self-described "most transparent" governor in state history now faces
instructions from a district court judge to produce information to SFR on how
she responded to the paper's requests for public records.
attorneys representing Gov. Susana Martinez walked out of the First Judicial
District courthouse today facing the prospect that they must also defend against SFR's claim
that she violated the newspaper's First Amendment rights.
lawsuit accusing Martinez of unlawfully withholding public records is among the growing
list of cases filed against the governor for violations of the state's Inspection
of Public Records Act.
SFR's claim that she violated the state constitution's free press provision, however, hasn't been litigated before in the state. SFR's lawsuit asks for injunctive relief from the court that would compel Martinez to "immediately cease and desist from discriminating and retaliating against" SFR.
attorney Paul Kennedy argued that the First Amendment "does not apply to the
government's own speech."
"On a national level, news media outlets are frozen out all the time by administrations of both parties who don't like their publication or editorial policy or whatever," he said. "They can do that."
SFR's attorney Katherine Murray countered that Martinez' office "cannot
make distinctions on who she's going to speak to through her designated
spokesperson" based on "whether or not she agrees or prefers the
coverage of that specific newspaper or news organization." Murray added
that a perfect example of the governor's viewpoint discrimination was how her spokesman
Enrique Knell referred to SFR as a "left-wing tabloid" following news
of the lawsuit after it was filed last fall.
going to refrain from saying what popped into my head," a grinning
argues New Mexico's constitution prevents Martinez from ignoring information
requests from news outlets based their editorial viewpoints. Yet Judge
Singleton said she did not believe SFR adequately demonstrated the state
constitution is more expansive than the federal First Amendment. She allowed
SFR to proceed on that count of its lawsuit if it alleges Martinez violated the
SFR's lawsuit alleges Martinez "routinely" withheld public records from SFR in
its requests for information on pardons, calendar documents and emails
concerning state business.
will be allowed to depose Pamela Cason, a paralegal at the governor's office
who handles public records requests, and a yet-to-be determined Martinez
scheduler. Martinez' office must produce a list of documents she withheld
from SFR in its request for information surrounding pardons documents.
complaint alleges Martinez violated IPRA seven times. SFR's allegation that she
improperly withheld pardon documents is the only count to which Martinez has
invoked an executive privilege to hold back information. On the remaining
counts, Martinez claims the office adequately responded to the paper's public
records requests. But she must now produce information that will detail those
responses—which will help SFR determine the adequacy of the governor's
processes in furnishing the requested records.
request that the court compel the governor to hand over information didn't
come without a fight from the governor's attorneys.
the hearing, Kennedy asserted Martinez' procedures for responding to IPRA
requests are "not the plaintiff's business."
governor has a constitutional right to manage her own office in such a way that
she sees fit," Kennedy said. "She is not subject to inquiry into the
internal working mechanisms of her office."
the end of the hearing, Kennedy stated for the record that he opposed the characterization
of the governor's office as a state agency.
position is that the governor's office is not a state agency," he said.
"The governor is the executive of the state and is a separate branch of
government—a different branch of government that, [by] our contention, is not
subject to discovery or injunctions at the same level as an executive
attorney Daniel Yohalem calls that an "extraordinary" claim that's
"completely contrary to the separation of powers doctrine."
governor has asserted that she is beyond all of that," Yohalem tells SFR, "and
that nobody has any business looking at the way she does things or telling her
what she did is illegal."
Not all the exchanges between
the two parties were as contentious.
At one point, Singleton joked
that Martinez should be forced to read a copy of SFR instead of suffering
punitive damages in a different case in front of the state Supreme Court.
Santa Fe Reporter