Court challenge aims to eliminate state’s lawsuit confidentiality clause

Local News

ALBUQUERQUE, N.M. (KRQE) – The state law surrounding the confidentiality of lawsuit settlements paid for with public money is now the subject of a court challenge over its constitutionality.

An Albuquerque woman is suing the state, claiming the 180-day confidentiality period violates protected free speech.

The lawsuit comes as the state’s Risk Management Division prepares to begin publicly releasing lawsuit settlements that are no longer protected under the confidentiality clause.

Shani Madden is one of countless New Mexicans who’s sued the state government in recent years in a case that ended with a settlement agreement. Under state law, Madden was told to keep quiet about the details of her lawsuit settlement for 180 days or face criminal prosecution.

According to New Mexico state law Section 15-7-9 (C), “any person who reveal records protected pursuant to (‘Confidentiality of Records’ law) to another person in violation of this section is guilty of a misdemeanor.”

Madden sued the state in early 2019 after she wasn’t given a series of requested public records tied to a judge overseeing her divorce case.

“I found a likely conflict of interest between (the judge) and opposing counsel, and I sought the backing documentation of that relationship with the public records,” said Madden.

While Madden settled her lawsuit, her attorney says she didn’t agree to any confidentiality clause. However, according to the lawsuit, an attorney representing the state still warned Madden about the confidentiality clause.

“It leaves me saying… I’m not sure what I’m allowed to say,” said Madden. “I want to share my story.”

That feeling is driving Madden’s challenge to the state’s 180-day confidentiality period.

“We think (settlement agreements) should be public from day one,” said Kenneth Stalter, an attorney representing Shani Madden.

Stalter argues the state’s confidentiality clauses law carries a “chilling effect” on people like Madden who’ve sued the state.

“Just knowing that this statute is out there on the books is going to inhibit people and chill them and deter them from talking about their experience in a case against the state of New Mexico,” said Stalter.

The claim comes as General Services Department Secretary Ken Ortiz has promised a new layer of transparency, with the department working to begin posting lawsuit settlements on the state’s Sunshine Portal in August.

However, Stalter argues that the state has full determination on when the 180-day confidentiality period begins as the closing of a claim is “an internal procedure” and its date may be unknown to private citizens.

“It’s by design to shield government officials from scrutiny and transparency on wrongdoing by the state,” said Stalter.

Stalter believes the confidentiality clause should be eliminated entirely. Madden believes she should be free to talk about her case when she wants to.

“I think it’s of public interest, and to have a fear of not being allowed to talk about it, it’s not fair,” said Madden.

The state has yet to formally respond to Madden’s lawsuit. General Services Department Secretary Ken Ortiz sent the following statement to KRQE News 13 Tuesday evening:

“The General Services Department has no comment on the specifics of the complaint filed by Shani Madden. Claimants in settlements with GSD’s Risk Management Division are made aware of 15-7-9, but they aren’t threatened with criminal prosecution. GSD is committed to open and transparent handling of claims by the Risk Management Division. That is why the department is preparing to post settlements on the Sunshine Portal and would welcome changes to 15-7-9 to clarify the law.”

Secretary Ken Ortiz, New Mexico General Services Department.

Copyright 2019 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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