Defendants don't want to pay $118k in court fees
Civil case results from suspended judge's secret recordings
FARMINGTON — Two co-defendants involved in a civil case with suspended Aztec Magistrate Court Judge Connie Johnston are asking the judge to reconsider an order requiring them to pay a portion of nearly $120,000 in attorney fees.
James Whitley, the attorney for Michelle Constant and Brian Johnston, filed the motion for reconsideration and stay of judgment in district court on Monday.
Brian Johnston and Constant asked District Judge Sarah Backus to reconsider her judgment against "holding them jointly and severally liable for Plaintiffs' attorneys' fees and costs," according to a copy of the motion.
Constant is Connie Johnston's sister and an evidence manager for the San Juan County Sheriff's Office. Brian Johnston is a retired deputy for the sheriff's office and is married to Connie Johnston.
Attempts by The Daily Times to contact Whitley were unsuccessful.
Backus ruled in March that Connie Johnston had violated a court order by not providing all the audio and video recordings and transcripts made in the Aztec Magistrate Court building, as she had been directed to do by Backus. She was found in civil contempt and was charged with misdemeanor criminal contempt.
Connie and Brian Johnston, and Constant were ordered to pay $118,959.63 to cover the attorney fees for the 13 plaintiffs.
That order resulted from a civil lawsuit filed on February 2016 in which Johnston is accused of placing recording devices in areas around the courthouse building, including an attorney-client conference room and judges' offices.
It is alleged by the defendants that the March 3 evidentiary hearing was largely focused on Connie Johnston, with most of the evidence that was introduced related to her actions, according to court documents.
The defendants believe Steve Murphy, the attorney for the 13 plaintiffs, urged the court to hold Constant and Brian Johnston jointly liable for the fees ordered by the court "as an afterthought," according to the motion.
Murphy said Tuesday in a telephone interview that he had not seen the motion but stated Backus made the right decision because Constant and Brian Johnston were included in the original order for Connie Johnston to turn over the recordings and transcripts to the court.
He added they both were called to the stand during the hearing and stated they did know of the order and were able to comply with it.
Constant and Brian Johnston also allege a violation of their procedural due process rights because they were not given an opportunity to speak during the hearing and did not have legal representation.
In a brief filed to support Constant and Brian Johnston's motion, the defendants state the original order to show just cause did not include a single allegation against them and did not request any relief from them.
Joshua Kellogg covers crime, courts and social issues for The Daily Times. He can be reached at 505-564-4627.