Magistrate won’t be sanctioned
Staff writer
While stressing that it did not necessarily agree with her decision, a state review board has dismissed charges of incompetence against a magistrate who approved the Aug. 11 raid on the Record newsroom and the homes of its owners and Marion’s vice mayor.
The Commission on Judicial Conduct “extensively discussed the matter of incompetence and found the facts and circumstances were not sufficient to conclude the issuance of the warrant crossed the line of incompetence,” a letter dated today from the commission’s vice chair states.
“This is not to say,” the letter goes on, “that the Commission agrees that the issuance of the search warrant in this instance was reasonable or legally appropriate.”
Morris County magistrate judge Laura Viar not only approved the warrant but also notarized, without his being present, police chief Gideon Cody’s application for it.
Vice chairman Bradley E. Ambrosier’s letter states that the commission “issued informal advice to Judge Viar to take sufficient time to review all documents and research appropriate federal and state laws before issuing a search warrant.”
Federal law clearly states that subpoenas, which may be challenged in court, are required instead of search warrants when authorities want to obtain documents journalists possess for newsgathering purposes.
However, the letter states, the issues raised in the complaint involved “a matter of a judge’s discretion.”
The commission’s decision was reached at a meeting Nov. 8, the letter states, but announcement was delayed until Dec. 6 because of a security breach that has taken the state’s web-based judicial records system offline.
Under the Kansas Open Record s Act, The Record earlier made an in-person request for documents regarding the complaint and the commission’s action.
That request was denied on grounds that judicial complaints are not public records and dispositions are available only to complainants.
Two copies of the letter were forwarded to the Record by citizens or lawyers not associated with the newspaper who had filed complaints against Viar and were willing to provide the Record copies of responses they received.
They provided the letter despite a warning in an email accompanying that states: “This email, including attachments, if any, is intended for the person to whom it is addressed and may contain confidential and/or privileged information. The message may not be forwarded without permission of the sender. Any unauthorized review, use or disclosure is prohibited.”
One of them, Keri Strahler of Topeka, added a comment: “I’m deeply concerned there is little consequence given to a seemingly flagrant abuse of our most cherished First Amendment in the circumvention of state and federal law to search a small-town newspaper.”
Max Kautsch, a Lawrence attorney and president of Kansas Coalition for Open Government, also criticized the findings.
While whether to issue a search warrant is a matter of judicial discretion, he said, normally that discretion can be subject to review and correction on appeal.
“Although a person charged with a crime as a result of an improper search can challenge the admissibility of any evidence seized,” Kautsch said, “that opportunity may well never present itself here given the low likelihood that those searched will ever face charges....
“There is no way to undo the events of Aug. 11, 2023. The signing and subsequent issuance of the search warrant in this case had wide-ranging consequences that cannot be corrected on appeal or otherwise, including the death of a woman the day after one of the warrants was served on her home.”
Sherman Smith, editor of the independent watchdog website Kansas Reflector, went further.
Pointing out that the commission met in secret and then “sat on” its decision for a month, he characterized the decision as telling “she did nothing wrong but...should do something different.”
The consequences, he said, could be considerable.
“The commission is telling judges across the state they can rubber-stamp a search warrant without consequence,” he said.
The letter states that two of the seven members of the review panel — Great Bend lawyer Allen G. Glendenning and Iola newspaper publisher Susan Lynn — recused themselves from considering the complaint.
Remaining members of the panel were district judges Nicholas M. St. Peter and Ambrosier, appeals court judge Thomas E. Malone, Wichita attorney Diana H. Sorensen, and non-lawyer Rosemary Kolich of Leavenworth.
Viar will face a retention election next year, but only Morris County voters — not voters in Marion County, where she approved the warrants — will be able to vote on whether to keep her in office.