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Newspaper can try to prove discrimination, judge rules

SANTA FE, N.M. — What the administration called a “left-wing weekly tabloid” has overcome an early hurdle in its lawsuit against Gov. Susana Martinez.

State District Judge Sarah Singleton of Santa Fe ruled Wednesday that The Santa Fe Reporter can proceed to try to prove its claim that Martinez has discriminated and retaliated against the newspaper because of its critical coverage of the governor and her administration, in violation of its constitutionally guaranteed free press rights.

The Reporter alleges the governor and her office have failed to give the newspaper the same access to information and comment that they provide to other news outlets.

The administration has denied unlawfully discriminating against the Reporter, saying it has responded to inquiries from the newspaper and provides it with news releases and advisories.

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Siding with Martinez, Singleton said the governor herself has no legal duty to speak to The Reporter.

Katherine Murray, an attorney for the newspaper, agreed the governor can pick and choose when giving interviews, but Murray said she can’t – through her spokesman – provide information to some media but not others.

“Permitting the governor to do that results in censorship,” Murray told Singleton.

The Reporter, in addition to damages and attorneys fees, is seeking a court order that the governor and her office give the newspaper the same access to information and comment they provide to other media.

Martinez spokesman Enrique Knell responded to the lawsuit last fall by calling it “baseless” and referring to the Reporter as a “left-wing weekly tabloid.” The free publication is celebrating 40 years in business.

Singleton ruled that if the Governor’s Office has set up a communications office that purports to be available to discuss issues with the media – as alleged by the Reporter – then the communications office can’t discriminate against a member of the media based on that member’s opinion.

“Their obligation is to treat them the same,” the judge said.

Singleton said a governor’s communications office could be considered a public forum – similar to a news conference – where news media can obtain information and that access to such a forum can’t be limited based on the views of a member of the media.

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The judge’s ruling – based on federal case law on free press protections under the First Amendment to the U.S. Constitution – is to be spelled out in a written order to be issued next month.

Albuquerque lawyer Paul Kennedy, hired by the administration to represent Martinez and a former appointee of hers to the state Supreme Court, argued the governor has a First Amendment right to speak – or not to speak – to whomever she wishes, however she wishes.

“The governor is entitled to discriminate against whom she wants as far as her own speech,” Kennedy said, noting that even presidents have frozen out certain media for their reporting.

In a brief filed with the court, Kennedy and lawyers in the Governor’s Office have argued that even if Singleton finds the Reporter was discriminated against, she is barred by separation of powers from ordering the governor to give the newspaper equal treatment.

“It would be the judicial department in charge of creating regulations for, and administering the operations of, the office of the Governor – a power which properly belongs to the executive department,” the lawyers said in their brief.

Another part of the Reporter’s lawsuit accuses the administration of repeatedly violating the state Inspection of Public Records Act by improperly withholding documents requested by the Reporter or by stalling in providing the records.

Singleton ruled from the bench that the Governor’s Office must provide the Reporter with copies of its policies and procedures for responding to requests from the media and others for public records.

The Reporter wants a court order requiring the governor and her office to develop and implement policies and procedures that ensure prompt and thorough searches for requested public records and prompt production of those records.

Courts in previous cases have been reluctant to issue orders governing how an agency should comply with future records requests. The governor’s lawyers have also argued that Singleton doesn’t have the authority to tell the governor how to handle future public records requests.

Singleton noted during the hearing Wednesday that the Inspection of Public Records Act says a district court “may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions” of the law.

The Reporter is attempting to prove that the policies and procedures used by the Governor’s Office in responding to public records requests aren’t adequate enough to ensure compliance with the law.

Daniel Yohalem, an attorney for the Reporter, said the case is novel. He said he isn’t aware of a case in which a judge has reviewed an agency’s policies and procedures in responding to public records requests and ordered that changes be made.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to ABQjournal.com/letters/new to submit a letter to the editor.

 

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