More than a Facebook fail

Based on the findings and recommendation of the Judicial Conduct Commission, the Utah Supreme Court suspended a judge for 6 months without pay for (1) losing his temper with the clerk of court and using his authority to seek her removal from the premises; (2) “seemingly shirty and politically charged comments to a defendant in his courtroom;” and (3) a Facebook post that was critical of then-presidential candidate Donald Trump.  In re Kwan (Utah Supreme Court May 22, 2019).

(1) In February 2017, after learning that an administrative staff member had been promoted without his involvement, the judge confronted the Clerk of Court in a manner that multiple witnesses described as “angry,” “screaming,” and “intense.”  A short time later, the judge threatened in a notice for disciplinary action to put the Clerk of Court on unpaid suspension pending termination and directed that she be escorted from the premises in an e-mail that recipients understood to be a judicial order, in part, because it included a signature block.

The Court recognized that even “attempting his or her best efforts,” a judge might “fail to handle an administrative matter with the highest degree of patience and courtesy.”  However, it concluded, the judge had acted “well outside the bounds of any acceptable range of behavior,” noting that following his “outburst” he had inappropriately attempted “to use the judicial office to impose severe consequences” on a court employee.

(2) In January 2017, in an exchange during a hearing with a defendant who had failed to pay his fines, the judge “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?

Noting the judge’s contention that he “intended to be funny, not rude,” the Court stated:  “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 Court noted that the judge had been publicly reprimanded in 2005 for telling an attorney that he seemed to be raising the “Clinton defense,” a reference to President Clinton.  In re Kwan, Order of Reprimand (Utah Supreme Court November 1, 2005).  Thus, the Court concluded, the judge’s “in-court political comment regarding President Donald Trump” continued a pattern of behavior and demonstrated “an ongoing failure to exercise appropriate judgment and restraint when making statements during judicial proceedings.”

(3) During 2016, the judge repeatedly posted comments and shared articles on his Facebook and LinkedIn accounts regarding then-presidential candidate Donald Trump.  On September 26, the night of the first presidential debate between Trump and Hillary Clinton, the judge 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.”

The judge conceded that his comment about the IRS audits violated the code of judicial conduct and was not protected constitutional speech because it expressly criticized a specific political candidate.  The Court explained that, although the judge’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.”  The Court emphasized that its primary concern was not that the judge “voiced his views on a range of political issues via his criticisms of Donald Trump” but that he “implicitly used the esteem associated with his judicial office as a platform from which to criticize a candidate for elected office.”  It explained:

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 Court noted that the judge’s Facebook account was “private,” but that the judge did not argue that that privacy setting exempted his comments from regulation, explaining that the judge had not disclosed how many friends had access to his Facebook account, did not suggest “that those individuals would not share his comments or postings more widely,” and acknowledged that “his posts [might] be reposted by his friends.’”

Following the presidential election, the judge continued to post comments and articles regarding Trump and also posted comments or shared articles on other topics including immigration, gun violence, and voter participation.  The Court gave “illustrative examples—not a comprehensive recitation” of the posts, noting his posts regarding Trump “were laden with blunt, and sometimes indelicate, criticism.”

On November 8, the judge wrote a lengthy post on voter participation that 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!  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.”

3 days after the presidential election, the judge remarked, “Think I’ll go to the shelter to adopt a cat before the President-Elect grabs them all . . . .”

The day President Trump was inaugurated, the judge 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, the judge posted, “Welcome to the beginning of the fascist takeover.  [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.”

The judge argued that the Commission could not “regulate speech addressing social or political issues or ‘public officials in general,’” but only speech that “expressly criticizes or praises” a specific political candidate.  The judge acknowledged that his post-election statements about Trump were “direct, critical, and strident” but contended that they were not about a candidate for office and were “synonymous” with his “views on issues such as racism, civil rights, the plight of refugees, and constitutional limits on the executive branch.’”

The Court held that it could not resolve the “interesting and important constitutional issues” raised by the judge because he had not challenged the code restrictions on speech in a declaratory judgment action before violating them as required by the “contemporaneous constitutional objection requirement” it has imposed in previous cases.  The Court has held that “a judge may not raise a constitutional challenge for the first time in a judicial disciplinary proceeding” but must comply with “the law as it exists at the time” while challenging it in other proceedings.  Otherwise, the Court explained, judges may “appear to consider themselves above the law,” undermining public confidence in the judicial system.

The Court also concluded that accepting the judge’s constitutional contentions would not change the outcome of the case because the judge’s post referring to IRS audits and the judge’s other misconduct “amply justify” a 6-month suspension without pay.  The Court gave “significant weight” to the 2 letters of education the judge had received from the Commission, the 2 public reprimands he had received from the Court, and the 2 advisory opinions he had asked for and received that “offered substantial guidance” to him on inappropriate political commentary.  The Court held that a suspension of less than 6 months “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,” noting “every time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole” and “readily” concluding that the judge “has been spending our goodwill.”  Noting that “previous endeavors to help Judge Kwan correct this behavior have not been successful,” the Court “regretfully conclude[d] that a sanction less severe than suspension without pay will suffer the same fate as our prior attempts.”

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics web-site.


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