This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 30

IN THE

SUPREME COURT OF THE STATE OF UTAH

In re: Inquiry of a Judge

THE HONORABLE KEVIN CHRISTENSEN ___________________________________

No. 20120523

Filed May 21, 2013

Original proceeding in this Court

Attorneys:

Colin R. Winchester, Ogden, for Judicial Conduct Commission

Jason M. Yancey, Clearfield, for Judge Christensen

John E. Swallow, Att’y Gen., Bridget K. Romano, Asst. Att’y Gen.,

Salt Lake City, for amicus

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 This judicial discipline proceeding involves the statutory

cap on the salaries of justice court judges who are employed by more

than one municipality. Following an investigation, the Judicial

Conduct Commission (JCC) found that the salary of justice court

judge Kevin Christensen exceeded the statutory cap during the years

2009 through 2011, and recommended that he be censured and

ordered to repay the excess amounts. We adopt the JCC’s

recommendations.

BACKGROUND

¶2 Since at least the beginning of 2009, Judge Kevin

Christensen has been employed as a justice court judge by four Utah

municipalities. Under Utah Code section 78A-7-206(1)(e), “[a] justice

court judge employed by more than one entity as a justice court

judge, may not receive a total salary for service as a justice court

judge greater than the salary of a district court judge.” In late 2010,

Judge Christensen became aware that his salary exceeded this

statutory maximum. He claims to have immediately contacted his
IN RE: THE HONORABLE KEVIN CHRISTENSEN

Opinion of the Court

1

 Rick Schwermer of the Administrative Office of the Courts

reportedly left Judge Christensen a voicemail and also sent him an

email. Judge Christensen claims not to have received the voicemail

and explains that he did not initially open the email because it

appeared in his inbox as an email sent by “Judge Kevin

Christensen,” not by Rick Schwermer.

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municipal employers to discuss the problem. However, several

months later, his salary had not been reduced.

¶3 In August 2011, following unsuccessful attempts to contact

Judge Christensen,1

 the Administrative Office of the Courts filed a

complaint with the JCC. The JCC investigated the allegations in the

complaint and, in November 2011, issued formal charges against

Judge Christensen. The formal charges alleged that Judge

Christensen had been overpaid during the years 2009 through 2011,

in violation of the Utah Constitution, statutory law, and the Code of

Judicial Conduct.

¶4 The JCC and Judge Christensen stipulated to a number of

facts and legal conclusions, including the following:

For calendar years 2009 through 2011, Utah Code Ann.

§ 78A-7-206(1)(e) provided, “A justice court judge

employed by more than one entity as a justice court

judge, may not receive a total salary for service as a

justice court judge greater than the salary of a district

court judge.”

For calendar years 2009 through 2011, the salary of a

district court judge was $132,150.

For calendar years 2009 through 2011, Judge

Christensen’s total salaries for service as a justice court

judge were respectively $139,908, $139,360, and

$139,354. . . .

As of January 1, 2012, Judge Christensen no longer

receives combined judicial salaries that exceed the

salary of a district judge. . . .

Subject only to Judge Christensen’s claim that this

matter should be dismissed due to the alleged

unconstitutionality of § 78A-7-206(1)(e), Judge

Christensen’s actions violate Rule 1.1 of the Code of

Judicial Conduct, which states, “A judge shall comply

with the law.”
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Opinion of the Court

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Subject only to Judge Christensen’s claim that this

matter should be dismissed due to the alleged

unconstitutionality of § 78A-7-206(1)(e), Judge

Christensen’s actions constitute conduct prejudicial to

the administration of justice which brings a judicial

office into disrepute, in violation of Article VIII, Section

13 of the Constitution of Utah and Utah Code Ann.

§ 78A-11-105(1).

Subject only to Judge Christensen’s claim that this

matter should be dismissed due to the alleged

unconstitutionality of § 78A-7-206(1)(e), a censure is an

appropriate sanction in this matter.

Subject only to Judge Christensen’s claim that this

matter should be dismissed due to the alleged

unconstitutionality of § 78A-7-206(1)(e), Judge

Christensen should also be ordered to pay back any and

all excess salary received during calendar years 2009,

2010 and 2011. The obligation should be paid in full

within three years of date hereof, and should not bear

interest.

Subsequently, the JCC issued Findings of Fact and Conclusions of

Law, which contained the same substance as the Stipulation. The

JCC also issued an Order of Censure to “take effect upon

implementation . . . by the Utah Supreme Court.” The order

provided that Judge Christensen be censured and be required to

repay the excess salary he received from 2009 through 2011.

¶5 We have jurisdiction to “review the commission’s

proceedings as to both law and fact” and to “issue [an] order

implementing, rejecting, or modifying the commission’s order.”

UTAH CONST. art. VIII, § 13.

STANDARD OF REVIEW

¶6 As we explained in In re Anderson, 2004 UT 7, 82 P.3d 1134,

the relationship between the Judicial Conduct Commission and the

supreme court is not analogous to the relationship between a trial

court and an appellate court. The JCC acts as an investigatory and

advisory committee, “not as an independent body with the power to

impose consequences . . . that are simply subject to appellate

review.” Id. ¶ 10. Accordingly, “the [supreme] court is obligated

neither to accept the judgment of the Judicial Conduct Commission

on matters of law or fact nor to adopt any recommended sanction.”

Id. ¶ 11. “[A]s matter of constitutional deference,” however, we
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Opinion of the Court

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 Even though we do not reach Judge Christensen’s constitutional

challenge, we appreciate the work of the Utah Attorney General’s

office in briefing and arguing this issue at our request as amicus.

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“treat[] the findings and recommendations of the Judicial Conduct

Commission with a significant degree of respect.” Id.

ANALYSIS

¶7 Judge Christensen argues that Utah Code section 78A-7-

206(1)(e), the statutory provision he stipulated to having violated, is

unconstitutional. We decline to reach this issue because a judge may

not properly assert for the first time in a disciplinary proceeding the

defense that a law the judge has violated is unconstitutional. After

considering the record and the mitigating factors offered by Judge

Christensen, we adopt the recommendations of the JCC.

I. JUDGE CHRISTENSEN CANNOT CHALLENGE FOR

THE FIRST TIME IN A DISCIPLINARY HEARING THE

CONSTITUTIONALITY OF A STATUTE HE HAS VIOLATED

¶8 Judge Christensen argues that the cap on justice court judges’

salaries found in Utah Code section 78A-7-206(1) violates the

uniform operation of laws provision of the Utah Constitution. We do

not reach this constitutional question, however, because judges are

not at liberty to disregard the law and only later, after they are

caught, challenge the law’s constitutionality.2

[T]he appropriate standard of behavior for a judge is to

observe the law as it exists at the time, and if he seeks to

challenge it, to set forth his reasoning in a record of

decision in a case before him or to bring an action

seeking a declaratory judgment . . . . It cannot be

acceptable behavior for a judge to fail to obey the law

without at the time providing any reason to believe a

constitutional objection motivated the failure, only

years later in disciplinary proceedings to unveil a

constitutional objection.

In re Anderson, 2004 UT 7, ¶ 66, 82 P.3d 1134.

¶9 When judges ignore the law with no apparent justification,

they undermine public confidence in the integrity of the judiciary.

The public’s respect for the judiciary “is a necessary element of the

rule of law.” In re Steed, 2006 UT 10, ¶ 6, 131 P.3d 231. Judges are

accordingly held to a higher standard of compliance with the law

than is the general public. See UTAH CODE JUD. CONDUCT R. 1.2

(requiring judges to “act at all times in a manner that promotes . . .
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Opinion of the Court

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 Judge Christensen also seeks to challenge the constitutionality

of section 78A-7-206(1) prospectively. However, a disciplinary

proceeding is not the proper setting for such a challenge. The scope

of the present matter is limited to whether Judge Christensen

violated the Code of Judicial Conduct and, if so, what sanction is

appropriate.

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public confidence in the . . . integrity . . . of the judiciary and [to]

avoid impropriety and the appearance of impropriety”).

¶10 Before disciplinary proceedings commenced, Judge

Christensen did not allege formally or informally that the cap on

justice court judges’ salaries was unconstitutional. Nor do the record

or the briefs suggest that Judge Christensen’s violation of the statute

was causally related to or even temporally correlated with his belief

that the law was unconstitutional. Rather, the record and the briefs

suggest that only after the JCC issued formal charges against Judge

Christensen did he formulate a constitutional justification for his

actions. This is unacceptable behavior for a judge.3

II. WE ADOPT THE SANCTIONS RECOMMENDED BY

THE JUDICIAL CONDUCT COMMISSION

¶11 Judge Christensen stipulated that unless we found Utah

Code section 78A-7-206(1)(e) to be unconstitutional, his actions

constituted “conduct prejudicial to the administration of justice

which brings a judicial office into disrepute,” a sanctionable offense

under article VIII, section 13 of the Utah Constitution and under

Utah Code section 78A-11-105(1)(e). He also stipulated that if his

constitutional claim failed, his actions constituted a violation of rule

1.1 of the Code of Judicial Conduct, which provides, “A judge shall

comply with the law.” Finally, he stipulated that if his constitutional

claim failed, censure and repayment were appropriate sanctions.

¶12 Despite these stipulations, Judge Christensen offers

mitigating factors to persuade us to adopt a lesser sanction than that

to which he stipulated. Ordinarily, parties are bound by their

stipulations. Prinsburg State Bank v. Abundo, 2012 UT 94, ¶¶ 13–14,

296 P.3d 709. However, because of our plenary authority over

judicial disciplinary matters, see In re Anderson, 2004 UT 7, ¶¶ 9–11,

82 P.3d 1134, and our constitutional duty to impose sanctions that

we find to be “just and proper,” UTAH CONST. art. VIII, § 13, we are

not bound to enforce the Stipulation.

¶13 Nonetheless, even in a judicial discipline proceeding, we

view a party’s stipulations to be highly indicative of the facts as they
IN RE: THE HONORABLE KEVIN CHRISTENSEN

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actually occurred. Further, we recognize that stipulations often

represent compromises and bargains. For example, the JCC may

agree not to recommend more severe sanctions or not to allege an

additional violation if a judge stipulates to certain facts or to the

appropriateness of certain sanctions. Thus, we will generally give

effect to stipulations between judges and the JCC unless our

constitutional obligation to prescribe a “just and proper” sanction

compels us to do otherwise. See Id.

¶14 Here, none of the mitigating factors offered by Judge

Christensen persuade us that the sanctions to which he stipulated

would be unjust or improper. First, Judge Christensen points out

that the JCC did not hold a hearing and therefore did not “weigh the

facts.” This factor is not mitigating because it does not reflect on

Judge Christensen’s level of culpability. See BLACK’S LAW

DICTIONARY 1093 (9th ed. 2009) (defining “mitigator” as “[a] factor

tending to show that [an actor], though guilty, is less culpable than

the act alone would indicate”). Furthermore, because Judge

Christensen has not identified any factual issues that were not

resolved by the Stipulation, we see no reason why a hearing would

have been necessary.

¶15 Second, Judge Christensen contends that he was “caught

between two conflicting statutes”: Utah Code section 78A-7-

206(1)(e), which sets a statutory cap on the salaries of justice court

judges, and Utah Code section 78A-7-207(2), which provides that

“[t]he salary fixed for a justice court judge may not be diminished

during the term for which the judge has been appointed or elected.”

Below, we hold that section 78A-7-207(2) does not prohibit justice

court judges from voluntarily accepting a lower salary in order to

comply with section 78A-7-206(1)(e). Infra ¶¶ 18–19. We nonetheless

recognize that if Judge Christensen were actually delayed in

bringing his salary into compliance with the statutory cap because

of the municipalities’ concerns about section 78A-7-207(2), this fact

could potentially be mitigating. However, the record was not

developed on this point because Judge Christensen stipulated that

the proposed sanctions were appropriate. If Judge Christensen had

raised this mitigating argument to the JCC, its investigators likely

would have interviewed municipality officials to determine whether

Judge Christensen was as diligent as he claims to have been and

whether any concerns they may have had regarding section 78A-7-

207(2) resulted in delay. We decline to give Judge Christensen’s

assertions the benefit of the doubt, or to reopen fact-finding in this

case, see, e.g., In re Anderson, 2004 UT 7, ¶ 19 (appointing a special
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Opinion of the Court

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 We modify the JCC’s order insofar as it required repayments to

be completed within three years of its issuance date of May 31, 2012.

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master to engage in additional fact-finding in a judicial discipline

case), because the paucity of evidence is a result of Judge

Christensen’s decision to enter the Stipulation.

¶16 Finally, Judge Christensen argues in mitigation that (1) the

proposed sanction “does not specify to whom or in what proportion

each municipality should be ‘repaid,’” and that (2) “repaying the

municipalities as recommended by the JCC is likely barred by [Utah

Code section 78A-7-207(2)],” which provides that a justice court

judge’s salary “may not be diminished” during his term. These are

not mitigating factors because they do not reflect on Judge

Christensen’s level of culpability. See supra ¶ 14. Rather, they pose

questions about the logistics of complying with the repayment order.

Because no sanction is final until adopted by this court, we can and

will resolve these questions in this opinion.

¶17 Having considered the record and the arguments and

having not been persuaded that the mitigating factors offered by

Judge Christensen would render the proposed sanctions unjust or

improper, we adopt the JCC’s factual findings, legal conclusions,

and proposed sanctions. Judge Christensen is censured and ordered

to repay the excess salary he received in 2009, 2010, and 2011.

Repayments are to begin on July 1, 20134

 and are to be completed

within three years of that date. Repayments are not to include

interest. Repayments should be made pro rata to the municipalities

that employed Judge Christensen during the relevant years. We

request that the Administrative Office of the Courts work with Judge

Christensen to create a repayment plan and to monitor his

compliance with that plan.

¶18 The ordered repayments will not violate Utah Code section

78A-7-207(2). Although section 78A-7-207(2)’s directive that “[t]he

salary fixed for a justice court judge may not be diminished” could

be read in isolation to prevent any person, including a judge, from

reducing a judicial salary, in context, it is clear that the directive

applies only to municipalities acting unilaterally. When interpreting

a statute, we construe “each part or section . . . in connection with

every other part or section so as to produce a harmonious whole.”

Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d

751 (emphasis omitted) (internal quotation marks omitted). We will

not interpret section 78A-7-207(2) to make compliance with the
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Opinion of the Court

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 Under this interpretation, the only way to comply with both

statutory sections would be to resign from one or more positions.

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salary cap in the preceding section nearly impossible5

 for justice

court judges who discover they are being overpaid.

¶19 Section 78A-7-207(2) was designed to prevent

municipalities from exerting improper control over judges by

threatening to reduce their salaries. Concerns of judicial

independence are not present when a judge, seeking to comply with

the law, requests a salary reduction. We therefore hold that Utah

Code section 78A-7-207(2) is not violated when a municipality

honors a justice court judge’s request to have his salary reduced to

comply with Utah Code section 78A-7-206(1)(e).

CONCLUSION

¶20 We adopt the JCC’s factual findings, legal conclusions, and

proposed sanctions. Judge Christensen is censured and ordered to

repay the excess salary he received in 2009, 2010, and 2011.