Friday, January 28, 2022

Consenting Adults And Judicial Junk

The Kansas Supreme Court has censured a former magistrate based on the below findings

"1. Respondent used the social media website known as Club Foreplay ('C4P') which he described as 'a dating website for couples.'
"2. Respondent maintained an account on the C4P website on and off for a couple of years.
"3. Respondent used the website to give access to other users to view nude and partially nude photos of himself, including a picture of Respondent standing in water with his penis visible.
"4. Respondent sent sexually revealing photographs of himself to the complainant's wife.
"5. Respondent requested that complainant's wife send sexually explicit photos to him.
"6. The parties stipulated that the sexually revealing photographs were not available to be viewed by any C4P subscriber without permission from the Respondent. He also claims the photographs were not available to the general public. However, as with any social media posting, the photographs could be disseminated to the general public once they are released.


Ultimately, the question whether a respondent violated a rule is a question for this court and subject to de novo review. The non-filing of exceptions does not bind this court. However, in these unique circumstances concerning a complaint against a retired lay magistrate judge and where neither party has filed exceptions and each has affirmatively accepted the hearing panel's conclusions and resolution, we accept the respondent's stipulations and take no additional action. While we appreciate the concurring opinion's point of view, it reflects a position that no one in the proceeding has taken or argued before us. An inquiry panel concluded there were rule violations, a hearing panel unanimously concluded there were two rule violations, and even the respondent has accepted the determination that there were violations of Canon 1, Rule 1.2 and Canon 3, 3.1(C), and the panel's recommendation of public censure. Because everyone involved in this case has come to the same conclusion, we see no need to  further question their resolution.

STEGALL, J., concurring:

I concur in the result reached by the majority to take no further action in this matter. But in my judgment, while Judge Marty K. Clark's behavior was embarrassing, foolish, and grossly immoral, it was not a violation of any of our rules governing judicial conduct. Because—let us be clear—the behavior we are talking about consists entirely of the lawful, private, consensual sexual practices of Judge Clark. Behavior that was only discovered by the Examiner [of the Commission on Judicial Conduct]  and the Commission because it was disclosed by a disgruntled participant in that behavior.

To be sure, there was a time in our society when private, consensual sexual practices were not deemed off-limits to government regulation. For good or ill (or good and ill), that time has passed. Through a slew of judicial decisions, society has by now clearly decided that sexual conduct between consenting adults is none of the government's business.

The concurrence decries the faux outrage and the rise of the surveillance state

So who has really been scandalized? As with the excessive rhetoric, the legal justifications given by the Examiner and panel in this case are thin cover for the naked embarrassment—and the accompanying need to close ranks and restore a facade of judicial superiority—felt by all.

...I may be an unexpected defender of "consensually non-monogamous" judges— and I have no difficulty condemning adultery as morally destructive—but above all else, the rule of law condemns the arbitrary and unaccountable power of the state to pick winners and losers, reward friends and punish enemies, and protect its own interests above the public's. Such abuses and the hypocrisy they reveal are the real threat to the legitimacy and integrity of the judiciary. The rule of law is not so weak it will collapse in the face of a few bedroom peccadillos or the occasional clownish, embarrassing episodes of official misadventure. But it is not so strong it can long endure the misrule of arbitrary double standards—which amount to a special kind of breach of the social contract.

An objection may be quickly raised that the moral content and quality of the personal character and integrity of our public officials matter. And more, that if a person becomes a public official like a judge, that person has agreed to make his or her private life a matter of public interest. There is real truth to this. But it is a grave mistake to think that either the Commission, the Examiner, or this court represent the mores of the
public—mores which, as every honest political observer would admit, prove to be inscrutable at times. Indeed, even if such mores were knowable, by what right would we claim the authority to enforce the moral qualms of the public of its behalf?

As to rhetoric of the former judge's adversaries

The Examiner and panel in this case have acted as grand inquisitors on behalf of an allegedly scandalized public. The Examiner's filings below passionately decry Judge Clark's behavior—quoting In re Singletary, 61 A.3d 402, 412 (Pa. Ct. Jud. Disc. 2012), for the claim that the public does not want its "judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person—thereby placing that person in a position to further publish the photos to anyone he or she may deem deserving." At oral argument, the Examiner likewise denounced Judge Clark's behavior. Judge Clark was described as "grooming his private organs for purposes of taking a photograph . . . not for him to look at himself" but to "give to other people." Which "in my opinion," the Examiner continued, "does nothing to enhance the integrity of the judiciary."

And a shout out to Austin Powers 

Swinger, baby, yeah!

Beneath the robes

We are all sinners. Acknowledging this truth is one of the pillars supporting the rule of law itself...

Judges are not "angels"—to put it in Madisonian terms. See The Federalist No. 51 (Alexander Hamilton or James Madison) ("If men were angels, no government would be necessary."). And the purpose of the Code of Judicial Conduct is not to protect or project an illusion of judges as angelic demigods or Mosaic lawgivers. It is quite the opposite—to guard against the very real danger of judges as ordinary human beings tempted to abuse their power in vain and self-interested ways. The Code protects very practically against official and public misdeeds—it is not concerned with preserving judicial authority grounded in moral superiority. To the contrary, the legitimate exercise of judicial authority flows from the people acting under a constitutional process, not from any innate moral qualities possessed by the judge.


Given all of this, I concur in judgment because I find no violation of the judicial codes of conduct. Of course, no one should read in this conclusion a defense of judges-gone-wild or of any other misdeed or lapse in character. After all, "go, and sin no more" (John 8:3-11) remains an apt and fitting conclusion to every story like this one.

(Mike Frisch)

Judicial Ethics and the Courts | Permalink


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