The Taos News and Erminio Martinez v. Horse Fly

By: Bill Whaley
9 March, 2013

On May 30, 2008, in response to The Taos News endorsement of Erminio Martinez just prior to the democratic primary, I posted an online editorial endorsing Senator Carlos Cisneros for re-election on the Horse Fly web site. Though Martinez won Taos County, Cisneros was re-elected due to voters in the district as a whole, which includes parts of Rio Arriba, Los Alamos, and Santa Fe County. Apparently, the Horse Fly editorial had no effect on the election since Taos County supported the challenger, Martinez.

Subsequently Plaintiff Martinez and his attorney Sam Herrera filed claims of libel, defamation, etc. against Horse Fly and me. Neither Martinez nor Herrera have provided me, Horse Fly, or my attorney with evidence of how the plaintiff suffered though one suspects his feelings were hurt.

After Horse Fly, a monthly journal, was sold, Martinez filed a complaint against defendant Horse Fly and Whaley for “Fraudulent Conveyance,” alleging “the transfer was without a reasonably equivalent value therefor.” Later, Martinez admitted that he had no knowledge of the deal involving the Horse Fly sale at the time he made the claim.

Regardless of the spurious nature of the case, it continued. For almost five years, interrogatories, claims and counter claims fired back and forth and depositions were taken. At various times the Plaintiff offered to settle the lawsuit for $35,000 and most recently, prior to a court hearing with Judge Eugenio Mathis, plaintiffs offered to settle for $30,000.00. Prior to trial, scheduled for late February, the plaintiff and defendant entered into confidential mediation.

(It may be that once Herrera and Martinez got hold of my income tax returns for the last eleven years, they were discouraged by my balance sheet.)

Now comes The Taos News, which published an article “Former Taos area judge, publisher settle over libel suit” published on Thursday March 7, 2013. Apparently the Santa Fe New Mexican similarly published the piece and both news organs posted the story on their web sites.

The story, written by Chandra Johnson contains numerous errors, false statements and libelous remarks. Both Martinez and his attorney have, to the best of my knowledge violated “confidentiality” by jumping the gun. At this time, I have no idea where the lawsuit stands, since the trial has been vacated. Indeed, I have not signed documents that were supposed to be prepared by the attorneys, including mutual releases, etc. and filed in district court.

The reporter never contacted me nor did she reply to an email, sent to her and the editor, prior to the online post. In the email, I sent a list of some 83 exhibits that refer to numerous documents in support of my claims about Martinez. In addition to the story below, I have prepared a packet of some 50 pages with relevant information and will make it accessible to interested parties, who contact me.

Here’s The Taos News story and my comments, confidentiality permitting. I use italics for Johnson’s story and follow with my rebuttal.

“Former Taos area judge, publisher settle over libel suit
”Posted: Friday, March 8, 2013 12:00 am
Chandra Johnson

Taos News: After a five-year legal battle over libel allegations, a former magistrate court judge and the former publisher of a defunct newspaper have reached a settlement.

Taos Friction: Generally speaking, slander refers to verbal defamation and libel to printed defamation. I have yet to see case law regarding a definition or concept of defamation referring to online posts.

Taos News: According to court documents signed Feb. 13, former Taos Horse Fly editor and publisher Bill Whaley agreed to pay former judge Erminio Martinez $7,000 and make a public apology for statements published about Martinez’ conduct as a judge in May 2008.

Taos Friction: Perhaps Ms. Johnson has seen “documents filed in court.” I have not, nor have I signed what I would consider the final documents.

Taos News: “It’s a relief, without a doubt,” Martinez told The Taos News.

Whaley’s attorney, Alan Maestas, was not available for comment.

The article that spawned the case was a response to a Taos News endorsement of Martinez for the New Mexico Senate.

The article stated that as a judge Martinez “had trouble understanding and applying the law,” but also that he covered security cameras in his court room while he was on the bench in Questa, that other judges had to shoulder more cases because of Martinez’ “work habits,” and that he handled a case as a judge in which he was also the plaintiff.

Taos Friction: On Oct. 10, 2001, a document filed in Magistrate Court, County of Taos, alleges that Sandra Geuy on or about Sept. 25—27, 2001, was “pursuing a pattern of conduct, intended to annoy, and create emotional distress. In defiance of an order from the administration office of the courts, dated July 26th, 2001.And creating such a public nuisance, that it gravely interferes with the exercise and enjoyment of public rights, including the right to use public property if any by the defendant, constantly placeing (sic) my self under surveillance, in side and out side work place.” The document was signed by Judge Erminio Martinez.

Subsequently, according to a criminal summons, Geuy was ordered to appear by Judge Erminio Martinez in a case presided over (“Prosecuting attorney Filing the Criminal Complaint”) by Judge Martinez–the alleged complainant.

According to the correspondence in the file, Ms. Geuy, a volunteer court worker, and grandmother, appointed by Judge Betty Martinez in Questa, had filed a complaint against Martinez with the Administrative Officer of the Courts. In turn Judge Martinez, filed a criminal complaint against her and, though Martinez himself was the alleged victim, sought to act as prosecutor and judge. Attorneys Robert Rothstein and John Day represented Geuy.

In a letter from the court clerk to the Judicial Standards Commission, Dorothy Duran says, “It was at the coaxing of Mr. Rothstein that Judge Erminio Martinez, finally signed a recusal on the case.”

In other correspondence to the Administrative Office of the Court representatives, Judge Betty Martinez summarizes the case and states: “And just for your information, the cameras that were installed in Questa for security. When Judge Martinez is there he puts a sticky note pad on the camera lens and points the camera up to the ceiling so it defeats the purpose and the cost of this equipment. (my bold) He does this every time he is in Questa.”

In the Geuy file a letter from Attorney Rothstein to District Attorney Donald Gallegos, dated Nov. 8, 2001 states: “On October 11, one day after he set conditions of Ms. Geuy’s release from custody, Judge Martinez forged her name on the court’s official sign-in sheet, apparently to make it appear as if Ms. Geuy was trying to contact the judge. He misspelled her last name. (A copy of the forged document is attached.) As you know, tampering with a public record, Section 30-26-1 NMSA 1978, is a fourth-degree felony. By this letter I am requesting that your office initiate a criminal investigation into this violation of a New Mexico statute by Judge Martinez. Ms. Geuy will cooperate fully with this investigation into the forgery of her name on a court record.”

In a separate letter to risk management, Feb. 7, 2002, Rothstein details a long list of infractions that underscore the incident, saying that Judge Martinez, “acting as a private complainant,” and “wrongfully used his access to court records to place false and defamatory information in the public record.” Mr. Rothstein writes that unless a settlement is reached, “We will also seek an award of punitive damages and attorney’s fees.” According to correspondence in the case, a settlement was reached but the amount of damages remains undisclosed.

Taos News: When Martinez filed suit against Whaley in September 2008, he alleged that Whaley knowingly and maliciously made defamatory assertions about Martinez falsifying court documents and that Martinez had suffered damage to his reputation.

Taos Friction. I relied on the New Mexico Reporter’s Handbook on Media Law (2001 Modrail, Sperling, Roehl, Harris & Sick PA) for guidance as a reporter and editor. Mr. Martinez, an elected official, who served 19 years as a probate and/or magistrate judge, qualifies as a public figure. The Handbook also states “In New York Times the Supreme Court held that defamation claims by public official plaintiffs can succeed only with showing that the publisher of the defamatory statement acted with actual malice. Actual malice means publishing a statement with knowledge that it was false or with reckless disregard of whether or not it was false.” (my bold)

In this story I make no brief for “trying the facts” as in a court of law  but only in reporting the story as any reporter would.

In the Martinez matter, I interviewed Attorney John Day and Sandra Geuy. In addition, Ms. Geuy gave me the file before she left town. Having dealt with Attorney John Day and Bob Rothstein on various prior matters, I had no reason to doubt their credibility or the correspondence given to me by Ms. Geuy. A newspaper is not a “trier of fact” but merely a reporting instrument, which engages in editorializing, due to the public record.

In a letter from Attorney John Day to Erminio Martinez, summarizing an interview, the attorney states: “You specifically stated that the Taos News newspaper, and reporter William Maxwell (my bold) in particular was in possession of dozens of e-mails directly related to this plot, and that the plotters were putting up fliers around Taos, and sending e-mails and other messages to each other, which messages insulted you personally. You also stated the plotters were conducting secret meetings to conspire against you.”

Taos News reporter William Maxwell told me originally about the story and seemed much entertained by it. I had no reason to doubt Maxwell, given the subsequent correspondence, Geuy file, and interviews.

Taos News: Whaley countersued Martinez in the case.

The case was dismissed in 2009, but was resurrected on appeal by the New Mexico Court of Appeals in December 2011.

Martinez’ attorney, Sam Herrera, said that at the settlement conference Feb. 13, Whaley agreed to pay Martinez and make a public apology rather than go to trial.

Martinez said his only wish was that the case had been settled sooner.

“It should have been more forthcoming long ago when he fabricated so much material that shouldn’t have been printed,” (my bold) Martinez said. “Since 2008, the only thing I’ve been asking for is a public apology.”

Whaley will publish a letter of apology in The Taos News once final clerical work on the case is finished.

Taos Friction. Martinez and The Taos News have misrepresented the case at best and libeled me at worst. Indeed, Mr. Martinez, as reported in The Taos News, has made scandalous and libelous accusations against me, stating “when he fabricated so much material that shouldn’t have been printed,” The material referred to above was neither fabricated nor printed though it has been copied from the Geuy file and posted online.

Reporter Johnson refers to an “article” that was an “online editorial.” She calls Whaley, the former publisher of Taos Horse Fly when my journal was, in fact, called Horse Fly and she knows better. When a reporter and a newspaper err in the little things and misrepresent lies as facts in the big things—especially regarding First Amendment issues—then they have forsaken their responsibility to themselves and the public.

As many of my readers know, Judge Erminio Martinez, was subject to a “Formal Reprimand,” and sanctioned by the New Mexico Supreme Court on Oct. 19, 2005 for “willful misconduct in office.” Allegedly Martinez was getting paid by the state as a magistrate while presiding as judge for a local tribe and getting paid for it. It’s called double dipping in the vernacular.

Judge Betty Martinez once told me that Erminio got excused so much that she had to shoulder a greater part of the workload. When I asked Judge Ernie Ortega, Martinez’s successor, how he was getting along with Judge Betty, he said “great” because he, Ernie, showed up for work.

Lawsuits of a spurious nature are frequently settled as nuisance cases, due to business decisions–not decisions based on the merits of the case. I’m not sure what happens when the parties violate the customary rules of mediation and go public. Both attorneys and judges frequently ignore the rule of law and  its customary application in El Norte.

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