Testimony ended today in the three-day trial of SFR v. Gov. Susana Martinez with Mark Zusman, who co-owns the newspaper and two other weeklies, saying all three prioritize the watchdog function of journalism.
“We strongly believe that the most important thing standing in the way of tyranny is a truly independent press that understands the watchdog roll,” Zusman, the trial’s final witness, said from the stand.
The governor’s contracted defense attorney, Paul Kennedy, spent much of the trial trying to paint SFR as an insignificant entertainment tabloid. Zusman testified that the bulk of the paper’s resources are devoted to news—not arts and entertainment.
“People in this state know that while we’re small, we’re a scrappy paper that has broken a lot of news,” Zusman said in an interview in the courthouse hallway. “The process of breaking news and being a watchdog means that you do occasionally make enemies.”
You can’t do investigative journalism without source documents, Zusman said. When he and the newspaper’s staff decided to sue Martinez in 2013, he wasn’t sure whether they would win or lose, but he said he knew it was a fight worth waging.
“I think this goes right to the heart of: How transparent does government have to be?” he said. “Is this a government of the people, by the people, for the people? Or is it simply for the ruling class who’s in power right now, who can determine what information they want to give to which reporters, and who can show favoritism depending on the coverage?”
State District Court Judge Sarah Singleton did not issue a ruling today from the bench. Instead, lawyers for SFR and Martinez will have three weeks to file written closing arguments once they’ve received a full trial transcript. From there, Singleton will rule on the newspaper's claims that Martinez violated the New Mexico Inspection of Public Records Act and SFR’s free expression rights under the New Mexico Constitution. A final decision could take months.
SFR alleges the Governor’s Office cut the paper off and stopped responding to reporters’ emails and phone calls because they’d investigated and written stories about a pattern of government secrecy in her administration. The journalists started relying more heavily on public records requests, but those were fruitless, too. The case, focused on a free press and the public’s right to know, landed in Singleton’s courtroom, where the unusual trial played out this week.
On the stand Friday, the governor’s Chief of Staff Keith Gardner and his former deputy Scott Darnell testified that they’d deleted a now infamous email from Larry Behrens, the Education Department spokesman, about culling a list of non-union teachers from school websites. It was sent to their personal email addresses. But when SFR made a records request for public business in their private email accounts on the date it was sent, the Behrens email wasn’t turned over.
Gardner also said the recording of his comment about not using his government email address in order to avoid “court or jail” was sliced from a conversation and taken out of context.
He said he was talking about another state employee using her state computer to post on Facebook. “I’m saying I don’t use my state system in order to do anything that’s outside the function of what I do as a member of the governor’s administration and staff. That that’s an abuse of my system, and that’s what will get me into trouble,” he said.
Gardner could not recall whether he was asked to search his private Gmail account for emails relating to public business after SFR filed an Inspection of Public Records Act request.
The lawsuit alleges that the Governor’s Office doesn’t have an adequate method for handling those requests, which come from journalists and members of the public. Former records custodian Pamela Cason testified that it would not have been humanly possible to search each employee’s email herself when seeking records to fulfill a request. And the way she ensured compliance was to “instill the fear of God into the employees that you have to respond to these in a timely manner.”
Much of the day was spent with Kennedy asking Cason about her methods in tedious detail. Before she left the stand, she testified that she still doesn’t keep a log of IPRA requests as they come in.
Gov. Martinez’ spokesman, Chris Sanchez, was questioned about a Tweet he posted following a story written by former SFR staff writer Justin Horwath for the Santa Fe New Mexican, where Horwath works now: “Embarrassing. Reporter should have done his homework. No surprise given his previous ‘reporting’ for liberal tabloid.” Sanchez testified that when he said “tabloid” he meant the size and shape of the newspaper.
SFR Editor and Publisher Julie Ann Grimm said if the newspaper receives a judgment in its favor, it will send a message to elected officials that the state’s sunshine law should be taken seriously. “And you can’t, as a public official, pick and choose which members of the media you are going to communicate with,” she said.
If the lawsuit doesn’t break SFR’s way, Grimm said, it will send a signal to public officials that size matters. “Although we like to think our place in the journalism landscape in New Mexico is important, it’s true that we’re not as big and well-funded as the Albuquerque Journal, for example. So if it’s OK to ignore small media organizations, that’s dangerous.”
SFR could potentially be compensated for its legal fees as a result of the IPRA claims. SFR launched a nonprofit aimed at supporting investigative journalism in New Mexico, and that could be one place where damages from this case end up, she said. But she doesn’t want to count any unhatched chickens.
Daniel Yohalem, who represents SFR, said he hopes the case opens up the conversation about government’s interaction with media. “We should not have had to go to court to resolve these issues. We should have been able to sit down with the Governor’s Office and work this out,” he said. “But we were not able to accomplish that, so I think it’s going to take a court case, and maybe ultimately a change in government, before we’re going to see improved relations with media.”
Yohalem took the case pro bono; Kennedy did not. He was contracted for more than $500,000 to represent Martinez against SFR, but the governor’s administration has refused to turn over his billing records that would show much he has actually been paid.
When asked about his fee after the trial, Kennedy said, “You’ll have to contact the governor’s (communications) people.”
Marisa Demarco is covering the trial jointly for KUNM, and for the Santa Fe Reporter as an independent journalist. SFR contributing editor Jeff Proctor is supervising her coverage for SFR.