A judge has been suspended for six months without pay after the Utah Supreme Court upheld a decision to discipline the judicial officer for his politically-charged and anti-Trump comments.
Judge Michael Kwan admitted that he had violated the Utah Code of Judicial Conduct on a number of occasions when he made “shirty and politically charged comments to a defendant in his courtroom,” lost his temper with a member of the court’s staff, and criticized then-presidential candidate Donald Trump on social media, according to the court’s decision (pdf).
In an opinion handed down on May 24, the Supreme Court ruled that Kwan’s conduct “diminishes the reputation of our entire judiciary.”
“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,” the court wrote.
They added that the Taylorsville Justice Court judge had previously been disciplined for other violations of the code including a “crass in-court reference to sexual conduct and a former president of the United States,” the opinion said.
The Judicial Conduct Commission subsequently handed down the suspension, before the judge challenged it at the state’s highest court.
He argued that the six months suspension is an unconstitutional attempt to regulate his protected speech and that a lesser penalty like probation is more appropriate.
But the court said, “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” instead it was because his conduct was inconsistent to the public’s expectation that a judge “decide[s] 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 opinion stated.
Kwan faced investigations for an exchange with a defendant he made in 2017 in his courtroom, where he appeared to demean the defendant as well as 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? Allright, so do you have a plan? Other than just get the tax cut and pay it off?
Kwan’s suspension also related to his 2016 comments and shared articles on his Facebook and LinkedIn accounts. He also continued to make similar comments about Trump following the presidential election, which the court described his comments as “laden[ed] with blunt, and sometimes indelicate, criticism [about Trump].”
Several examples detailed in the opinion include:
“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,'” the court said.
“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?'” the court stated as another example.
“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,'” according to the opinion.
The court said due to Kwan’s repeated misconduct, the six month suspension is appropriate because “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.”