TOPEKA, Kan. — The judge who signed off the raids of a Kansas newspaper and two homes is being asked to respond to a second complaint filed with the Kansas Commission on Judicial Conduct.
The complaint claims Magistrate Judge Laura Viar "erroneously" signed off on the warrants that allowed the raids to happen.
While the commission has the authority to immediately dismiss a complaint, this is the second time the commission has asked Judge Viar to explain her decisions regarding the raids on Aug. 11, 2023.
Keri Strahler, a Topeka resident who tells the KSHB 41 I-Team she has no connection to any of the parties involved, filed both complaints.
Strahler filed the most recent complaint on April 2.
Strahler wrote to the commission Viar might have, "Erroneously notarized search warrants in the matter of the Marion Record police raids."
It's a claim made by Bernie Rhodes, the attorney who represents the Marion County Record and Eric Meyer, the newspaper's publisher.
Strahler asked the commission to review pages 239 to 259 of the lawsuit where Rhodes claims, "The written search warrant applications for the Record’s offices, Joan and Eric Meyer’s home, and Ruth Herbel’s home each had a space for a notary to sign the application."
"However, on each of the applications, Judge Viar scratched out 'Notary' and signed the applications herself, attesting that Chief Cody swore the applications had been “SUB- SCRIBED and SWORN to before me.”
Rhodes continued, "But Chief Cody never appeared before Judge Viar, making Judge Viar’s statement that Cody swore to the applications 'before me' false."
Rhodes references KSHB 41's reporting as the source that exposed how Judge Viar received the warrants.
In an email, Joel Ensey, Marion County District Attorney, previously told the KSHB 41 I-Team his staff took the warrants to the judge, not Gideon Cody, the former police chief of Marion who sought the warrants.
"I did not know the warrants were going to be served that Friday, until my staff received a call from Mr. Cody stating he had a team ready to serve the warrants," Ensey wrote to the I-Team. "At that time, my staff did take the warrants up to the judge for review."
There's no evidence Cody was present as the warrants were provided to Judge Viar.
Rhodes spoke to the KSHB 41 I-Team on Thursday.
"The notary at the UPS store will not notarize my signature unless I'm there in person... why shouldn't the same rules apply to a judge that apply at a UPS store?" Rhodes said.
Judge Viar's office has told the KSHB 41 I-Team the judge cannot comment on her cases.
Strahler, who filed the complaint with the commission, also calls into question a previous DUI Judge Viar was arrested and charged for in 2012.
Former Marion Police Chief Gideon Cody sought the warrants for the newspaper when reporters began looking into a tip about local restaurant owner's driving record, who lost her driver's license due to unpaid fees from a previous DUI.
While Strahler doesn't specifically mention Viar's DUI in her complaint to the commission, the pages she asked the commission to review from the newspaper's lawsuit question Viar's ability to make decisions on the case impartially.
The lawsuit states, "Judge Viar knew or should have known from reviewing the search warrant applications prepared by Chief Cody and Det. Christner that Kari Newell’s driver’s record included one or more DUIs and that the Marion County Record was attempting to learn about Newell’s DUI infractions. As such, Judge Viar was plainly not a 'neutral and detached' magistrate."
Judge Steve Leben, a professor at the University of Missouri - Kansas City School of Law, previously told the KSHB 41 I-Team Judge Viar's DUI charge would not automatically disqualify her from weighing in on cases that involve similar charges.
Up to a certain point, the Kansas Commission on Judicial Conduct operates confidentially but provides feedback to the person who filed the complaint.
Strahler provided the KSHB 41 I-Team with a copy of a letter the commission sent to her on Wednesday.
According to the letter, the commission met on May 3 to consider Strahler's complaint.
The commission decided to request a response from Judge Viar.
The commission placed the matter on its agenda for July 12. At that point, a decision will be made to continue looking into the matter or dismiss Strahler's complaint.
The KSHB I-Team previously obtained a copy of the commission's process, which shows the various levels complaints can be taken to.
If the commission finds Judge Viar committed an ethics violation, the commission would either issue a letter of caution or issue a cease and desist order.
The case would only become public if a cease and desist order is issued to Judge Viar and she rejects the order.
The previous complaint
In Strahler's first complaint, she asked the commission to assess Judge Viar's competence since both state and federal laws protect journalists from raids with few exceptions, none of which would apply to the Marion case.
The commission asked Judge Viar to respond to the claim. While Viar's response is not public, the KSHB 41 I-Team obtained a copy of the letter provided to Strahler, which shows the commission issued formal 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 public viewed the commission's response as minimal in terms of any consequences, Judge Leben told the KSHB 41 I-Team the commission took the case seriously based on how far the process went.
"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 previously told the KSHB 41 I-Team a single mistake, even if it has a tragic impact, is not typically enough to rule a judge as incompetent.
"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."
Previously, Leben told the KSHB 41 I-Team if more complaints were filed against Judge Viar on future cases, the commission would take into account the judge's entire history, which could have a larger impact in determining a judge's competence.
—
