Can judges raise constitutional challenges in disciplinary proceedings? In re Inquiry of a Judge Explained

The Utah Supreme Court’s decision in In re Inquiry of a Judge addresses critical questions about judicial discipline and the boundaries of protected speech for judges. Judge Michael Kwan faced discipline for multiple violations of the Utah Code of Judicial Conduct, including inappropriate political commentary in court, misuse of judicial authority with court staff, and online criticism of then-presidential candidate Donald Trump.

Background and Facts

Judge Kwan served as a justice court judge in Taylorsville with a history of prior discipline including two public reprimands and guidance from the Ethics Advisory Committee. The current charges stemmed from three incidents: making political statements about President Trump’s policies during a court hearing with a defendant, angrily confronting court staff and attempting to have a clerk removed from the premises, and posting numerous critical comments about Donald Trump on social media during the 2016 election and after.

Key Legal Issues

The central issues were whether Judge Kwan’s conduct violated the Utah Code of Judicial Conduct and whether he could raise First Amendment challenges to restrictions on his online political speech in the disciplinary proceeding. Judge Kwan argued that his social media commentary constituted protected speech that could only be restricted under strict scrutiny.

Court’s Analysis and Holding

The court applied established precedent from In re Anderson and In re Christensen holding that judges cannot raise constitutional challenges for the first time in disciplinary proceedings. The court required that constitutional objections be raised contemporaneously with the alleged violation to maintain public confidence in judicial integrity. Since Judge Kwan failed to challenge the conduct rules when he violated them, his constitutional arguments were barred. Even excluding the constitutionally challenged speech, the court found the remaining admitted violations—including one online post he conceded violated the rules—justified the six-month suspension.

Practice Implications

This decision establishes that judges must raise constitutional objections to conduct rules at the time of violation, not after disciplinary charges are filed. The court emphasized that repeat misconduct warrants escalated sanctions, particularly when prior guidance and discipline prove ineffective. The decision reinforces that judicial officers must sacrifice some personal freedoms to maintain public confidence in judicial independence and impartiality, especially regarding political commentary that could undermine the appearance of fairness.