Suspension for judge who wore Trump hat in court
Fair ruling for judge who wore Trump hat
In the end, it was his long and unblemished track record of fairness which saved his judicial butt, and that’s just as it should be.
In the modern world, with its penchant for brutal and superficial decisions made in the heat of the second (moments being deemed far too long), it rarely happens.
So give thanks for the four-member panel of the Ontario Judicial Council, which Tuesday released its decision in the Bernd Zabel case, and to all of those who rode to Zabel’s rescue, either by testifying in person or writing letters describing what a good and impartial judge he is and has been.
Zabel is the Ontario Court judge who, the day after the U.S. presidential nomination, did the inexplicably dopey thing of wearing a bright red ball cap bearing the campaign slogan of Donald Trump (“Make America Great Again”) into his Hamilton, Ont., courtroom.
He wore the hat until the morning break, at which point he returned it to a desk drawer. When court ended early that afternoon (he ran out of cases) and Zabel was leaving, a Crown prosecutor said, “You’ve lost your hat.”
To laughter, Zabel replied, “Brief appearance for the hat.
“Pissed off the rest of the judges because they all voted for Hillary, so. I was the only Trump supporter up there, but that’s okay.”
He later explained — because of course Canadian judges don’t vote in American elections — that he was using “vote” in the colloquial way that some people say they “vote” for the Oilers or the Maple Leafs, and that he’d been the only judge who predicted a Trump win.
Because of the lawyers and judicial colleagues who stood up for him — and the decision makes it crystal clear it is precisely because of them — after serving a 30-day sentence without pay and receiving a formal reprimand, Zabel will remain a judge.
He easily could have lost his $284,000-a-year job, and ended a distinguished 27 years on the bench as a disgrace; the suspensionwith-pay is the second-mostserious disciplinary action that was available, and just shy of a recommendation for removal.
As the panel said in its 25-page decision, “…absent the strong evidence of Justice Zabel’s long record of impeccable service as a fair and impartial judge, the result may well have been different.”
That evidence came from, among others, defence lawyer Michael Wendl, who was in court that morning and said, “It is my view that Justice Zabel was joking. In fact, I was joking with him. It is my view that Justice Zabel’s conduct was likely just a byproduct of the collegial atmosphere that exists in Hamilton…” He described the judge as “the paradigm of judicial deportment.”
Justice Marjoh Agro, a judge on the same bench, testified at the panel’s hearing last month. She saw him at the elevator as they were heading into court, and told the panel, “I remember that day all too well. I deeply regret not ripping that hat off his head.” But she also described a man who went to bat for women in law and who was consistently respectful to people of all backgrounds.
Retired Crown attorney Lidia Narozniak also testified. She said she had prosecuted the usual array of tricky cases before Zabel — domestic violence, child abuse, sexual assault — with the usual array of complainants and witnesses of all races, sexual orientations, gender identities and socioeconomic levels.
At all times, she said, whoever was before him, he conducted himself gracefully.
Since Zabel admitted that by wearing the hat, he had committed judicial misconduct — judges are to be impartial and non-partisan, and ought to be seen that way — the only real issue for the hearing panel was what to do about it.
To their credit, the fivemember panel didn’t minimize the gravity of what Zabel did. But they also held fast to the principle of proportionality and the purpose of such hearings, which is not to punish the judge, but to restore any damage to the administration of justice.
The test for judicial bias is the so-called “reasonable observer” test — what an informed person, viewing the matter realistically and practically, would conclude.
The headline reader, the panel said, would be very concerned about the judge’s ability to carry out his duties in an acceptable manner.
But “the reader of the whole story of the judge’s exemplary 27-year career, his sensitivity to matters such as race and gender, and the absence of any indication of prejudice or bias, might well see things differently.”
A reasonable and informed member of the public, the panel concluded, wouldn’t believe it was necessary to remove him from office because of a single transgression.
The 69-year-old judge has 30 days to wait before returning to work. It is time enough to buy a few thankyou beers, and send some flowers.