The Kansas Supreme Court on Thursday wrestled with how far it should go to police the private lives of judges and to what moral standard they should be held accountable.
The justices considered those issues as they tried to decide if they should discipline a former Russell County magistrate for sharing nude photos of himself on a website that’s described as an online community for swingers.
Marty K. Clark, a magistrate appointed by former Gov. Bill Graves in 1998, used the website Club Foreplay to share sexually explicitly photos of himself with a married woman he met in the late spring of 2019 at the Lake of the Ozarks.
The Judicial Conduct Commission recommended that Clark – who won the Lee Nusser Award for outstanding magistrate of 2020 – should be disciplined by public censure.
Clark, who is not a lawyer, retired in May after the judicial conduct case was well underway.
As salacious as the details of the case were, justices tried to ascertain how far they could dig into the privates lives of judges – especially one no longer on the bench – and what social mores might be applied.
“Where we draw the line between public and private is – at least from my perspective – one of the most important things about this particular case,” Justice Caleb Stegall said.
“It has such wide-ranging implications for society and certainly for members of the judiciary,” he said.
Stegall asked the examiner from Judicial Conduct Commission whether he thought the case was treading too far into Clark’s personal life.
“Is the recommendation of discipline and the violation entirely founded on the moral disapproval of this behavior, or is there something else?” Stegall asked.
“I’m trying to figure out if this case has any kind of objective standard or if all of these private details, which are unpleasant, have come to light and embarrasses the judicial branch and that’s the grounds on which we’re going to find a violation.”
Todd Thompson, the examiner, said the judicial ethics code demands that a judge act at all times in a manner that promotes “public confidence, independence, integrity and impartiality of the judiciary.”
Thompson argued that the details of the case were not private, especially since a complaint about his conduct came from a member of the public and pictures were posted to an online site that he maintained.
Stegall asked Thompson if Clark was having an “old-fashioned affair” if that would be enough to constitute a violation of the judicial conduct code.
Thompson argued that more details would be needed to justify a violation, at which point Stegall cut him off and asked why more information was needed.
“Why? Why do you need more?” Stegall said. “Isn’t that judge also subjecting him or herself to public embarrassment, black mail, all those other kinds of things?
“Under the logic of the way this case has been prosecuted, I’m finding a hard time distinguishing that hypothetical.”
Thompson said it was just a matter of agreeing to adhere to a certain standard when someone is sworn in as judge.
“I just think if you accept wearing the robe, you accept restrictions on how you can behave,” Thompson said.
Stegall agreed with that assessment. The question, he said, is what those restrictions should be for judges.
Justices Evelyn Wilson and K.J. Wall questioned Thompson about what moral standards could be applied in this case, with Wilson noting that years ago drinking liquor in public was not acceptable.
“How do we ascertain those societal mores other than to simply look within ourselves?” Wilson said.
Wall expressed a similar concern in trying to understand what kind of moral standard the court should follow in this case.
“Are you suggesting you know it when you see it, or are there factors that can guide our discretion in identifying what that moral compass is?” Wall said.
Thompson said the case was so stark that it crossed the line and did not promote the public’s confidence in the judiciary.
“We’re not even close to the line. We’re so far beyond the line,” Thompson said. “It wasn’t like it was vague or uncertain here.
“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,” Thompson said.
“If you rule that this behavior does not require discipline, that’s bad precedent. That will cause problems in the future,” he said.
Justice Eric Rosen asked Clark’s lawyer about texts that were exchanged between the judge and the woman in what appeared to have occurred during the work day.
Clark’s lawyer, Chris Joseph, said the text messages were not exchanged on a day when the judge was in the office.
“There’s no hook that ties it to his role as a judge,” Joseph said. “It is completely private, personal, out-of-court behavior. He didn’t even do it during the work hours.
“This is regulating the bedroom essentially,” he said.
Joseph said a public censure in this case wouldn’t do much good since Clark left the bench and he’s not a lawyer.
“There’s no possible future conduct,” Joseph said.