Alexa Schirtzinger
Two days before Christmas, attorneys representing Gov. Susana Martinez filed a motion with the First Judicial District Court to defend against SFR's ongoing lawsuit that alleges New Mexico's chief executive violated the state's public records law on a variety of counts and unlawfully retaliated against the paper.
One argument stood out in the otherwise routine briefing: That the doctrine of unclean hands should prevent SFR from "profiting from its own illegal or inequitable activity through an award of equitable relief, attorney fees, or damages."
In so many words, the governor had accused SFR of criminal activity. Martinez claimed in the motion that SFR obtained "email messages through illegal transfers from Mr. [Jamie] Estrada"—her former campaign manager who is now serving out a federal prison sentence for his role in intercepting emails sent to campaign accounts of Martinez and her staffers.
The judge in the case shot down that line of reasoning.
Leaked messages
The governor's office said no responsive records existed when SFR filed Inspection of Public Record Act requests that asked for messages transmitted over the private accounts of Martinez staffers on specific dates.
But two emails made public thanks to Estrada's leaks, and transmitted on the requests' listed dates, showed Martinez' office policies and procedures in responding to IPRA requests are "inadequate," SFR claims in its lawsuit. The governor's office defends the responses as adequate.
On Feb. 24, lawyers for SFR and Martinez argued over whether First Judicial District Court Judge Sarah Singleton should dismiss SFR's claim that the governor violated the open records law in not disclosing the emails.
"Apparently what was happening here, as has been alleged in our motion," Paul Kennedy, the governor's lawyer, told the judge, "is that the plaintiff obtained stolen emails from a political operative and began to publish them—which we contend is minimally inequitable conduct disqualifying them from equitable relief."
"You weren't involved in the tobacco litigation, were you?" Singleton responded.
Kennedy: "The which?"
Singleton: "The tobacco litigation."
Kennedy: "I thankfully was not your honor."
"Unfortunately, I was," Singleton replied, "and the whole case was built on stolen documents. Didn't matter."
"Right," retorted Kennedy. "But they weren't stolen in violation of federal law. And people didn't necessarily go to prison for having stolen them. In this case, that's exactly what happened. And this plaintiff disseminated, knowingly disseminated, stolen...goods."
"Objection your honor!" interjected SFR attorney Daniel Yohalem.
"This plaintiff didn't steal anything," Singleton said.
The judge went on to reference the 1971 US Supreme Court ruling in The New York Times v USA. For US media outlets, the court's ruling in favor of the Times, allowing it to publish contents of the top-secret Pentagon Papers, is a landmark freedom-of-the-press case.
The Times obtained the classified Pentagon Papers study—which showed how presidential administrations deceived the American public about the extent of the US involvement in Vietnam—from whistleblower Daniel Ellsberg. The government brought an unsuccessful prosecution against Ellsberg for leaking the classified information. But it notably declined to charge the media outlets that published its contents with any crimes.
"And so I suppose that you thought that the gravamen of the offense with the Pentagon Papers was that The New York Times published them," Singleton asked Kennedy, "not that Daniel Ellsberg stole them?"
"Well he was," Kennedy responded, "Ellsberg was prosecuted for that, too."
"Right," Singleton said. "But nobody prosecuted The New York Times."
"No," replied Kennedy.
"Ok," said Singleton. "What did they [SFR] do that was wrong?"
"Well it was against the law to traffic in stolen items," Kennedy argued. "Whether they were prosecuted or not is a different question."
"Well, somehow I don't think that was the correct analogy," said Singleton.
"Regardless of the legality of it or not," Kennedy replied, "the plaintiff certainly comes into court with unclean hands."
"No," said the judge, "I don't think that's true."
Private accounts
Kennedy went on to argue that Singleton should toss out SFR's claims about private emails accounts because the paper's IPRA requests "lacked reasonable particularity." Had the governor's records custodian known SFR was seeking those specific leaked emails, she might have been able to locate the messages, Kennedy argued, instead of playing a "game of 20 questions."
IPRA specifically states that government agencies need not know the motive of someone submitting a request for public records. The requests would not only have allowed SFR to obtain the already leaked emails, but also to obtain any additional messages between the parties on the same days.
The governor's office is also proffering another extraordinary claim: That the US Constitution's Fourth Amendment protections against unreasonable searches and seizures would prevent a records custodian from searching a state employee's private email accounts without consent—or a search warrant.
The judge should focus on whether the governor's records custodian made a "legally adequate search for public records under the statute," as opposed to the results of that search, argued Kennedy, in another prong of attack. Martinez records custodian Pamela Cason approached Martinez staffers named in the request and inquired whether they had emails responsive to SFR's requests, Kennedy argued.
SFR attorney Katherine Murray pointed to statements made by Cason that there's no training on retention and maintenance of electronic public records in the governor's office. Cason said that she doesn't conduct follow-up "as to inquiring where individual staff members searched," for the emails, Murray argued.
Kennedy asked Singleton to dismiss that part of the case that alleges the private emails should have been provided, a request the judge denied.
"It seems to me that there are questions of fact about the adequacy of the search," Singleton said.
The judge said she sensed an element of "gotcha" to SFR's IPRA requests. But that doesn't speak to the adequacy of the searches.
"Effectively Ms. Cason delegated the responsibility to determine whether or not there were public documents that were contained on private email accounts," said Singleton. "And she did so without any discernible or disclosed procedures for determining whether the people that she delegated this to did an adequate search to find public documents."
The judge added later, "and when you delegate the responsibility for doing the search, you better have some procedures for determining that your delegation was adequate and I don't see that being here."
Among 11 motions heard on Feb. 24, Singleton also granted SFR's attorneys explicit permission to depose five staffers in the governor's office and ordered the defendant to provide additional discovery. It's unlikely the case will move to trial before 2016.
The Albuquerque Journal and Santa Fe New Mexican also wrote about the hearing.
The Journal reported that the governor traveled all or parts of 272 days during her first term, based on records disclosed by the governor's office in the lawsuit. Most of the governor's out-of-state travel was for political purposes. Singleton ruled in the hearing that the governor doesn't have to disclose details about political calendar appointments.
