Ricardo G. Federico In The News

Judge who wore Trump hat loses a month’s pay

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FEATURED: Hamilton Spectator| WRITTEN BY: Jacques Gallant| September 13, 2017

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Justice Bernd Zabel once said wearing a pro-Donald Trump “Make America Great Again” hat to court the day after the U.S. election was the biggest mistake of his judicial career.

It has now cost him 30 days away from the bench without pay.

An unpaid suspension was the harshest sanction available to a four-member discipline panel of the Ontario Judicial Council, short of recommending to the attorney general that Zabel, 69, be removed from office. He was also reprimanded.

The Hamilton judge, appointed to the Ontario Court of Justice in 1990, earned almost $290,000 last year.

In a decision released Tuesday, the panel said they were faced with a “stark contrast” between the perception Zabel caused by wearing the hat and the reality described by judges, lawyers and court staff, who said Zabel is a fair, unbiased jurist.

Last month, Zabel testified at his discipline hearing that he is not a Trump supporter, nor does he hold the bigoted views that have been attributed to the U.S. president.

“We are satisfied that members of vulnerable groups need have no fear about the treatment they would receive from Justice Zabel,” said the discipline panel, chaired by Court of Appeal Justice Robert Sharpe.

“Whatever Justice Zabel may have thought about the U.S. presidential election, and however serious his actions of Nov. 9, 2016, may have been, his record on the bench and his reputation with his judicial colleagues and the bar demonstrates that he is an entirely fair-minded and impartial judge who is dedicated to the highest ideals of his calling.”

At least one legal organization that complained about Zabel to the council said Tuesday he should have been removed from office.

“Notwithstanding the hearing panel’s finding to the contrary, the public in Hamilton cannot have confidence that Justice Zabel will be impartial,” the South Asian Bar Association of Toronto said in a statement.

“Muslim and South Asian lawyers and litigants, in particular, will always wonder if Justice Zabel’s rulings are informed by his appreciation for a president who believes they should be barred from Western society.”

Zabel, who admitted that his actions constituted judicial misconduct, is already on a paid suspension, which was imposed last December pending the outcome of his discipline proceedings.

“He’s looking forward to getting back to work, and serving his community and dealing with the backlog (of cases) in Hamilton,” said one of his lawyers, Ricardo Federico.

The judicial council received 81 complaints about Zabel from a number of legal organizations and individuals, which followed a media report last year that said Zabel briefly wore the hat to court on Nov. 9 and then placed it on the dais. The discipline panel was told he brought the hat back up to his chambers during the morning break.

“The common theme of all these complaints is that Justice Zabel’s conduct represented an unacceptable expression of partisan political views by a judge,” the panel wrote.

“Most complainants indicate a heightened concern as they perceive many of the things Trump said during his campaign to indicate misogynistic, racist, homophobic, and anti-Muslim attitudes.”

On Nov. 15, Zabel’s first sitting day in court after the story came to light, he apologized for his conduct, saying it was an attempt at humour, and was not meant to be political. He testified at the discipline hearing that he bought six “MAGA” hats last June as “historical memorabilia” when it was clear that Trump would clinch the Republican presidential nomination. Zabel said he returned one as defective, and gave the other four hats to friends.

There was further criticism of the judge, however, in December, when the Toronto Star obtained a transcript that showed at the very end of the court day on Nov. 9, Zabel said: “Brief appearance with 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 OK.” At his discipline hearing, Zabel testified that he didn’t mean the judges had actually voted for Hillary Clinton — they are Canadian citizens — but that they had all believed she would win the election, while he was the only judge who had successfully predicted a Trump victory. There are “lingering concerns,” the panel said, about Zabel’s apology on Nov. 15. They said they felt it did not capture his remarks about the judges and Hillary Clinton, even though by then he had listened to the entire audio recording from Nov. 9.

In concluding Zabel’s conduct warranted the second-most severe punishment, the panel noted that had the judge not had a long and unblemished career on the bench, the decision may have been different.

“In this case, a judge with a lengthy and stellar record of service committed a single aberrant and inexplicable act of judicial misconduct.”