Originally Published as:

Here Cum da Judge!

 

 

 

By J.D. Obenberger, Attorney at Law

obiwan@xxxlaw.net

 

                Written for and originally published in AVN Online

 

            Only three times in the history of Kansas has its Supreme Court removed a judge from office:  One judge was ousted on account his financial dealings, another for political misconduct, and a few months ago, Judge George Robertson was unbenched in Kansas - because he watched porn.

This story begins in the 28th Judicial District of Kansas, comprising Salina and Ottawa Counties in the rural, north-central part of the State.  Salina is the closest thing the region has to a metropolis with a population of 45,833.  The population of Ottawa County, where District Judge and Church of Christ Elder George R. Robertson raised chickens as a hobby at home, stands at 6,175 souls.

The 56 year-old jurist testified that all the trouble began when he searched the web for "baby chicks":  Whilst he thought he was cruising the Information Highway in the direction of home poultry-raising, Judge Robertson was instead misled and charmed into the world of Internet Porn, according to his account:  He said, "I found what I shouldn't have found."

Apologetically explaining his fall from grace to the Kansas Commission on Judicial Qualifications, the Judge portrayed himself as a readily susceptible target for the lures and seductions of the Adult Internet:  He testified that his job required him to dispose of 3,000 cases annually.  He also related that his duties as a church Elder occupied 15-40 hours per week, handling church finances and visiting the sick.  Fighting tears and speaking in a quivering voice according to press accounts, he told the seven-member panel that stress and depression turned him to adult material in the Spring of 2004.  By the time of his disciplinary hearing, he was seeing a psychotherapist and taking medications.

In December 2004, Saline County Director of Computer Technology Director Brad Bowers discovered that the ten-year incumbent judge had accessed 38 sexually explicit sites and five dating sites on his county-owned computer in chambers between November 2, 2004 and January 26, 2005.  (Why Bowers was looking at the Judge's browsing history is not clear.)  He reported the matter to county officials, who in turn told the Chief District Judge, who finally called in Judge Robertson.  When confronted, Judge Robertson admitted the activity and revealed that his porn browsing had started about nine months earlier.  The Chief District Judge reported the matter "upstairs" to the Supreme Court;  An informal investigation by the Judicial Qualifications Commission ensued, a formal Complaint was filed on February 9, 2004, the judge then was suspended from duties with pay, and on May 25, 2005, the Commission conducted a hearing.  Twenty-three pages of Judge Robertson’s browsing activity were introduced in evidence before the Commission.

The judge stood charged with a series of three violations of the Code of Judicial Conduct as enacted in Kansas:  Failure to uphold the independence and integrity of the judiciary, Failure to avoid impropriety and the appearance of impropriety and Demeaning the judiciary.  At the apparent heart of the Complaint was an allegation that he violated a local Administrative Order of the Chief District Judge, the purpose of which, by its own terms, was to regulate the use of the Internet resources by "staff".  Rule 40 permitted the use of computers for both official court business and to access other material "consistent with court business", but it went on to provide that "Access/display of a transmission/downloading of sexually explicit images, messages or materials of any kind is specifically prohibited."  The most serious issue the judge faced was the allegation that he had brought the judiciary into disrepute by his conduct. (Of course, it was not Judge Robertson's very private conduct itself that had brought the judiciary into disrepute, it was rather the discipline process that brought the matter to public attention:  The allegations came to public attention on March 25, 2004 when the JQC made the formal Complaint public:  No one ever alleged that the judge had made any purchases or had contacted anyone.)

The Administrative Order may not have applied to him at all.  Its own articulated purpose is to regulate staff use of computers.  Judges are State constitutional officers in Kansas (Article III, Section 6.), and it would be reasonable to understand "staff" as employees who support judges rather than the judges themselves.  Nor is it intuitive that the Chief Judge would have authority in law to direct or command another judge in this sort of conduct;  Judges are to maintain their independence as judges.  Nothing in the record suggests that Judge Robertson or his attorneys ever advanced either of these arguments.

At his hearing, he offered no defense to the charges themselves.  He testified emotionally as to his contrition, he apologized to essentially everyone, and he attempted to mitigate the offenses by suggesting that he was a victim of porn, stress, and overzealous church ministry.  He said removal was too harsh.  He brought forward evidence of psychological treatment, the opinions of his peers that he was a good judge, and letters from 23 supporters.  The Chief District Judge testified that the erosion in public confidence created by these charges would make it difficult for the judge to function;  There was testimony of "irreparable harm" and "embarrassment" from the other District judges:  The charges had inspired many jokes around the 28th District.  Judge Robertson's decision to fall on the mercy of the Commission did not work:  A majority of the Commissioners voted to recommend his removal while two dissenters recommended a suspension without pay.  He filed no "exceptions" to the findings of the JQC, and accordingly, the Supreme Court took them to be true. Judge Robertson appeared personally in the Supreme Court and argued only that the punishment was excessive.

            On October 7, 2005, the Supreme Court of Kansas unanimously ordered his removal in Matter of George R. Robertson, 120 P.3d 790 (Kans. 2005).  The high court considered the mitigating factors presented to the JQP but considered them to be outweighed by aggravating factors:  1) the access was not isolated but was ongoing until discovery,  2) the access took place during work hours on a county computer,  3) seven years earlier he had been disciplined in an unrelated situation, 4) he showed disrespect for judicial orders by violating the Administrative Order; and most importantly to the court, )  his conduct impaired the honor and dignity of the judiciary.

            Troubling issues emerge from the high court's Memorandum Opinion.  If the offense for which he was punished was a violation of the Chief Judge's order, why is it that the selfsame conduct is described in the Opinion as an "aggravating factor"?  Also, one can scarcely imagine that a judge in Ottawa County, Kansas might be removed from office for frequently accessing fishing and hunting sites unrelated to court business.  One is led to the conclusion that he lost his office precisely because the material he looked at was porn:  The Supreme Court fails to say a word to criticize searching for "baby chicks" on a county computer

            The message conveyed to Kansas judges is that watching porn is the kind of disreputable behavior that can cost a judge his good name in Kansas - and his job.  That is a very troubling matter.  Police officers go before judges to secure search warrants in obscenity cases and they are issued if the judge finds probable cause; Judges in obscenity bench trials must decide guilt beyond reasonable doubt to convict.  In either situation, judges are conclusively presumed to know what is patently offensive and prurient in the eyes of the community in which they sit, necessary elements of the crime. However, if a Kansas judge actually tries to survey the erotica that is available online in order to compare it with what people are saying about it, he does so only at grave personal peril. It is hard to imagine how a judge out on the Kansas prairie can ever acquire the knowledge that the law presumes him to possess, because what seems to have given rise to "disrepute" about the judiciary wasn't so much the use of a county computer, but simply the fact that he was looking at porn. 

            An unfortunate message about community standards is also conveyed to the citizenry by Judge Robertson's removal.  If sexually explicit material can bring down a judge, how can it be lawful?  Removal of the judge for watching porn affects the way the community looks at its own standards, too, and that is an exceedingly dangerous thing to do among prospective jurors in a State that prosecutes obscenity with comparative frequency

            It is hard to know whose conduct is more pathetic, that of the Supreme Court of Kansas for disingenuously ousting a judge because he watched porn while pretending to protect county property and the good name of judges, or that of the judge himself, for conspicuously failing to defend himself or to at least to have taken clear responsibility and put his conduct into rational perspective. There are no heroes in this story, but there is a victim and its name is freedom.

Copyright 2005-2011 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net. 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.