Sunday, January 4, 2015

Recallers Should Retract Defamatory Comments

(This column is an open letter to Jeffrey Isbell, Pamela Wolfe, and their Recall-pushing associates requesting them to either substantiate or retract their apparently defamatory false statements.)
You have repeatedly stated in writing that three city councilors have "grievous conflicts of interest" in that "they continue to serve on the city council while also being employed by radical organizations . . ." You you are free to opine that these unidentified organizations are "radical"; but knowingly making false factual statements can constitute defamation. 
Facts: Mr. Sorg is a 68-year-old retired rancher, employed only by the City. Ms. Pedroza, 72, is employed only by the City. She does not practice law, except for a very occasional pro bono service for a family member. She hasn't had a law office for a decade and never represented organizations. While Mr. Small is employed by the Wilderness Alliance, which supported the new National Monument, Small carefully recused himself from discussions and votes regarding the advisory resolution the City Council unanimously approved supporting the Monument.

Thus your statement is flatly untrue, as you knew or should have known when writing it. Certainly you are on knowledge now regarding the facts. 
Similarly you accuse them of "lying" to their constituents. We know of no such "lies." We have repeatedly asked you to identify them. You have been unable to identify any. 
You have also alleged that the three Councilors used public resources in their campaigns. You even claimed you'd seen actual documents suggesting so. Your failure to identify any such document(s) is strong evidence not only that you have no basis in fact for your allegation, but that you were aware all along that it was groundless. 
As your lawyer will advise you, even a public figure can recover for defamation where the defamer either knows the factual allegations are untrue or shows reckless disregard for their truth or falsity.

Any court or jury would readily conclude that not one of these allegations is true. If a judge hesitated to conclude you acted with the requisite disregard for truth, the seemingly limitless mudballs you've tossed out are useful evidence concerning your state of mind and your disregard for truth.

For example, you state or imply that Nathan Small's street is better paved than some other streets because of his position; but in fact he moved to his present home AFTER the street was paved. 
You state that Nathan Small spends most of his time in Albuquerque. While his wife is indeed finishing law school in Albuquerque, anyone around City Hall could tell you Nathan is in Las Cruces. (His heart may be in Albuquerque, but the rest of him is quite visible here.) You can cite no evidence that could reasonably have made you think otherwise.

The way you've conducted your recall campaign suggests that absurd lies are your basic modus operandi. Citizen complaints establish that your operatives have misrepresented the nature of the petition in various ways, notably as being about saving the PAL Boxing Gym and even as having nothing to do with recall. Such evidence would assist any trier of fact in determining whether you told an innocent falsehood or consciously lied. The City Attorney, through the City Clerk, has warned you that your reported misrepresentations could amount to election fraud.

This letter constitutes a formal request, on behalf of the three Councilors, that you publicly retract the cited statements. Simple decency mandates that if you can't factually support false accusations, you should withdraw them. Failure to retract the statements could be evidence at trial in a possible defamation claim. 
[Full disclosure: the writer strongly opposes the Recall. Should the Councilors choose to file suit, the writer might very well represent them in the action.]

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, January 4.]

[Ever the optimist, I'd like to hope that some of the more serious allegations discussed in the column are mistaken ideas that the Recallers repeated without bothering to check but which they will now withdraw.  I hope I'm wrong in writing that repeating statements they know are groundless is simply the way they choose to operate.  But there are so many false statements and groundless insinuations!  I hope those folks will prove me wrong about their mind-set.]

[The Recallers also alleged that the councilors had used their positions to advance their political futures. That's too vague to be actionable; and it's a pretty common in politics, but here it's also wildly inaccurate, as to at least two of the three.  Ms. Pedroza has no plan to run for further office.   Mr. Sorg appears to have none, but would have every right to run for something if he wanted to.   To any neutral observer, their commitment to their current positions, and their extreme diligence as councilors, would suggest you are wrong.  All three, to the extent that I know them, are very frequently concerned with the common good, as they perceive it, and do not appear motivated by political ambitionFurther, this is kind of a "who cares?" allegation without some  actual misconduct or inattention to duty.]

[In fact, it'd take most of the week to list all the crazy allegations they've thrown out -- then abandoned, in many cases, when people mostly laughed.  Their implying that Vi and Ron Cauthon, a very sweet couple somewhat past the first bloom of youth, were out stealing taillights off city councilors' cars was notable.  (They carefully implied it without stating that one, perhaps fearing a defamation suit; but since it was too far out there to get believed or cause any harm, I don't guess they should have worried.)  One of their latest, since they can't apparently get the three districts worked up about their others, is that people (and the Sun-News) ought to favor recall so as to spark livelier civic discussion! 
That's fucking ridiculous.   The minimum-wage issue sparked plenty of civic discourse.  (The real threat of the recall is to cut off such discourse, by intimidating counselors who might want to vote based on conscience and constituents, rather than according to Chamber of Commerce instructions.)  Residents of two of the three districts just re-elected the councilors now under attack, which suggests they're not too freaked out about the two.  Constituents would rather Pedroza and Sorg work on legitimate city issues than get distracted by arguing with Jeffrey Isbell.   In District 4, Small's term ends in November 2015 -- and even under the most optimistic schedule for Isbell, recall couldn't end the term and have an interim councilor on board much before June 1.  (Assume they turn in petitions to City Clerk around February 5; assume that particularly with issues of fraud and other issues concerning the soliciting of signatures, it'll take at least 2-3 weeks to certify sufficient numbers of signatures on one or more of the three petitions, taking us nearly to the end of February; then an election needs to happen within two months, or by late April; then assume the remaining councilors and the mayor take at least a few weeks to appoint an interim councilor (as prudence and the Open Meetings Law would suggest), then we're into late May before there's a potential interim councilor, who'd be learning where the bathrooms and coffee machines are and running for re-election during the next five months.  Is that worth thousands of dollars (maybe tens of thousands) and a bunch of distraction?  Assuming you're not Jeffrey Isbell, struggling to prove to your masters that you weren't a mistake, it probably isn't.)]

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