judges appear to consider themselves
above the law, public confidence in the fairness and impartiality of
our judicial and legal systems diminishes.
¶44 Judge Kwan has not pointed to any behavior putting the
public on notice that his violation of the code of conduct was, in fact,
a principled one. In particular, Judge Kwan does not assert that, at
the time he posted his online comments, he raised a constitutional
challenge to any provision of the Utah Code of Judicial Conduct that
might regulate his speech, such as rules 1.2, 3.1, or 4.1. See, e.g., UTAH
CODE JUD. CONDUCT R. 1.2 (“A judge . . . shall not undermine . . .
public confidence in the independence, integrity, and impartiality of
the judiciary and shall avoid impropriety and the appearance of
impropriety.”); id. 3.1 (“[W]hen engaging in extrajudicial activities, a
judge shall not . . . participate in activities that would appear to a
reasonable person to undermine the judge’s independence, integrity,
or impartiality . . . .”); id. 4.1(A)(3) (“Except as permitted in this
Canon, a judge . . . shall not . . . publicly endorse or oppose a
candidate for any public office . . . .”); id. 4.1(A)(10) (“Except as
permitted in this Canon, a judge . . . shall not . . . make any statement
that would reasonably be expected to affect the outcome or impair
the fairness of a matter pending or impending in any court . . . .”).
¶45 Judge Kwan’s online postings thus give the appearance
that Judge Kwan considered himself unfettered by the Utah Code of
Judicial Conduct. That Judge Kwan engaged in this conduct in the
face of, and contrary to, the guidance he sought, only amplifies the
perception that Judge Kwan acted as if the rules did not apply to
him. Because Judge Kwan did not challenge the application of the
rules to him at the time he violated them, he is barred from asserting,
in this proceeding, that we cannot constitutionally sanction judicial
speech on social or political issues unless the speech expressly
criticizes or praises a political candidate for office.
¶46 Still, we are mindful of the weighty implications of
foreclosing arguments regarding a rule’s unconstitutionality in a
proceeding in which the rule is being applied. And we can foresee
potential quandaries that may arise in requiring judges to adhere to
such a rule. A violation of the code of conduct might be the product
of an off-the-cuff remark or a spontaneous interaction,
unaccompanied by the foresight to quickly exclaim constitutional
principles, in case a disciplinary proceeding might follow. And
judges acting with greater intention and foresight may be forced to
put a public spotlight on private activities or interests, when
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engaging in conduct that appears to be constitutionally protected, on
the off-chance the JCC might consider it sanctionable. 4
¶47 But this is our law, and Judge Kwan has not asked that In re
Christensen and In re Anderson be overturned. We therefore leave for
another day whether, applying the principles set forth in Eldridge v.
Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553, our contemporaneous
constitutional objection requirement should be reconsidered. And
we do not reach the merits of Judge Kwan’s constitutional
arguments.
¶48 Nevertheless, even if we were to accept Judge Kwan’s
constitutional contentions, a favorable decision on those arguments
would not alter the outcome of this proceeding. In In re Anderson and
In re Christensen we considered conduct that violated the law as part
of the judicial disciplinary proceeding, despite the judge’s arguments
that those laws were unconstitutional. See In re Christensen, 2013 UT
30, ¶¶ 11–20; In re Anderson, 2004 UT 7, ¶¶ 75–91. We need not do
that here. Because even if we only include the statement Judge Kwan
concedes can be constitutionally regulated, the record before us
merits a six-month suspension without pay. Infra ¶¶ 51–63.
¶49 Judge Kwan has repeatedly stated that judges may, in his
view, constitutionally be prohibited from endorsing or opposing
candidates for office. See UTAH CODE JUD. CONDUCT R. 4.1(A)(3)
(“Except as permitted in this Canon, a judge . . . shall not . . . publicly
endorse or oppose a candidate for any public office . . . .”). Judge
Kwan initially coupled his concession with an assertion that to run
afoul of rule 4.1(A)(3), a judge’s statement must expressly name a
political candidate. During the hearing before this court, however,
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4 We also note the unconventional nature of this rule, which we
articulated and applied without citation to precedent in In re
Christensen and In re Anderson. See In re Christensen, 2013 UT 30,
¶¶ 8–10; In re Anderson, 2004 UT 7, ¶¶ 63–67. A review of other
jurisdictions’ decisions suggests that, as a matter of course,
constitutional challenges are considered in judicial disciplinary
proceedings without any similar requirement. See, e.g., Inquiry
Concerning a Judge No.14-488 re: Shepard, 217 So. 3d 71, 77–80 (Fla.
2017); In re Chmura, 608 N.W.2d 31, 38–43 (Mich. 2000); In re Hill, 8
S.W.3d 578, 582–83 (Mo. 2000) (en banc); In re Vincent, 172 P.3d 605,
606–11 (N.M. 2007); In re Judicial Campaign Complaint Against O’Toole,
24 N.E.3d 1114, 1120–28 (Ohio 2014); In re Neely, 390 P.3d 728, 735–47
(Wyo. 2017).
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Judge Kwan addressed a September 26, 2016 posting, in which he
implicitly referenced then-presidential candidate Donald Trump: “Is
the fact that the IRS has audited you almost every year when your
peers hardly ever or never have been, something to be proud of?
What does that say . . . about your business practices?” In response
to questions from the bench, Judge Kwan characterized the posting
as “an inappropriate comment on a political candidate,” and stated
that rule 4.1 could constitutionally be applied to restrict that speech. 5
¶50 Simply stated, we do not reach the merits of Judge Kwan’s
constitutional arguments, as they are not properly before us under
our unchallenged precedent. But Judge Kwan’s inability to press
those claims does not have any bearing on the discipline he will
receive. For the reasons discussed below, the single online posting
regarding then–presidential candidate Donald Trump, together with
the other conduct Judge Kwan admits violated the rules, viewed in
light of Judge Kwan’s history of judicial discipline, amply justify the
sanction the JCC ordered and we implement.
II. The Appropriate Sanction
¶51 As noted above, Judge Kwan’s main opposition to
implementation of the JCC’s six-month suspension order is his
assertion that the order reflects an unconstitutional attempt to
regulate protected speech. As also noted above, that argument is not
before us. Judge Kwan is left with his secondary argument that a
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5 During the hearing, Judge Hagen referenced the September 26,
2016 posting and asked, “How is that not a comment on a particular
candidate for political office?” Judge Kwan’s counsel replied, “It is a
comment on a political candidate. And it’s an inappropriate
comment on a political candidate . . . . When you talk about a
candidate not paying his taxes, yes, that’s a statement that’s critical
of that candidate.” Justice Pearce followed up, asking, “You believe
that even if this September 26 statement is found to violate the rule,
[it] would violate the judge’s constitutional rights to speak?”
Counsel replied, “No. . . . [T]hat was an inappropriate comment by a
judge . . . that violated the rule.” Counsel also agreed that the “rule
could constitutionally be applied to the judge in this instance.” And
when Judge Harris confirmed, “I think I perceive you conceding that
there is at least one violation of the code whose constitutionality you
are not challenging with regard to this September 26, 2016
comment,” Counsel again replied, “Correct.”
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Opinion of the Court
lesser penalty, such as probation, would be a more appropriate
incremental step-up in the sanctioning process.
¶52 Suspension without pay is a particularly significant penalty
that carries substantial consequences. But given the record before us,
it is the appropriate penalty. And six months is an appropriate term.
A lesser period would fail to adequately address the degree to which
Judge Kwan has varied from our judicial code, the repeat nature of
Judge Kwan’s conduct, his disregard of the specific guidance and
former discipline he has received, and the importance of the
principles his conduct has trampled.
¶53 The confidence the public places in our state judicial
system, and the respect afforded our rulings, turns in large part on
our collective credibility. Thus, “[i]nherent in all the [r]ules
contained in [the Utah Code of Judicial Conduct] are the precepts
that judges, individually and collectively, must respect and honor
the judicial office as a public trust and strive to maintain and
enhance confidence in the legal system.” UTAH CODE JUD. CONDUCT
Preamble [1]. And “[c]onduct that compromises or appears to
compromise the independence, integrity, and impartiality of a judge
undermines public confidence in the judiciary.” Id. 1.2 cmt. 3. In
other words, every time a judicial officer engages in misconduct, he
or she spends the goodwill of the judiciary as a whole.
¶54 Here, we readily conclude that Judge Kwan has been
spending our goodwill. As Judge Kwan admits, his in-court political
comment regarding President Donald Trump violated Utah Code of
Judicial Conduct Rules 1.2 and 2.8. See UTAH CODE JUD. CONDUCT R.
1.2 (“A judge . . . shall not undermine . . . public confidence in the
independence, integrity, and impartiality of the judiciary and shall
avoid impropriety and the appearance of impropriety.”); id. 2.8(B)
(“A judge shall be patient, dignified, and courteous to litigants, . . .
court staff, . . . and others with whom the judge deals in an official
capacity . . . .”). 6 This comment continues a pattern of behavior that
led to our first public reprimand of Judge Kwan, following his in-
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6 Because it is unnecessary to the resolution of this proceeding,
we do not resolve whether the comments also violated rule 4.1, as
the JCC concluded. See UTAH CODE JUD. CONDUCT R. 4.1(A)(10)
(“Except as permitted in this Canon, a judge . . . shall not . . . make
any statement that would reasonably be expected to affect the
outcome or impair the fairness of a matter pending or impending in
any court . . . .”).
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Opinion of the Court
court reference to sexual conduct and a former president of the
United States. And it demonstrates an ongoing failure to exercise
appropriate judgment and restraint when making statements during
judicial proceedings.
¶55 Moreover, as Judge Kwan concedes, his handling of his
dispute with court personnel—regarding an administrative matter
undertaken without his involvement—violated rule 2.8. See UTAH
CODE JUD. CONDUCT R. 2.8(B). We recognize there may be instances
in which a judge, attempting his or her best efforts, might
nevertheless fail to handle an administrative matter with the highest
degree of patience and courtesy. And not “every transgression” of
the high standards to which judges are held is meant to “result in the
imposition of discipline.” Id. Scope [6]. But this proceeding does not
involve an intraoffice disagreement in which a judge’s conduct fell
just short of the ideal. Rather, Judge Kwan’s interactions with court
personnel were well outside the bounds of any acceptable range of
behavior.
¶56 Witnesses reported that Judge Kwan’s outburst was
intense. And as the JCC concluded, it was followed by an
inappropriate attempt to use the judicial office to impose severe
consequences—including a threat of suspension and attempted
removal from the premises—on a court employee, in violation of
rule 1.3. See id. 1.3 (“A judge shall not abuse the prestige of judicial
office to advance the personal or economic interests of the judge
. . . .”).
¶57 Finally, Judge Kwan concedes that he posted online
commentary in violation of the Utah Code of Judicial Conduct. As
Judge Kwan acknowledged before this court, at least one of his
online comments criticized then-presidential candidate Donald
Trump in violation of rule 4.1(A)(3). See id. 4.1(A)(3) (“Except as
permitted in this Canon, a judge . . . shall not . . . publicly endorse or
oppose a candidate for any public office . . . .”).
¶58 “An independent, fair and impartial judiciary is
indispensable to our system of justice.” Id. Preamble [1]. By
criticizing a political candidate for office, Judge Kwan engaged in
conduct that would appear to a reasonable person to undermine his
independence or impartiality, in violation of rules 1.2 and 3.1. See id.
1.2; id. 3.1(C) (“[W]hen engaging in extrajudicial activities, a judge
shall not . . . participate in activities that would appear to a
reasonable person to undermine the judge’s independence, integrity,
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Opinion of the Court
or impartiality . . . .”). 7 While Judge Kwan’s comments addressed a
candidate for national political office, and Judge Kwan may not
decide national-scale issues as a justice court judge, those issues may
still bear, or appear to bear, in some respects on questions that arise
in his courtroom. Or cause those who disagree with Judge Kwan’s
politics to believe that they will not receive a fair shake when they
appear before him.
¶59 But the problem here is not primarily a concern that Judge
Kwan has voiced his views on a range of political issues via his
criticisms of Donald Trump. Far more importantly, Judge Kwan has
implicitly used the esteem associated with his judicial office as a
platform from which to criticize a candidate for elected office.
Fulfillment of judicial duties does not come without personal
sacrifice of some opportunities and privileges available to the public
at large. And as a person the public entrusts to decide issues with
utmost fairness, independence, and impartiality, a judge must at
times set aside the power of his or her voice—which becomes
inextricably tied to his or her position—as a tool to publicly influence
the results of a local, regional, or national election.
¶60 Judge Kwan’s postings continue a pattern of inappropriate
political commentary, as previously addressed in our second public
reprimand, following Judge Kwan’s service as president of a
national organization that, among other things, criticized candidates
for political office. What’s more, the Utah State Bar Ethics Advisory
Opinion Committee offered substantial guidance to Judge Kwan on
this topic. Judge Kwan nevertheless engaged in behavior that
violates our code of conduct, despite the prior attempts to dissuade
him from that path.
¶61 We thus conclude, as did the JCC, that Judge Kwan has
violated several rules of the Utah Code of Judicial Conduct. And he
has engaged in conduct prejudicial to the administration of justice
which brings a judicial office into disrepute. See UTAH CONST. art.
VIII, § 13.
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7 Again, because it is unnecessary to the resolution of this
proceeding, we do not address whether Judge Kwan’s online
postings also violated rule 4.1(A)(10), as the JCC concluded. For the
same reason, we do not determine whether Judge Kwan’s numerous
other online postings violated any provisions of the Utah Code of
Judicial Conduct.
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Opinion of the Court
¶62 Whether to impose discipline, and the type of discipline to
be imposed, depends on several factors such as the seriousness of the
improper activity, “the extent of any pattern of improper activity,
whether there have been previous violations, and the effect of the
improper activity upon the judicial system or others.” UTAH CODE
JUD. CONDUCT Scope [6]. Taking these factors into account, we
conclude, as did the JCC, that a six-month suspension is the
appropriate sanction.
¶63 We give significant weight to the fact that Judge Kwan has
been the subject of prior discipline and the recipient of prior
guidance. We note that previous endeavors to help Judge Kwan
correct this behavior have not been successful. And we regretfully
conclude that a sanction less severe than suspension without pay
will suffer the same fate as our prior attempts. Repeated instances of
misconduct are serious matters, which may render a judge not only
subject to suspension, but also to removal from office. Judge Kwan’s
behavior denigrates his reputation as an impartial, independent,
dignified, and courteous jurist who takes no advantage of the office
in which he serves. And it diminishes the reputation of our entire
judiciary. For these reasons, we implement the JCC’s order without
modification.
CONCLUSION
¶64 We implement the JCC’s order. We do not reach the
constitutional questions Judge Kwan raises regarding his social
media postings, and we limit our review to the online statement that
Judge Kwan admits can be constitutionally restricted. Based on that
speech, the other misconduct at issue here, as well as Judge Kwan’s
history before the JCC and before this court, we conclude that a six-
month suspension without pay is the appropriate sanction.
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