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Judge's order prohibits coverage of judicial candidate's contentious divorce; First Amendment expert calls order 'prior restraint'

SIERRA VISTA — An order issued by a visiting judge from Graham County prohibits publication of “any matter” concerning a Cochise County Superior Court judge candidate, the candidate’s ex-wife and the couple’s minor child.

Meanwhile, a First Amendment expert out of Phoenix says the judge may be overstepping his bounds and engaging in prior restraint with the order. Prior restraint refers to judicial suppression of information that would otherwise be published; suppression that is often prevented by First Amendment protections.

The initial order issued by Superior Court Judge Michael D. Peterson on Aug. 9 involves attorneys Roger Contreras and his soon-to-be-former spouse Nancy Bourke. The pair — both in private practice — have been involved in a contentious, decade-long divorce. Peterson’s initial order states that nothing should be published about the divorce case or any of the parties, mainly to protect the minor child in the case.

In an amended order issued six days later, on Thursday, Peterson added that the “confidentiality and privacy interests of the parties, and specifically their minor child, outweighs the public interest in disclosure. Consistent with this determination, the Court orders that this family court matter is closed and confidential.”

The judge’s orders are “overly broad,” said attorney Daniel C. Barr, a partner with the Phoenix-based law firm Perkins Coie and the general counsel for the First Amendment Coalition of Arizona.

“[It’s] one thing is to tell the parties in the case not to talk to the media, but the court can’t tell the newspaper what to write about. That would be prior restraint,” Barr said Monday.

The orders stem from Peterson’s instructions to two journalists who attended the divorce hearings. The judge told the reporters that they could listen in as long as they agreed not to write about proceedings in the case. One of the reporters agreed to the request and remained in the courtroom. The other, David Morgan, publisher of the Cochise County Record, did not agree to the stipulation and was asked to leave the courtroom. Monday afternoon, the other reporter filed two motions that essentially ask that the transcripts from the Aug. 9 hearing, where the first order originated from, be unsealed.

As a result, anyone interested in seeing the Contreras-Bourke divorce case at the Cochise County Clerk’s Office aren’t able to, because it’s sealed.

Contreras is vying to become a Cochise County Superior Court judge in Division 5, county records show. He is competing against attorney Sandra Russell. He has been involved in his ongoing divorce case for at least 10 years.

He ran into problems last year when he was forced to resign as an Assistant Cochise County Attorney and was also prevented from running as a candidate in the race for superior court judge for Division 3. Contreras resigned from the Cochise County Attorney’s Office on June 14, 2018, after admitting that he used an office printer to prepare a legal challenge to his opponent’s candidacy for the superior court position. In the latter situation, also in June 2018, Contreras was declared ineligible to be a candidate after a judge stated there were problems with Contreras’s nomination petitions.

Reached by phone Monday, Contreras said he legally could not comment on the orders.

In an email to the Herald/Review, Peterson also declined comment: “{span}I deeply respect the First Amendment and the importance of a free press. That notwithstanding, I have made a determination that the best interests of a small child are paramount and outweigh the publication to third parties of matters which were raised in this case.”


photos by MARK LEVY HERALD/REVIEW  

A Hummingbird Triathlon competitor gets a cool welcome after completing the final leg of the event Saturday in Veterans Memorial Park.


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Conservationists fear BLM changes will harm Arizona public lands

Conservationists and environmental groups are concerned a series of changes within the Bureau of Land Management will lead to more oil, gas and mining uses of public lands.

Ardent public land critic William Perry Pendley last month assumed leadership of the BLM, causing outcry and criticism from conservation and environmentalist groups.

Pendley, a former Department of the Interior appointee in the Reagan administration, is known as a prominent anti-public land litigator. He formerly served as president of the Mountain States Legal Foundation, an anti-public land nonprofit group, and has several times sued the federal government on behalf of private extraction interests.

He wrote a 2016 column for National Review titled “The Federal Government Should Follow the Constitution and Sell Its Western Lands.” The following year, he wrote another National Review column calling for Trump to fire former Secretary of Interior Ryan Zinke.

Pendley is not Senate-confirmed, which means his term as acting director will expire on Sept. 30 unless extended. He is one of many in a series of acting BLM heads under the Trump administration, going back to the departure of the last confirmed director, Neil Kornze, who left was appointed in 2013 and served until the Trump administration took over in January 2017.

Pendley’s appointment comes not long after the Department of the Interior announced a radical reorganization of the BLM, which includes moving the national headquarters from Washington, D.C., to Grand Junction, Colo. Activists say the reorganization will allow the BLM to scale up the privatization of public lands through sell-offs and leases to extractive companies.

“One aim is to put the BLM headquarters in an oil and gas town – in an oil and gas congressional district,” Taylor McKinnon, a Flagstaff-based activist and senior public lands campaigner with the Center for Biological Diversity, told Arizona Mirror. He added that the relocation is “forcing BLM staff to choose between their families and their careers.”

Interior Assistant Secretary for Land and Minerals Management Joe Balash wrote in a July 16, 2018, letter to New Mexico Sen. Tom Udall that “bipartisan support illustrates a number of significant benefits, ranging from more informed decision-making to increased efficiency and coordination among stakeholders and the Department’s agencies.”

The letter also mentioned 34 positions being moved from Washington, D.C., to the Arizona State Office and National Training Center, both in Phoenix.

McKinnon said this is a way for the BLM to shed senior staff who would otherwise resist the new direction the agency is headed. The DOI offers a very different set of reasons.

A representative of the BLM’s Arizona State Office directed all Arizona Mirror questions about the restructuring to the DOI.

“A move of the core functions of the Bureau of Land Management — including over half of its senior executives — to the West would make the Bureau more efficient, effective, and responsive,” a DOI spokesperson told the Mirror.

“Such a shift would strengthen the federal-state partnership, allowing both BLM and the states to benefit from the development of good-neighbor policies and procedures on the ground. Relocations would also allow for reductions in travel time and cost, and improved management and customer service.”

Activists who dispute current private uses of public land don’t buy that rationale, especially since a document published on the DOI website lists another BLM land auction scheduled for Dec. 4.

The BLM manages 12.2 million acres of public land in Arizona, which is about 16% of the total land area of the state. Arizona has the sixth-most publicly owned land of any state in the union.

This year, there have already been several lawsuits disputing private uses of public land in Arizona, largely centered on the federal government leasing land to oil, gas and mining companies.

Last year, for example, the BLM auctioned more than 4,000 acres of land near the Petrified National Forest to oil and gas companies. Several environmental interest groups sued the BLM last month over that decision, arguing the agency did not conduct a proper environmental and community impact analysis.

The Sierra Club, WildEarth Guardians and the Center for Biological Diversity allege that the BLM leased lands in Apache and Navajo counties “without ever analyzing the impacts of these leases on local communities, public lands, wildlife, and the environment,” according to the complaint.

McKinnon said these types of complaints will only become more common as the BLM moves to shed more of its public land.

“Anyone who cares about public lands in Arizona should be deeply concerned,” McKinnon said.

The post Conservationists fear BLM changes will harm Arizona public lands appeared first on Arizona Mirror.