This opinion is subject to revision before final publication in the Pacific Reporter

2013 UT 30

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

In re: Inquiry of a Judge T HE H ONORABLE K EVIN C HRISTENSEN

___________________________________ 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

J USTICE D URHAMauthored the opinion of the Court in which C HIEF J USTICE D URRANT, A SSOCIATE C HIEF J USTICE N EHRING , J USTICE P ARRISH, and J USTICE L EE joined.

J USTICE D URHAM, opinion of the Court:

INTRODUCTION ¶1 This judicial discipline proceeding involves the statutory cap on the salaries of justice cour t judges who are employed by more than one municipality. Following an investigation, the Judicial Conduct Commission (JCC) found thatthe 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 se ction 78A-7-206(1)(e), “[a] justice court judge employed by more th an 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 hisI N RE : T HE H ONORABLE K EVIN C HRISTENSEN Opinion of the Court

1 Rick Schwermer of the Admi nistrative Office of the Courts reportedly left Judge Christensen a voicemail and also sent him an email. Judge Christensen claims no t 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.

2 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 Constituti on, 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 thro ugh 2011, the sa lary 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 viol ate Rule 1.1 of the Code of Judicial Conduct, which states, “A judge shall comply with the law.”Cite as: 2013 UT 30 Opinion of the Court

3 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 Chri stensen’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 Find ings 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 Ut ah 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.” U TAH C ONST . 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 Jud icial 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 in dependent 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, weI N RE : T HE H ONORABLE K EVIN C HRISTENSEN Opinion of the Court

2Even 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.

4 “treat[] the findings and recommend ations of the Judicial Conduct Commission with a significant degree of respect.” Id.

ANALYSIS ¶7 Judge Christensen argues thatUtah Code section 78A-7- 206(1)(e), the statutory provision he stipulated to having violated, is unconstitutional. We decline to re ach this issue because a judge may not properly assert for the first ti me in a disciplinary proceeding the defense that a law the judge has vi olated 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 th e cap on justice court judges’ salaries found in Utah Code se ction 78A-7-206(1) violates the uniform operation of laws provisio n of the Utah Constitution. We do not reach this constitutional qu estion, however, because judges are not at liberty to disregard the la w 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 atthe 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 wi th no apparent justification, they undermine public confidence in the integrity of the judiciary. The public’s respect for the judici ary “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 U TAH C ODE J UD

. C ONDUCTR. 1.2 (requiring judges to “act at all ti mes in a manner that promotes . . .Cite as: 2013 UT 30 Opinion of the Court

3 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 Cond uct and, if so, what sanction is appropriate.

5 public confidence in the . . . inte grity . . . 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 i ssued formal charges against Judge Christensen did he formulate a cons titutional 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 acti ons 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 constitutionalduty to impose sanctions that we find to be “just and proper,” U TAH C ONST . 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 theyI N RE : T HE H ONORABLE K EVIN C HRISTENSEN Opinion of the Court

6 actually occurred. Further, we recognize that stipulations often represent compromises and bargai ns. For example, the JCC may agree not to recommend more severe sanctions or not to allege an additional violation if a judge stip ulates to certain facts or to the appropriateness of certain sanctions. Thus, we will generally give effect to stipulations betwee n judges and the JCC unless our constitutional obligation to pre scribe 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 B LACK’ S L AW D ICTIONARY1093 (9th ed. 2009) (defining “mitigator” as “[a] factor tending to show that [an actor], th ough 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 s ee 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 ab out 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 approp riate. 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 ha ve had regarding section 78A-7- 207(2) resulted in delay. We dec line 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 specialCite as: 2013 UT 30 Opinion of the Court

4We modify the JCC’s order inso far as it required repayments to be completed within three years of its issuance date of May 31, 2012.

7 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 argue s 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 dimi nished” 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 th e proposed sanctions unjust or improper, we adopt the JCC’s factual findings, legal conclusions, and proposed sanctions. Judge Chri stensen is censured and ordered to repay the excess salary he received in 2009, 2010, and 2011. Repayments are to begin on July 1, 2013 4and 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 ju dge may not be diminished” could be read in isolation to prevent any person, including a judge, from reducing a judicial salary, in contex t, it is clear that the directive applies only to municipalities acti ng 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 qu otation marks omitted). We will not interpret section 78A-7-207(2) to make compliance with theI N RE : T HE H ONORABLE K EVIN C HRISTENSEN Opinion of the Court

5 Under this interpretation, th e only way to comply with both statutory sections would be to resign from one or more positions.

8 salary cap in the preceding section nearly impossible 5for 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 reduct ion. 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.