The 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.
Three 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.
SFR's September 2013 lawsuit alleges the Republican governor illegally withheld documents from the newspaper on a handful of requests for public records. The lawsuit also alleges Gov. Martinez violated the free press provision in New Mexico’s constitution by refusing to respond to SFR’s inquires in a campaign of retaliation against the paper stemming from unfavorable coverage of the chief executive. SFR alleges that constitutes illegal viewpoint discrimination against the paper and that silence from the governor’s office amounts to censorship.
At the June 25 hearing, Martinez’ office made what SFR’s attorney later characterized as an “extraordinary claim”—that the governor is not subject to court orders to produce information through discovery in a lawsuit at the same level as the state agencies she directs. But First Judicial District Court Judge Sarah Singleton instructed Martinez to produce information on her office’s procedures in responding to several SFR requests for public records.
SFR’s 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.
But Martinez 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.
"I'm going to refrain from saying what popped into my head," a grinning Singleton responded.
SFR 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 First Amendment.
Separately, 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.
The governor’s office does not have proper procedures in place to respond to requests made under the Inspection of Public Records Act, SFR alleges. The complaint asks the court to order Martinez to implement procedures that allow for “prompt and thorough” responses to IPRA requests and asks for damages and attorneys fees.
SFR 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.
SFR’s 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.
SFR’s request that the court compel the governor to hand over information didn’t come without a fight from the governor’s attorneys.
At the hearing, Kennedy asserted Martinez’ procedures for responding to IPRA requests are "not the plaintiff's business."
"The 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."
By the end of the hearing, Kennedy stated for the record that he opposed the characterization of the governor's office as a state agency.
"Our 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 agency."
SFR attorney Daniel Yohalem calls that an "extraordinary" claim that's "completely contrary to the separation of powers doctrine."
"This 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.
"That would be an Eighth Amendment violation, your honor," Kennedy responded. "Both cruel and unusual.”