Mark Woodward
Paul Kennedy, second from left, withdrew from the case after filing a notice to appeal a judge’s ruling on how much money the state owes SFR.
F ormer Gov. Susana Martinez slipped a slew of coal for her successor into the stocking hung, no doubt with care, by the governor’s mansion fireplace. Among the many lumps is a bill for nearly $400,000.
The tab comes from a pair of Santa Fe lawyers who spent four-plus years battling Martinez and her favorite private lawyer for public records on behalf of SFR through a 2013 lawsuit. If newly elected Gov. Michelle Lujan Grisham’s administration decides to write the check, it’ll provide something of an ironic coda to what Martinez promised would be “the most transparent administration in New Mexico history.”
It’s not yet clear whether that will happen.
In late November, pro-tem state District Judge Sarah Singleton ordered the Martinez administration to pay lawyers Daniel Yohalem and Katherine Murray $397,659.02. Working together with no guarantee of a paycheck, the lawyers spent more than 2,000 hours helping SFR argue, among other claims, that Martinez and her aides had violated the New Mexico Inspection of Public Records Act by delaying responses to requests for documents, outright withholding others and refusing to put in place a process to handle records requests.
Months after a three-day bench trial in the spring of 2017, Singleton sided in December with SFR on three of the IPRA violation claims and ruled against the newspaper on a claim that the governor had violated the state Constitution by cutting off its access to basic information from her administration.
For nearly a year, Yohalem and Murray went back and forth with Paul Kennedy, a well-known Albuquerque attorney who represented Martinez in numerous legal matters including the SFR case, over attorneys’ fees and costs. IPRA allows for such payouts to prevailing parties.
Kennedy “raised the novel argument that, contrary to the language and public policy of IPRA, a partially successful governmental defendant was entitled to costs under IPRA,” Singleton wrote in a June order establishing how much the state owed the attorneys. The governor’s lawyer “further argued that she was the prevailing party on all claims made in this case and she should be reimbursed for all costs incurred defending against [SFR’s] claims. … The Court rejects [Martinez’] arguments asserting that [she] is the true prevailing party and trivializing [SFR’s] success on its IPRA claims.”
But Kennedy kept pushing.
“Throughout this fees litigation, [Kennedy’s] arguments and zealous attack on all aspects of the way [Yohalem and Murray] litigated the entire case increased the time Plaintiff had to spend litigating attorneys’ fees and costs,” the judge writes.
On Nov. 26, she issued a final order directing payment to Yohalem and Murray. Kennedy had 30 days to appeal. He took them all, filing a notice with the state Court of Appeals the day after Christmas.
Two days later, with the last of his Martinez-representation contracts about to expire in the waning days of her eight years as governor, Kennedy withdrew from the case.
Kennedy was likely paid millions of dollars in taxpayer money to represent Martinez in several public-records and other controversial cases during her governorship. But the former administration has steadfastly refused to say exactly how much, including in the SFR case.
Whether Yohalem and Murray will have to keep fighting in court to collect their fees and costs is now up the Lujan Grisham administration. The Court of Appeals has given the new government until Jan. 28 to decide whether to drop the Kennedy-filed appeal.
Matthew L Garcia, Lujan Grisham’s recently named general counsel, declined to be interviewed for this story. But through a spokesman, he writes in an email: “We’re aware of the matter and we’re reviewing. I think you can anticipate our making a decision as soon as we possibly can.”
Murray worked more than 1,700 hours on the case, according to Singleton’s order. Yohalem spent just north of 700 hours pushing for SFR’s access to public records. They took the case on contingency.
In a telephone interview this week, Yohalem says he hasn’t spoken with anyone in the new administration about the case. He adds that he’s happy to give Lujan Grisham and her staff time “to sort this all out.”
It didn’t have to be this way, he says.
“This is a situation that was created by the former governor by withholding public records and fighting this lawsuit tooth and nail from beginning to end,” Yohalem says. “It has created a large attorneys’ fees bill and run up Mr. Kennedy’s bill to what surely is a significant amount. All of this was totally unnecessary, and now she has left the new governor to pay the bill.”
