In a courtroom in Santa Fe in March, lawyer Paul Kennedy was on the attack again in defense of his top client, Gov. Susana Martinez.
On the witness stand was Joey Peters, a former staff writer for the Santa Fe Reporter, which is suing Martinez for allegedly discriminating and retaliating against the weekly newspaper because of its critical coverage of the governor.
“How long have you been in the journalism racket now?” Kennedy asked Peters.
After Peters responded that he had never been involved in any racket, Kennedy shot back, “You have certainly been mobbed up with email thieves.”
The comment, which earned a mild rebuke from the judge, was indicative of the aggressive defense that Kennedy has put on for Martinez in several cases since she took office in 2011, earning him hefty legal fees at taxpayers’ expense under mostly no-bid contracts issued by the administration.
Kennedy’s work for Martinez has included legal help in keeping her work schedules and other government records secret, defending her attempt to roll back environmental regulations, and preserving a veto that wiped out all funding for the Legislature and colleges and universities.
An Albuquerque lawyer previously best known for his civil rights and criminal defense work, as well as two stints as a justice on the state Supreme Court, Kennedy’s work on Martinez’s behalf has made him synonymous with the governor’s sharp-edged attack style against opponents. And the work does not appear to be slowing down, even as Martinez approaches her final year in office.
The administration has awarded at least nine contracts to Kennedy’s current law firm and his old one. Payments under those contracts have totaled at least $493,000 but could exceed $1 million before Martinez leaves office at the end of 2018.
All but one of the contracts with Kennedy’s firms have been so-called small purchase contracts, meaning they were worth $50,000 or less and weren’t required to be put out for competitive bids. But two of the no-bid contracts were amended to provide for much larger payouts, including a contract for the Reporter case that is now worth up to $600,000.
Martinez’s appointment of Kennedy to the Supreme Court and the government contracts for his law firms are examples of how a governor can reward a supporter.
Kennedy served as chief legal counsel for Martinez’s transition committee after her election in 2010, and his law firm provided legal services for her 2014 re-election campaign.
He represented Martinez political adviser Jay McCleskey in a federal grand jury investigation that dealt in part with expenditures by Martinez’s 2011 inauguration committee. The investigation ended in 2016 without criminal charges.
Kennedy also has represented Martinez appointee Demesia Padilla, who resigned as head of the Taxation and Revenue Department in December amid an investigation into possible embezzlement and other crimes. Padilla hasn’t been charged.
Martinez appointed Kennedy to a vacancy on the Supreme Court in 2012, but he lost an election for the seat two months later. Kennedy also served briefly on the court under the last Republican governor, Gary Johnson.
“As a former Supreme Court justice, a public defender, and an experienced trial and appellate lawyer, I’m certain that Mr. Kennedy will fairly and faithfully uphold the law on behalf of all New Mexicans,” Martinez said in appointing him to the high court.
Since losing his seat on the Supreme Court, Kennedy has signed it up as a client.
He is representing the court and its oversight board for attorneys in a case brought by the federal government. At issue in the case is a Supreme Court rule that restricts federal prosecutors from calling a lawyer before a grand jury or other criminal proceeding to present evidence about a past or current client.
So far, Kennedy’s firm has been paid nearly $106,000 for his work on the case, according to the court’s Disciplinary Board.
Kennedy declined to be interviewed for this story.
In private practice, Kennedy has been an attorney for criminal suspects shot by Albuquerque police and represented the American Civil Liberties Union in challenging an Albuquerque ordinance allowing police to seize the vehicles of motorists arrested for the first time on suspicion of drunken driving.
Some lawyers who have admired Kennedy’s progressive legal work have questioned how he can now represent a conservative governor.
The attorney also represented the former head of a state housing authority in a corruption case and an appointee of former Gov. Bill Richardson in a federal bribery investigation.
Kennedy served as special counsel to the Legislature as it considered impeachment of state Treasurer Robert Vigil after a federal indictment in 2005 accused him of extorting kickbacks from a financial adviser. Vigil resigned and was convicted.
Kennedy was a law partner of Mary Han, a high-profile attorney who frequently represented clients in cases against the city of Albuquerque and its police officers. Kennedy found Han dead at her townhouse in 2010, and her death was ruled a suicide.
Kennedy is an imposing figure in the courtroom. He’s a tall, lean man with a bald head.
There is bipartisan respect for Kennedy’s courtroom skills.
Attorneys describe Kennedy as a smart, capable lawyer who vigorously represents his clients — “a lawyer’s lawyer,” said Nate Gentry, an Albuquerque attorney and Republican leader in the state House of Representatives.
“He’s scary good,” said state Rep. Damon Ely, D-Corrales, an attorney who specializes in malpractice cases against lawyers.
House Speaker Brian Egolf, a Democrat and Santa Fe lawyer, said he’s always been impressed with Kennedy’s skills but found his questioning of witnesses in the Santa Fe Reporter case to be “little aggressive … a little sarcastic.”
State Sen. Gerald Ortiz y Pino, D-Albuquerque, has called Kennedy a “pit bull of a lawyer.”
In a 2012 interview while he was running for election to the Supreme Court, Kennedy said he basically grew up in the Philadelphia area, the oldest of 13 children.
He graduated from Saint Joseph’s University in suburban Philadelphia, served in the Marines, then went to Georgetown University law school in Washington, D.C., as a Fulbright scholar.
“I started off my career as a state public defender in Albuquerque, and then went over for a short period of time to the federal public defender,” Kennedy said in the 2012 interview with the New Mexico Appellate Law Blog. “But I quickly entered private practice, so essentially for the last 36 years, except for my time on the [Supreme Court], I was in private practice doing both criminal and civil work.”
Kennedy, now 68, estimated he’d been in more than 100 jury trials, including criminal and civil rights cases.
As for his judicial philosophy, he said, “I really do not believe that courts should be in the business of creating law. We may mold it, we may shape it, we may interpret it, but we should not be creating law. That’s for the Legislature to do.”
Kennedy also said he has a “very strong belief that an appellate justice should be vigorous in his or her defense of individual rights and liberties.”
He said that in his time away from the law, he exercised and read biographies and history.
Kennedy was the Republican nominee for state attorney general in 1982 but lost the general election to Democrat Paul Bardacke.
The New Mexican in March filed a request with the administration under the state Inspection of Public Records Act for all contracts with Kennedy’s law firms and records of all payments under those contracts.
After repeatedly saying it needed more time to provide documents because the request was burdensome, the administration produced some records in August and more this month.
The administration said billing records for ongoing litigation are exempt from public disclosure under state law because of attorney-client privilege and other legal reasons.
Court records and records of government purchases on the state’s online Sunshine Portal help fill in the information gap, although information from the portal is limited.
Independent journalist Jeff Proctor filed a lawsuit against the administration in June for failing to provide complete contract and billing records for Kennedy.
Prior to the lawsuit and in response to a complaint from Proctor, the New Mexico Attorney General’s Office advised the administration it was violating the Inspection of Public Records Act by withholding Kennedy billing records.
Lawyer Greg Williams, speaking as president of the New Mexico Foundation for Open Government, said billing records for ongoing litigation are public documents and added the state could redact any confidential information from the records while still providing the payment data.
“Taxpayers have an interest in the amount of money public agencies are spending on litigation and attorneys,” Williams said.
The Governor’s Office has lawyers on staff, but it isn’t unusual for an administration to hire outside counsel to assist with litigation.
Here are snapshots of cases that Kennedy has worked on and what is known about the contracts and payment amounts for those cases:
• A few weeks after Martinez took office in January 2011, Kennedy helped represent the governor in a state Supreme Court case brought by environmental groups. The court ruled against an attempt by Martinez to prevent pollution-control measures adopted by the previous administration from taking effect at least temporarily.
Records supplied by the administration show Kennedy’s previous law firm, Kennedy & Han, received a contract worth up to $20,000 and submitted an invoice for nearly $10,500. The records show, however, that the firm was paid more than $16,800. There is no explanation in the records for the discrepancy between amount billed and amount paid.
• Documents provided by the administration show it issued a contract worth up to $1.5 million in 2011 to Kennedy & Han to represent government agencies and employees in a variety of litigation. The contract was issued after competitive bids, according to the documents.
The documents show Kennedy & Han was paid about $137,000 under the contract to represent Martinez in litigation over new district boundaries for New Mexico members of the U.S. House, state legislators and state public regulation commissioners. The litigation ended in 2012, and documents provided by the administration don’t show any other work performed by Kennedy & Han under the four-year contract.
Records show Kennedy & Han was given another contract worth up to $50,000 for redistricting work, but the records don’t show any payment under that contract.
• Documents provided by the administration show it issued a no-bid contract worth up to $50,000 in 2013 to Kennedy’s current law firm, Paul Kennedy & Associates, to help represent Martinez in the Santa Fe Reporter lawsuit, which also alleges the governor has unlawfully withheld public records from the paper. The contract has been amended to provide payment of up to $600,000.
The administration provided a copy of the contract but refused to disclose the billing records for Kennedy’s work because the litigation is ongoing. The Sunshine Portal shows payments totaling more than $209,000 as of two years ago.
Since hearing testimony in March, the judge in the case hasn’t issued a ruling.
• Documents provided by the administration show it issued a no-bid contract worth up to $50,000 in 2013 to Paul Kennedy & Associates to help represent Martinez in a lawsuit filed by Rick May, who was fired as head of the New Mexico Finance Authority after previously serving as the governor’s Cabinet secretary for finance and administration. The Kennedy contract was amended to provide payment up to $150,000.
May alleged the administration had failed to comply with the Inspection of Public Records Act in responding to his request for Finance Authority records. After the lawsuit was filed, the administration provided thousands of pages of documents to May while claiming other records were exempt from disclosure. A judge eventually dismissed the case.
Records provided by the administration aren’t clear about how much Kennedy’s law firm was paid. The records show about $63,000 in payments but law firm billings nearly twice that.
• Kennedy helped represent Martinez in a pair of lawsuits filed in 2013 by The Associated Press, which alleged the administration had unlawfully withheld public records about the governor’s travel and work schedules, as well as cellphone calls by Martinez and her staff.
Kennedy argued in a court filing that an injunction sought by the AP to enforce the state records law would violate the constitutional doctrine of separation of powers.
A state district judge ruled Martinez’s calendars were not subject to public disclosure. As part of a settlement agreement with the AP, Martinez agreed to release monthly reports that detail the spending of security officers who travel with her.
Records provided by the administration show a contract worth up to $50,000 with Kennedy’s law firm for the AP litigation but payments of more than $57,000. The documents don’t explain why the payments might have exceeded the contract’s worth.
• In 2016, the administration awarded a $30,000 no-bid contract to Kennedy’s law firm to help represent the state in long-running litigation over public assistance programs for the needy. The firm received another $50,000 contract this year for work on the case.
Records show payments so far of nearly $10,700. Kennedy is billing at a rate of $350 an hour, the highest rate provided in any of his contracts with the administration.
• The Sunshine Portal shows Kennedy’s law firm received a no-bid contract worth up to $50,000 this year to represent Martinez in litigation over her vetoes of legislation.
Leaders of the Democrat-controlled Legislature challenged vetoes in cases filed in the New Mexico Supreme Court and state District Court.
The district judge struck down Martinez vetoes of 10 bills because she didn’t provide an explanation to the Legislature for her actions. The Supreme Court declined to hear a challenge to Martinez vetoes of funding for state colleges and universities, as well as the Legislature. The funding was later restored in a compromise reached by Martinez and lawmakers.
The administration didn’t provide billing records for Kennedy’s representation of Martinez in the veto cases. Payment information also hasn’t been posted on the Sunshine Portal.
Contact Thom Cole at 505-986-3022 or email@example.com.