Kansas disciplinary panel dismisses complaint against judge who authorized newspaper raid

photo by: Sherman Smith/Kansas Reflector

Copies of the Aug. 16 edition of the Marion County Record rest on a countertop in the newspaper office.

TOPEKA — The Kansas Commission on Judicial Conduct has dismissed a complaint against magistrate Laura Viar for signing a search warrant that allowed police to raid the Marion County Record.

The search warrant appeared to violate federal law protecting journalists from police raids, and was based on the pretense that a journalist committed a crime by accessing public records in an online database.

Topeka resident Keri Strahler on Aug. 16 filed a formal complaint with the judicial panel, which has the authority to investigate allegations of misconduct. Her complaint noted legal protections for journalists and a prosecutor’s finding that the evidence in the case didn’t support the search warrants.

District Judge Bradley Ambrosier, vice president of the panel that considered the complaint, notified Strahler of the commission’s decision in a letter dated Wednesday. The letter, obtained by Kansas Reflector, says the commission dismissed the complaint after meeting behind closed doors Nov. 8.

In the letter, Ambrosier said the “facts and circumstances were not sufficient to conclude the issuance of the warrant crossed the line of incompetence.”

“This is not to say that the commission agrees that the issuance of the search warrant in this instance was reasonable or legally appropriate,” Ambrosier wrote in the letter. “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.”

In addition to Ambrosier, the panel members who dismissed the complaint include District Judge Nicholas M. St. Peter, Kansas Court of Appeals Judge Thomas Malone, Wichita attorney Diane Sorensen, and Sister Rosemary Kolich of the Sisters of Charity of Leavenworth.

“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,” Strahler said.

Police raided the Marion County Record newsroom Aug. 11, as well as the publisher’s home and the home of a city councilwoman, after Viar signed search warrants alleging identity theft. The raid attracted international attention and widespread scrutiny.

City police, in coordination with the county sheriff’s office, the Kansas Bureau of Investigation and the Kansas Department of Revenue, ostensibly were investigating whether a reporter had broken the law by researching the driving record of a restaurateur who was seeking a liquor license. The reporter verified that the restaurateur had a DUI and had been driving without a license.

Department of Revenue staff initially told police the reporter had accessed private information through the agency’s online database, but they later acknowledged the information was public record. The KBI assisted with the investigation and knew the raid was imminent. An investigator with the Fire Marshal’s Office participated in the raid.

Police took computers and reporters’ personal cell phones during the raid, and reviewed documents that revealed confidential sources for stories unrelated to investigation.

Congress adopted the Privacy Protection Act to address concerns about police weaponizing search warrants against journalists. The federal law requires criminal investigators to get a subpoena instead of a search warrant.

“The commission’s indication that one or more of its members believed signing the search warrant was neither ‘reasonable’ nor ‘legally appropriate’ serves as a reminder that district court and magistrate judges must consider all relevant laws, both state and federal, when determining whether to sign a search warrant,” said Max Kautsch, president of the Kansas Coalition for Open Government. “In this instance, the federal Privacy Protection Act required the issuance of subpoenas before search warrants. Had that law been considered, perhaps the wide-ranging consequences of the searches here could have been avoided.”

The Kansas Commission on Judicial Conduct’s handling of complaints is shrouded in secrecy. Commission meetings are not open to the public, and the reasons for dismissing a complaint are kept confidential.

Jared McClain, an attorney for the Institute for Justice, said the commission’s decision isn’t a surprise.

“Judges almost never face any consequences when they violate someone’s rights — even when their most obvious errors have tragic results,” McClain said. “That’s why doctrines like judicial immunity are so pernicious. Immunity doctrines take away the one tool that victims have to hold government officials accountable.”

— Sherman Smith reports for Kansas Reflector.


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