Judge declines to halt radio ads critical of Dunn’s ranch purchase
Reynolds calls spots ‘snarky,’ but adds, ‘I’d rather have that than lose the First Amendment’
ESTANCIA — A judge will not make a Democratic candidate for state land commissioner stop airing radio ads that the incumbent, Republican Aubrey Dunn, says are defamatory — at least not yet.
Following a daylong hearing Tuesday, state District Judge Matthew Reynolds declined to grant Dunn an injunction in a lawsuit he filed against Garrett VeneKlasen after the Democrat launched his campaign in late May with an ad insinuating Dunn’s purchase of a ranch was a self-dealing scheme to cash in on the construction of a power line.
In an extraordinary attempt by a public official to use the courts to squelch criticism from a political foe, Dunn has argued the ads are false and defamatory. VeneKlasen’s campaign and his lawyer maintain the ads merely raise concerns for voters to consider and are ultimately protected by the right to free speech.
Since VeneKlasen’s campaign first aired the ads, Dunn has announced he will not seek re-election as land commissioner and instead is running for the congressional seat being vacated by Steve Pearce, a Republican from Hobbs.
While Reynolds said Dunn’s arguments for stopping the ads did not clear the high legal hurdle that New Mexico law sets for curbing a person’s free speech under the First Amendment, the hearing raised questions about radio spots that seem to rely in large part on innuendo and assumptions rather than any evidence of wrongdoing.
The radio spots center on a ranch Dunn and his wife, Robin, purchased in late 2014 in south-central New Mexico. Just a few months later, the U.S. Bureau of Land Management announced plans to route the proposed 515-mile SunZia power line across about 1,000 acres of the property.
VeneKlasen’s ad charges that Dunn
negotiated as commissioner to run the power line through the ranch, an arrangement that “led to a lotta money flowing his way.” He raised the issue again in a later ad.
But Dunn, who took office in early 2015, maintained in court that he had nothing to do with negotiating the project. Previous land commissioners, Democrat Ray Powell and Republican Pat Lyons, had input on the routing, he said.
Both Powell and Lyons are running to succeed Dunn.
Dunn and his wife also testified that they were unaware when they purchased the ranch that officials planned to route the transmission line across it. Both said they became aware that the proposed route might cross their property when the previous owner passed along a letter from SunZia.
Dunn, who disclosed his ownership of the ranch in a filing with the Secretary of State’s Office, said that he has not accepted any money for the transmission line.
“We don’t have a deal with SunZia,” he said in court, adding that the power line’s builders would have to condemn his land to route the line through the property.
Dunn said the power line is part of the reason he has put the ranch up for sale. The asking price is about $13.7 million.
But VeneKlasen’s lawyer questioned whether Dunn, who had a long career as a banker and bought 11 ranches over the years, could have been caught totally unaware of the project.
Lawyer Karen Mendenhall described Dunn’s argument as, “I don’t know nothing about no transmission line.”
VeneKlasen said he did not have any evidence Dunn had done anything illegal, had been dishonest about the project or was corrupt.
“I’m not pinning self-dealing on any one person,” VeneKlasen told the court.
VeneKlasen maintained he was merely raising questions based on publicly available documents.
Reynolds called the spots “snarky” and lamented “as a TV watcher and radio listener” negative ads by politicians. But he added, “I’d rather have that than lose the First Amendment.”
To get an injunction against airing of the ads, Dunn had to prove the ads were not only false, but also that the statements in the ads had caused him irreparable harm.
Reynolds said he had not seen any evidence of how Dunn suffered from the ads, noting the commissioner is running for Congress and continues to operate a ranching business.
Dunn’s lawyer and son, A. Blair Dunn, said he intends to take the case to trial and let jurors decide for themselves whether the ads amount to defamation.
In addition to VeneKlasen and Powell, state Sen. George Muñoz of Gallup is seeking the Democratic nomination for land commissioner.
Aubreylawyer and Dunn’s son, A. Blair Dunn, said he intends to take the case to trial.