A Utah judge has lost his appeal of a six-month suspension without pay for comments he made on the internet and in court that were critical of President Donald Trump.
Kwan “engaged in behavior that violates our code of conduct,” Utah Supreme Court Justice John Pearce wrote in an opinion issued Wednesday, and diminished “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,” Pearce wrote.
Kwan had appealed a decision by Utah’s Judicial Conduct Commission, arguing he had a First Amendment right to express himself.
The state supreme court said there was a different issue at stake.
“But 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. 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,” the court ruling read.
“Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large,” the ruling added.
“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 ruling said Kwan knew he was breaking the rules, but did not stop.
“Judge Kwan’s postings continue a pattern of inappropriate political commentary, as previously addressed in our second public reprimand, following Judge Kwan’s service as president of a national organization that, among other things, criticized candidates for political office. What’s more, the Utah State Bar Ethics Advisory Opinion Committee offered substantial guidance to Judge Kwan on this topic,” Pearce wrote.
“Judge Kwan nevertheless engaged in behavior that violates our code of conduct, despite the prior attempts to dissuade him from that path.”
“Judge Kwan’s online postings thus give the appearance that Judge Kwan considered himself unfettered by the Utah Code of Judicial Conduct. That Judge Kwan engaged in this conduct in the face of, and contrary to, the guidance he sought, only amplifies the perception that Judge Kwan acted as if the rules did not apply to him,” Pearce added.
The ruling highlighted some examples.
On Jan. 20, 2017, when Trump was inaugurated, 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?”
A few weeks later, on Feb. 13, he was after Trump again.
“Welcome to the beginning of the fascist takeover,” Kwan posted.
“[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.”
Kwan drew attention to himself after a January 2017 comment to a defendant who had not paid his court fees and said he hoped to use a planned tax refund to do so.
“Prayer might be the answer,” the ruling quoted Kwan as saying in court. “Cause, [Trump] 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,” Kwan said,
The court ruling noted that Kwan explained the comments away as examples of his sense of humor.
Attorney Greg Skordas, who represented Kwan, characterized his client as a “popular judge” and a “charming man.”
“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,” Skordas said, according to the Deseret News.
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