Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CARRIE J. BRENNAN (#018250) Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Direct E-mail: [email protected] Telephone: (602) 542-7679 Fax: (602) 542-7670 [email protected] Attorneys for State Defendants IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONNIE R. ZAKRAJSEK, Plaintiff, v. SUSAN ARMSTRONG, an individual; SUSAN ARMSTRONG, an employee of the County of MARICOPA, ARIZONA; RICHARD TEENSTRA, an individual; RICHARD TEENSTRA, an employee of the COUNTY OF MARICOPA, ARIZONA; COUNTY OF MARICOPA, ARIZONA, as the employer of Defendants SUSAN ARMSTRONG and RICHARD TEENSTRA; Hon. COLIN CAMPBELL, Presiding Judge of Maricopa County Superior Court, individually and in his capacity as Presiding Judge; and Does 1-25, Defendants. STATE DEFENDANTS' RESPONSE TO VERIFIED MOTION TO STRIKE MOTION FOR SUMMARY JUDGMENT FILED BY STATE DEFENDANTS AND/OR TO STRIKE THE AFFIDAVITS OF SUSAN ARMSTRONG AND (THE ALLEGEDLY) HON. COLIN CAMPBELL (Assigned to the Honorable Stephen M. McNamee) Case No: CIV 04-0449-PHX SMM

Defendants Susan Armstrong, Richard Teenstra, and the Hon. Colin Campbell ("State Defendants") respond in opposition to Plaintiff's Verified Motion to Strike Motion for Summary Judgment Filed by State Defendants and/or to Strike the Affidavits of Susan

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Armstrong and (the Allegedly) Hon. Colin Campbell ("Motion").1 Zakrajsek's Motion should be denied because the affiants both testify on their personal knowledge, and the statements made to Armstrong go to her state of mind. This Response is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Zakrajsek first argues in her Motion that the affidavits attached to State Defendants' Motion for Summary Judgment should be struck because they are "based in part upon legal conclusions constituting improper and not previously disclosed expert opinion." Motion at 2. Zakrajsek does not describe in her Motion what testimony, or even which affidavit, offends on this ground. However, to the extent that Zakrajsek is referring to Judge Campbell's affidavit, in which he outlines what the purposes of the no solicitation policy are,2 State Defendants note that Judge Campbell testifies not as an expert, but from his personal knowledge having served as the presiding judge for Maricopa County Superior Court who promulgated and enforced this policy. This testimony is simply not of the type an expert would give, but is exactly of the type that the former presiding judge would give. In addition, State Defendants disclosed in their Initial Disclosure Statement that Judge Campbell was "expected to testify as to his knowledge of the rules and policies that govern the Maricopa County Superior Court and associated facilities, including the Maricopa County Law Library." The purposes of the policy itself fall within his knowledge. Zakrajsek then argues that Armstrong's affidavit should be struck because it contains paragraphs that refer to statements made to her by patrons of the Library concerning Zakrajsek's solicitation activities within the Library. Motion at 2. The
State Defendants respectfully request this Court admonish Plaintiff Zakrajsek to refrain from employing namecalling in the captioning of her filings. 2 "(1) [T]o promote safety and security within Court buildings and adjacent plazas and parking areas; (2) to promote a judicial atmosphere and prevent a commercial atmosphere; (3) to preserve the independence of the judiciary and Court system; and (4) to preserve the solemnity and tranquility of the Court buildings." See Affidavit of the Hon. Colin Campbell, ¶ 4, attached to State Defendants' Statement of Facts, on file herein.
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statements made to Armstrong contributed to her state of mind on the subject of Zakrajsek's solicitation activities at the time she acted to enforce the no solicitation policy. But, even if this Court were to determine that the statements made to her were inadmissible hearsay, they are given for background primarily, and the affidavit contains ample evidence of Zakrajsek's solicitation activities based on Armstrong's own observations of Zakrajsek's behavior. See Affidavit of Susan Armstrong, attached to State Defendants' Statement of Facts, on file herein. The balance of Zakrajsek's Motion is devoted to arguing that Armstrong was required to give her written notice of her violation of the no solicitation policy. Motion at 2-3. This argument is unrelated to the contents of the Armstrong and Campbell affidavits. To the extent that Zakrajsek is arguing that the State Defendants' Motion for Summary Judgment should be struck because she disagrees with the legal points and authorities therein, State Defendants suggest that she set forth these arguments in her Response to the Motion for Summary Judgment, as they are not a proper basis for requesting that the Motion be struck. RESPECTFULLY SUBMITTED this 24th day of October, 2005. TERRY GODDARD Attorney General

s/Carrie J. Brennan CARRIE J. BRENNAN Assistant Attorney General Attorneys for State Defendants

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The foregoing document was filed electronically this 24th day of October, 2005, with a copy mailed this same date, to: Chief Judge Stephen M. McNamee United State District Court Sandra Day O'Connor Courthouse, Suite 625 401 W. Washington Street, SPC 60 Phoenix, AZ 85003-2158 AND

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931017

Connie R. Zakrajsek P. O. Box 2065 Phoenix, AZ 85001 Plaintiff Pro Se COPY of the foregoing to be served electronically, on: Susan Linde Hable, Esq. Joseph I. Vigil, Esq. Maricopa County Attorney's Office Division of County Counsel 222 N. Central Ste 1100 Phoenix AZ 85004 Attorneys for Maricopa County

s/Chauntelle Leavitt _____ Secretary to: CARRIE J. BRENNAN

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