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In re Inquiry of a Judge Kwan

Supreme Court of Utah

May 22, 2019

In re Inquiry of a Judge: The Honorable Judge Michael Kwan

          Original Proceeding in this Court

          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.

          PEARCE, JUSTICE

         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 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 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 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?
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 ...

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