The Volokh Conspiracy
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The charges also involved some nonpolitical bad conduct in a dispute with court personnel (omitted from the excerpts below), and also out-of-court public advocacy for and against political candidates, which are also forbidden by Utah judicial ethics rules. Judge Kwan challenged most of the out-of-court commentary charges (but not the charges based on in-court speech) on First Amendment grounds; but the court concluded that Judge Kwan's objections hadn't been raised in time (see below), and that in any event the suspension would be warranted even if the charges were limited to the ones that Judge Kwan acknowledged were constitutionally permissible.
This judicial discipline proceeding requires us to decide the appropriate sanction for a judge who has engaged in repeated misconduct. Judge Michael Kwan [of the Taylorsville justice court] 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…. 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….
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?
"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?"
[Footnote: 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.] …
[The Judicial Conduct Commission] alleged that Judge Kwan's in-court political statements violated rules 1.2, 2.8, and 4.1. See Utah Code J. 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 ….")…..
[The court concluded that the in-court statements violated these rules, and went on to say:] [E]ven if we only include the statement Judge Kwan concedes can be constitutionally regulated, the record before us merits a six-month suspension without pay.
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….
[E]very time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole. 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. This comment continues a pattern of behavior that led to our first public reprimand of Judge Kwan, following his in-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….
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 ….").
"An independent, fair and impartial judiciary is indispensable to our system of justice." Id. Preamble. 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, or impartiality …."). 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.
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….
The charges against Judge Kwan also involved political advocacy outside court, which is also forbidden by Utah judicial conduct rules; Judge Kwan argued that these prohibitions violated the First Amendment, but the court concluded that Judge Kwan hadn't raised those arguments at the right time:
During 2016, Judge Kwan repeatedly posted comments and shared articles on his Facebook and LinkedIn accounts regarding then-presidential candidate Donald Trump. [Footnote: 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."] 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.
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."
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 September 26, 2016, the night of the first presidential debate between candidates Donald Trump and Hillary Clinton, Judge Kwan wrote:
"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.'"
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."
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….
[The Judicial Conduct Commission] alleged that Judge Kwan's in-court political statements violated rules 1.2 [quoted above], 2.8 [quoted above], and 4.1 … ("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 ….")….
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).
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….
[Paragraph moved:] Judge Kwan has repeatedly stated that judges may, in his view, constitutionally be prohibited from endorsing or opposing candidates for 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, 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….
But with respect to his [other] 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." [Details omitted.-EV] … [But in our past cases, we have required] evidence of a constitutional objection contemporaneous with the alleged infraction. E.g., In re Christensen, 2013 UT 30, ¶ 10, 304 P.3d 835 ("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, 82 P.3d 1134 ("[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.")….
[W]e 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, 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.
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
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 [in past advisory ethics opinions that he had received], 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.
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 engaging in conduct that appears to be constitutionally protected, on the off-chance the JCC might consider it sanctionable. [Foontote: 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, 304 P.3d 835; In re Anderson, 2004 UT 7, ¶¶ 63–67, 82 P.3d 1134. 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.]
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.