In re Honorable Kevin Christensen

304 P.3d 835This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 30IN THE
SUPREME COURT OF THE STATE OF UTAH
In re: Inquiry of a Judge
THE HONORABLE KEVIN CHRISTENSEN
___________________________________
No. 20120523
Filed May 21, 2013
Original proceeding in this Court
Attorneys:
Colin R. Winchester, Ogden, for Judicial Conduct Commission
Jason M. Yancey, Clearfield, for Judge Christensen
John E. Swallow, Att’y Gen., Bridget K. Romano, Asst. Att’y Gen.,
Salt Lake City, for amicus
JUSTICE DURHAM authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE PARRISH, and JUSTICE LEE joined.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 This judicial discipline proceeding involves the statutory
cap on the salaries of justice court judges who are employed by more
than one municipality. Following an investigation, the Judicial Con-
duct Commission (JCC) found that the salary of justice court judge
Kevin Christensen exceeded the statutory cap during the years 2009
through 2011, and recommended that he be censured and ordered
to repay the excess amounts. We adopt the JCC’s recommendations.
BACKGROUND
¶2 Since at least the beginning of 2009, Judge Kevin
Christensen has been employed as a justice court judge by four Utah
municipalities. Under Utah Code section 78A-7-206(1)(e), “[a] justice
court judge employed by more than one entity as a justice court
judge, may not receive a total salary for service as a justice court
judge greater than the salary of a district court judge.” In late 2010,
Judge Christensen became aware that his salary exceeded this statu-
tory maximum. He claims to have immediately contacted his munic-
ipal employers to discuss the problem. However, several months
later, his salary had not been reduced.
IN RE: THE HONORABLE KEVIN CHRISTENSEN
Opinion of the Court
¶3 In August 2011, following unsuccessful attempts to contact
Judge Christensen,1 the Administrative Office of the Courts filed a
complaint with the JCC. The JCC investigated the allegations in the
complaint and, in November 2011, issued formal charges against
Judge Christensen. The formal charges alleged that Judge
Christensen had been overpaid during the years 2009 through 2011,
in violation of the Utah Constitution, statutory law, and the Code of
Judicial Conduct.
¶4 The JCC and Judge Christensen stipulated to a number of
facts and legal conclusions, including the following:
For calendar years 2009 through 2011, Utah Code Ann.
§ 78A-7-206(1)(e) provided, “A justice court judge em-
ployed by more than one entity as a justice court judge,
may not receive a total salary for service as a justice
court judge greater than the salary of a district court
judge.”
For calendar years 2009 through 2011, the salary of a
district court judge was $132,150.
For calendar years 2009 through 2011, Judge
Christensen’s total salaries for service as a justice court
judge were respectively $139,908, $139,360, and
$139,354. . . .
As of January 1, 2012, Judge Christensen no longer re-
ceives combined judicial salaries that exceed the salary
of a district judge. . . .
Subject only to Judge Christensen’s claim that this mat-
ter should be dismissed due to the alleged unconstitu-
tionality of § 78A-7-206(1)(e), Judge Christensen’s ac-
tions violate Rule 1.1 of the Code of Judicial Conduct,
which states, “A judge shall comply with the law.”
Subject only to Judge Christensen’s claim that this mat-
ter should be dismissed due to the alleged unconstitu-
tionality of § 78A-7-206(1)(e), Judge Christensen’s ac-
tions constitute conduct prejudicial to the administra-
1
Rick Schwermer of the Administrative Office of the Courts
reportedly left Judge Christensen a voicemail and also sent him an
email. Judge Christensen claims not to have received the voicemail
and explains that he did not initially open the email because it
appeared in his inbox as an email sent by “Judge Kevin
Christensen,” not by Rick Schwermer.
2
Cite as: 2013 UT 30Opinion of the Court
tion of justice which brings a judicial office into disre-
pute, in violation of Article VIII, Section 13 of the Con-
stitution of Utah and Utah Code Ann. § 78A-11-105(1).
Subject only to Judge Christensen’s claim that this mat-
ter should be dismissed due to the alleged unconstitu-
tionality of § 78A-7-206(1)(e), a censure is an appropri-
ate sanction in this matter.
Subject only to Judge Christensen’s claim that this mat-
ter should be dismissed due to the alleged unconstitu-
tionality of § 78A-7-206(1)(e), Judge Christensen should
also be ordered to pay back any and all excess salary
received during calendar years 2009, 2010 and 2011. The
obligation should be paid in full within three years of
date hereof, and should not bear interest.
Subsequently, the JCC issued Findings of Fact and Conclusions of
Law, which contained the same substance as the Stipulation. The
JCC also issued an Order of Censure to “take effect upon implemen-
tation . . . by the Utah Supreme Court.” The order provided that
Judge Christensen be censured and be required to repay the excess
salary he received from 2009 through 2011.
¶5 We have jurisdiction to “review the commission’s proceed-
ings as to both law and fact” and to “issue [an] order implementing,
rejecting, or modifying the commission’s order.” UTAH CONST. art.
VIII, § 13.
STANDARD OF REVIEW
¶6 As we explained in In re Anderson, 2004 UT 7, 82 P.3d 1134,
the relationship between the Judicial Conduct Commission and the
supreme court is not analogous to the relationship between a trial
court and an appellate court. The JCC acts as an investigatory and
advisory committee, “not as an independent body with the power to
impose consequences . . . that are simply subject to appellate
review.” Id. ¶ 10. Accordingly, “the [supreme] court is obligated
neither to accept the judgment of the Judicial Conduct Commission
on matters of law or fact nor to adopt any recommended sanction.”
Id. ¶ 11. “[A]s matter of constitutional deference,” however, we
“treat[] the findings and recommendations of the Judicial Conduct
Commission with a significant degree of respect.” Id.
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IN RE: THE HONORABLE KEVIN CHRISTENSEN
Opinion of the Court
ANALYSIS
¶7 Judge Christensen argues that Utah Code section 78A-7-
206(1)(e), the statutory provision he stipulated to having violated, is
unconstitutional. We decline to reach this issue because a judge may
not properly assert for the first time in a disciplinary proceeding the
defense that a law the judge has violated is unconstitutional. After
considering the record and the mitigating factors offered by Judge
Christensen, we adopt the recommendations of the JCC.
I. JUDGE CHRISTENSEN CANNOT CHALLENGE FOR
THE FIRST TIME IN A DISCIPLINARY HEARING THE
CONSTITUTIONALITY OF A STATUTE HE HAS VIOLATED
¶8 Judge Christensen argues that the cap on justice court judges’
salaries found in Utah Code section 78A-7-206(1) violates the
uniform operation of laws provision of the Utah Constitution. We do
not reach this constitutional question, however, because judges are
not at liberty to disregard the law and only later, after they are
caught, challenge the law’s constitutionality.2
[T]he 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 . . . . It cannot be
acceptable behavior for a judge to fail to obey the law
without at the time providing any reason to believe a
constitutional objection motivated the failure, only
years later in disciplinary proceedings to unveil a
constitutional objection.
In re Anderson, 2004 UT 7, ¶ 66, 82 P.3d 1134.
¶9 When judges ignore the law with no apparent justification,
they undermine public confidence in the integrity of the judiciary.
The public’s respect for the judiciary “is a necessary element of the
rule of law.” In re Steed, 2006 UT 10, ¶ 6, 131 P.3d 231. Judges are
accordingly held to a higher standard of compliance with the law
than is the general public. See UTAH CODE JUD. CONDUCT R. 1.2
(requiring judges to “act at all times in a manner that promotes . . .
public confidence in the . . . integrity . . . of the judiciary and [to]
avoid impropriety and the appearance of impropriety”).
2
Even though we do not reach Judge Christensen’s constitutional
challenge, we appreciate the work of the Utah Attorney General’s
office in briefing and arguing this issue at our request as amicus.
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¶10 Before disciplinary proceedings commenced, Judge
Christensen did not allege formally or informally that the cap on
justice court judges’ salaries 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. Rather, the 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.3
II. WE ADOPT THE SANCTIONS RECOMMENDED BY
THE JUDICIAL CONDUCT COMMISSION
¶11 Judge Christensen stipulated that unless we found Utah
Code section 78A-7-206(1)(e) to be unconstitutional, his actions
constituted “conduct prejudicial to the administration of justice
which brings a judicial office into disrepute,” a sanctionable offense
under article VIII, section 13 of the Utah Constitution and under
Utah Code section 78A-11-105(1)(e). He also stipulated that if his
constitutional claim failed, his actions constituted a violation of rule
1.1 of the Code of Judicial Conduct, which provides, “A judge shall
comply with the law.” Finally, he stipulated that if his constitutional
claim failed, censure and repayment were appropriate sanctions.
¶12 Despite these stipulations, Judge Christensen offers
mitigating factors to persuade us to adopt a lesser sanction than that
to which he stipulated. Ordinarily, parties are bound by their
stipulations. Prinsburg State Bank v. Abundo, 2012 UT 94, ¶¶ 13–14,
296 P.3d 709. However, because of our plenary authority over
judicial disciplinary matters, see In re Anderson, 2004 UT 7, ¶¶ 9–11,
82 P.3d 1134, and our constitutional duty to impose sanctions that
we find to be “just and proper,” UTAH CONST. art. VIII, § 13, we are
not bound to enforce the Stipulation.
¶13 Nonetheless, even in a judicial discipline proceeding, we
view a party’s stipulations to be highly indicative of the facts as they
actually occurred. Further, we recognize that stipulations often
represent compromises and bargains. For example, the JCC may
agree not to recommend more severe sanctions or not to allege an
3
Judge Christensen also seeks to challenge the constitutionality
of section 78A-7-206(1) prospectively. However, a disciplinary
proceeding is not the proper setting for such a challenge. The scope
of the present matter is limited to whether Judge Christensen
violated the Code of Judicial Conduct and, if so, what sanction is
appropriate.
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IN RE: THE HONORABLE KEVIN CHRISTENSEN
Opinion of the Court
additional violation if a judge stipulates to certain facts or to the
appropriateness of certain sanctions. Thus, we will generally give
effect to stipulations between judges and the JCC unless our
constitutional obligation to prescribe a “just and proper” sanction
compels us to do otherwise. See id.
¶14 Here, none of the mitigating factors offered by Judge
Christensen persuade us that the sanctions to which he stipulated
would be unjust or improper. First, Judge Christensen points out
that the JCC did not hold a hearing and therefore did not “weigh the
facts.” This factor is not mitigating because it does not reflect on
Judge Christensen’s level of culpability. See BLACK’S LAW
DICTIONARY 1093 (9th ed. 2009) (defining “mitigator” as “[a] factor
tending to show that [an actor], though guilty, is less culpable than
the act alone would indicate”). Furthermore, because Judge
Christensen has not identified any factual issues that were not
resolved by the Stipulation, we see no reason why a hearing would
have been necessary.
¶15 Second, Judge Christensen contends that he was “caught
between two conflicting statutes”: Utah Code section 78A-7-
206(1)(e), which sets a statutory cap on the salaries of justice court
judges, and Utah Code section 78A-7-207(2), which provides that
“[t]he salary fixed for a justice court judge may not be diminished
during the term for which the judge has been appointed or elected.”
Below, we hold that section 78A-7-207(2) does not prohibit justice
court judges from voluntarily accepting a lower salary in order to
comply with section 78A-7-206(1)(e). Infra ¶¶ 18–19. We nonetheless
recognize that if Judge Christensen were actually delayed in
bringing his salary into compliance with the statutory cap because
of the municipalities’ concerns about section 78A-7-207(2), this fact
could potentially be mitigating. However, the record was not
developed on this point because Judge Christensen stipulated that
the proposed sanctions were appropriate. If Judge Christensen had
raised this mitigating argument to the JCC, its investigators likely
would have interviewed municipality officials to determine whether
Judge Christensen was as diligent as he claims to have been and
whether any concerns they may have had regarding section 78A-7-
207(2) resulted in delay. We decline to give Judge Christensen’s
assertions the benefit of the doubt, or to reopen fact-finding in this
case, see, e.g., In re Anderson, 2004 UT 7, ¶ 19 (appointing a special
master to engage in additional fact-finding in a judicial discipline
case), because the paucity of evidence is a result of Judge
Christensen’s decision to enter the Stipulation.
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¶16 Finally, Judge Christensen argues in mitigation that (1) the
proposed sanction “does not specify to whom or in what proportion
each municipality should be ‘repaid,’” and that (2) “repaying the
municipalities as recommended by the JCC is likely barred by [Utah
Code section 78A-7-207(2)],” which provides that a justice court
judge’s salary “may not be diminished” during his term. These are
not mitigating factors because they do not reflect on Judge
Christensen’s level of culpability. See supra ¶ 14. Rather, they pose
questions about the logistics of complying with the repayment order.
Because no sanction is final until adopted by this court, we can and
will resolve these questions in this opinion.
¶17 Having considered the record and the arguments and
having not been persuaded that the mitigating factors offered by
Judge Christensen would render the proposed sanctions unjust or
improper, we adopt the JCC’s factual findings, legal conclusions,
and proposed sanctions. Judge Christensen is censured and ordered
to repay the excess salary he received in 2009, 2010, and 2011.
Repayments are to begin on July 1, 20134 and are to be completed
within three years of that date. Repayments are not to include
interest. Repayments should be made pro rata to the municipalities
that employed Judge Christensen during the relevant years. We
request that the Administrative Office of the Courts work with Judge
Christensen to create a repayment plan and to monitor his
compliance with that plan.
¶18 The ordered repayments will not violate Utah Code section
78A-7-207(2). Although section 78A-7-207(2)’s directive that “[t]he
salary fixed for a justice court judge may not be diminished” could
be read in isolation to prevent any person, including a judge, from
reducing a judicial salary, in context, it is clear that the directive
applies only to municipalities acting unilaterally. When interpreting
a statute, we construe “each part or section . . . in connection with
every other part or section so as to produce a harmonious whole.”
Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d
751 (emphasis omitted) (internal quotation marks omitted). We will
not interpret section 78A-7-207(2) to make compliance with the
salary cap in the preceding section nearly impossible5 for justice
court judges who discover they are being overpaid.
4
We modify the JCC’s order insofar as it required repayments to
be completed within three years of its issuance date of May 31, 2012.
5
Under this interpretation, the only way to comply with both
statutory sections would be to resign from one or more positions.
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IN RE: THE HONORABLE KEVIN CHRISTENSEN
Opinion of the Court
¶19 Section 78A-7-207(2) was designed to prevent
municipalities from exerting improper control over judges by
threatening to reduce their salaries. Concerns of judicial
independence are not present when a judge, seeking to comply with
the law, requests a salary reduction. We therefore hold that Utah
Code section 78A-7-207(2) is not violated when a municipality
honors a justice court judge’s request to have his salary reduced to
comply with Utah Code section 78A-7-206(1)(e).
CONCLUSION
¶20 We adopt the JCC’s factual findings, legal conclusions, and
proposed sanctions. Judge Christensen is censured and ordered to
repay the excess salary he received in 2009, 2010, and 2011.
8