(concurring in part; dissenting in part).
The majority of the court denies the petition of the Board on Judicial Standards for a writ of prohibition preventing the district judge from quashing an investigatory subpoena compelling respondent judge to appear before the Board to answer questions about a citizen’s complaint alleging that the judge had engaged in sexual misconduct with the complainant’s now ex-wife under circumstances that may have constituted adultery. The somewhat ambivalent basis for the decision is twofold: (1) that the complaint is speculative and (2) that the subpoena impermissibly intrudes upon respondent’s constitutional right of privacy. I respectfully dissent on both counts.
We do not know the full contents of the citizen’s letter of complaint, for it is not a part of this record. We do, however, know 'the identity of the complainant and the identity of the man and woman of whom *916sexual misconduct is alleged, neither of whom is a stranger to the complainant. The complainant and the woman were married to each other until just 10 days before the letter of complaint. The majority opinion concedes “that the person complaining to the Board had just experienced a dissolution of his marriage and that this experience may have occurred while his wife was a companion of respondent.” The majority opinion further acknowledges, “We cannot say that the Board was without authority in this instance to investigate the sexual misconduct allegation.” If that is so, there seems no basis to deny the subpoena on the ground that the complaint is speculative.
The citizen’s letter of complaint, whatever may be for us the unknown detail of its contents, cannot be expected to be a lawyer’s model of clarity and detail. The important point is that the issue here involves only a preliminary investigation pursuant to the mandate of Rule 6(c)(1) that “[u]pon receipt of a complaint, report, or other information as to conduct that might constitute grounds for discipline, the executive secretary shall conduct a prompt, discreet, and confidential investigation and evaluation.” The Board was compelled to resort to the issuance of a subpoena, pursuant to Rule 2(e)(1), only because respondent rejected the more informal procedure of making any statement to the executive secretary of the Board, not even a simple denial.
The essence of the court’s decision, confirmed in its syllabus, is that the Board’s inquiry into a possible adulterous relationship constitutes an impermissible intrusion into the judge’s right of privacy. The court apparently treats this as a constitutional right of privacy for, in its statement of the four conditions for the enforcement of a subpoena, it rests decision upon the condition that it must be both “reasonable and does not violate constitutional rights.” It further states, citing Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977), “One’s private sex life concerns ‘the most intimate of human activities and relationships.’ ” If this court is itself undertaking to declare a judge’s constitutional right to engage in adultery, it has that power — but it cannot do so on the ground that it is compelled by any decision of the United States Supreme Court. Carey involved no more than extension to minors of the protection of a right to use contraceptives. The Carey court made clear, however, that “[t]he outer limits of this aspect of privacy has not been marked,” id. at 684, 97 S.Ct. at 2016, and that “[t]he Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults.” Id. at 689, n. 5, 97 S.Ct. at 2018 n. 5 (bracketed language in original). The United States Supreme Court has not extended the right to privacy beyond marital intimacy — the keystone of the seminal decision in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)—and procreative choice.
I dissent from the majority’s opinion that a right to privacy protects respondent from responding to allegations that may constitute adultery. Adultery is not a victimless crime. Adultery does not involve purely private acts between two people; rather, it involves the invasion of an existing marital relationship of vital interest to a third person — the spouse of the participant in the adultery. The state has long had an interest in the stability and preservation of marriage and family. Statutes regulate the formation and dissolution of marriages. Numerous statutes, both state and federal, are designed to preserve the stability of the family including, for example, statutes protecting the marital relationship by creating spousal privilege that protects one spouse from having to testify against the other. Statutes proscribing adultery (Minn.Stat. § 609.36 (1982)) have been enacted to protect the marital and family relationship. It may be, as the majority opinion says, that police and prosecutors generally have considered such statutes unenforceable. Whether enforced or not, however, the statutes remain a statement of public policy of this state until they are repealed or declared unconstitutional. As this court so *917recently stated in Complaint Concerning Winton, 350 N.W.2d 337, 340 (Minn.1984):
“The role of a judge in the administration of justice requires adherence to the highest standard of personal and official conduct. Of those to whom much is committed, much is demanded. A judge, therefore, has the responsibility of conforming to a higher standard of conduct than is expected of lawyers or other persons in society. Willful violations of law or other misconduct by a judge, whether or not directly related to judicial duties, brings the judicial office into disrepute and thereby prejudices the administration of justice.”
To use the courts own words: “If the Board is to discharge properly its responsibilities of ensuring the integrity of the judicial system, it must have, we believe, broad powers and the discretion to exercise these powers even with respect to matters debat-ably involving judicial discipline.”
The court in a concluding statement, apparently melding the concepts of specula-tiveness and privacy, states: “To justify intrusion into Judge Agerter’s right of privacy, we believe the Board must have before it, as a bare minimum, an allegation or some information of publicly known misconduct. This showing is completely lacking.” 1 We do not know the extent to which the misconduct may be publicly known, and to require a layperson to include such information in his complaint is unwarranted. It is not, at this stage, a basis' for thwarting the required preliminary investigation. We do know that at least one person of the public, the complainant, asserts an awareness of misconduct. These proceedings, of course, have now most certainly made the misconduct a subject of widespread public knowledge. Even if that were not so, the court’s decision prohibiting the confidential inquiry by subpoena leaves only the alternative of general public inquiry which, however discreet, may well enlarge the public awareness of the allegations.
Other than as reserved by this dissenting opinion, I concur in the opinion and the decision of the court approving enforcement of the investigative subpoena regarding respondent’s alleged alcohol problems.
. The court has, in one sentence without elaboration, surfaced what may be an important issue as to the necessary extent and effect of public awareness of judicial misconduct. How widespread must the public knowledge be, and how is it to be measured? Is the public reaction to be tested by a subjective standard regardless of how reasonable the public reaction? Or is the public reaction to be tested by an objective standard of what a reasonable public reaction should be? Any such questions, however, are more properly reserved for subsequent determination in the event the Board were to present to this court a recommendation for discipline.