Free Response in Opposition to Motion - 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 DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RE SHAFFER'S STATEMENTS AT CCEC MEETING ON OCTOBER 1, 2002

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 Defendants.

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Plaintiff has requested that the Court exclude evidence and testimony about his

15 statements to the CCEC during its October 1, 2002 public meeting. This evidence should 16 not be excluded because it is material to plaintiff's § 1983 liberty interest claim concerning 17 plaintiff's name-clearing hearing. 18 The record does not reflect that plaintiff made a presentation to the CCEC on

19 October 1, 2002. However, any statements that plaintiff made to the CCEC are relevant 20 and not unduly prejudicial or inadmissible. See Shaffer Deposition, p. 391, l. 23 ­ p. 400, 21 l. 13, attached as Exhibit "A" (October 8, 2002 Statements). 22
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Plaintiff argues to exclude his October 8 statement because he recognizes that his

2 presentation constituted a meaningful attempt to defend himself against the facts 3 underlying his termination and the statements that he claims were defamatory. As this 4 Court stated in its August 23, 2005 Order, a name-clearing hearing should be afforded after 5 the last allegedly offending action. See Order, p. 4. Those were the September 10, 2002 6 memorandum to DPS and plaintiff's October 1 termination. 7 Plaintiff contends that the "usual requirements for a name-clearing hearing" were

8 not met when he addressed the CCEC, yet he cites no law supporting specific 9 "requirements." A name-clearing hearing "need only provide an opportunity to clear one's 10 name and need not comply with formal procedures to be valid." Gregory v. Hunt, 24 F.3d
th 11 781, 789 (6 Cir. 1994). Plaintiff's addresses to the CCEC met those standards.

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By October 8, plaintiff had notice of the accusations against him; the reasons for his

13 termination; and he had seen Ms. Connor's memorandum to DPS. See Shaffer Deposition, 14 p. 393, l. 15 ­ p. 295, l. 4. Plaintiff then specifically and directly defended himself and 15 sought to clear his name. See Shaffer Deposition, p. 391, ll. 3-23. Accordingly, Plaintiff's 16 statements to the CCEC on October 8 must not be excluded from trial. 17 18 19 20 21 22
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RESPECTFULLY SUBMITTED this 31st day of August, 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

8 COPY of the foregoing electronically transmitted via the U.S. District Court's 9 Electronic Case Filing system this 31st day of August, 2005 to: 10 Richard J. Harris, Esq. 11 Richard J. Harris Law Offices, P.C. 4445 E. Holmes Avenue, Suite 106 12 Mesa, Arizona 85206-3398 Attorney for Plaintiff 13 s/Dawn Sylvester 568-0140/1294392 14 15 16 17 18 19 20 21 22
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