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Duran case ruling could cost taxpayers $90K

Taxpayers are on the hook for nearly $90,000 – and more – in legal fees and costs owed to the American Civil Liberties Union of New Mexico in its successful public records fight to compel then-Secretary of State Dianna Duran to provide the proof behind her claims of voter fraud by foreign nationals, the state Court of Appeals has ruled.

An appeals panel found the legal tab was “reasonable” after a lawsuit filed by ACLU turned up public documents that Duran’s office had improperly withheld after the group filed requests under the state Inspection of Public Records Act. In the end, no actual “voter fraud” list was produced.

“Today’s ruling is a victory for government transparency and accountability in our state,” said ACLU legal director Alexandra Freedman Smith. “Rather than making the embarrassing admission that her claims were largely unsupported, Duran spent years attempting to hide information from the public and it has cost taxpayers dearly. We hope this ruling stands as a reminder to the state and other local governments that violating public records law has consequences.”

Asked about a possible appeal of the fee dispute to the New Mexico Supreme Court, Secretary of State spokesman Ken Ortiz said Thursday that the agency’s general counsel was reviewing the appeals panel ruling and had made no decision yet.

Duran resigned last October after pleading guilty to felony charges related to her embezzlement of campaign contributions to fuel a gambling habit. She is serving five years of probation after spending 30 days in jail.

Months after assuming office in January 2011, Duran announced that an internal investigation revealed 117 instances in which foreign nationals registered to vote in New Mexico. Of those, she said 37 had actually cast votes.

A lawyer for Duran’s agency argued that the ACLU wasn’t entitled to fees generated after May 2012, when all records responsive to the ACLU requests were produced. But the appeals panel dismissed that argument by noting that Duran’s office should have furnished the ACLU emails about a similar voter fraud investigation in Colorado, but didn’t do so until 2013.

The case now returns to an Albuquerque district judge who originally set the amount of fees and costs in 2014. Judge Clay Campbell will now determine how much extra the ACLU is owed for having to prepare legal arguments for the appeal filed by Duran’s office.