A dozen high-powered attorneys are beginning to wage a pitched legal battle in federal court involving Gov. Susana Martinez and her most outspoken critics.
To the casual observer, the lawsuit might appear unrelated to the state's highest elected official. Its plaintiffs are two former state workers and two others and its defendants are behind-the-scenes politicos. But the civil filing is the next chapter in an email scandal that rocked the Martinez administration and sent her first campaign manager to federal prison.
It also has the potential to shape how federal courts in New Mexico strike a constitutional balance between a right to privacy and free speech.
The case landed in court just after former Martinez campaign manager Jamie Estrada pleaded guilty last June to intercepting an email sent to an account tied with the domain susana2010.com, and another count of lying to the FBI about it.
While Estrada was the only target in the criminal case that landed him a nine-month prison sentence, four New Mexicans filed the civil action accusing Estrada and others of playing a role in a conspiracy in which they "illegally and surreptitiously hijacked, intercepted, stole, accessed, disclosed and used plaintiff's private and confidential email communications."
The defendants—most of whom have publicly accused the governor of corruption—deny the allegations and say the lawsuit is nothing but political retaliation.
Several dozen individuals sent emails to accounts tied to the susana2010.com domain during the yearlong period during which Estrada secretly diverted those messages.
By June 2012, headlines danced with the contents of leaked emails intended for Martinez staffers. They showed officials conducting state business over private email channels and potential collusion between a lobbyist and the administration during a bid to operate a casino on state land.
Now, evidence indicates that lobbyist Pat Rogers, a Republican strategist who resigned from his partnership at a powerful Albuquerque law firm as a result of his emails spilling into the public domain, is covertly directing the litigation.
Plaintiffs argue they are private citizens. But two of them, Brian Moore and Kim Ronquillo, formerly worked in Martinez' office as state employees. Two others, Crystal Amaya and Brad Cates, are from the private sector. All four sent or received emails through the susana2010.com accounts with subjects ranging from bank overdraft protection notices to lunch plans and public policy. They're seeking damages from the defendants for intentionally violating the federal Wiretap Act and Stored Communications Act.
Besides Estrada, the lawsuit also targets five others: Sam Bregman, the chairman of the state Democratic Party; Jason Loera, a Democratic consultant who worked for Bregman; Anissa Ford, the governor's former campaign staffer; Michael Corwin, the director of a now-defunct union-funded political action committee; and Bruce Wetherbee, a former Massachusetts state lawmaker who worked with Corwin in publishing articles critical of Martinez .
In July, SFR received a certified letter from a plaintiffs' attorney requesting that reporters preserve records of their communications with the defendants and other documents—an action that could foreshadow a subpoena.
Wetherbee and Corwin cite the same First Amendment cases that allow media to publish certain material illegally obtained by others, such as classified government records, without legal liability. The plaintiffs counter that the First Amendment does not protect disclosure of "private matters."
Still, the plaintiffs face a legal hurdle: Although lots of intercepted emails hit the press, none of the plaintiffs' particular emails hit the mainstream until December 2012, when SFR published all the intercepted emails online as a part of an investigation. SFR had obtained the emails through a records request to the state's top law enforcement officer, Democratic Attorney General Gary King, whose investigator months earlier sought all the intercepted emails from Corwin as a part of corruption probe. Corwin argues providing the emails at the request of a criminal investigator is an act also protected by the constitutional right to petition the government for redress of grievances.
The plaintiffs counter that the wiretap law allows for civil punishment if a person "discloses to any other person" the contents of an intercepted "electronic communication."
Brad Cates' Nov. 1, 2011, email to two Martinez staffers was among the messages that King disclosed to SFR. In the message, he forwarded two Martinez staffers a link to an article he wrote for a conservative website.
He tells SFR that with revelations about privacy in the news, the sanctity of email is becoming a concern for Americans—especially in the wake of classified government records leaked to the press by former National Security Agency contractor Edward Snowden that showed the extent of unchecked government surveillance.
"I have a very limited piece to say," he says, "a reasonable expectation of privacy to a personal email—and that's of interest to me."
Cates wouldn't answer how the four plaintiffs in the case got together and picked Mark Braden, counsel for the prominent out-of-state BakerHostetler lawfirm, to file a lawsuit against Martinez' political foes, except to say "it evolved." In 2014, the Republican National Lawyers Association named Braden the Republican Lawyer of the Year.
Cates directed other questions about the case to Rogers. "I think Pat's the lead New Mexico lawyer in that case," he says.
Yet Rogers hasn't made an entry of appearance as an attorney on the case, nor is he a plaintiff. A process server listed Pat Rogers as his client in a Nov. 7 filing. On Jan. 19, Rogers hung up on a reporter when asked to comment on his role in the case.
And the federal judge assigned to the case? William 'Chip' Johnson—the same judge who threw the book at Estrada in October. Rogers sat in the front row during Estrada's sentencing hearing—next to Gov. Martinez.