Thursday, November 18, 2021

Is Entirely Private Behavior Of A Judge Sanctionable?

The Kansas City Star reported on a judicial misconduct oral argument held last month before the Kansas Supreme Court

The Kansas Supreme Court is trying to decide whether it is disqualifying for a judge to share nude photos of their private life online.

The question was raised Thursday in a disciplinary hearing for retired Russell County Magistrate Judge Marty Clark.

Clark, who resigned from the bench in May, shared nude photos of himself with another couple on Club Foreplay, a dating website for swingers.

The Kansas Commission on Judicial Conduct became aware of the photos when the husband in the other couple filed a complaint last year.

Todd Thompson, of the judicial conduct commission, said Thursday that Clark and his wife met the couple once before sharing photos. In addition to sharing photos, he said, Clark exchanged “salacious” text messages with the wife in the couple that included discussion of having sex in his chambers.

In March the Kansas Commission on Judicial Conduct concluded Clark had violated the ethical standards by failing to “avoid impropriety or the appearance of impropriety in (his) personal life” and protecting the public impression of the judiciary.

Thompson argued Clark should be barred from ever being a judge again unless he receives significant education on the role and integrity of the judicial branch.

“We all have standards that we think is appropriate or inappropriate behavior,” Thompson said. “Just taking pictures of your genitals and distributing them in any way to the public in my opinion does nothing to enhance the integrity of the judiciary.”

Clark’s attorney, Chris Joseph, argued the court would set a dangerous precedent by punishing Clark for sending nude photos in a private channel, on his own time.

“I don’t think you look at morality as a basis for discipline … unless there is a connection to the job,” Joseph said.

He argued that any communication or photos sent in a private channel could become public if the receiving party chose to place it on social media.

Justice Caleb Stegall said it would be “troubling” if judges could be censured for private communication.

The Supreme Court justices questioned where the line was between appropriate and inappropriate and public and private.

“Are you suggesting it’s just you know it when you see it?” asked Justice Kenyen Wall of determining inappropriate conduct.

Justice Melissa Standridge argued that taking the photos and using the social media platform may have inherent consequences on the perception of the judiciary.

“If you post something it’s out there,” Standridge said. “It’s the old adage of don’t write anything down you wouldn’t want on the front page of the Wichita Eagle.”

An earlier of this story mistakenly referred to the Kansas Commission on Judicial Conduct as the Kansas Judicial Council.

As he is no longer a judge and is not an attorney, the court raised questions as to its jurisdiction to impose sanction.

There were also questions about the extent to which the private behavior of a judge should be sanctionable. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/11/is-entirely-private-behavior-of-a-judge-sanctionable.html

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