News from the world of Kansas jurisprudence:

The Kansas Supreme Court accepted a disciplinary panel’s ruling that a county judge violated rules of judicial conduct when he shared nude photos of himself on a site called “Club Foreplay,” but declined Friday to take any additional action affirming or rejecting the finding.

In March, the Kansas Commission on Judicial Conduct determined that Russell County Magistrate Judge Marty Clark breached ethical standards when he shared nude photos of himself with another couple on “Club Foreplay,” an online dating site for swingers.

Clark resigned from the bench in May. Because he had already stepped down, the court said that it would accept the commission’s decision and take no further action.

I commend to you the opinion of Kansas State Supreme Court Justice Caleb Stegall, a friend of mine for almost twenty years, and one of the original crunchy cons. Caleb is a staunch religious conservative, but he comes out defending the disgraced magistrate. Justice Stegall’s commentary begins on Page 13 of the Court ruling. In what is surely a first in the annals of legal history, the Justice cites both René Girard and Austin Powers. Justice Stegall uses the ruling in part to discuss how technology and norms around surveillance (including self-surveillance) are wreaking havoc on the idea of privacy.

Here is an excerpt:

Today’s case illustrates that one consequence of elevating judges to the “supreme” arbiters of society is that we will endure bizarre replays of age-old religious controversies concerning the qualifications of priests to administer religious rites. See Cardman, The Praxis of Ecclesiology: Learning from the Donatist Controversy, 54 Proceedings of the Catholic Theological Soc’y of Am. 25, 26-27 (2013) (detailing the history of the Donatist sect which looked to the “moral worthiness of the minister of a sacramental action,” explaining that some bishops became “unworthy to minister” sacraments once they were determined to have “tainted” themselves).

Or consider another, more mundane example—the panel’s finding that Judge Clark’s picture project was “public” simply because those pictures could one day be made public. This definition of “public” cannot withstand the application of either common sense or the law. See K.S.A. 2020 Supp. 21-6101(f) (defining a “‘private place'” as where one may reasonably expect to be safe from uninvited intrusion or surveillance). In fact, what happened here looks a lot like what our Legislature has recently outlawed as “revenge porn” or “nonconsensual pornography.” See K.S.A. 2020 Supp. 21-6101(a)(8) (prohibiting dissemination of “any videotape, photograph, film or image of another identifiable person 18 years of age or older who is nude or engaged in sexual activity and under circumstances in which such identifiable person had a reasonable expectation of privacy, with the intent to harass, threaten or intimidate such identifiable person, and such identifiable person did not consent to such dissemination”). It appears to me that the Examiner and the Commission have unwittingly made themselves accomplices in one man’s effort to exact revenge against Judge Clark by “disseminating” his nude photographs and images of his sexual activities in which he had an expectation of privacy. See K.S.A. 2020 Supp. 21-6101(a)(8).

Would the Examiner and panel ever have used such disparaging and salacious terms along with such intimate and detailed descriptions to characterize the lives and practices of other, more socially accepted, sexual minorities? Would the Examiner file a case on such questionable legal grounds, for example, based solely on intimate photographs of a Kansas judge handed over by a spurned homosexual lover? What about photographs of consensual but unconventional sexual practices engaged in by a heterosexual married couple given to the Examiner by one of the spouses after a nasty divorce? Or is this simply the age-old game of the powerful scapegoating people who have no real constituency or friends in high places?

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?

None of this means that within our system of government public officials are immune from either criticism or sanction for their private behavior and personal character. They are not. Judges are not. There are two clear and available political means for the public to express its own moral qualms about a public official’s private behavior and character—sexual or otherwise. At the ballot box [in Kansas, magistrate judges are elected — RD] and in an impeachment proceeding.

… Nothing in my opinion today should be read to conclude that I think Judge Clark should have remained a judge. My judgment is more limited—if a public official is to be removed from office or otherwise sanctioned for lawful private conduct unrelated to the performance of his or her public duties, that sanction must be procured through political means. It is not our role to decide for the public what counts as sufficiently acceptable character for the job.

I never would have expected Caleb Stegall to defend a magistrate who is a swinger in his off-hours, but this ruling seems principled and important. Judge Marty Clark disgraced himself, and his resignation was in right order. But Justice Stegall raises vital questions about privacy, and the nature of the judiciary. In standing up for a sad-sack swinger whose conduct was not illegal or related to his role as a magistrate, the justice is standing up for the right of privacy, and for the principle that judges are human beings.