author: Justice Pearce, opinion of the Court:

text:
    IN RE Inquiry of a Judge: The Honorable Judge Michael KWAN
    No. 20171041
    Supreme Court of Utah.
    Filed May 22, 2019
    Alex G. Peterson, Salt Lake City, for Judicial Conduct Commission
    Gregory G. Skordas, Salt Lake City, for Judge Michael Kwan
    Justice Pearce authored the opinion of the Court, in which Justice Petersen, Judge Pohlman, Judge Harris, and Judge Hagen joined.
    Having recused themselves, Chief Justice Durrant, Associate Chief Justice Lee, and Justice Himonas do not participate herein.
    Court of Appeals Judges Jill M. Pohlman, Ryan M. Harris, and Diana Hagen sat.
   Justice Pearce, opinion of the Court:

INTRODUCTION

¶1 This judicial discipline proceeding requires us to decide the appropriate sanction for a judge who has engaged in repeated misconduct. Judge Michael Kwan acknowledges that he violated the Utah Code of Judicial Conduct when he made seemingly shirty and politically charged comments to a defendant in his courtroom. Judge Kwan similarly admits that he violated the code of conduct when he lost his temper with a member of the court's staff and improperly used his judicial authority to seek that individual's removal from the premises. Moreover, in response to questions at oral argument, Judge Kwan conceded that an online post critical of then-presidential candidate Donald Trump also violated the code of conduct. But Judge Kwan argues that the six-month suspension the Judicial Conduct Commission (JCC) recommends is inappropriate. He claims that sanction rests, in part, on an unlawful attempt to regulate his constitutionally protected speech, and he asserts that a less severe penalty is all that is warranted.

¶2 Judge Kwan raises important First Amendment questions, but he fails to address our case law holding that a judicial disciplinary proceeding is an improper venue to press those constitutional claims. Bound by our precedent, we therefore do not address the constitutional questions, and we limit our consideration to that portion of Judge Kwan's online speech that he concedes we can permissibly sanction. That statement, coupled with the other misconduct before us, as well as Judge Kwan's history of prior discipline, convinces us that a six-month suspension without pay is the appropriate sanction.

BACKGROUND

History of Misconduct

¶3 Judge Kwan has served as a justice court judge for the City of Taylorsville for the past two decades. On multiple occasions, the JCC has reviewed allegations that Judge Kwan violated various provisions of the Utah Code of Judicial Conduct. As a result of the JCC's investigations into those allegations, Judge Kwan has received two letters of education from the JCC and two public reprimands from this court. The Utah State Bar Ethics Advisory Opinion Committee has also issued two opinions relating to Judge Kwan-one not expressly naming him but directed to his conduct, and another issued in response to his questions regarding, among other things, rules limiting judicial commentary on statements made by a candidate for political office. See Utah State Bar Ethics Advisory Committee, Informal Opinion 16-02 (2016); Utah State Bar Ethics Advisory Committee, Informal Opinion 15-01 (2015).

¶4 This guidance has been animated by two general concerns regarding Judge Kwan's behavior: his improper use of judicial authority and his inappropriate political commentary. The JCC's letters of education addressed Judge Kwan's abuse of judicial authority, which manifested in improperly revoking probation, imposing jail in absentia, and ordering excessive bail. The letters were issued in response to complaints the presiding judge of the Taylorsville Justice Court lodged against Judge Kwan. The complaints followed multiple letters from the presiding judge to Judge Kwan, raising concerns about the manner in which he handled his cases. And in its communications, the JCC advised Judge Kwan of its concerns that he had issued several warrants with excessive bail amounts and had not followed Utah law when revoking probation.

¶5 Our first public reprimand addressed Judge Kwan's crass in-court reference to sexual conduct and a former president of the United States. During the underlying proceeding before the JCC concerning that comment, Judge Kwan acknowledged that the Utah Code of Judicial Conduct requires judges to be patient, dignified, and courteous to those with whom the judge deals in an official capacity. See UTAH CODE JUD. CONDUCT R. 2.8(B). He also acknowledged that his comments violated that requirement and constituted conduct prejudicial to the administration of justice.

¶6 Our second public reprimand addressed political activities associated with Judge Kwan's service as president of a nonprofit organization. The organization took public positions on a range of issues, criticized candidates for political office, and posted articles and press releases online that included Judge Kwan's name and judicial title.

¶7 During the underlying proceeding before the JCC regarding that conduct, Judge Kwan again acknowledged that he had engaged in conduct prejudicial to the administration of justice and had violated several rules of the Utah Code of Judicial Conduct. Among those rules were rule 1.2, which provides that "[a] judge ... shall not undermine ... public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety," UTAH CODE JUDICIAL CONDUCT R. 1.2, and Canon 4, which provides that "a judge ... shall not engage in political ... activity that is inconsistent with the independence, integrity, or impartiality of the judiciary," id. Canon 4.

¶8 During that same JCC proceeding, Judge Kwan acknowledged receiving guidance from the Utah State Bar Ethics Advisory Opinion Committee on these issues. That committee issued two informal opinions addressing Judge Kwan's service as president of the nonprofit organization. The first opinion addressed "whether a full-time justice court judge may ethically serve as the national president of an organization dedicated to advancing the social, political, and economic well-being of a specific ethnic group." Utah State Bar Ethics Advisory Committee, Informal Opinion 15-01 at 1 (2015). Concluding that a judge may not, the opinion cited several principles regarding judicial service, including the obligation to not undermine public confidence in the independence and impartiality of the judiciary. Id. at 4-5. The opinion tied that obligation directly to Utah Code of Judicial Conduct Rule 4.1(A)(3), which provides that a judge shall not publicly endorse or oppose a candidate for any public office. Id. at 4. The opinion then expressly advised that "[a] judge may not make any public statements that can be viewed as opposing or supporting a political candidate." Id. at 5.

¶9 The second informal opinion addressed the same topic, responding to questions Judge Kwan posed. Utah State Bar Ethics Advisory Committee, Informal Opinion 16-02 (2016). Among other things, Judge Kwan asked whether a judge may "criticize or commend statements made by a candidate for political office" if the judge does not "endorse[ ] or oppose[ ] the candidate." Id. at 1.

The opinion reiterated that a judge is obligated to "uphold the integrity of the judiciary" and refrain from engaging in activities that would "undermine public confidence" in its independence and impartiality. Id. at 3. The opinion then responded that "[w]hen an individual is running for public office, a judge's public comments either praising or criticizing that individual can be reasonably viewed as support or opposition." Id. The opinion thus concluded, in response to the question noted above, that "a judge's comments commending or criticizing a political candidate ... can reasonably be viewed as endorsing or opposing the candidate." Id. at 4.

Current Allegations

¶10 After the Utah State Bar issued these opinions, and shortly after we handed down our second public reprimand, the JCC began investigating additional potential misconduct. Specifically, the JCC investigated allegations that Judge Kwan: (1) made political statements in court, (2) handled a dispute with court personnel inappropriately, and (3) posted political comments online. During the investigation, Judge Kwan conceded that he had engaged in the behavior underlying the allegations.

In-Court Political Statements

¶11 In January 2017, while presiding over a hearing, Judge Kwan launched into an exchange with a defendant that appeared to demean the defendant and included political commentary regarding President Trump's immigration and tax policies:

Judge: So, what happened with your fine payments?
Defendant: So, I, just, live paycheck to paycheck ....
Judge: Ok. So, when you set up the pay plan you were hoping you would have the money and it didn't pan out that way?
Defendant: And I did not call, but I plan on when I get my taxes to just pay off all my court fines, because I cannot end up in jail again for not complying.
Judge: You do realize that we have a new president, and you think we are getting any money back?
Defendant: I hope.
Judge: You hope?
Defendant: I pray and I cross my fingers.
Judge: 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?

Dispute with Court Personnel

¶12 In February 2017, Judge Kwan learned that an administrative staff member had been promoted without his involvement. In response, Judge Kwan confronted the Clerk of Court in a manner that multiple witnesses described as "angry" and "screaming." A short time later, Judge Kwan submitted a written notice for disciplinary action with respect to the Clerk of Court, threatened to put her on unpaid suspension pending termination, and directed her to be escorted from the premises via an email understood by its recipients to be a judicial order-in part because the email included a signature block indicating that it was a judicial order.

Online Political Comments

¶13 During 2016, Judge Kwan repeatedly posted comments and shared articles on his Facebook and LinkedIn accounts regarding then-presidential candidate Donald Trump. Judge Kwan continued to post comments and articles regarding Donald Trump following the presidential election. Over that same period, between mid-2016 and early 2017, Judge Kwan posted comments or shared articles on several other topics including immigration, gun violence, and voter participation.

¶14 On November 8, 2016, for example, Judge Kwan wrote a lengthy post on voter participation, which opened, "Dear Generation X and Millennial Voters, So many people have tried to convince you of the importance of your participation in this year's election.... Let me join in the effort ... by giving you the cold, hard truth: You have to vote to stop your elders from screwing up your future!" Judge Kwan continued, "What kind of future do you want? Want help with your student loan debt? Want affordable tuition? Affordable health insurance? ... Grab a friend and Go Vote."

¶15 With respect to Donald Trump, Judge Kwan's postings were laden with blunt, and sometimes indelicate, criticism. In July 2016, for example, Judge Kwan posted an article entitled "Ghazala Khan: Trump criticized my silence. He knows nothing about true sacrifice." Above the article's headline, Judge Kwan added, "Checkmate."

¶16 On September 26, 2016, the night of the first presidential debate between candidates Donald Trump and Hillary Clinton, Judge Kwan wrote:

Contradictory: person who got rich by not paying people for their work but complains about NATO not paying their fair share.
Food for thought: If a person tries to show their ties to a community by talking about their investments and properties and not about the people of the community, it speaks to that person's priorities.
Quick question: Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say ... about your business practices?
Wish she said: "Donald, I'm used to having a man interrupt and dismiss me when I speak because egotistical men hav[e] been trying to do that to me for my entire career."

¶17 On November 11, 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 ...."

¶18 On January 20, 2017, the day President Trump was inaugurated, Judge Kwan commented, "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?"

¶19 On February 13, 2017, Judge Kwan posted, "Welcome to the beginning of the fascist takeover." He continued, "[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."

¶20 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.

Proceeding Before the JCC

¶21 The JCC brought formal charges against Judge Kwan, alleging that his conduct was "prejudicial to the administration of justice." See UTAH CONST. art. VIII, § 13 (authorizing the sanction of judicial "conduct prejudicial to the administration of justice which brings a judicial office into disrepute"). The JCC also alleged that Judge Kwan's conduct violated various provisions of the Utah Code of Judicial Conduct.

¶22 In particular, the JCC alleged that Judge Kwan's in-court political statements violated rules 1.2, 2.8, and 4.1. See UTAH CODE JUD. CONDUCT R. 1.2 (2017) ("A judge ... shall not undermine ... public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety."); id. 2.8(B) ("A judge shall be patient, dignified, and courteous to litigants, ... court staff, ... and others with whom the judge deals in an official capacity ...."); id. 4.1(A)(10) ("Except as permitted in this Canon, a judge ... shall not ... make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court ....").

¶23 With respect to the dispute with court personnel, the JCC alleged that Judge Kwan violated rules 1.1, 1.3, and 2.8. See id. 1.1 ("A judge shall comply with the law."); id. 1.3 ("A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge ...."); id. 2.8(B).

¶24 And based on the online postings, the JCC alleged that Judge Kwan violated rules 1.2, 3.1, 4.1(A)(3), and 4.1(A)(10). See id. 1.2; id. 3.1 ("[W]hen engaging in extrajudicial activities, a judge shall not: (A) participate in activities that will interfere with the proper performance of the judge's judicial duties; (B) participate in activities that will lead to unreasonably frequent disqualification of the judge; [or] (C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality ...."); id. 4.1(A)(3) ("Except as permitted in this Canon, a judge ... shall not ... publicly endorse or oppose a candidate for any public office ...."); id. 4.1(A)(10).

¶25 As noted above, Judge Kwan acknowledged engaging in the conduct, and he also conceded that some of that conduct violated the Utah Code of Judicial Conduct. He characterized his in-court political statements as an inappropriate attempt at humor, and he admitted that the statements violated rules 1.2 and 2.8. Similarly, regarding his dispute with court personnel, Judge Kwan noted that his conduct was improper and agreed that it violated rule 2.8.

¶26 But with respect to his online political commentary, Judge Kwan raised a constitutional challenge. He asserted that, under the First Amendment, his "comments on social media about elected officials' policies and social and political issues" were "constitutionally protected speech." Judge Kwan claimed that restrictions on social commentary or political dialogue "must survive a strict scrutiny analysis, i.e., [the restrictions] must be narrowly tailored to achieve a compelling state interest." Under that standard, Judge Kwan argued that the JCC could not constitutionally regulate speech addressing social or political issues or "public officials in general," but only speech addressing "candidates for public office," if that speech "expressly criticizes or praises [the] individual political candidate."

¶27 In Judge Kwan's view, his statements leading up to the presidential election were largely "social commentary or humor." He asserted that while some of those statements could be "construed" as applying to then-presidential candidate Donald Trump, none were "expressly" critical of him. On that basis, Judge Kwan argued that sanctioning him for those statements would violate his First Amendment rights.

¶28 Judge Kwan characterized his post-election statements as "more direct, critical, and strident" with respect to Donald Trump, but contended those comments did not address a candidate for office and were "synonymous with [Judge Kwan's] views on issues such as racism, civil rights, the plight of refugees, and constitutional limits on the executive branch." Thus, he claimed, his post-election statements were also "protected under the First Amendment."

¶29 Following a hearing, the JCC entered findings of fact and conclusions of law and determined that Judge Kwan's conduct was prejudicial to the administration of justice. In addition, the JCC concluded that Judge Kwan's in-court political statements violated Utah Code of Judicial Conduct Rules 1.2, 2.8, and 4.1(A)(10); his conduct stemming from the dispute with court personnel violated rules 1.3 and 2.8; and his online postings violated rules 1.2, 3.1, 4.1(A)(3), and 4.1(A)(10).

¶30 The JCC did not weigh in on the constitutional issues. The JCC opined that "making conclusions of law about the degree to which the requirements of the Utah Code of Judicial Conduct must yield to, or be reconciled with, the First Amendment, is beyond the scope of the [JCC's] authority." The JCC recognized, however, that Judge Kwan had "acknowledge[d] in his arguments that judicial speech which endorse[s] political candidates may be prohibited." And the JCC limited its consideration to online postings by Judge Kwan that it concluded could be "viewed as endorsing or opposing" Donald Trump, during the period in which Donald Trump was a presidential candidate.

¶31 To determine the appropriate sanction, the JCC considered a number of factors, including the public and private forums in which the conduct occurred, the deliberate (as opposed to spontaneous) nature of the online postings, the appearance of impropriety and actual impropriety that occurred, the historical pattern of misconduct, the prior guidance issued and prior sanctions imposed, and "the potential and actual harm to the public's perception of fairness and impartiality in Utah's judicial system."

¶32 After "considering all of these factors," the JCC determined that "six months suspension without pay is the most appropriate sanction for [Judge Kwan's] violations of the Utah Code of Judicial Conduct." The JCC issued an order providing that Judge Kwan be suspended without pay for six months.

Proceeding Before This Court

¶33 An order of the JCC does not become effective until this court reviews and implements it. UTAH CONST . art. VIII, § 13. Before us, Judge Kwan takes many of the same positions he maintained before the JCC. He concedes that his in-court political statement violated Utah Code of Judicial Conduct Rules 1.2 and 2.8. Likewise, he agrees that his handling of his dispute with court personnel was improper and violated rule 2.8.

¶34 Judge Kwan also reiterates the constitutional challenge he raised before the JCC regarding his online commentary. Without tailoring his arguments to the specific speech underlying the JCC's order, Judge Kwan addresses his numerous online postings and asserts that his "comments on social media about elected officials' policies and social and political issues are constitutionally protected speech." Judge Kwan claims strict scrutiny applies and, under that standard, speech that might be "construed" as critical of a candidate is protected, while "[s]peech that expressly criticizes or praises an individual candidate" may constitutionally be barred.

¶35 Judge Kwan thus designates "the independence and impartiality of the judiciary" as "a compelling state interest," and stipulates that restricting speech regarding political candidates, "partisan politics and public elections is [a] narrowly focused" and constitutional practice. As he puts it, "[s]peech regarding political or social issues is protected," but "speech that is reasonably and objectively a partisan political statement for or against a political candidate is not."

¶36 In that vein, Judge Kwan fervently defends his asserted right to speak on political or social issues, particularly those of personal interest to him. Accordingly, he argues the JCC must make "an objective assessment of [his] comments to determine if [they] fall within the narrow scope of speech that is not protected because it endorses or opposes a political candidate for office," under the express endorsement or opposition standard he has articulated. Judge Kwan claims the JCC failed to engage in this type of analysis and, as a result, ordered a sanction "wholly disproportionate" to his conduct.

STANDARD OF REVIEW

¶37 The Utah Constitution provides that "[p]rior to the implementation of any" JCC order, this court "shall review the [JCC's] proceedings as to both law and fact. [This] court may also permit the introduction of additional evidence. After its review, [this court] shall, as it finds just and proper, issue its order implementing, rejecting, or modifying the [JCC's] order." UTAH CONST . art. VIII, § 13. Under this framework, the JCC

"acts in a role more akin to an independent advisory committee" than to "an independent body with the power to impose consequences on a judge." In re Anderson , 2004 UT 7, ¶ 10, 82 P.3d 1134 (per curiam). Accordingly, the JCC's findings of fact and conclusions of law are not binding on this court, id. ¶ 11, and the JCC's recommended sanction receives no deference, In re Worthen , 926 P.2d 853, 865 (Utah 1996).

¶38 We recognize and appreciate, however, the significant contributions of the JCC's investigatory proceedings and accord its findings, conclusions, and recommendations a "significant degree of respect." In re Anderson , 2004 UT 7, ¶ 11, 82 P.3d 1134. But, in the end, the constitutional responsibility to impose discipline rests with this court.

ANALYSIS

I. The Constitutional Questions

¶39 Judge Kwan raises a number of interesting and important constitutional issues-questions that, under our precedent, we cannot resolve in this action. Although neither the JCC nor Judge Kwan addresses the matter, we have repeatedly held that a judge may not raise a constitutional challenge for the first time in a judicial disciplinary proceeding. E.g. , In re Christensen , 2013 UT 30, ¶¶ 8-10, 304 P.3d 835 ; In re Anderson , 2004 UT 7, ¶¶ 63-67, 82 P.3d 1134. We have stated that

the 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 at the time the law's requirements allegedly infringe on his constitutional rights.

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

¶40 When applying this principle, we have reviewed the record for evidence of a constitutional objection contemporaneous with the alleged infraction. E.g. , In re Christensen , 2013 UT 30, ¶ 10, 304 P.3d 835 ("Before disciplinary proceedings commenced, Judge Christensen did not allege formally or informally that the [law] 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."); In re Anderson , 2004 UT 7, ¶ 65, 82 P.3d 1134 ("[B]y failing to record his constitutional objection ... in the cases before him, or in an action for declaratory judgment, Judge Anderson has failed to register his objection in any way contemporaneous with his refusal to observe the statutory requirements. He has therefore given us no reason to believe that constitutional principle motivated that refusal.").

¶41 Absent such evidence, we have concluded that a judge has "no recourse" to raise the constitutional objection in the disciplinary proceeding. In re Anderson , 2004 UT 7, ¶¶ 64-67, 82 P.3d 1134 ("Judge Anderson cannot ... excuse his failure to obey the statute's requirements after the fact by applying a rationale attacking those deadlines when that rationale plainly played no role in his refusal to observe the statutory deadlines for adjudicating cases."); see also In re Christensen , 2013 UT 30, ¶¶ 8-10, 304 P.3d 835 ("[T]he 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.").

¶42 We have applied this rule in an effort to maintain public confidence in the integrity of our judges and our system of law. As we noted in In re Christensen , "The public's respect for the judiciary is a necessary element of the rule of law," and "[w]hen judges ignore the law with no apparent justification, they undermine public confidence in the integrity of the judiciary." 2013 UT 30, ¶ 9, 304 P.3d 835 (citation omitted) (internal quotation marks omitted). "Judges are accordingly held to a higher standard of compliance with the law than is the general public." Id. We have therefore required judges to raise constitutional objections at the time a violation occurs if they want to challenge the constitutionality of the regulation before us.

¶43 In other words, we have required judges who fail to abide by laws or rules to put the public on notice that their violation is based on a principled contention that the law or rule is, itself, unlawful. Without such notice, a judge may appear to violate laws or rules at will, in disregard of the legal system they are charged with administering. And when judges appear to consider themselves above the law, public confidence in the fairness and impartiality of our judicial and legal systems diminishes.

¶44 Judge Kwan has not pointed to any behavior putting the public on notice that his violation of the code of conduct was, in fact, a principled one. In particular, Judge Kwan does not assert that, at the time he posted his online comments, he raised a constitutional challenge to any provision of the Utah Code of Judicial Conduct that might regulate his speech, such as rules 1.2, 3.1, or 4.1. See, e.g. , UTAH CODE JUD. CONDUCT R. 1.2 ("A judge ... shall not undermine ... public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety."); id. 3.1 ("[W]hen engaging in extrajudicial activities, a judge shall not ... participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality ...."); id. 4.1(A)(3) ("Except as permitted in this Canon, a judge ... shall not ... publicly endorse or oppose a candidate for any public office ...."); id. 4.1(A)(10) ("Except as permitted in this Canon, a judge ... shall not ... make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court ....").

¶45 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. Because Judge Kwan did not challenge the application of the rules to him at the time he violated them, he is barred from asserting, in this proceeding, that we cannot constitutionally sanction judicial speech on social or political issues unless the speech expressly criticizes or praises a political candidate for office.

¶46 Still, we are mindful of the weighty implications of foreclosing arguments regarding a rule's unconstitutionality in a proceeding in which the rule is being applied. And we can foresee potential quandaries that may arise in requiring judges to adhere to such a rule. A violation of the code of conduct might be the product of an off-the-cuff remark or a spontaneous interaction, unaccompanied by the foresight to quickly exclaim constitutional principles, in case a disciplinary proceeding might follow. And judges acting with greater intention and foresight may be forced to put a public spotlight on private activities or interests, when engaging in conduct that appears to be constitutionally protected, on the off-chance the JCC might consider it sanctionable.

¶47 But this is our law, and Judge Kwan has not asked that In re Christensen and In re Anderson be overturned. We therefore leave for another day whether, applying the principles set forth in Eldridge v. Johndrow , 2015 UT 21, ¶ 22, 345 P.3d 553, our contemporaneous constitutional objection requirement should be reconsidered. And we do not reach the merits of Judge Kwan's constitutional arguments.

¶48 Nevertheless, even if we were to accept Judge Kwan's constitutional contentions, a favorable decision on those arguments would not alter the outcome of this proceeding.

In In re Anderson and In re Christensen we considered conduct that violated the law as part of the judicial disciplinary proceeding, despite the judge's arguments that those laws were unconstitutional. See In re Christensen , 2013 UT 30, ¶¶ 11-20, 304 P.3d 835 ; In re Anderson , 2004 UT 7, ¶¶ 75-91, 82 P.3d 1134. We need not do that here. Because even if we only include the statement Judge Kwan concedes can be constitutionally regulated, the record before us merits a six-month suspension without pay. Infra ¶¶ 51-63.

¶49 Judge Kwan has repeatedly stated that judges may, in his view, constitutionally be prohibited from endorsing or opposing candidates for office. See UTAH CODE JUD. CONDUCT R. 4.1(A)(3) ("Except as permitted in this Canon, a judge ... shall not ... publicly endorse or oppose a candidate for any public office ...."). Judge Kwan initially coupled his concession with an assertion that to run afoul of rule 4.1(A)(3), a judge's statement must expressly name a political candidate. During the hearing before this court, however, Judge Kwan addressed a September 26, 2016 posting, in which he implicitly referenced then-presidential candidate Donald Trump: "Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say ... about your business practices?" In response to questions from the bench, Judge Kwan characterized the posting as "an inappropriate comment on a political candidate," and stated that rule 4.1 could constitutionally be applied to restrict that speech.

¶50 Simply stated, we do not reach the merits of Judge Kwan's constitutional arguments, as they are not properly before us under our unchallenged precedent. But Judge Kwan's inability to press those claims does not have any bearing on the discipline he will receive. For the reasons discussed below, the single online posting regarding then-presidential candidate Donald Trump, together with the other conduct Judge Kwan admits violated the rules, viewed in light of Judge Kwan's history of judicial discipline, amply justify the sanction the JCC ordered and we implement.

II. The Appropriate Sanction

¶51 As noted above, Judge Kwan's main opposition to implementation of the JCC's six-month suspension order is his assertion that the order reflects an unconstitutional attempt to regulate protected speech. As also noted above, that argument is not before us. Judge Kwan is left with his secondary argument that a lesser penalty, such as probation, would be a more appropriate incremental step-up in the sanctioning process.

¶52 Suspension without pay is a particularly significant penalty that carries substantial consequences. But given the record before us, it is the appropriate penalty. And six months is an appropriate term. A lesser period would fail to adequately address the degree to which Judge Kwan has varied from our judicial code, the repeat nature of Judge Kwan's conduct, his disregard of the specific guidance and former discipline he has received, and the importance of the principles his conduct has trampled.

¶53 The confidence the public places in our state judicial system, and the respect afforded our rulings, turns in large part on our collective credibility. Thus, "[i]nherent in all the [r]ules contained in [the Utah Code of Judicial Conduct] are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system." UTAH CODE JUD. CONDUCT Preamble [1]. And "[c]onduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary." Id. 1.2 cmt. 3. In other words, every time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole.

¶54 Here, we readily conclude that Judge Kwan has been spending our goodwill. As Judge Kwan admits, his in-court political comment regarding President Donald Trump violated Utah Code of Judicial Conduct Rules 1.2 and 2.8. See UTAH CODE JUD. CONDUCT R. 1.2 ("A judge ... shall not undermine ... public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety."); id. 2.8(B) ("A judge shall be patient, dignified, and courteous to litigants, ... court staff, ... and others with whom the judge deals in an official capacity ...."). This comment continues a pattern of behavior that led to our first public reprimand of Judge Kwan, following his in-court reference to sexual conduct and a former president of the United States. And it demonstrates an ongoing failure to exercise appropriate judgment and restraint when making statements during judicial proceedings.

¶55 Moreover, as Judge Kwan concedes, his handling of his dispute with court personnel-regarding an administrative matter undertaken without his involvement-violated rule 2.8. See UTAH CODE JUD. CONDUCT R. 2.8(B). We recognize there may be instances in which a judge, attempting his or her best efforts, might nevertheless fail to handle an administrative matter with the highest degree of patience and courtesy. And not "every transgression" of the high standards to which judges are held is meant to "result in the imposition of discipline." Id. Scope [6]. But this proceeding does not involve an intraoffice disagreement in which a judge's conduct fell just short of the ideal. Rather, Judge Kwan's interactions with court personnel were well outside the bounds of any acceptable range of behavior.

¶56 Witnesses reported that Judge Kwan's outburst was intense. And as the JCC concluded, it was followed by an inappropriate attempt to use the judicial office to impose severe consequences-including a threat of suspension and attempted removal from the premises-on a court employee, in violation of rule 1.3. See id. 1.3 ("A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge ....").

¶57 Finally, Judge Kwan concedes that he posted online commentary in violation of the Utah Code of Judicial Conduct. As Judge Kwan acknowledged before this court, at least one of his online comments criticized then-presidential candidate Donald Trump in violation of rule 4.1(A)(3). See id. 4.1(A)(3) ("Except as permitted in this Canon, a judge ... shall not ... publicly endorse or oppose a candidate for any public office ....").

¶58 "An independent, fair and impartial judiciary is indispensable to our system of justice." Id. Preamble [1]. By criticizing a political candidate for office, Judge Kwan engaged in conduct that would appear to a reasonable person to undermine his independence or impartiality, in violation of rules 1.2 and 3.1. See id. 1.2; id. 3.1(C) ("[W]hen engaging in extrajudicial activities, a judge shall not ... participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality ...."). While Judge Kwan's comments addressed a candidate for national political office, and Judge Kwan may not decide national-scale issues as a justice court judge, those issues may still bear, or appear to bear, in some respects on questions that arise in his courtroom. Or cause those who disagree with Judge Kwan's politics to believe that they will not receive a fair shake when they appear before him.

¶59 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. Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. 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.

¶60 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. Judge Kwan nevertheless engaged in behavior that violates our code of conduct, despite the prior attempts to dissuade him from that path.

¶61 We thus conclude, as did the JCC, that Judge Kwan has violated several rules of the Utah Code of Judicial Conduct. And he has engaged in conduct prejudicial to the administration of justice which brings a judicial office into disrepute. See UTAH CONST . art. VIII, § 13.

¶62 Whether to impose discipline, and the type of discipline to be imposed, depends on several factors such as the seriousness of the improper activity, "the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others." UTAH CODE JUD. CONDUCT Scope [6]. Taking these factors into account, we conclude, as did the JCC, that a six-month suspension is the appropriate sanction.

¶63 We give significant weight to the fact that Judge Kwan has been the subject of prior discipline and the recipient of prior guidance. 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. Repeated instances of misconduct are serious matters, which may render a judge not only subject to suspension, but also to removal from office. 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. And it diminishes the reputation of our entire judiciary. For these reasons, we implement the JCC's order without modification.

CONCLUSION

¶64 We implement the JCC's order. We do not reach the constitutional questions Judge Kwan raises regarding his social media postings, and we limit our review to the online statement that Judge Kwan admits can be constitutionally restricted. Based on that speech, the other misconduct at issue here, as well as Judge Kwan's history before the JCC and before this court, we conclude that a six-month suspension without pay is the appropriate sanction.

      Judge Kwan contends that this 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.

      Judge Kwan testified before the JCC that the signature block was unintentionally included in the email. The JCC did not find that assertion credible based upon "Judge Kwan's Stipulation, [his] answers during his testimony, and [his] demeanor during testimony." Judge Kwan has not challenged this finding, and we see no reason to disagree with it.

      Judge Kwan's Facebook account was "private," but Judge Kwan does not assert that this exempts those comments from regulation under the Utah Code of Judicial Conduct. In addition, Judge Kwan has not elaborated on the "limited number of friends" allegedly given access to his Facebook account or suggested that those individuals would not share his comments or postings more widely. Instead, Judge Kwan has acknowledged that "his posts [might] be reposted by his friends."

      We also note the unconventional nature of this rule, which we articulated and applied without citation to precedent in In re Christensen and In re Anderson . See In re Christensen , 2013 UT 30, ¶¶ 8-10, 304 P.3d 835 ; In re Anderson , 2004 UT 7, ¶¶ 63-67, 82 P.3d 1134. A review of other jurisdictions' decisions suggests that, as a matter of course, constitutional challenges are considered in judicial disciplinary proceedings without any similar requirement. See, e.g. , Inquiry Concerning a Judge No.14-488 re: Shepard , 217 So. 3d 71, 77-80 (Fla. 2017) ; In re Chmura , 461 Mich. 517, 608 N.W.2d 31, 38-43 (2000) ; In re Hill , 8 S.W.3d 578, 582-83 (Mo. 2000) (en banc); In re Vincent , 143 N.M. 56, 172 P.3d 605, 606-11 (2007) ; In re Judicial Campaign Complaint Against O'Toole , 141 Ohio St.3d 355, 24 N.E.3d 1114, 1120-28 (2014) ; In re Neely , 390 P.3d 728, 735-47 (Wyo. 2017).

      During the hearing, Judge Hagen referenced the September 26, 2016 posting and asked, "How is that not a comment on a particular candidate for political office?" Judge Kwan's counsel replied, "It is a comment on a political candidate. And it's an inappropriate comment on a political candidate .... When you talk about a candidate not paying his taxes, yes, that's a statement that's critical of that candidate." Justice Pearce followed up, asking, "You believe that even if this September 26 statement is found to violate the rule, [it] would violate the judge's constitutional rights to speak?" Counsel replied, "No. ... [T]hat was an inappropriate comment by a judge ... that violated the rule." Counsel also agreed that the "rule could constitutionally be applied to the judge in this instance." And when Judge Harris confirmed, "I think I perceive you conceding that there is at least one violation of the code whose constitutionality you are not challenging with regard to this September 26, 2016 comment," Counsel again replied, "Correct."

      Because it is unnecessary to the resolution of this proceeding, we do not resolve whether the comments also violated rule 4.1, as the JCC concluded. See Utah Code Jud. Conduct R. 4.1(A)(10) ("Except as permitted in this Canon, a judge ... shall not ... make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court ....").

      Again, because it is unnecessary to the resolution of this proceeding, we do not address whether Judge Kwan's online postings also violated rule 4.1(A)(10), as the JCC concluded. For the same reason, we do not determine whether Judge Kwan's numerous other online postings violated any provisions of the Utah Code of Judicial Conduct.


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    Gordon WILLIS and Jeffrey Darby, Appellees, v. ADAMS AND SMITH INC., Morgan Humphries, James L. Smith, and Dawn Smith, Appellants.
    No. 20170626-CA
    Court of Appeals of Utah.
    Filed May 16, 2019
    Rodney R. Parker, Danica N. Cepernich, and Adam M. Pace, Salt Lake City, Attorneys for Appellants
    Robert L. Jeffs, Provo, Attorney for Appellees
    Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   HAGEN, Judge:

¶1 Adams and Smith Inc., Morgan Humphries, James L. Smith, and Dawn Smith (collectively, the company) appeal the district court's entry of judgment in favor of Gordon Willis and Jeffrey Darby. After resigning from employment with the company on January 20, 2015, Willis and Darby filed a complaint in the district court demanding that the company purchase their stock in accordance with the company's Restrictive Stock Agreement (the stock agreement). The parties moved for summary judgment on the issue of which of two audited financial statements should provide the book value of the company upon which the purchase price for the stock should be based. Interpreting the plain language of the stock agreement, the district court agreed with Willis and Darby and determined that the purchase price should be based on the company's book value as reflected in the audited financial statement for the 2013 calendar year, which was completed on April 15, 2014.

¶2 At trial, Willis testified to the value of the company's equipment as a non-retained expert witness. The company objected, arguing that Willis and Darby had not complied with rule 26(a)(4)(E) of the Utah Rules of Civil Procedure in disclosing Willis as a non-retained expert witness. The district court disagreed and ruled that Willis had been sufficiently designated and that his testimony was therefore admissible. The parties also disputed what equipment should be included when adjusting the purchase price based on the "fair market value of any equipment" as provided in the stock agreement. At the conclusion of trial, the district court interpreted this provision to refer to all equipment the company owned "that would stand alone and be able to be used to perform work."

¶3 The company argues that the district court erred in making these three determinations. Because the district court correctly interpreted the contract terms as a matter of law and acted within its discretion in admitting Willis's expert testimony, we affirm.

BACKGROUND

¶4 The plaintiffs, Willis and Darby, began working for the company in the early 1990s. The company initially hired Willis to work as a field engineer, but he rose through the ranks and later became vice president of operations and a shareholder. Between 2008 and 2009, Willis served as a director on the company's board of directors and as the company's president. In those roles, he became more involved with the company's accounting practices. According to Willis, the company's annual financial statements were prepared on a calendar-year basis and the final audited statements would be available "in March or April of the following year." Willis was also involved with purchasing equipment for the company and performing the valuation of that equipment in connection with the buyout of another shareholder.

¶5 The company hired Darby to work as a project engineer. He became a shareholder in 2000, and from that time until he resigned, Darby worked as vice president of engineering and served on the board of directors.

¶6 In 2009, Willis, Darby, other shareholders and the company's trustees entered into the stock agreement. Among other things, the stock agreement provides:

Upon the termination of employment ... of a Shareholder, all shares of the Stock of [the company] owned by the terminated Shareholder shall be sold to [the company] and/or the other Shareholders and [the company] and/or the other Shareholders shall purchase the Stock at the price and upon the terms set forth in Sections 6 and 7.

Section 7, the provision at issue on appeal, provides that the purchase price for each share of stock in the company

shall be the per share adjusted book value ... as of the last audited financial statement of [the company] preceding the event requiring the determination of the purchase price .... Book value shall be determined from the audited financial statement of [the company] according to the accounting practices previously utilized by the regular accountant of [the company] who customarily prepares [the company's] financial statement. Adjustment to the book value shall be made by taking into account the fair market value of any equipment with fair value in excess of ten thousand dollars ($ 10,000).

¶7 On January 20, 2015, Willis and Darby resigned from the company. At the time, they believed that one of the shareholders, James Smith, was going to retire in early 2015 and, after discussing "the financial issues of what would happen when [Smith] retired," Willis and Darby decided they did "not want[ ] to work there if the other didn't work there."

¶8 After Willis and Darby resigned, they demanded that the company purchase their stock in accordance with the stock agreement. In response, the company offered to purchase their stock for a price based on the company's "audited December 31, 2014 financial statements," which had been completed in March 2015 (the 2014 financial statement). Due to a loss contingency, the 2014 financial statement showed a substantial reduction in book value from the prior year. Willis and Darby objected to the use of the 2014 financial statement under section 7 of the stock agreement, which required that the value of their shares be calculated based on "the last audited financial statement." Because the audit of the 2014 financial statement had not been completed prior to their retirement date, they asserted that the audited financial statement for 2013, which had been completed on April 15, 2014 (the 2013 financial statement), was the "last audited financial statement" on which the value of their shares must be based. They filed a complaint with the district court, alleging that the company had failed to comply with the stock agreement and requesting, among other things, that the district court make "a determination of the purchase price" of their shares and enter a judgment in the amount of that purchase price.

¶9 In their rule 26 initial disclosures, Willis and Darby named themselves as individuals "who [were] likely to have discoverable information and who [were] likely to be called in [their] case in chief." The disclosures stated that Willis and Darby had "information regarding the accounting practices of [the company], the valuation of equipment, prior purchases of minority shareholders' interest, and discussions of the parties." Willis and Darby also attached an equipment valuation Willis had prepared and the supporting documents on which he had relied. In its first set of interrogatories after receiving this information, the company asked Willis to "explain in detail how you calculated ... the fair market value of equipment in the computation of damages that you included with your initial disclosures" and to "identify all documents that support[ ]" that calculation. Willis individually responded to the first set of interrogatories, explaining his method of equipment valuation.

¶10 Before trial, Willis and Darby moved for partial summary judgment, arguing that the purchase price of their stock "must be determined using the audited financial statements for the year 2013" in accordance with the plain language of the stock agreement. In response, the company filed a cross-motion for partial summary judgment, arguing that the language in section 7 reflects "an ambiguity regarding the parties' intent" as to whether the 2014 or 2013 financial statements should be used to calculate the stock price and that "extrinsic evidence confirms that the parties intended for the stock price to be calculated based on the 2014 audit."

¶11 After argument, the district court granted partial summary judgment in favor of Willis and Darby. In support of its summary judgment order, the court held:

The provisions of the [stock agreement] providing that the purchase price of [Willis's and Darby's] stock "shall be determined as of the last audited financial statement of [the company] preceding the event requiring the determination of the purchase price" are not ambiguous. The ... phrase "last audited financial statement" uses the term "audited," a term of art in accounting meaning that the audit is completed-not commenced or in progress.

Because the audit of the 2014 financial statement was not complete by the time Willis and Darby resigned, the court granted partial summary judgment in their favor, concluding that section 7 required the use of the 2013 financial statement, the audit of which had been completed on April 15, 2014.

¶12 The case proceeded to trial on the remaining two issues, one of which was the interpretation of "the provision in [the stock agreement] that also provides that there is an adjustment to the purchase price for equipment." Regarding this issue, Willis and Darby argued that the provision unambiguously refers to all equipment with a value over $ 10,000 owned by the company. Willis testified at trial that, as president of the company, he "manage[d] day-to-day operations," including "acquiring and valuing the equipment" the company owned, and he had "handled the determination of the equipment valuation" for the company during a prior buyout of a former shareholder. In order to conduct the valuation in this case, Willis testified that he and Darby acquired both a "master equipment list" and depreciation schedules from the company's accounting department that he had used to value the equipment at the time of their resignations. Relying on this information, Willis testified about how he valued all of the company's equipment that exceeded $ 10,000. To determine what equipment had a value greater than $ 10,000 and was therefore considered in the adjustment to the purchase price, Willis testified that he aggregated some of the pieces of equipment into groups that were purchased and operated together.

¶13 While Willis was testifying, the company objected to his testimony about equipment valuation, arguing that he could not offer expert testimony because he had not been properly disclosed as an expert under rule 26 of the Utah Rules of Civil Procedure. When the court asked whether Willis and Darby had "disclosed that [Willis] would be providing this opinion in their discovery," Willis and Darby responded that they had identified Willis as a witness and provided his "detailed valuation" and "backup documentation" for the valuation. They added that because Willis was a party, he was not a "specially retained expert" and did not need to be separately designated. The company disagreed but acknowledged that it had received Willis and Darby's initial disclosures, information appearing to present values for the company's equipment, and Willis's summary of equipment valuations. After considering the parties' arguments, the court decided to "tentatively" allow Willis to proceed with his testimony.

¶14 The company later renewed its objection. After hearing arguments from the parties, the district court ruled that Willis's testimony about the valuation of equipment was admissible. In doing so, the court determined that "when you put together [Willis and Darby's] initial disclosures and" the exhibit containing Willis's estimated equipment valuations, it could not "see how anyone could come to a conclusion other than that Mr. Willis was going to talk about valuation of [the company's equipment]."

¶15 To rebut Willis's testimony, the company offered the testimony of James Smith. Smith testified about the manner in which the company's equipment had been valued during the buyout of a former shareholder's stock. He testified that for the purchase of the prior shareholder's stock, he believed the company adjusted only the purchase price based on equipment listed in the audited financial statement and did not aggregate categories of equipment.

¶16 After closing arguments, the district court granted judgment for Willis and Darby. In support of its decision, the district court found that the stock agreement was unambiguous and it was therefore unnecessary to consider parol evidence to determine the meaning of the equipment adjustment provision. The court interpreted "equipment" to mean "a physical item that would stand alone and be able to be used to perform work." Based on this definition, the district court found that some of the aggregated items in Willis's summary list of equipment valuations should not be included in the total equipment adjustment value. But the court concluded that "the other values assessed by Mr. Willis [were] credible" and reflected "the fair market value by a preponderance of evidence." Following the trial, the district court entered detailed findings of fact and conclusions of law and determined that the company owed Willis a purchase price of $ 661,805.51 and Darby a purchase price of $ 722,555.51, not including interest, deductions, and payments that the company had already made.

¶17 The company appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 The company raises three issues on appeal. The first two issues pertain to the district court's interpretation of the stock agreement. First, the company argues that the district court erred in interpreting section 7 of the stock agreement to require reliance on the company's 2013 financial statement to determine the purchase price for Willis's and Darby's shares in the company. Next, the company argues that the district court erred in interpreting section 7 of the stock agreement to refer to "all equipment owned by the company" and "to aggregated groups of individual pieces of equipment." "Interpretation of the terms of a contract is a question of law. Thus, we accord the trial court's legal conclusions regarding the contract no deference and review them for correctness." Nova Cas. Co. v. Able Constr., Inc. , 1999 UT 69, ¶ 6, 983 P.2d 575. On the other hand, we accept the district court's factual findings following a bench trial absent clear error. VT Holdings LLC v. My Investing Place LLC , 2019 UT App 37, ¶ 17, 440 P.3d 767. Such findings "will be sustained on appeal unless the appellant demonstrates that they are so lacking in support as to be against the clear weight of the evidence." Sauer v. Sauer , 2017 UT App 114, ¶ 14, 400 P.3d 1204 (quotation simplified).

¶19 Finally, the company argues that the district court erroneously determined that Willis and Darby's pretrial disclosure of Willis as a non-retained expert who could testify about equipment valuation was sufficient under rule 26 of the Utah Rules of Civil Procedure. "While interpretations of the Utah Rules of Civil Procedure are questions of law reviewed for correctness, we grant district courts a great deal of deference in matters of discovery and review discovery orders for abuse of discretion." RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 18, 392 P.3d 956 (quotation simplified).

ANALYSIS

I. Interpretation of the Stock Agreement

¶20 The first two issues on appeal concern the interpretation of section 7 of the stock agreement. We interpret contracts with the goal of ascertaining "the intentions of the parties to the contract." Green River Canal Co. v. Thayn , 2003 UT 50, ¶ 17, 84 P.3d 1134 (quotation simplified). "In interpreting a contract, we look to the writing itself to ascertain the parties' intentions, and we consider each contract provision in relation to all of the others, with a view toward giving effect to all and ignoring none." WebBank v. American Gen. Annuity Service Corp. , 2002 UT 88, ¶ 18, 54 P.3d 1139 (quotation simplified). If the language in the writing itself is unambiguous, "the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." Central Florida Invs., Inc. v. Parkwest Assocs. , 2002 UT 3, ¶ 12, 40 P.3d 599 ; see also Brady v. Park , 2019 UT 16, ¶ 53, 445 P.3d 395 (explaining that we need not look to "extrinsic evidence of the parties' intent" to interpret a contract where "the contract as a whole unambiguously supports one interpretation over the other").

¶21 Section 7 of the stock agreement provides that the purchase price for each share of stock in the company

shall be the per share adjusted book value ... as of the last audited financial statement of [the company] preceding the event requiring the determination of the purchase price .... Book value shall be determined from the audited financial statement of [the company] according to the accounting practices previously utilized by the regular accountant of [the company] who customarily prepares [the company's] financial statement. Adjustment to the book value shall be made by taking into account the fair market value of any equipment with fair value in excess of ten thousand dollars ($ 10,000).

(Emphasis added.) The company argues that the district court misinterpreted the meaning of the terms "last audited financial statement" and "any equipment" in arriving at the purchase price for Willis's and Darby's shares. We address each argument in turn and affirm the district court's interpretation of both terms.

A. "Last Audited Financial Statement"

¶22 The company first argues that the district court erred in determining that the phrase "last audited financial statement" "was a reference to the last completed audited financial statement" and not to a financial statement that was still under audit at the time of Willis's and Darby's resignations. Put another way, the company argues that the district court incorrectly determined that the purchase price should be based on the 2013 financial statement, which was completed on April 15, 2014, and not the 2014 financial statement, which was completed on March 18, 2015-after Willis and Darby resigned.

¶23 Under section 7 of the stock agreement, shareholders who resign from the company are entitled to sell their shares back to the company for a purchase price equal to "the per share adjusted book value ... as of the last audited financial statement of [the company] preceding the event requiring the determination of the purchase price." We agree with the district court that the plain language of this provision unambiguously refers to the 2013 financial statement because it was the most recent financial statement for which an audit had been completed prior to the date of Willis's and Darby's resignations.

¶24 The company argues that the term "audited" is not a past tense verb, but an adjective that refers to a financial statement that has been reviewed to ensure accuracy. Under this interpretation, the company argues that section 7 refers to the most recent "financial statement" for the company at the time of the triggering event, regardless of whether that financial statement was audited before or after the triggering event. But "proper contract interpretation includes application of ordinary rules of grammar," and the company's interpretation becomes untenable when considering "the language, grammatical structure, and punctuation" of the entire phrase. See Encon Utah, LLC v. Fluor Ames Kraemer, LLC , 2009 UT 7, ¶ 37, 210 P.3d 263. The absence of a comma or "and" between "last" and "audited" signals that they are not coordinated adjectives modifying the same noun. Chicago Manual of Style §§ 5.91, 6.36 (17th ed. 2017); see also Primary Children's Hosp. v. Utah Dep't of Health , 1999 UT App 348, ¶16 n.3, 993 P.2d 882 ("Rules of grammar provide that when there is a comma between two coordinate adjectives preceding a noun, each of those adjectives modifies the noun itself." (quotation simplified)). Instead, the syntax indicates that the adjective "audited" modifies the noun (or, more precisely, the adjective-noun pair) "financial statement" and the adjective "last" "modifies the idea expressed by the combination of the first adjective and the noun." See Chicago Manual of Style § 5.91. In other words, "audited financial statement" is an adjective-noun unit and the adjective "last" modifies the entire unit. See id. § 6.36

¶25 When the phrase "the last audited financial statement preceding the event requiring the determination of the purchase price" is read as a whole, the plain meaning indicates that the "financial statement" must be the "last" one "audited" before the triggering event. We cannot, as the company wishes, read this provision to refer to the "financial statement" that was for the "last" calendar year even though it was "audited" at some indeterminate time after the triggering event. The syntax used by the parties does not permit such an interpretation.

¶26 The parties do not dispute that "the event requiring the determination of the purchase price" is Willis's and Darby's resignations on January 20, 2015. Because the 2014 financial statement had not yet been audited by that date, the 2013 financial statement was the "last audited financial statement" within the meaning of section 7. As a result, the district court properly granted partial summary judgment in favor of Willis and Darby on this issue.

B. "Any Equipment"

¶27 The company also argues that the district court erred in determining that the term "any equipment" "unambiguously refers to all equipment of the company" and in aggregating categories of equipment to determine whether the equipment value exceeded $ 10,000. Instead, the company asserts that "any equipment" exclusively and unambiguously refers to individual pieces of equipment listed in the audited financial statement.

¶28 The stock agreement provides that "[a]djustment to the book value shall be made by taking into account the fair market value of any equipment with fair value in excess of ten thousand dollars ($ 10,000)." Interpreting this provision, the district court first determined that the language was unambiguous and that the phrase "any equipment" did not refer exclusively to equipment listed in the company's financial statement. When contract language is unambiguous, "a court determines the parties' intentions from the plain meaning of the contractual language as a matter of law." Bakowski v. Mountain States Steel, Inc. , 2002 UT 62, ¶ 16, 52 P.3d 1179. Here, the phrase "any equipment" is unqualified; no term in the stock agreement limited "any equipment" in any way and specifically did not limit it to only those pieces of equipment the company listed in its audited financial statement. The district court thus correctly determined that the equipment valuation could include all the equipment the company owned, subject to the other terms of the provision.

¶29 The company also argues that the district court "improperly allowed [Willis and Darby] to aggregate equipment in order to meet the $ 10,000 threshold." To the contrary, the district court rejected six items included in Willis's calculations, finding that those items were "pieces of equipment that are aggregated, and should be deleted from the list." Instead, the district court included only equipment that "would stand alone and be able to be used to perform work." Given that the district court's interpretation of "equipment" is-at least on this point-consistent with that advanced by the company, the company's grievance on appeal is not with the court's interpretation of the contract but with its application of the contract's terms to the specific facts of the case.

¶30 The district court's determination as to what constitutes a stand-alone unit of equipment is a factual finding to which we afford substantial deference. See In re United Effort Plan Trust , 2013 UT 5, ¶ 17, 296 P.3d 742 (reiterating that "factual determinations are entitled to the most deference" on appeal (quotation simplified)). To overcome this deference, the company must show that the district court's finding was clearly erroneous. See In re adoption of Baby B. , 2012 UT 35, ¶ 40, 308 P.3d 382. To carry its burden of persuasion, the company "must marshal all relevant evidence presented at trial which tends to support the findings and demonstrate why the findings are clearly erroneous." See Grimm v. DxNA LLC , 2018 UT App 115, ¶ 15, 427 P.3d 571 (quotation simplified).

¶31 The company has not pointed to any evidence in the record to suggest that the district court improperly aggregated individual items of equipment. Its argument in this regard is limited to its reply brief, in which it contends that item 10 on the equipment valuation spreadsheet "was a pile of brackets, not a piece of equipment," and that "this was also the case with items 2, 10, 11, 27-31, and 44-47." The company ignores the evidence supporting the district court's treatment of these items as a single unit, including the testimony from Willis describing how these items were purchased and used collectively. Because the company has not demonstrated that the court's findings are against the clear weight of the evidence, we affirm the district court's factual findings as to what equipment constitutes a single unit with a value of more than $ 10,000 for purposes of applying the book value adjustment provision.

II. Willis's Expert Testimony

¶32 Finally, the company argues that the district court's admission of Willis's expert opinion testimony as to the valuation of equipment was erroneous because Willis had not been properly disclosed as a non-retained expert under rule 26(a)(4) of the Utah Rules of Civil Procedure. Rule 26 requires a party intending to present expert testimony from "any person other than an expert witness who is retained or specially employed to provide testimony in the case or a person whose duties as an employee of the party regularly involve giving expert testimony" to provide other parties with "a written summary of the facts and opinions to which the witness is expected to testify." Utah R. Civ. P. 26(a)(4)(E). "If a party fails to disclose or to supplement timely a disclosure ..., that party may not use the undisclosed witness ... at any hearing or trial unless the failure is harmless or the party shows good cause for the failure." Id. R. 26(d)(4).

¶33 In adopting this rule, the advisory committee noted that "[t]here are a number of difficulties inherent in disclosing expert testimony that may be offered from fact witnesses." Id. R. 26 advisory committee notes. Consequently, rule 26(a)(4)(E) is "not intended to elevate form over substance-all [it] require[s] is that a party fairly inform its opponent that opinion testimony may be offered from a particular witness." Id. To fairly inform another party that a non-retained witness may offer expert testimony, the party offering the testimony must do more than "mere[ly] mention that opinion may be offered" by that witness. RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 24, 392 P.3d 956. Rather, a party must provide adequate notice of the witness and the testimony to be given, which requires "that such witnesses be identified and [that] the information about their anticipated testimony ... include any opinion testimony that a party expects to elicit from them at trial." Id. (quotation simplified).

¶34 Here, Willis and Darby do not dispute that Willis was subject to the requirements of rule 26(a)(4)(E), but they insist they complied. To comply with the rule, Willis and Darby made three different types of disclosures that gave the company notice of the expert opinion testimony Willis would offer as to the valuation of the company's equipment. First, Willis and Darby stated in their Rule 26 Initial Disclosures that Willis had "information regarding the accounting practices of [the company], the valuation of equipment, prior purchases of minority shareholders interest[s], and discussions of the parties." Second, Willis and Darby attached a summary of Willis's valuation of the equipment as well as documentation of the sources on which Willis based his valuation. Finally, in Willis's answers to the company's first set of interrogatories, Willis responded to the company's request that he "explain in detail how [he] calculated the ... fair market value of equipment in the computation of damages that [he] included with [his] initial disclosures." Willis responded:

Fair market value was calculated by identifying the value of the equipment from various sellers in May 2014. In many cases several prices were obtained from several sources and averaged to determine the fair market value. We used an old master equipment list to identify the equipment subject to the valuation because [the company] has failed to provide us a Master Equipment list as of the date of my termination despite our repeated requests.

¶35 Having received Willis and Darby's initial disclosures as well as Willis's summary of valuations, supporting documentation, and answers to interrogatories, the company was on notice regarding the expert opinions that would be offered and the identity of the expert witness. Nevertheless, the company maintains that it did not have notice of either fact. It argues that the district court's admission of Willis's expert testimony does not comply with this court's characterization of rule 26(a)(4)(E) 's requirements in RJW Media where we concluded that the non-retained expert disclosures were deficient. Id. ¶ 26. However, in RJW Media , we addressed a circumstance where the party seeking to admit the opinion testimony of a non-retained witness had not made any disclosures relating to expert testimony. In that case, the party seeking to admit the testimony, disclosed "no facts or opinions ... whatsoever." Id. Instead, that party only provided "a list of general topics about which [the non-retained expert witness], along with nine other witnesses, might testify." Id. That is not the case here. Rather than merely stating that Willis would provide testimony on "equipment valuation," Willis and Darby provided a summary of what Willis's opinion would be and ample documentation supporting that valuation. Willis further described the manner in which the valuation was performed in his answer to the company's interrogatories. From these documents, the company had notice of the opinion testimony Willis would provide and the basis for that opinion.

¶36 The company further argues that Willis and Darby identified Willis as a fact witness only and never disclosed that he would be offering expert opinions. "This court has consistently held that disclosing a witness as a fact witness, by itself, is insufficient to allow that witness to also present expert testimony." Ghidotti v. Waldron , 2019 UT App 67, ¶ 14, 442 P.3d 1237. For instance, in Ghidotti , the district court granted summary judgment for the defendants because the plaintiffs could not prove damages with the requisite degree of certainty without an expert witness. Id. ¶ 7. One of the plaintiffs sought to offer her own expert opinion regarding lost profits, but the district court excluded that testimony because the plaintiff had never been disclosed as a non-retained expert. Id. Although she had been identified as a fact witness and the plaintiffs' supplemental disclosures had contained a damages calculation, "[n]either [plaintiff] was identified as an individual who would testify about damages." Id. ¶¶ 5-6. Moreover, the district court found that the late disclosure "would be harmful because the time set for trial was approaching and none of the defendants had retained experts in reliance on the [plaintiffs] not disclosing any expert witnesses." Id. ¶ 18.

¶37 In contrast, the initial disclosures in this case specifically identified Willis as a witness who would testify about "valuation of equipment." The district court determined that this disclosure, together with the attached exhibit containing the fair market value calculation, was sufficient to designate Willis as a non-retained expert witness. Moreover, unlike in Ghidotti , any deficiency in the disclosure was harmless in the context of this case. Before his resignation, Willis was a long-time employee, shareholder, and member of the board of directors for the company-a closely held corporation. The company was aware that Willis had expertise in equipment valuation because he had previously performed the equipment valuation for the buyout of a former shareholder. Additionally, the company was aware that Willis and Darby bore the burden of offering evidence to prove the value of their shares and had not designated any other expert. The district court specifically found that the company was not surprised by Willis's testimony and had the opportunity to effectively cross-examine him. Under these circumstances, the district court acted within its discretion in allowing Willis to testify as a non-retained expert on the issue of damages.

CONCLUSION

¶38 The district court did not err in interpreting the stock agreement's "last audited financial statement" term as unambiguously referring to the company's 2013 financial statement. Nor did the district court err in determining that the term "any equipment" unambiguously referred to every piece of the company's equipment capable of standing alone to perform work and in applying those terms to the specific facts of this case. Finally, the district court did not err in concluding that Willis and Darby adequately designated Willis as a non-retained expert in compliance with rule 26(a)(4)(E). Accordingly, we affirm.

      "Book value" is "the net asset value of a company calculated as total assets minus intangible assets (patents, goodwill) and liabilities." Book Value , Investopedia (May 6, 2019), https://www.investopedia.com/terms/b/bookvalue.asp [https://perma.cc/YRN6-P9N8].

      The company also argues that the provision stating that the "[b]ook value shall be determined from the audited financial statement of [the company] according to the accounting practices previously utilized by the regular accountant of [the company] who customarily prepares [the company's] financial statement" unambiguously requires the purchase price to be based upon the 2014 financial statement. We disagree that this provision is relevant to our determination of which audited financial statement should be used. Rather, this sentence simply prescribes that the book value, for purposes of determining the purchase price, "shall be" the same book value reflected in the last audited financial statement and not some other value obtained from another accounting source. The parties do not dispute that both audited financial statements complied with the accounting practices previously utilized by the company's accountant.