Kansas Democrats want to limit who can issue search warrants after a central Kansas judge signed off on a warrant giving the Marion Police Department permission to raid the town’s newspaper earlier this month.
House Minority Leader Vic Miller, a Topeka Democrat, and Rep. Jason Probst, a Hutchinson Democrat and former journalist, announced Tuesday that they plan to introduce a bill that would prevent magistrate judges from issuing search warrants, instead reserving that power for district judges in Kansas. Magistrate judges tend to serve smaller counties in Kansas and face less strenuous requirements to sit on the bench.
“We need to have a conversation about judicial review and search warrants,” Probst said at a press conference. “I spent 15 years working in journalism and I saw first hand that search warrants weren’t adequately reviewed by judges whenever they were brought in.”
The proposal would strip power from Judge Laura Viar, the Kansas magistrate judge that authorized the Marion Police Department’s raid. Marion County Attorney Joel Ensey withdrew the warrant last week and said it was issued with “insufficient evidence” to establish a connection between the material seized and alleged crime.
In an affidavit in support of the warrant, Police Chief Gideon Cody, who the newspaper had investigated, said he believed the staff broke the law when accessing Kansas Department of Revenue records to confirm a tip about a business owner’s DUI. The Kansas Department of Revenue has since said that information is public record.
Viar, who the Wichita Eagle reported had been arrested at least twice for DUI, was passed over for a district judge position in 2021 before becoming a magistrate judge.
The eligibility requirement for magistrate judges is that they are a resident of the county where they preside, that they have a high school diploma and that they either hold a law license or are able to pass a test given by the Kansas Supreme Court. District judges, on the other hand, must be at least 30 years old, have a law license and at least five years of experience practicing law.
Magistrate judges hold less power than district judges but they are able to sign search warrants and preside over low level hearings and minor charges.
Miller said the hope would be that judges with more qualifications may do more to vet a warrant application.
“It’s a very serious thing to issue a search warrant, not just as it relates to the media but individuals as well, it’s an absolute significant invasion of privacy and you don’t do that unless you have substantial reason to proceed,” he said.
Changing requirements for warrants, Miller said, was likely not the silver bullet to solve the situation and district judges could also issue warrants without adequate review. But he said he wanted to start a conversation about the Legislature’s response to the raid in Marion.
“Other issues will arise between now and January and I don’t want to see this one fade away,” Miller said.
It’s unclear whether the proposal will gain traction when the Legislature reconvenes in January.
Kansas Gov. Laura Kelly, a Democrat, said guardrails and an independent review are needed but did not specify what form that should take.
“As more information has come out about the raid on the Marion County Reporter, it’s become clear that the search and seizure was a serious overreach,” Kelly said in a statement. ”This incident not only shows why guardrails must be put in place to avoid such overreach from happening ever again, but also the importance of independent, thoughtful review of such matters.”
Senate President Ty Masterson, an Andover Republican, declined to answer questions on whether the Legislature should take action in response to the raid. In an email his spokesman said Masterson “has not been briefed on the matter.”
House Speaker Dan Hawkins, a Wichita Republican, said he was “confident the KBI will handle the case appropriately” but did not answer questions about potential legislative action.
“It’s always concerning when constitutional rights are at issue and I know many are watching as more details emerge,” he said.
Senate Vice President Rick Wilborn, a McPherson Republican whose district includes Marion County, said he believed Kansas’ laws were already sufficient. But in Marion County, he said, it appears the law was broken.
“No matter how strong you make the law, people are going to break it,” he said.
Rep. John Carmichael, a Wichita Democrat, agreed.
“What happens here is not a failure of statutory protections afforded to journalists doing their job,” he said. “What happened here appears to be a violation of a law by the chief of police of Marion, Kansas.”
Exactly which law was broken, however, is not yet clear. Jeffery Jackson, interim dean of the Washburn Law School, said that if police truly believed the newspaper’s staff broke the law then the search warrant was likely unconstitutionally broad.
Prior cases, Jackson said, have determined that search warrants in newsrooms must be narrowly tailored to specific items related to the alleged crime. Otherwise, he said, it creates a chilling effect on the paper and their sources.
“The problem is that then those officers may in fact have qualified immunity,” Jackson said. “Generally speaking in order to overcome the idea of qualified immunity you have to show that basically it was a clear violation of law that everyone would have known, there’s no legal ambiguity around it.”
If the police were truly using the warrant to find information about the paper’s investigation into Gideon, he said, then the department violated the Kansas Shield Law by failing to obtain a subpoena for the information they were seeking.
“There are violations either way but it really depends on what the intent of getting that search warrant was,” he said.
The Wichita Eagle’s Chance Swaim contributed to this report.