Free Memorandum - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Melissa R. Berren (020993) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 3 (602) 530-8407 4 Attorneys for Defendants 5 6 7 Matthew Shaffer, 8
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CIV-03-2344-PHX-FJM MEMORANDUM OF LAW RE APPLICABILITY OF POLICYMAKER DOCTRINE TO WHISTLEBLOWER CLAIM

Plaintiff, vs.

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10 State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad 11 Jacobs, husband and wife; and Jessica Funkhouser and Lindy Funkhouser, husband 12 and wife; John Does I-X; Jane Does I-X, 13 14 15 16 17 18 19 20 Defendants.

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The Court has identified a question of fact on the issue of plaintiff as a policymaker.1 See this Court's August 23, 2005 Order at p. 6. It is a question of fact what the particular duties of a position are, and a question of law "whether those duties ultimately make that position a policymaking" position. Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001). The jury determines from the facts what plaintiff's duties

1 Because the terms "policymaker" and "confidential employee" are used by the courts 21 interchangeably, the use of "policymaker" in this Memo conveys both terms.

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1 were as CCEC Deputy Director and, from that, this Court will conclude as a matter of
2 2 law whether plaintiff was a policymaker at the CCEC.

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Plaintiff argues that even assuming he was a policymaker, that it does not matter

4 because his speech was whistleblower speech. But the law is that if plaintiff was a
3 5 policymaker, then plaintiff's First Amendment claim fails as a matter of law.

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The policymaker doctrine limits plaintiff's First Amendment rights. The Ninth

7 Circuit has recognized that, where political affiliation is a "legitimate matter to be 8 considered," "an employee's status as a policymaking or confidential employee would be 9 dispositive of any First Amendment retaliation claim." Hobler v. Brueher, 325 F.3d 10 1145, 1150 (9th Cir. 2003); Biggs, 189 F.3d at 994-95. In this case, lack of partisanship 11 on the job is a legitimate issue in CCEC employment. The Deputy Director must refrain 12 from even the slightest appearance of partisanship. The fact that a public employee is 13 nonpartisan does not affect the policymaker analysis; the doctrine can apply to limit a 14 plaintiff's First Amendment rights when an important aspect of the job is the absence of 15 political affiliation. Biggs, 189 F.3d at 996. 16 Factors relevant to the determination of whether a person is a policymaker include: "whether the plaintiff has vague or broad responsibilities, in addition to the plaintiff's relative pay, technical competence, power to control others, authority to speak in the 18 names of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders." Biggs v. Best, 19 Best & Krieger, 189 F.3d 989, 995 (9th Cir. 1999). 17 20 To avoid duplication, Connor incorporates by reference the legal argument in her Motion for Summary Judgment at pp. 9-12 and Reply in Support of her Motion for 21 Summary Judgment at pp. 8-9. 22
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The cases cited in court on September 2, 2005 by plaintiff's counsel regarding

2 First Amendment claims brought by policymakers support Connor's policymaker defense 3 to plaintiff's First Amendment claim and/or are from jurisdictions outside of the Ninth 4 Circuit. See Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1998) (recognizing that 5 dismissal is required of a First Amendment claim brought by a terminated mid- or upper6 lever employee who was significantly connected to policymaking); see also Nunez v. 7 Davis, 169 F.3d 1222 (9th Cir. 1999) (concerning a public employee terminated after 8 exercising her First Amendment rights, but not addressing the policymaker doctrine at 9 all). Thus, the controlling authorities are the Ninth Circuit cases, Hobler and Biggs. 10 Plaintiff can cite no law that the determination whether plaintiff is a policymaker

11 is inapplicable to his First Amendment (or whistleblower) claim, and in fact, case law 12 demonstrates that plaintiff's First Amendment claim should be dismissed if the Court 13 determines that plaintiff was a policymaker at the CCEC. Accordingly, defendants 14 respectfully request that this Court issue an order consistent with Ninth Circuit authority 15 that: (1) the jury must determine plaintiff's duties as Deputy Director of the CCEC; and 16 (2) if the Court determines that those duties made plaintiff a policymaker, then plaintiff's 17 First Amendment claim must be dismissed as a matter of law. 18 19 20 21 22
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RESPECTFULLY SUBMITTED this 7th day of September, 2005. GALLAGHER & KENNEDY, P.A. By: s/Jay A. Zweig______________ Jay A. Zweig Melissa R. Berren 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants

7 COPY of the foregoing electronically transmitted via the U.S. District Court 8 Electronic Case Filing system this 7th day of September, 2005 to: 9 Richard J. Harris, Esq. 10 Richard J. Harris Law Offices, P.C. 4445 E. Holmes Avenue, Suite 106 11 Mesa, Arizona 85206-3398 Co-Counsel for Plaintiff 12 David C. Larkin, Esq. 13 David C. Larkin, P.C. 4645 S. Lakeshore Drive, Suite 6 14 Tempe, Arizona 85282-3747 Co-Counsel for Plaintiff 15 s/Dawn Sylvester_________ 568-0140/1296028 16 17 18 19 20 21 22
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