Judicial disciplinary proceedings were brought against a magistrate judge, who subsequently retired, in connection with his private conduct, including his use of a social media website on which sexually revealing photographs were posted. The Hearing Panel founds that such conduct violated Canon 1, Rule 1.2 (Promoting Confidence in the Judiciary) and Canon 3, Rule 3.1(C) (Extrajudicial Activities in General), and recommended public censure. In a per curiam, the Kansas Supreme Court held that, while ultimately the question whether a respondent violated a rule is a question for the Court to decide de novo, in these 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.”
Justice Stegall, concurring, expressed the opinion that while Judge Marty K. Clark’s behavior was embarrassing, foolish, and immoral, it was not a violation of the 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 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. See, e.g., Obergefell v. Hodges, 576 U.S. 644 (2015) (requiring all states to grant same-sex marriages and recognize same-sex marriages granted in other states); Lawrence v. Texas, 539 U.S. 558, 560, 562, 578, (2003) (striking down a Texas anti-sodomy law and holding that states may not make private consensual conduct a crime, noting that individuals have an “autonomy of self that includes freedom of … certain intimate conduct”); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (acknowledging states’ “broad power to regulate obscenity” but determining that such “power simply does not extend to mere possession of obscene material by the individual in the privacy of his own home”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (declaring all bans on inter-racial marriage unconstitutional); Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (various guarantees create zones of privacy).
“Rapid advancements and use of technology, however, have outpaced legal protections for privacy. Surveillance of all kinds (including the kind of self-surveillance practiced by Judge Clark) abetted by ubiquitous high-powered video and audio recording devices – along with the ease of publication and distribution offered by digital social media – has allowed for substantial increase in governmental and employer intrusion into the private lives of individuals.
“We have become a society not so much subject to one all-powerful watcher but to the whims of a thousand-and-one watchers. See Orwell, 1984 (1949) (“You had to live – did live, from habit that became instinct – in the assumption that every sound you made was overheard, and, except in darkness, every moment scrutinized.”). Indeed, “it isn’t some stern and monolithic Big Brother that we have to reckon with as we go about our daily lives, it’s a vast cohort of prankish Little Brothers equipped with devices that Orwell, writing 60 years ago, never dreamed of and who are loyal to no organized authority.” Kirn, Little Brother Is Watching, N.Y. Times Magazine (Oct. 17, 2010) at 17. By turning “our lenses on ourselves in the quest for attention by any means” the “invasion of privacy … has been democratized.” A truth Judge Clark now knows in full.
“The norming of 24/7 surveillance can lead to acceptance of the fact as not just a nuisance but as a positive good. See Turkle, Alone Together: Why We Expect More from Technology and Less from Each Other 247-48 (2011) (showing that one effect of the 9/11 attacks and high-profile school shootings was a societal tradeoff of privacy for security; these tragedies generated a culture of national “anxiety” and promoted a perceived need for “continual contact” and connectivity); Mendelson, How the Fallout from Post-9/11 Surveillance Programs Can Inform Privacy Protections for Covid-19 Contact Tracing Programs, 24 CUNY L. Rev. 35, 36-37 (2021) (“During the response to the COVID-19 pandemic, there has been a key shift in the ‘expected’ surveilled population from the post-9/11 era. Rather than surveillance policy that is outwardly aimed at allegedly suspect populations, … it can now include all U.S. citizens at home or abroad, non-citizens in the country, and others trying to enter the country.”); Li, Privacy in Pandemic: Law, Technology, and Public Health in the Covid-19 Crisis, 52 Loy. U. Chi. L.J. 767, 777 (2021) (“Robots have also been deployed as part of government COVID-19 response, including for monitoring, crowd dispersal, enforcing social distancing, identifying infected people, and giving public information.”); Keller, Balancing Employer Business Interests and Employee Privacy Interests: A Survey of Kansas Intrusion on Seclusion Cases in the Employment Context, 61 U. Kan. L. Rev. 983, 983 (2013) (“Employers test employees for AIDS and drug use; videotape them; electronically monitor their computer use, Internet use, emails, text messages, and phone calls; and track their movements with Global Positioning System GPS technology.”).
“And as many have observed, we are now well into the end game of surveillance which may be described as a kind of collusion between big and little brothers. Governments have been unable to resist utilizing the vast store of data being collected by little brother to monitor the citizenry. “Lots of surveillance data moves back and forth between government and corporations. One consequence of this is that it’s hard to get effective laws passed to curb corporate surveillance — governments don’t really want to limit their own access to data by crippling the corporate hand that feeds them.” Torbert, Because It Is Wrong: An Essay on the Immorality and Illegality of the Online Service Contracts of Google and Facebook, 12 Case W. Reserve J.L. Tech. & Internet i, 108 (2021); see also Constitutional Rights Foundation, Edward Snowden, The NSA, and Mass Surveillance (describing the data collection practices exposed by Edward Snowden including the NSA program to collect phone metadata in “bulk” on virtually all Americans as well as the PRISM program which collected the substantiative content of emails, photos, and other media from Internet service provider companies such as Microsoft, Google, Apple, Yahoo, AOL, Facebook, YouTube, Skype, and Paltalk); Turkle, at 339-41 (discussing invasive government and private data collection programs such as LifeLog and the protested and troubled evolution of Facebook’s terms of service including its use of the Beacon Marketing tool).
“I am reminded of the truth that the ‘greatest dangers to liberty’ are often found ‘in insidious encroachment by men of zeal, well-meaning but without understanding.’ Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). And so reminded, wisdom counsels that big brother himself is not obliged to act on every scrap of tittle-tattle that comes his way from ill-meaning little brothers. This is the curious situation we now find ourselves in.
“If the information about Judge Clark generated by this self-surveilling system genuinely showed sexual conduct that interfered with the ethical performance of his judicial duties, the Examiner, the Commission, and this court would have a duty to act on it. See, e.g., In re Gerard, 631 N.W.2d 271, 279 (Iowa 2001) (judge had a relationship with an attorney who appeared before him daily); In re Miller, 949 So. 2d 379, 394 (La. 2007) (judge had sexual relationship with his secretary several times in the courthouse); Harris v. Smartt, 311 Mont. 507, 512-13, 57 P.3d 58 (2002) (judge had pornographic images stored on his work computer).
“But Judge Clark’s actions did not have any real, factual connection to his role as a judge. So what is really going on? In short, Judge Clark has embarrassed us – the Examiner, the Commission, this court, the judiciary, and the wider legal community. And this may be the unforgivable sin of our day. The complex and ubiquitous shaming and shunning rituals our society has concocted and enacted in recent decades may best be understood as an elaborate response to collective embarrassment. Scapegoating and “cancelling” the most embarrassing among us becomes a quasi-religious way of purging collective shame and guilt. See Gallardo, Taming the Internet Pitchfork Mob: Online Public Shaming, the Viral Media Age, and the Communications Decency Act, 19 Vand. J. Ent. & Tech. L. 721, 727-28 (2017) (suggesting the upswing in online ‘outrage culture’ allows individuals to demonstrate their disapproval of socially offensive behavior and thus “easily signal to others that they are trustworthy because they punished a norm violator”); Steele, A Seal Pressed in the Hot Wax of Vengeance: A Girardian Understanding of Expressive Punishment, 16 J. L. & Religion 35, 50, 60 (2001) (describing how mob action restores peace in a community by attributing fantastical powers to what is actually a small and persecuted minority, which the mob must believe caused the crisis, noting that some of Girard’s “most dramatic examples” of such scapegoating are “mob behavior in panics, riots, witch-hunts, and lynchings”); Colborne, The Reasonable Citizen/The Unreasonable Scapegoat, 3 J. Religion & Violence 73, 73, 83-84 (2015) (“The modern liberal state has not escaped the organized violence of the scapegoat mechanism as described by Girard who theorized that the act of exclusion is what creates the agreement that forms the basis of a stable society. The scapegoat mechanism is the ritual outlet that pours all of the pent up violence on a victim and restores the social unanimity riven by rivalry”)….
“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….
“The panel’s understanding of the role of judges in our society partakes of a certain kind of judicial rhetoric afoot today – the rhetoric of judicial supremacy. There is a real effort by some to situate the figure of the judge as an idealized kind of ruler; set apart and consecrated to a holy and inscrutable order of something called ‘law’; worthy to be obeyed, in significant part, because of his or her moral and intellectual superiority. But in a society dedicated to the rule of law, judges are not a priestly class of elite rulers. Judges are not even supposed to be the role models of society. To think this is to take the myth of judicial supremacy to its most absurd conclusion….
“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. In fact, what happened here looks a lot like what our Legislature has recently outlawed as “revenge porn” or “nonconsensual pornography.” 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.
“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 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.
“We are all sinners. Acknowledging this truth is one of the pillars supporting the rule of law itself. See The Federalist No. 37 (James Madison) (“The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degrading pictures which display the infirmities and depravities of the human character.”); The Federalist No. 55 (Alexander Hamilton or James Madison) (“There is a degree of depravity in mankind which requires a certain degree of circumspection and distrust.”); Calabresi, Render Unto Caesar That Which Is Caesar’s, and Unto God That Which Is God’s, 31 Harv. J.L. & Pub. Pol’y 495, 499 (2008) (“History has clearly proven Madison right about the fallenness of human nature, and Christian Utopians, Rousseau, and Marx tragically wrong. There is no escaping the Fall … and government leaders are fallen, corruptible individuals.”).
“Judges are not ‘angels’ – to put it in Madisonian terms. 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.
“In this country, none are born or entitled to rule due to any real or imagined superiority. To suppose otherwise is to sow the seeds of passivity and apathy on the one hand (a people not given to the virtue of self-government because it is not expected of them) – and cynicism and disillusionment (when the lie is inevitably exposed), on the other. For indeed, no judge held to that standard could withstand public scrutiny, ridicule, embarrassment, and condemnation if the fullness of our private lives were broadcast to all. One’s imagination need not run immediately to the salacious or sexual. One merely has to imagine a judge as an exasperated parent. Or a judge who handles an argument with a spouse poorly. Or a judge who tells an off-color joke.
“I am reminded, at last, of scorned and humiliated Hester Prynne — pondering the “hidden sin” in every human heart, musing over the fact that “if truth were everywhere to be shown, a scarlet letter would blaze forth on many a bosom.” Hawthorne, The Scarlet Letter (1850). The lesson Hawthorne’s classic teaches is not, as is sometimes supposed, an ethic of sexual liberation. Rather, it is that human society tends toward moral stratification as it ever and always resists the natural democratization and equality that comes from an acknowledgment of universal failure.
“There is none righteous, no, not one.” Romans 3:10. Absent this kind of fundamental equality before the law, systems of accusation and punishment are too often motivated by “the narcissistic satisfaction” the powerful will take in “being able to think themselves better than others” – rather than from legitimate and just efforts to protect and provide for the common good of society. Freud, Civilization and Its Discontents (1961). Under the rule of law, when and how failures legitimately subject a person to public sanction is perhaps the most important question of public justice. In the narrow category of the lawful private acts of public officials unrelated to their public duties, the remedy must be political. Otherwise, the very will of the public may be thwarted by a government purporting to act on the public’s behalf – but in truth, acting only to elevate and insulate itself.
“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.”
Matter of Clark, 502 P.3d 636 (Kan. 2022).