Thursday, May 23, 2019
The Utah Supreme Court has suspended a judge for six months without pay
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 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.
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.
There were prior matters addressing the judge's behavior
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).
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...
Our first public reprimand addressed Judge Kwan’s crass incourt 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.
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
The November 2016 reprimand is linked here.
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.
An in-court comment on the tax cut drew judicial rebuke
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.
Also true with respect to work supervisors.
As to current politics
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.”
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 . . . .”
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?”
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.”
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.
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.
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.
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.
Had to look up "shirty." It is in fact a word. (Mike Frisch)