State won’t discipline raid prosecutor

By ERIC MEYER

Staff writer

Eight days after the Kansas Commission on Judicial Conduct declined to act against Magistrate Judge Laura Viar, the Office of the Kansas Disciplinary Administrator has declined to act against County Attorney Joel Ensey.

Both were subjects of multiple complaints filed by in-state and out-of-state residents regarding the now legally disavowed raids Aug. 11 on the Marion County Record and the homes of the paper’s owners and Marion’s vice mayor.

In a letter dated Dec. 13 but received Tuesday, deputy disciplinary administrator Kathleen J. Selzler Lippert wrote:

“We do not find where Joel W. Ensey engaged in unethical conduct. The complaint does not provide adequate factual details to show that Joel W. Ensey violated the Kansas Rules of Professional Conduct. The complaint, therefore, will be dismissed….”

The complaint alleged that Ensey was derelict in his duty for not reviewing requests for search warrants before they were sent to Viar.

“Certainly,” Selzler Lippert wrote, “some county or district attorneys, magistrates, or judges may have a practice that a search warrant application be reviewed by a prosecutor prior to submission for judicial review, but this is not a statutory requirement.”

Her letter went on to note that prosecutors such as Ensey are entitled to absolute immunity when performing traditional functions of an advocate such as in a judicial proceeding.

She added, however, that when prosecutors abandon advocacy roles to participate in police investigative work, they may enjoy only limited immunity.

Before Viar approved the warrants, which Ensey later asked to have rescinded, Police Chief Gideon Cody had communicated with Ensey on multiple occasions, submitting various drafts to him, according to emails obtained under the Kansas Open Records Act.

The complaint against Ensey further alleged that he should have recused himself from the investigation because the alleged victim of a supposed crime, later determined not to be a crime at all, had a business relationship with Ensey’s relatives.

Restaurant owner Kari Newell, whom Cody claimed was a victim of identity theft, operates out of the Historic Elgin Hotel, owned by Ensey’s brother and sister-in-law, Jeremy and Tammy Ensey.

Until after the raid, Newell sold alcohol at her restaurant using a license issued to the Enseys, not to her.

“It is unclear,” Selzler Lippert wrote, “if having a relative who is a landlord to a purported witness creates a conflict. The determination of conflict turns on case-specific facts, and there are not enough facts to conclude there is a conflict issue.”

Selzler Lippert’s letter about the county attorney notes that the complaint the state received concluded “the whole mess could have been possibly avoided if he had simply done his job,” but it contends Ensey was under no legal obligation to do so.

“However,” the letter goes on, “that does not mean you should not have made your complaint. Your complaint is appreciated and assures that the conduct of Kansas attorneys is of the highest standards.”

Record co-owner Joan Meyer, 98, died a day after the raids. A coroner’s report said the stress of having seven law enforcement officers invade her home and monitor her movements for more than two hours contributed to the sudden cardiac arrest that killed her.

One federal lawsuit already has been filed regarding the raids and at least four more are being developed.