Judge who authorized newspaper raid escapes discipline with secret conflicting explanation

TOPEKA — The magistrate who authorized last year’s police raid on the Marion County Record escaped discipline from a state panel by making claims that contradict statements in federal lawsuits about how the search warrants arrived in front of her and whether the police chief swore they were true before she signed them.

Magistrate Judge Laura Viar’s secret explanation, obtained by Kansas Reflector, adds a new layer of confusion and mystery to how law enforcement were able to carry out the search and seizure of journalists’ computers and cellphones without regard for state and federal laws that prohibit such police action. It also raises concerns about the low standards set for judges by the Kansas Commission on Judicial Conduct.

Marion Police Chief Gideon Cody prepared search warrant applications with the assistance of a sheriff’s deputy that accused newspaper reporter Phyllis Zorn of committing identity theft by looking up a driving record in a Kansas Department of Revenue public database. Publisher and editor Eric Meyer and Councilwoman Ruth Herbel were targeted for having a copy of the record.

In court documents, Cody said he emailed the search warrant applications to County Attorney Joel Ensey, whose office delivered them to the judge. Ensey, in an email he sent to himself a day after the Aug. 11, 2023, raid, said he printed off the applications without reading them and had an office manager deliver them to the judge. That email has been attached to court filings.

A Topeka woman in April filed a complaint against Viar with the Kansas Commission on Judicial Conduct after reading Meyer’s lawsuit against Cody and others. The lawsuit questions whether the search warrants were legal if Cody never appeared before the judge.

In Viar’s response to the disciplinary panel, she wrote that District Judge Susan Robson approached her with an unknown law enforcement officer on the morning of the raid. According to Viar, Robson introduced the officer as Cody and said she couldn’t sign the warrants “because of her history with the city,” which isn’t explained. Cody led the judges to believe that Kansas Bureau of Investigation agents, who had assisted Cody in the investigation, were prepared to join the raid, even though they weren’t, Viar wrote.

“I can say with 100% certainty that I did not approve the search warrants and return them to Chief Cody until I had verified under oath his signature and the truthfulness of the statements in the supporting affidavits,” Viar wrote.

The disciplinary panel dismissed the complaint against Viar after receiving her response, according to a letter obtained by Kansas Reflector. It isn’t clear whether the panel, which operates in secrecy by Kansas Supreme Court rule, independently investigated the accuracy of Viar’s account.

The panel members who dismissed the complaint against Viar were Grant County District Judge Bradley Ambrosier; Kansas City, Kansas, attorney Tonda Jones Hill; Rosemary Kolich, of the Sisters of Charity of Leavenworth; Kansas Court of Appeals Judge Thomas Malone; and Johnson County Judge Thomas Kelly Ryan.

Viar didn’t respond to an email inquiry asking her to reconcile her account with the ones provided by Cody and Ensey.

The commission directed questions to Lisa Taylor, spokeswoman for the Office of Judicial Administration, who said, “I have no information related to this matter.”

Jared McClain, an attorney with the Virginia-based Institute for Justice who represents Herbel in her federal lawsuit over the raid, said he was surprised that Viar’s account differs “so drastically” from the police chief and county attorney.

“Those are completely different versions of the truth,” McClain said. “And I don’t see what Cody or Ensey could have to gain by telling their version of the story, because their version of the story is worse for them. But Viar’s is better for everyone. So if that were the truth, why did the other guys spend a year saying something different?”

McClain also said it was “obvious” there was no probable cause for the searches, because the police theory of a crime dealt with accessing a public record on a public website.

The same disciplinary panel previously dismissed a complaint against Viar that was based on the lack of evidence to support a crime, the federal and state laws that should have prevented the judge from signing the documents, and the violation of constitutional freedoms.

Emily Bradbury, executive director of the Kansas Press Association, said she was disappointed the disciplinary panel had let Viar off the hook.

“It’s another level of accountability that will never happen,” Bradbury said.

Zorn, the reporter whose work became a pretext for the raid, said she was upset that police “came in with such a lousy excuse for a warrant.”

“This thing was political. And I wasn’t the target. I was actually the pawn,” Zorn said. “They seized upon something and used that as their excuse. And I will say this: I was raised by a small town cop who spent 18 and three-quarters years with highway patrol. He has been dead for four years. There’s no doubt in my mind he is still spinning in his grave.”

Kansas Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and X.