SALT LAKE CITY — The Utah Supreme Court has suspended a city judge for making "shirty and politically charged" comments from the bench and posting "indelicate" criticism online about President Donald Trump.
Judge Michael Kwan will serve a six-month suspension without pay for repeatedly violating the Utah Code of Judicial Conduct. In his 21 years as a Taylorsville Justice Court judge, the Judicial Conduct Commission has issued Kwan two letters of education and the Supreme Court has publicly reprimanded him twice for various violations.
One of those reprimands involved Kwan's "crass in-court reference to sexual conduct and a former president of the United States," according to the court. The other addressed his political activities as the head of a nonprofit organization that criticized candidates online using his name and title as a judge.
"We note that previous endeavors to help Judge Kwan correct this behavior have not been successful. And we regretfully conclude that a sanction less severe than suspension without pay will suffer the same fate as our prior attempts," Justice John Pearce wrote in the court's opinion.
Kwan admitted to the most recent violations but contended they warranted a lesser penalty because the sanction rested, in part, on an unlawful attempt to regulate his constitutionally protected speech.
The Supreme Court opinion cites judicial conduct rules that say a judge shall not engage in political activity that is inconsistent with the independence, integrity or impartiality of the court.
Kwan's attorney, Greg Skordas, said he argued that political comments by a judge aren't necessarily prohibited, but the court didn't deal directly with the free speech issue.
"It’s the type of thing that, I think, the Supreme Court felt, at the very least, made them uncomfortable, to think a sitting judge would do that and that was really part of the problem here," he said.
Skordas described Kwan as a "popular judge" and a "charming man" and hopes Taylorsville can find someone to fill in while he's gone.
"Arguably, he allowed his political thoughts to get the better of him and the Supreme Court has reprimanded him for that and the reprimand was quite severe," he said.
During an exchange with a defendant during a January 2017 hearing, Kwan launched into a commentary about Trump's immigration and tax policies. Apparently behind in his fine payments, the defendant told Kwan he would pay after he received his tax refund.
Kwan questioned whether the defendant would get any money back.
"I pray and cross my fingers," the man said.
Kwan replied, "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?"
Kwan, according to the Supreme Court opinion, contends that the comment 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," Pearce wrote.
In 2016 and early 2017, Kwan repeatedly posted comments and shared articles on Facebook and LinkedIn about Trump.
"With respect to Donald Trump, Judge Kwan’s postings were laden with blunt, and sometimes indelicate, criticism," Pearce wrote.
Kwan posted a Washington Post article titled, “Ghazala Khan: Trump criticized my silence. He knows nothing about true sacrifice," in July 2016. Above the article’s headline, he added, “Checkmate.”
In November 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 …," the court's opinion states.
On the day Trump was inaugurated in January 2017, Kwan posted, “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?"
In February 2017, Kwan wrote, “Welcome to the beginning of the fascist takeover," and "We 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," Pearce wrote.
The court found that Kwan's postings gave the appearance that he didn't believe the judicial conduct rules applied to him.
Pearce wrote that the primary concern is not that Kwan voiced his views on political issues through his criticism of 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," he wrote.
The sanction imposed on Kwan also stems from his treatment of his clerk after he learned an administrative staff member was promoted without his involvement.
Kwan confronted the clerk in an "angry" and "screaming" manner, according to court documents. A short time later, he wrote a notice of disciplinary action, threatened to put her on unpaid suspension pending termination and directed her to be escorted from the building.
Recipients of Kwan's email understood it to be a judicial order in part because the email included a signature block indicating it as such. Kwan argued the signature block was unintentional but the Judicial Conduct Commission did not find that claim credible.
Every time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole, Pearce wrote, adding "Here, we readily conclude that Judge Kwan has been spending our goodwill."
Contributing: Marc Giaque