In re Inquiry of a Judge: The Honorable Judge Michael Kwan
Original Proceeding in this Court
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
recused themselves, Chief Justice Durrant, Associate Chief
Justice Lee, and Justice Himonas do not participate herein.
of Appeals Judges Jill M. Pohlman, Ryan M. Harris, and Diana
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
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
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 of its concerns that he had issued several
warrants with excessive bail amounts and had not followed
Utah law when revoking probation.
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.
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
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.
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 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.
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.
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
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 ...