KANSAS CITY, Mo. — The Kansas Commission on Judicial Conduct dismissed Wednesday a complaint filed against Magistrate Judge Laura Viar, who signed off on a search warrant that led to the raid of Marion County Record newspaper.
LINK | Complete coverage of Marion newspaper raid
The decision to dismiss was immediately met with criticism from the public.
However, Steve Leben who served as a Kansas state court judge 27 years, said the commission took the complaint seriously and referred to the actions taken by the commission as "noticeable."
The complaint brought into question whether or not Viar is competent to serve as a judge.
When assessing competence, Leben said it takes more than one mistake for the commission to seek discipline against a judge.
"The rules for professional conduct for judges require that the judge be competent and diligent and do the thorough preparation necessary for the job," Leben said. "Usually, to find incompetence, such that you would take an action under the ethics code to remove a judge or discipline a judge, you would want to see more than one event in which they’re not doing the appropriate job to try to be fully educated about the matter they’re hearing."
Leben said the complaint focused solely on Viar's decision to sign the warrant, which does not present any ethics code violations. According to Leben, cases refuting a judge's decision are typically dismissed immediately.
In this case, the commission took up the complaint and issued informal advice urging Viar to, "Take sufficient time to review all documents and research appropriate federal and state laws before issuing a search warrant."
While the advice seems flimsy to the public, Leben said it is significant the commission issued it.
"This is a noticeable proceeding for this judge," Leben said. "They sent an admonition to the judge saying, in the future you need to do certain things when you’re considering search warrant requests. That’s a significant thing for a judge."
Leben said while the complaint was narrowed in on Viar's decision, the commission could broaden the scope of its investigation.
"Normally that would require them to appoint an independent examiner to investigate or pursue the complaint further," Leben said. "In a fairly confined case like this one that’s unlikely to happen and they didn’t do that."
Leben continued, "It is important to note the complaint here filed by a lay person about the substance of a ruling is fairly limited. It's not taking about any possible conflicts of interest, it's not focusing on any other issues. It was focused on the substance of the ruling and that a hard thing to have rise to the level of a true ethics violation."
Leben previously criticized Viar's decision to sign off on the warrants and said he never would've signed it.
"In this case, the judge was not careful enough to look at the elements of the crimes that were alleged to have probable cause and these press privileges issues," Leben said. "But, it's appropriate to train people. Reporters make mistakes, judges make mistakes. One mistake is not an ethical issue."
Leben said if more complaints are filed against Viar in the future, the commission would look at the entire history of a judge's decision making, and that could play a bigger role when assessing competence.
While Viar was not sanctioned or met with any form of discipline, Leben said the circumstances are not without consequence.
"Everyone in her community is aware that the commission has sent her a directive to be more careful next time. People in the community have a view about whether she was doing her job appropriately," Leben said. "And, she’s subject to retention in office by the voters at some point. I think there is some price that was paid."
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