Oct. 21, 2016
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Anson Stevens-Bollen

Martinez on Trial

Free press and open records are at the heart of the newspaper’s lawsuit against the governor. At last, a judge will decide.

October 12, 2016, 12:00 am

The journalists huddled, expectant but wary, around a disarranged desk in the cluttered newsroom on Marcy Street. They didn’t even know if the telephone number was hers, and for the small, sleep-starved staff—two reporters and their editor—it was a longshot anyway.

They had seen more stone walls than a prototype sedan in a crash test lab as they reported on secrecy, influence-peddling and questionable dealings that involved people in the highest reaches of state government.

Former Santa Fe Reporter staffer Joey Peters.

Still, they had to try. The job fell to Joey Peters, then a staff writer for the Santa Fe Reporter. No one said it out loud, but as the telephone rang on June 6, 2013, Peters, his colleague, Justin Horwath, and the Reporter’s then-editor, Alexa Schirtzinger, were all thinking the same thing: “What’s she going to say?”

She answered. Then, anticlimax.

Alexa Schirtzinger

Peters identified himself, but as he fired off a litany of long-pondered, substantive questions, she suggested he contact Enrique Knell, her then-communications director. Peters told her he’d tried many times, but the well-paid spokesman was disinclined to speak.

“I wonder why,” Gov. Susana Martinez said, then hung up the phone.

“We thought: ‘Wow, it kind of sounds like they really are targeting us,’” Schirtzinger says now, recalling the truncated call more than three years later. “Clearly it isn’t that they aren’t getting our calls and requests. It’s that they don’t like us.”

Justin Horwath

The three flashed on a disturbing reality: no matter what they did—no matter how many public records they requested under state law or how early they asked for comment before a story published—nothing was going to change.

Schirtzinger considered a growing list of unfulfilled requests made under the New Mexico Inspection of Public Records Act, known as IPRA. Feeling frustrated, out of options and like her efforts to bring readers the news had been hamstrung, she called Daniel Yohalem, a civil rights attorney with a long history of open government advocacy. Katherine Murray, another Santa Fe attorney, soon joined the discussion and, on Sept. 3, 2013, the Santa Fe Reporter sued Gov. Martinez.

Now, the case is going to trial. The three former Reporter staffers and its current leadership are expected to testify. So are a host of current and former Martinez administration insiders, although the governor herself is not on the witness list. District Court Judge Sarah Singleton will decide after a three-day bench trial sheduled to begin Nov. 21 whether Martinez broke the law when she allegedly denied the existence of documents the Reporter already had, delayed the release of other records and shattered the limits of the state sunshine law to get around producing still more public documents.

The newspaper’s public records claims are not unusual, although they allege a pattern of withholding documents. The Reporter also brought a second claim, the first of its kind: that the governor violated the newspaper’s free press rights under the state constitution by consistently not responding to routine questions on garden-variety topics from its journalists—questions submitted contemporaneously by reporters at other news organizations on the same topics.

If the newspaper prevails at trial, the lawsuit could strengthen press freedoms and access to state officials.

Peter Scheer, executive director of the California-based First Amendment Coalition, says Martinez’ alleged practice echoes Republican presidential nominee Donald Trump’s penchant for blacklisting reporters he doesn’t like.

“It happens every day in any number of different forms, because government officials and politicians don’t like to be criticized,” Scheer says. “So in an attempt to stop the criticism, they simply try to shut off the access.”

Government officials and politicians don’t like to be criticized. So in an attempt to stop the criticism, they simply try to shut off the access.
     -Peter Scheer, First Amendment Coalition

The Reporter’s victory would be a positive development, he says: “Whether it would cause public officials elsewhere to adhere more closely to constitutional requirements is highly uncertain. It would depend on how fact-specific the court’s ruling is.”

It won’t be easy. In part because the governor’s state attorneys are joined by Paul Kennedy, a respected Albuquerque-based attorney with a contract worth up to half a million dollars. Part of his argument, that the three branches of government should focus on their own roles, resonates with many judges.

The governor’s office refused to answer questions for this story. Martinez’ current press secretary, Michael Lonergan, at first said the administration does not comment on pending litigation. Reminded that Knell, his predecessor, had spoken to the Albuquerque Journal about this very lawsuit, Lonergan referred this reporter back to that statement.

Knell’s 2013 comment to the Journal reads: “It’s not a surprise that a left-wing weekly tabloid that published stolen emails containing the governor’s personal underwear order would file a baseless suit like this. Their public records requests are treated the same as every other citizen in New Mexico.”

Paul Kennedy is representing the governor on contract with taxpayer money.
SFR File Photo

Yohalem and Murray plan to use that statement at trial—as evidence that the Martinez administration has indeed engaged in illegal “viewpoint discrimination.”

‘The Year(s) in Closed Government’

On the campaign trail, Martinez promised to run the most transparent administration in state history. The message carried weight with New Mexicans sick of cronyism and corruption from politicians on both sides of the aisle. In short order, however, that promise was rendered hollow.

By the time Knell responded to the Journal, his focus on “stolen emails” and “the governor’s personal underwear order” was well-worn. The Martinez administration favored that approach to discussing what the emails actually showed.

Still, he had a point: The emails had been stolen by whistleblower Jamie Estrada, a former Martinez campaign manager. In 2011, Estrada had hijacked the messages from the governor’s campaign account and leaked them to third parties. The Reporter published the emails after it obtained them through a public records request to then-attorney general Gary King.

Whistleblowers have long informed public debate. Daniel Ellsberg was a military contractor when he stole the Pentagon Papers and leaked them to the press in 1971. The stories that resulted gave Americans a clearer picture of how the government waged the war in Vietnam. More recently, Edward Snowden stole documents from the National Security Administration that provided evidence of government spying on US citizens.

Here in New Mexico, Estrada pleaded guilty to his crime and was sentenced to prison.

Although the Reporter did publish an email that showed Martinez had ordered Spanx, that was never the focus of the newspaper’s reporting. Instead, its journalists used the emails Estrada pilfered to report on a vast network of influence-peddling and questionable dealings by people inside and close to the Martinez administration. The emails were also important because they showed Martinez and her aides were conducting state business with private email accounts, outside the prying requirements of IPRA.

The issue that started it all.

In December 2012, the Reporter ran an in-depth story, “The Year in Closed Government.” Penned by Horwath and Peters, it detailed how those private emails exposed “secret dealings of top government officials.” The cover portrayed Martinez as a raging giant, clutching a filing cabinet and knocking over a flaming church, Santa Fe’s Cathedral Basilica of St. Francis of Assisi.

After its publication, the newspaper’s already limited access to Martinez and public records dried up completely, says Schirtzinger, the former editor. Even on the little things—comments about policy announcements, quotes about legislation—the Reporter had been shut out.

That seemed like punishing journalists for practicing journalism. And that’s what drew Yohalem and Murray to the case.

When government officials pick and choose which news organizations get access to basic information and which don’t, Murray says, society suffers.

“The only way that I can participate in self-governance is to have free and ready access to the information without you deciding what information I’m entitled to and who I have to listen to,” she says.

Even without access, the Reporter pressed on, publishing stories into 2013 about the email network, Martinez’ denial of pardon requests, the privatization of high school equivalency exams, the governor’s meddling in the affairs of the New Mexico Finance Authority and other investigations of her administration.

Reporting on state government, however, was becoming more difficult, Schirtzinger says. Basic stories about the run-of-the-mill functions of Martinez’ government had become nearly impossible to accomplish.

“By limiting the flow of information,” she says, “they made us less effective journalistically, in terms of informing readers.”

Attorneys Katherine Murray and Daniel Yohalem represent the Reporter.
Anson Stevens-Bollen

Opposing counsel

When the Reporter’s case goes to trial, Yohalem and Murray will face a well-travelled—and well-funded—lawyer at the opposing counsel’s table.

Paul Kennedy is a former Marine who graduated from Georgetown University Law Center in 1976. Six years later, he was the Republican nominee for state attorney general, but lost the race to Democrat Paul Bardacke.

Kennedy has twice been appointed to the New Mexico Supreme Court. In 2002, then-GOP Gov. Gary Johnson gave him the nod to fill a vacancy; Kennedy did not seek election to the court at the end of the interim term. In 2012, Martinez appointed him again, but Democrat Barbara Vigil defeated him in the general election later that year.

Known for his imposing presence and incisive legal mind, Kennedy practices in civil rights and criminal defense in Albuquerque. He partnered for many years with the late Mary Han. In 2005, a state House of Representatives committee hired their firm to work on the impeachment of then-state treasurer Robert Vigil. That same year, Kennedy successfully argued for the American Civil Liberties Union of New Mexico against the city of Albuquerque for an ordinance that allowed the city to seize and sell the vehicles of first-time DWI offenders.

More recently, Kennedy has represented the Martinez administration on matters ranging from redistricting Congress and the Legislature to allegations of fraud in the state’s food assistance program. He also represented the governor’s political adviser, Jay McCleskey, as he was being investigated for alleged misuse of campaign funds, a crime for which he was never charged.

Kennedy has cashed in representing Martinez in IPRA cases. Since 2013, he has been awarded $850,000 in sole-source contracts to handle the governor’s legal work in public records lawsuits brought by the Reporter ($500,000), fired New Mexico Finance Authority CEO Richard May ($300,000) and the Associated Press ($50,000). In May’s case, Judge Singleton ordered Martinez to produce records; the AP settled its lawsuit against the governor after she agreed to turn over records showing how much her traveling security detail earns.

It is unclear how much of the $850,000 Kennedy has billed taxpayers—or how much he has been paid. That’s because the state Department of Information Technology and Risk Management Division refuses to turn over his bills or invoices. The departments cited attorney-client privilege in denying an IPRA request, but refused to say how the privilege applied or release redacted records showing the amounts.

It is clear that Kennedy has had help on the case from at least two of the governor’s in-house lawyers, each of whom earn more than $80,000 annually. Martinez’ spokesmen refused to explain why lawyers already employed by the state were unsuitable to fight the public records battles without additional outside counsel.

Reached by telephone, Kennedy agreed to talk for this story so long as the governor’s office authorized it. Lonergan, Martinez’s spokesman, would not allow the interview.

Court battle

The run-up to trial has been a bare-knuckle street brawl, contested through a series of court motions and hearings on the highest-minded of constitutional principles. In one corner is the newspaper’s legal team, arguing for freedom of the press and equal access to information. In the other is Kennedy, denying each of the Reporter’s claims and arguing for the independence and separate roles of different branches of government.

Already, Kennedy has succeeded in narrowing the newspaper’s free press claim to a thin slice, and he has convinced the court that large portions of Martinez’ daily calendar—a politically charged record that has been the subject of multiple lawsuits—should remain secret.

The Reporter already has won a significant victory of its own.

Singleton rejected one of Kennedy’s central early arguments: that the governor is not obligated to answer routine questions from any particular journalist. Instead, the judge ordered that if the administration is already speaking on a given topic, it cannot discriminate among those asking for comment.

“We’ve already established that the state of New Mexico does not allow that,” Murray says. “I think that’s a win that we all get to take home, and it doesn’t get taken away from us even if we are not successful at trial.”

Among those expected to testify at trial are Schirtzinger, who lives out of state and no longer works in journalism, and the two reporters who were in the newsroom with her the day they called the governor. Peters works for the New Mexico Political Report news site, and Horwath is a reporter at The Santa Fe New Mexican. The Reporter’s current editor and publisher, Julie Ann Grimm, and Mark Zusman, the newspaper’s co-owner, also plan to testify.

Also on the witness list are Chris Sanchez, Martinez’ communications director, and Knell, who preceeded him in the job. Pamela Cason, the state’s records custodian, is expected to testify, as are Scott Darnell, the governor’s former chief of staff, and her current chief of staff, Keith Gardner.

There is still plenty to fight for at trial.

Delays, denials and incomplete responses to IPRA requests formed the basis for the Reporter’s public records claims. And the administration’s failure to respond to the newspaper’s inquiries—while officials did respond to journalists another news organizations who were reporting on the same matters—led to the free press violation claim.

Judge Singleton will also consider three IPRA issues. The first concerns the governor’s calendars, which would show who she meets with. Although the judge has already ruled Martinez can withhold portions of the calendars deemed “political,” if Singleton rules that the administration illegally delayed its denial of the Reporter’s request, the newspaper could win damages.

The newspaper also could win damages, fees and attorneys’ costs if Singleton rules that Martinez’ staff improperly withheld requested pardon records for months on end.

Finally, the Reporter has argued that the governor’s administration did not turn over emails the journalists had already obtained from the Estrada cache. Instead, the state records custodian claimed they didn’t exist. To fix that problem, the newspaper seeks an enforceable IPRA compliance process that ensures custodians properly identify public records and provide them to requesters.

The free press claim is less clear-cut.

Scheer, of the First Amendment Coalition, says it is well-settled law that government officials cannot exclude a disfavored reporter from a news conference. Nor can they kick a reporter off a news release distribution list for writing a critical article. At the other end of the spectrum, the press cannot compel government speech. Officials may choose which reporters get one-on-one interviews, for example, and reporters cannot force officials to speak about particular issues.

The Reporter’s claim falls in the middle: The journalists allege the Martinez administration stonewalled their requests for basic information that officials were giving numerous reporters from other news organizations.

To prove that, Yohalem and Murray plan to use emails that show Knell, the former spokesman, responding to reporters from the Albuquerque Journal, the Associated Press and other organizations, but ignoring Peters’ and Horwath’s nearly identical requests for comment on the same topics.

“One of the things that does not have to be proven at trial is that the Santa Fe Reporter has a specific viewpoint, or even a unique viewpoint,” Murray says, adding that government officials can’t discriminate against a speaker, or in this case, a reporter, even if officials think the reporter is biased.

Kennedy has pushed back on the free press claim, arguing that the Reporter was not treated differently. Rather, he says that the governor’s staff was busy with more important matters—responding to wildfires and floods, for example, when the Reporter’s inquiries came in.

And even if the newspaper had been singled out, Kennedy argues that it is not up to Judge Singleton to reset the balance.

“Under separation-of-powers principles, it is for the governor to decide to whom and on what topics she and her staff choose to speak in order to carry out their official duties,” he writes in a motion. “Speaking to one reporter does not trigger a constitutional right of every other reporter to talk to the Governor. … Moreover, the court lacks both the institutional capacity and the constitutional authority to permanently station itself in the Governor’s press office and act as a ‘traffic cop’ directing which press inquiries that office must answer on a daily basis.”

Kennedy’s separation-of-powers argument is likely to find at least some purchase with Singleton, says Maryam Ahranjani, a professor of constitutional and criminal law at the University of New Mexico School of Law. Judges, she says, are often hesitant to step in and throw elbows at the executive branch, lest they wander into the territory of making law, rather than interpreting it.

Singleton has signaled that she intends to hear both sides on whether Martinez violated the state constitution. But she has made clear that, because the governor’s office has a “public forum” through which it releases routine news and comments on issues, the administration cannot discriminate based on which reporters it likes and those it does not.

What’s at stake?

For Schirtzinger, the case never has been just about the newspaper. The lawsuit was intended to help every news organization, blogger and citizen. IPRA provides everyone equal access to information.

However, on that day in 2013 when she and her reporters decided to pursue a lawsuit, Schirtzinger says she began to think about the larger role of the press.

She points to her favorite journalism quote, which is included in the lawsuit. It comes from the seminal Pentagon Papers case, in which the government had tried to stop the New York Times from publishing the stolen—and embarrassing—documents.

Supreme Court Justice Murray Gurfein wrote: “The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”

The Reporter’s case could move the needle on national free press law. And in New Mexico, it could broaden press access to government officials. The newspaper brought the free press claim in state court, but since there’s no case law on the issue here, Singleton will look for context in precedent established in federal courts hearing First Amendment cases.

“This is the first case to be brought under the free press clause on this kind of an issue in New Mexico,” says Yohalem. And he’s confident the newspaper has enough evidence to prevail.

But because bad facts make bad law, it’s risky to bring these kinds of broad claims.

A loss for the Reporter could create a precedent that allows more secrecy in government. And if the judge agrees with Kennedy, it would vindicate Martinez, a second-term governor with national aspirations and flagging poll numbers who has touted transparency as a pillar of her time in office.

Or, triumph for the Reporter could force the governor to enact a better process for handling and monitoring IPRA requests, a modest money award and an end to the discrimination the newspaper says it has suffered at the hands of the Martinez administration.

It also could mean all New Mexicans, not just journalists, have more reliable access to information—for the remainder of Martinez’ term in office and beyond.

Publisher’s note: Because we’re a party to this case, SFR hired a team of independent journalists to report and edit this story without interference. Jeff Proctor researched and wrote it under the guidance of Laura Paskus, who served as its editor.


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