Free Trial Brief - District Court of Arizona - Arizona

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RICHARD J. HARRIS LAW OFFICES, P.C .
4445 E. HOLMES AVE., SUITE 106 MESA, AZ 85206 (480) 854-3500 [email protected]

Richard J. Harris ­ #013859 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, v. State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad Jacobs; husband and wife; and Jessica Funkhouser and Lindy Funkouser, husband and wife; John Does I-X; Jane Does I-X Defendants. Plaintiff hereby submits his Trial Memorandum to the court. I. LIABILITY Liability has been well briefed by both sides on the MOTIONS FOR SUMMARY
JUDGMENT.

CV03 2344 PHX FJM PLAINTIFF'S TRIAL MEMORANDUM

Moreover, the Court has ruled on those motions and clarified the law of this case

and the questions of fact which will be at issue in the case. Rather than expend more resources and time for the court to consider matters it has recently ruled on, Shaffer incorporates by reference his analysis of the relevant law and anticipated factual evidence on liability as briefed in his responses to the motions for summary judgment. If the court requests additional briefing, Shaffer will supplement. One legal question regarding Shaffer's First Amendment claim remains open. The court held that there was a question of fact regarding whether or not Shaffer was a policy maker. Order p. 6:8-9. However, the Court did not address Plaintiff's position that the Case 2:03-cv-02344-FJM Document 82 Filed 08/26/2005 Page 1 of 4

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policy maker doctrine does not apply to whistle-blowing speech. Order p. 6:7-8. II. DAMAGES A. Tort Damages

Shaffer claims tort damages for Wrongful Termination; for Defamation; and for Interference with Contractual Relations. The evidence at trial will be that Shaffer has and will have suffered over $440,000.00 in economic damages as a result of losing his job with the CCEC. The evidence will show that Shaffer was forced to cash in his retirement benefits and his life insurance policy to live off of. He also had to sell his house and move out of Scottsdale to Tucson. Friends will testify regarding his emotional distress and suffering. Media reports will show that the accusations against him were publish statewide. Shaffer will ask the jury to award him damages for his economic harm, his pain and suffering/emotional distress, and the harm to his reputation arising from each of these events. RAJI EMPLOYMENT 10; Thompson v. Better-Bilt Aluminum Prod. Co., 171 Ariz. 550, 832 P.2d 203 (1992). RESTATEMENT (SECOND) OF TORTS § 903-906 (1965); RAJI (CIVIL) 2d Negligence 10. Because the CCEC is a public agency, Shaffer cannot recover punitive damages against it or against Colleen Connor for these state law claims. B. Presumed Damages for Defamation

The statements at issue in this case entitle a jury to presume Shaffer's damages. Connor's statements impeach Plaintiffs' honesty or integrity. They also damage Plaintiffs' professional reputation. Accordingly, if a jury finds the statements were made with actual malice, Shaffer may have damages presumed even without proof of actual damages. Hirsch v. Cooper, 153 Ariz. 454, 737 P.2d 1092, 1096 (App. 1986). C. Nominal Damages for Violation of Constitutional Rights

Shaffer can recover nominal damages. Even if no actual damages are shown, a plaintiff who establishes a violation of constitutional rights is entitled to recover nominal Case 2:03-cv-02344-FJM Document 82 2 Filed 08/26/2005 Page 2 of 4

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damages of $1.00. (Thus opening the door for recovery of attorney's fees). This is so that constitutional violations are contested even when there is no economic harm as a result of the deprivation. George v. City of Long Beach, 973 F.2d 706 (9th Cir.1992); Floyd v. Laws, 929 F.2d 1390 (9th Cir.1991). D. Punitive Damages for Violation of Civil Rights

Punitive damages are available against governmental employees acting in their individual capacities. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978); City of Newport, 453 U.S. at 254. Connor is being sued in her individual capacity for violation of Shaffer's Constitutional rights (under 42 USC § 1983). Thus, in addition to recovering for his damages caused by the deprivation of this right, Shaffer also has the right to be awarded punitive damages against Connor in her individual capacity. III. EVIDENTIARY DISPUTES Plaintiff will object to the following: A. Evidence of Shaffer's post termination comments at a CCEC open meeting on October 8, 2002. CCECS 0101-CCECS 0102. Shaffer incorporates by

reference his motion in limine on this matter. B. CCEC final decision in Salmon matter CCECS 0551-CCECS 0575

This document is unfairly prejudicial. Shaffer would suggest that there is nothing in this document which is probative that is not also in the ALJ decision (on which this document is based). However, there is much in this document which the CCEC drafted that is self serving and unfairly prejudicial to Plaintiff.

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SUBM ITTED this August 26, 2005 R ICHARD J. H ARRIS L AW O FFICES, P.C.

By: s/ Richard J. Harris Richard J. Harris 4445 E. Holmes Ave., Suite 106 Mesa, AZ 85206 ELECTRONICALLY FILED of the foregoing hand-delivered this August 26, 2005 to: Richard J. Weare, Clerk/DCE United States District Court District of Arizona 230 North First Avenue Room 1400 Phoenix, AZ 85025-0093 COPY of the foregoing E-mailed this August 26, 2005 to: Jay Zweig Melissa Berrens Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants

s/ Richard J. Harris

Shaffer\pleadings\Trial Memorandum

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