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.]

                                                                       -30-

[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 ambition.  Further, 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.)]

Thanks, Citizens! [accounts of possible election fraud]

This morning's emails included a copy of this very eloquent letter from a citizen of Las Cruces, one of several who reported (to me, to councilors, to the newspapers, and/or to the authorities) unsettling encounters with representatives of the effort to recall three city councilors.  (I'm still interested in hearing from folks who had similar experiences!)

Here's her letter, in full:

Subject: Misleading Methods Used to Collect Signatures for the Recall Petition

English statesman Edmund Burke said: “All that is needed for the forces of evil to triumph is for enough good men and women to do nothing.”

Dear NM District Attorney, Doña Ana County Clerk & Las Cruces City Clerk,

    (Forgive me for not knowing your full names.)
    In this busy holiday season, we don't always find the TIME to do all we want.  And in the life of a quiet, thoughtful fence-sitter (like myself), we don't always find the GUTS to move and speak out.  I have never been involved in politics, but I always research and vote for whom I feel is the best candidate.  I have never before written a letter to someone in power (like yourselves) or to a newspaper, but I sometimes like reading editorials and Sound-Off style comments.  However, that changes for me now with this letter to you.

    On the morning of Saturday, Dec. 20th, my doorbell rang.  A good-looking young gentleman asked me if I had time to discuss some injustices now taking place in Las Cruces.  I did.  So, between the locked screen door, we spoke for about 5 or 6 minutes.  I learned about several places that the local government wants to shut down.  Of most interest was a "Dream Center" which he explained serves indigent people in numerous ways that he shared with me. Gosh, I thought, why would we close such a worthwhile place to save money?  He also said they want to close a school of boxing near the Aquatic Center to expand the parking lot. We agreed that kids are better off defending themselves with their fists than with knives or guns.  I shared that when using the Aquatic Center, I've never experienced a parking problem, and thought it would be unfair and unnecessary to force the boxers to move elsewhere.

    The kind gentleman then asked me if I was willing to sign a petition to keep these worthwhile centers open.  I answered "yes, of course!"   I took his pen & the stack of petitions on a clipboard.  Looking down I noticed the signatures & info of about eight neighbors on Emerald Street. "Good", I thought. Then I read the paragraph at the top of the petition.  Huh?

     I asked, "Is this the right petition?"  He questioned why.  I read the small print aloud to him. It was asking for a recall of my District 5 Representative, Gill Sorg.  It said nothing whatsoever about what we had just discussed!  He stammered and stumbled, all of a sudden making no sense. I abruptly but kindly sent him away.

    The bait and switch tactic that he was trying to employ was shameful, misleading, and a misrepresentation of how our democracy should work.  I felt deceived and defrauded ... and wondered how many people would be persuaded to sign that "kind" and "caring" gentleman's petition, without reading the small print above.

    I shared this disturbing experience with a friend from church, who asked me to tell it to her friend Peter Goodman, which I did. Peter, in turn, asked me to share it with you, which I'm doing now, albeit late.

    If it's true that the Las Cruces government doesn't have the money to keep open the various worthwhile centers it supposedly wants to close or needlessly move, then where will you find the money to mount a bogus recall election of our already duly elected representatives?!?

    If you have extra time and money, I ask that you contact those who have signed the stacks of Recall Petitions to see if they too were misled by unscrupulous individuals who pretend to care about the local people, but really harbor ulterior, unspoken motives.

    As I see it, the injustices that the gentleman asked to discuss with me pale in light of the huge injustice and fraud that he himself committed. 

    Doing nothing about this bogus, deceitful and deceptive method of collecting petition signatures for a recall election could have unfair, unneeded and costly repercussions.  We must be vigilant and (I'm learning) DO something to combat injustice.

Sincerely,
    Susan K. Lindeman

Ms. Lindeman's letter echoes some themes that permeate this situation.  Obviously the Recallers' frequent reliance on misleading and perhaps illegal tactics is chief among those; but so is the way those tactics will not only fail with many citizens here but will quite reasonably push them to speak up and/or act to oppose this unwarranted attack on their duly-elected City Councilors.

Ms. Lindeman describes herself as a "fence-sitter"  who has never before written a letter to a newspaper editor but carefully reads up on the pros and cons of electoral candidates before voting.  She knew little of the Recall effort before she was approached to sign a petition.  The attempted fraud she witnessed, indeed experienced, quickly educated her.  (Her description of the incident is exceptionally vivid and direct.)

She exemplifies what I have hoped might happen: that despite the Recall effort's threat to extinguish the flame of civil political discourse locally, the same effort, by its inappropriateness and by the proliferating false statements it must rely on because of its lack of substance, might also unify decent and thoughtful citizens in their opposition to it.  I may be overly optimistic in my hopes, but I'm grateful for Ms. Lindeman and others like her.*

What I hope we're seeing is that New Mexicans, whatever their political and social views may be, will stand up and speak out when they come face-to-face with fraud and injustice.

Not everyone does so.  Her letter reminds me of how and why it can sometimes be difficult for private citizens to do so.

Thus I congratulate her.

Thanks, Ms. Lindeman!

And Mr. Servais; and others who've taken the time and had the courage to speak out.

*One among them, whose letter [reprinted below] appeared in the Sun-News last week, is Kenneth Servais, who describes himself as a long-time educator here.  His letter (as does Ms. Lindeman's in its reference to neighbors' signatures) is a sober reminder that for each Servais or Lindeman, many others (caught without the right glasses handy, busy caring for children, otherwise distracted, overly trusting in a nice young petition-solicitor, and/or not a regular reader of English) signed petitions to recall councilors they re-elected only last year and had no particular complaints about!  But I'd urge the wealthy backers of the recall effort to contemplate how those people will feel once they realize what they signed.  I suspect they'll feel motivated at least to go out in bad weather to vote, should there ever actually be an election.  Because they will find out you duped them.

Writer reports deceptive practices on recall petition

On Tuesday evening, Dec. 17, 2014, about dinner time — a young man came to our door gathering signatures on a petition. He stated he was gathering signatures to stop the "demolition" by the city of the PAL Boxing Club building to make more parking for the city's aquatic center. Thinking of the importance of programs for the youth of the city, I thought it was a worthy endeavor. I was willing to sign the petition.

As I looked to see the petition statement, I saw no attached pages. Then I read the top of the petition page, and it stated that the petition was for the "recall" of councilor Olga Pedroza for District 3. When I saw that I stated I could not sign that petition.

I thought after the young man left that it was quite deceiving that the statement was made one way and the petition was for something other than what was stated. To say the least, I was very upset that an effort was made to deceive me into signing. Being an educator in the Mesilla Valley for the past 42 years, I know that more than 50 percent of the general population — though educated — does not care to read. And though one can state that one is responsible for reading what one puts a signature to, the whole experience of misrepresentation is quite upsetting.

I think the public needs to know what is happening regarding this recall process. The page was nearly full with signatures. I wonder how many signed after being presented a deceptive story. Great care needs to be given to this process. I have asked the City Clerk to investigate petitions from that date and my neighborhood for authenticity of intent of the signers.

Kenneth Servais, Las Cruces