The Ontario Judicial Council has issued its disciplinary opinion regarding Justice Bernd Zabel, the Hamilton-based trial judge who wore a red “MAKE AMERICA GREAT AGAIN” baseball hat into his courtroom on the day after the U.S. presidential election last November. The hat, of course, is associated with Donald Trump’s presidential campaign. It is uncontested that Judge Zabel wore the hat into his courtroom, stated “Just in celebration of a historic night in the United States,” and then removed the hat, placing it on the dais with the MAGA phrase visible to all in the courtroom. He presided over about ten matters before taking a recess, at which point he removed the hat from the courtroom. The hat did not return after the recess.
Unsurprisingly, Judge Zabel’s behavior spurred sharp reactions, including 81 formal complaints from a variety of public interest organizations, lawyers, and law professors. (I informally critiqued his actions on this blog as well; see link above.) Interestingly, however, none of the formal complaints came from any lawyers or parties before Judge Zabel that day. Indeed, lawyers in the courtroom that day, and those who have appeared before Judge Zabel in the past, defended his overall judgment and integrity even as they classified the events of that morning to be a professional mistake.
Judge Zabel, too, quickly realized his error. After the Globe and Mail ran a story about the incident two days later, the judge made a public apology in his courtroom. He explained that he was trying to make a humorous gesture, that in retrospect it was entirely inappropriate, and that he sincerely regretted the decision. Later, Judge Zabel sought out private lessons on judicial ethics from another member of the bench.
The judge’s contrition notwithstanding, the Hearing Panel of the Ontario Judicial Council on Monday suspended Judge Zabel for 30 days without pay. This was the most severe sanction they could issue, short of removing the judge from office. In my view, it was too harsh a sanction, supported by surprisingly slipshod reasoning. More below.
First, some basic throat-clearing is in order. Judge Zabel’s conduct is plainly unacceptable, compromising the perceptions of integrity and impartiality that is expected of the judiciary. It also showed a stunning lapse in judgment, especially given the bitterness of the 2016 U.S. presidential campaign. I have worked in a variety of settings since the 2000 election, and each time the morning after the election was greeted by co-workers of all political stripes as a quiet and sensitive time. Even if your candidate had won, many people you worked with and considered to be friends were upset at the outcome, and sensitivity was in order. The judge should have known that the events south of the border were being closely followed and any gesture might strike some nerves. So some sort of discipline was surely warranted.
The Hearing Panel explained that it could choose among seven possible sanctions, in ascending order of severity: (1) a warning, (2) a reprimand, (3) ordering the judge to apologize, (4) ordering the judge to take specified measures (such as receiving education or treatment) to continue sitting as a judge, (5) suspending the judge with pay, (6) suspending the judge without pay for up to 30 days, and (7) recommending the judge’s removal. The Panel also enunciated two guiding principles. First, the remedy must be tailored to the repair the damage to the integrity of the judicial system; it is not supposed to punish the judge. Second, the panel was required to consider the possible sanctions in ascending order of severity, and stop at the least severe sanction that would repair the integrity of the judicial system.
Finally, the Panel noted that it was required to consider aggravating and mitigating factors. It found (correctly) that the location of the incident–Judge Zabel’s courtroom, with him wearing his official judicial garb–was an aggravating factor. But it also noted a large number of mitigating factors, including more than 25 years on the bench without any similar incident, the praise for his professionalism and denial of any prejudice from many members of the local bar, and the judge’s own deep contrition. The Panel itself concluded, “In this case, a judge with a lengthy and stellar record of service committed a single aberrant and inexplicable act of judicial misconduct.”
And yet despite these mitigating factors, the Panel dismissed the first five sanctions with a wave of the hand, writing simply, “Given the gravity of Judge Zabel’s conduct, it is our view that none of the less serious sanctions–warning, reprimand, ordering an apology, ordering remedial measures, or suspension with pay–are adequate.” This decision cries out for far more explanation, especially since the judge had already taken on many of these sanctions voluntarily. The Panel then only landed on the sixth sanction–suspension without pay–because it concluded that the seventh sanction was too harsh. But this approach seemingly was a violation of the Panel’s own requirement that it take each sanction on its own in ascending order. The reasoning is incomplete and sloppy.
Moreover, the Panel opened the door to criticism that its own decision was politically motivated. The complaints against Judge Zabel came not from those in his courtroom that day, but from organizations who were politically opposed to the Trump campaign. Importantly, these organizations appear to be mostly national groups with national agendas; it is not at all clear how many of them had ever had direct experience with the judge in a professional capacity. They simply seemed to assume that his display of the hat presented him as (among other things) a misogynist, xenophobe, homophobe, and racist. By contrast, local lawyers, including local chapters of some of the same complaining groups, emphasized their view that Judge Zabel was none of these things. In the current parlance, it seems the complaining groups were simply “triggered” by hearing about the hat display, as opposed to suffering any real bias from the judge. One must wonder, for example, whether an Ontario judge who wore an “I’m with her” button into the courtroom during election season would have received the same sanction.
None of this excuses Judge Zabel’s lapse in judgment. But the Hearing Panel should have reasonably stopped with the fifth-level sanction of suspension with pay. By going beyond this and suspending Judge Zabel without pay for 30 days, they have supplemented his act of poor judgment with one of their own.
The Interdependent Third Branch 