Retired Kansas judge’s X-rated case inspires thesis linking Orwell, Snowden and Austin Powers

Outcome of his case was more or less a foregone conclusion, but the concurring opinion authored by Justice Caleb Stegall framed the scandal in terms of a scholarly debate weaving court precedent and Bible scripture with ideas embodied by dystopian author George Orwell, surveillance whistleblower Edward Snowden and movie character Austin Powers.

“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,” Stegall wrote. “The behavior we are talking about consists entirely of the lawful, private, consensual sexual practices of Judge Clark.”

Surveillance of all kinds, including the self-surveillance favored by Clark, with high-powered video and audio devices and assisted by the ease of digital-media publication has led to substantial increase in government and employer intrusion into private lives of individuals, he said.

“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 Brother,” Stegall said.

Clark posted to the Club Foreplay website nude and partially nude photographs of himself, including one image of him standing in water with his penis exposed. He shared images and interacted via text and email with a Missouri woman he met during 2019 at the Lake of the Ozarks. He did so during weekday work hours, but it’s not clear he was on the clock. The woman’s disgruntled husband eventually filed an ethics complaint against the judge.

Clark served Russell County for 23 years before retiring days ahead of a judicial review panel’s recommendation of public censure in May 2021. He didn’t challenge fundamental conclusions of wrongdoing during Supreme Court oral arguments in October. On Friday, the high court said Clark warranted public censure for conduct undermining confidence in the judiciary.

Blackmail, intimidation

Chris Joseph, an attorney representing Clark, said the Supreme Court ought to focus on behavior of judges directly connected to their legal responsibilities. He said the justices were essentially “regulating the bedroom” by weighing in on private conduct of a sexual nature. It mirrors disdain exhibited by some people of judges who were in homosexual relationships or consumed alcoholic beverages, he said.

“It’s my position the court shouldn’t venture into that realm,” Joseph said.

Todd Thompson, an attorney serving as judicial examiner in the Clark case, said it was an ethical breach for a judge to massage his private organ for purposes of posting photographs to a website for swingers. He used a phony name on the website, Thompson said, suggesting he was aware of the impropriety.

Clark sent salacious texts to the married Missouri woman discussing details of a potential sexual encounter in his judicial chambers in Russell County, Thompson said.

“The judge is subjecting himself, when he engages in this type of conduct, to the possibility of being intimidated or blackmailed by people who have these photographs,” Thompson said.

The Supreme Court decided public censure, accomplished by publishing a statement declaring Clark’s misconduct, was sufficient. Clark isn’t an attorney, so he won’t be practicing law. The lower-level court sanction didn’t preclude him from seeking election as a magistrate judge in the future.

Clark’s retirement message, released by the judicial branch, didn’t mention his disciplinary case. He said he appreciated the chance given him at a young age to serve Russell County.

“I became a judge because I wanted the opportunity to help people,” he said. “Working with child-in-need-of-care cases and adoptions is the most satisfying part of the job.”

‘Unforgiveable sin’

Half of the 27-page decision comprised the concurring opinion from Stegall, one of the court’s conservatives who was appointed by Gov. Sam Brownback. Stegall said Clark shouldn’t remain on the bench, but the proper approach for addressing moral qualms about a judge’s private behavior would be for voters to oust him or her at the next election or to initiate impeachment proceedings.

“Judge Clark’s actions did not have any real, factual connection to his role as a judge,” wrote Stegall in the opinion joined by Justice Keynen Wall. “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.”

Stegall said the state’s examiner and the disciplinary panel that recommended public censure acted as “grand inquisitors on behalf of an allegedly scandalized public.”

“Who has really been scandalized?” Stegall asked. “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.”

Stegall wrote it was absurd for judges to be held up as a class of rulers who must be obeyed because they possessed moral or intellectual superiority.

“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,” Stegall said.

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