Free Proposed Jury Instructions - 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 Matthew Shaffer hereby submits his proposed jury instructions. SUBM ITTED this ____ day of __________ 2005. R ICHARD J. H ARRIS L AW O FFICES, P.C. CV03 2344 PHX FJM PLAINTIFF'S PROPOSED JURY INSTRUCTIONS

By: /s/ Richard J. Harris Richard J. Harris 4445 E. Holmes Ave., Suite 106 Mesa, AZ 85206 FILED VIA ELECTRONIC FILING 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 Case 2:03-cv-02344-FJM Document 81 Filed 08/26/2005 Page 1 of 36

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COPY of the foregoing e-mailed this August 26, 2005 to: Jay Zweig Melissa Berren Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants

/s/ Richard J. Harris 8 9
Shaffer\pleadings\Plaintiff's Jury Instructions 001

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 1 Plaintiff requests that the court give the following standard jury instructions from the 9th Circuit Model Jury Instructions: Preliminary Instructions 1.1; 1.2 (as modified with joint statement of the case); and 1.3-1.15

Instructions at End of Case 3.1-3.3; 3.5-3.10;

Given Given as modified Refused Withdrawn

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PLAINTIFFS' PROPOSED JURY INSTRUCTION NO. 2 (Adverse Inference Failure to Disclose or Present Evidence)

You are instructed that a party's failure to identify, disclose, or introduce into evidence a document or witness which is in that party's control, reasonably available to that party, and not reasonably available to the adverse party, may support an inference that the evidence is unfavorable to the party who could have produced it and did not. If you find that a party failed to identify, disclose, or introduce into evidence a document or witness in its control, reasonably available to that party, and not reasonably available to the adverse party, you may infer that that the evidence is unfavorable to the party who could have produced it but did not do so.

Sources: See 2 J. Wigmore, Evidence, § 285 (1979); International Union v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972) (for discussion with citation to authority); Baxter v. Palmigiano, 425 U.S. 308, 318-20 (1976); State Tax Commission v. Graybar Elec. Co., 86 Ariz. 253, 257, 344 P.2d 1008, 1011 (1959); Starkweather v. Conner, 44 Ariz. 369, 377, 38 P.2d 311, 314-15 (1934) ("It is the rule that, where the existence or nonexistence of a certain fact is within the peculiar knowledge of a witness, and he fails to testify as to the fact, the trier of fact may justly draw the inference that the true fact is against his interest."). Given Given as modified Refused Withdrawn

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 3 STANDARD 5 (RAJI) Respondeat Superior Liability The CCEC is responsible for the actions of Colleen Connor if Ms. Connor was acting within the scope of her employment. In this case, the CCEC is responsible for the actions of Colleen Connor except on Shaffer's claims that she violated his Constitutional rights. Source: Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 381 P.2d 107 (1963); Love v. Liberty Mut. Ins. Co., 158 Ariz. 36, 760 P.2d 1085 (Ct. App. 1988); Duncan v. State, 157 Ariz. 56, 754 P.2d 1160 (Ct. App. 1988); Nava v. Truley Nolen Exterminating, 140 Ariz. 497, 683 P.2d 296 (Ct. App. 1984); Robarge v. Bechtel Power Corp., 131 Ariz. 280, 640 P.2d 211 (Ct. App. 1982); Scott v. Allstate Ins. Co., 27 Ariz. App. 236, 553 P.2d 1221 (1976); Olson v. Staggs-Bilt Homes, Inc., 23 Ariz. App. 574, 534 P.2d 1073 (1975); Restatement (Second) of Agency § 228 (1958). Comment: If the defendant disputes that an agency or employment relationship existed, additional instructions may be necessary. If an agency but not an employment relationship existed, this instruction may need to be modified to instruct the jury on issues of ratification and apparent authority. An employer may also be liable for the torts of its agents acting outside the scope of their employment if: (a) the employer intended the conduct or the consequences; (b) the employer was negligent or reckless; (c) the conduct violated a nondelegable duty of the employer; or (d) the employee purported to act or to speak on behalf of the employer and there was reliance upon apparent authority, or the employee was aided in accomplishing the tort by the existence of the agency relationship. Restatement (Second) of Agency § 219(2).

Given Given as modified Refused Withdrawn

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 4 (Wrongful Termination) Employment-at-Will Presumption (For claims occurring after July 20, 1996) The law presumes that employment is "at will." This means that an employer may discharge an employee for any reason or for no reason at all but may not discharge an employee for an unlawful reason. 0 SOURCE: A.R.S. § 23-1501. (RAJI Employment 1A) USE NOTE: There is a disagreement with respect to what constitutes an "unlawful reason." The committee directs Courts to the Employment Protection Act and case law interpretation thereof. See e.g. Cronin v. Sheldon, 992 P.2d 231 (Ariz. 1999) ("Accordingly, neither the rationale nor holding in Wagenseller is implicated by the EPA or by today's opinion."); Galati v. America West Airlines, Inc., 205 Ariz. 290, 69 P.3d 1011 (App. 2003) ("As mentioned previously, the AEPA was enacted in direct response to Wagenseller and with the intent of limiting the availability of wrongful termination for the violation of public policy. Nevertheless, Wagenseller was a case which would have been cognizable under the AEPA had it existed at the time." "Whether a common law tort for wrongful termination still exists after the AEPA is an open and much debated question in Arizona law.")

Given Given as modified Refused Withdrawn 6 Filed 08/26/2005

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1 PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 5 2 Public Policy Tort Claim ­ W histle Blow er ­ Good Faith 3 Matthew Shaffer claims that he is a whistle-blower. Mr. Shaffer must prove he was 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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terminated in retaliation for whistle-blowing activity. On this claim, he has the burden of proving: 1. Matthew Shaffer had information or a reasonable belief that the CCEC or an employee of the CCEC, had violated or was violating, or would violate the constitution of Arizona or the statutes of this State; and 2. That Mr. Shaffer disclosed the information or belief to Colleen Connor; and 3. That he was terminated because of 1 and 2. SOURCE: A.R.S. § 23-1501; EMPLOYMENT LAW 9A (RAJI) Modified from the RAJI to replace element 2 which reads as follows in the RAJI: "The information or belief must have been disclosed to either the employer or a representative of the employer whom the employee reasonably believed was in a managerial or supervisory position and had the authority to investigate the information provided by the employee and to take action to prevent further violations of the Constitution of Arizona or statutes of this State. Or, the employee must have disclosed the information to an employee of a public body or political subdivision of this State or any agency of a public body or political subdivision that had the authority to investigate or otherwise act on the information; and"

Given Given as modified Refused Withdrawn 7 Filed 08/26/2005

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 6 Tort Claims (Damages) If you find that the CCEC wrongfully discharged M atthew Shaffer, you must then decide the

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full amount of money that will reasonably and fairly compensate Matthew Shaffer for each of the following elements of damages proved by the evidence to have resulted from the fault of the CCEC: 1. Matthew Shaffer's lost earnings and benefits to date and any decrease in earning power or capacity in the future; 2. The pain, discomfort, suffering, anxiety already experienced, and reasonably probable to be experienced in the future as a result of the defendant's fault; 3. Harm to Matthew Shaffer's reputation.

SOURCE: RAJI EM PLOYMENT 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. USE NOTE: Use bracketed language appropriate to the facts.

Given Given as modified Refused Withdrawn 8 Filed 08/26/2005

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 7 (Defamation) Plaintiffs claim that Defendants defamed them. For a Plaintiff to prevail on this claim,

3 Plaintiff must prove: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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1.

A Defendant made or published a false and defamatory statement about Plaintiff (A defamatory statement is one which tends to brings a person into disrepute, contempt or ridicule, or to impeach his honesty, integrity, virtue or reputation);

2. 3.

The statement was made or published to a third person; The Defendant knew that the statement was false, or acted in reckless disregard as to whether the statement was true or false; and

4.

Defendant's statement caused the Plaintiff to suffer damage.

Plaintiff has the burden of establishing elements 1, 2, and 4 by a preponderance of the evidence. Plaintiff has the burden of establishing element 3 by clear and convincing evidence. Source: New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and this Court's ruling on public figures.

Given Given as modified Refused Withdrawn 9 Filed 08/26/2005

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 8 (Reckless Disregard) Reckless disregard of the truth of a statement occurs when the Defendant has serious

3 doubts as to the truth or consciously disregards it. Reckless disregard also occurs when a 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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defendant has a high degree of awareness of the probably falsity of a statement. Source: Garrison v. Louisiana, 379 U.S. 64, 74 (1964); St. Amant v. Thompson, 390 U.S. 727, 731-732, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989); Dombey v. Phoenix Newspapers, Inc.,150 Ariz. 476, 487, 724 P.2d 562, 573 (1986).

Given Given as modified Refused Withdrawn 10 Filed 08/26/2005

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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. 9 (Falsity - Knowing Falsity) A person makes a statement with knowing falsity when the person fabricates the

3 statement or knows the statement is false when it is made. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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Source: St. Amant v. Thompson, 370 U.S. 727, 732, 88 S. Ct. 1323 (1968); Currier v. Western Newspapers, Inc., 175 Ariz. 290, 293, 855 P.2d 1351, 1354 (1993).

Given Given as modified Refused Withdrawn 11 Filed 08/26/2005

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 10 (Malice By Circumstantial Evidence) Plaintiffs are not required to prove knowing falsity or reckless disregard of the truth by direct evidence. Plaintiffs may also establish this fact by circumstantial evidence or by a chain of circumstances from which the ultimate fact is reasonably inferable with clear and convincing evidence from all of the testimony and evidence introduced in this case.

Source: Currier v. Western Newspapers, Inc., 175 Ariz. 290, 293, 855 P.2d 1351, 1354 (1993); Phoenix Newspapers, Inc. v. Church, 24 Ariz. App. 287, 297, 537 P.2d 1345, 1355 (1976); Goldwater v. Ginzburg, 414 F.2d 324, 342 (2d Cir., 1969; cert. den.)

Given Given as modified Refused Withdrawn 12 Filed 08/26/2005

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PLAINTIFFS' PRO POSED JURY INSTRUCTION NO. 11 (Repetition of Defamation) One who utters defamatory remarks is liable for the repetition of those remarks by third

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persons if the repetition was reasonably to be expected.1 In determining this, you may consider the known tendency of human beings to repeat discrediting statements about their associates and neighbors.2

Source:

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Restatement of Torts 2d. §576 (c) Restatement of Torts 2d. §576 (Comment (d)

Given Given as modified Refused Withdrawn

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 12 (Multiple Causation) A person may not avoid liability by claiming some other person, whether or not named as a

3 Defendant in this action, helped cause the damage. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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Source: R.A.J.I. 2nd Negligence 4 (modified); Ontiveros v. Borak, 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983).

Given Given as modified Refused Withdrawn 14 Filed 08/26/2005

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 13 (Measure of Damages for Defamation) If you find Defendants liable to Plaintiff for defamation, you must then decide the full

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following elements of damages proved by the evidence to have resulted from the fault of Defendants: 1. 2. The nature, extent, and duration of the injury. The pain, suffering, and anxiety already experienced, and reasonably probable to be experienced in the future. 3. Impairment of reputation and standing in the community already experienced and reasonably probable to be experienced in the future; and 4. Any financial losses suffered and reasonably probable to be suffered in the future.

Source: RAJI 3 rd PI Damages, as modified. Gertz v. Welch, 418 U.S. 323 (1973); Restatement of Torts 2d Ed., § 621, Comment (b). Restatement of Torts 2d Ed., § 621. See, also, A.R.S. § 12-652.01 and § 12-653.01; Hirsch v. Cooper, 153 Ariz. 454, 737 P.2d 1092, 1096 (App.1986); and RAJI, 3d, Personal Injury Damages 4.

Given Given as modified Refused Withdrawn 15 Filed 08/26/2005

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 14 (Presumed Damages) Where a statement impeaches Plaintiffs' honesty or integrity, or damages Plaintiffs'

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knowingly false statement, the Plaintiffs are not required to prove any damages, as damages are presumed.

Source: Hirsch v. Cooper, 153 Ariz. 454, 737 P.2d 1092, 1096 (App. 1986)

Given Given as modified Refused Withdrawn

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 15 (Defamation ­ Impeachment of Honesty) A person's honesty is always impeached by an accusation of a felony. Thus, if you find that

3 a Defendant's statement accused Shaffer of a felony, you must find that the statement 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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impeached Matthew Shaffer's honesty.

Source: Ninth Circuit Model Jury Instruction 2.11 (Impeachment by conviction of a crime)

Given Given as modified Refused Withdrawn

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 16 (Damages and Discretion) The assessment of damages for defamation is the province of the jury and, because there can

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your discretion. Plaintiffs are not required to produce evidence of out-of-pocket losses in order to be entitled to your verdict for compensatory damages. Source: Gertz v. Welch, Inc., 417 U.S. 323 (1974); RESTATEMENT (SECOND) Of Torts §621 Comment (b)

Given Given as modified Refused Withdrawn

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 17 (Violation of Federal Civil Rights ­ Elements and burden of proof) On the plaintiff's Liberty Interest and First Amendment claims, the plaintiff has the burden

3 of proving each of the following elements by a preponderance of the evidence: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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1. the acts or omissions of the defendant were intentional; 2. the defendant acted under color of law; and 3. the acts or omissions of the defendant were the cause of the deprivation of the plaintiff's rights protected by the Constitution or laws of the United States. If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. Source: 9 th Circuit Model Civil Jury Instruction 11.1

Given Given as modified Refused Withdrawn 19 Filed 08/26/2005

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 18 UNDER COLOR OF LAW DEFINED

Acts are done under color of law when a person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. [[The parties have stipulated that] [The court has found that] the defendant acted under color of law. ]

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Source: 9 th Circuit Model Civil Jury Instruction 11. 2 Comment For cases interpreting color of law, see West v. Atkins, 487 U. S. 42, 49 (1988) (requiring that the person be acting pursuant to a power or privilege possessed by virtue of state law, such that the person's conduct is fairly attributable to the state); United Steelworkers of America v. Phelps Dodge Corp. , 865 F. 2d 1539, 1540 (9th Cir. 1989) (en banc) (holding that pr ivate parties may act under color of state law if they willfully participate in joint action with state officials to deprive others of constitutional rights).

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 19 (Liberty Interest) Matthew Shaffer claims that Colleen Connor violated his liberty interest under the 14 th Amendment to the Constitution of the United States. The 14 th Amendment protects a public employee's liberty interest in finding and obtaining employment. This right is violated when, in connection with the termination of an employee, a person acting under color of law makes a statement about the employee that might: a) b) seriously damage the employee's standing and associations in his community, or imposed on the terminated employee a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Bd. of Regents v. Roth, 408 U.S. 564, 569-70 & n.7 (1972). If so, the Constitution requires the employer to provide such employee a) notice of the allegations, and b) a meaningful name clearing hearing. Id.

Source: Bd. of Regents v. Roth, 408 U.S. 564, 569-70 & n.7 (1972).

Given Given as modified

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 20 (Liberty Interest) Matthew Shaffer claims that Colleen Connor triggered his Liberty Interest by publishing statements to Arizona Department of Public Safety ("DPS") and to his personnel file which created the impression that he has committed a crime. Matthew Shaffer claims that Connor violated his liberty interest by failing to give him a meaningful opportunity to clear his name of these statements. To prevail on his Liberty Interest claim, Shaffer must prove the following: 1. That Connor made a statement in her memorandum to DPS or in her memorandum to his personnel file* which create the impression that Shaffer had committed a crime That Connor made the statement in connection with the termination of Shaffer's employment; That the statement a) b) created a defamatory or stigmatizing impression about Shaffer or might have seriously damaged Shaffer's standing and associations in his community, or imposed on Mr. Shaffer a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. In addition, Shaffer must prove at least one of the following:

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1. 2.

That Connor failed to give Shaffer notice of the statement, or That Connor failed to give Shaffer a meaningful name clearing hearing.

Source: Bd. of Regents v. Roth, 408 U.S. 564, 569-70 & n.7 (1972).

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* placing a stigmatizing statement in an employee's file is sufficient publication to give rise to a liberty interest claim. Cox v. Roskelley, 359 F.3d 1105 (9th Cir. 2004); Donato v. Plainview-Old Bethpage Ctrl. Sch'l Dist., 96 F.3D 623, (2d Cir. 1996)(cert. denied, 519 U.S. 1150 (1997)). ** Codd v. Velger, 429 U. S. 624 (1977)(Stigmatizing impression is enough to trigger liber ty interest). .

Given Given as modified Refused Withdrawn 23 Filed 08/26/2005

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 21 (Liberty Interest: Meaningful Name Clearing Hearing) In deciding whether a name clearing hearing was meaningful, you should consider the following: 1. A name clearing hearing must have been held for the limited purpose of giving M r. Shaffer an opportunity to clear his name. Source: Donato v. Plainview-Old Bethpage Ctrl. Sch'l Dist., 96 F.3D 623, (2d Cir. 1996)(cert. denied, 519 U.S. 1150 (1997)). Letting Mr. Shaffer make written comments is not sufficient to satisfy the requirements of a name clearing hearing. Source: Donato v. Plainview-Old Bethpage Ctrl. Sch'l Dist., 96 F.3D 623, (2d Cir. 1996)(cert. denied, 519 U.S. 1150 (1997)). At a minimum, due process required that Mr. Shaffer was given had notice of the allegations and evidence against him. Source: Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988); Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 778 n.8 (9th Cir. 1982). At a minimum, due process required that Mr. Shaffer was given a hearing where he had a meaningful opportunity to confront the evidence against him. Source: Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988); Vanelli v. Reynolds

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5.

An opportunity to be heard is not meaningful if there is not time to prepare to confront the evidence. Source: Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988)

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6.

An opportunity to be heard is not meaningful if the employer has already indicated that nothing could change the outcome. Source: Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988)

7.

An opportunity to be heard is not meaningful when the employer is just going through the motions. Source: Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988)

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Given Given as modified Refused Withdrawn

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 22 Liberty Interest Damages If you find that Colleen Connor did violate Mr. Shaffer's liberty interest, you must then decide the full amount of money that will reasonably and fairly compensate Mr. Shaffer for the pain, suffering, and anxiety already experienced, and reasonably probable to be experienced in the future caused by the denial of the name clearing hearing following the statements of Connor.

Source: RAJI 3 rd PI Damages, as modified. Gertz v. Welch, 418 U.S. 323 (1973); Restatement of Torts 2d Ed., § 621, Comment (b). Restatement of Torts 2d Ed., § 621. See, also, A.R.S. § 12-652.01 and § 12-653.01; Hirsch v. Cooper, 153 Ariz. 454, 737 P.2d 1092, 1096 (App.1986); and RAJI, 3d, Personal Injury Damages 4.

Given as modified Refused Withdrawn 26 Filed 08/26/2005

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 23 Liberty Interest Damages If you find that Colleen Connor did violate Mr. Shaffer's liberty interest, you may award damages for the failure to provide Mr. Shaffer with a meaningful name clearing hearing even if you find no other damage was caused by the violation of Mr. Shaffer's liberty interest.

Source: Vanelli v. Reynolds School District No. 7, 667 F.2d 773

Given Given as modified Refused Withdrawn

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 24 (First Amendment) Matthew Shaffer claims that Colleen Connor violated his right to free speech under the First Amendment of the Constitution asking him not to speak to the media during hte CCEC's Salmon Campaign investigation. He also claims that Connor fired him in retaliation for criticizing Connor's handling of the Salmon matter. Shaffer claims that he told Connor that she and the CCEC had improperly handled the investigation into the Salmon campaign; that he publicly reported that he told Connor the Salmon campaign was doing the same thing other campaigns had done without penalty; that the attack appeared politically motivated; that Connor had engaged in an allegedly improper meeting with Jessica Funkhouser (who had recused herself due to a potential conflict of interest). The court has already held that these statements would be protected by the First Amendment. You must decide whether or not Shaffer made one or more of these statements, and if so, whether such statement played a substantial or motivating role in the termination of his employment. If so, you should return a verdict in favor of M r. Shaffer.

Source: Court Order p. 4:21-6:3; Stipulated Jury Verdict Form "First Amendment"

Given Given as modified Refused Withdrawn

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 25 First Amendment Damages If you find that Connor deprived Matthew Shaffer of his right to free speech or if you find that he was fired in retaliation for exercising his freedom of speech, you must then decide the full amount of money that will reasonably and fairly compensate Matthew Shaffer for each of the following elements of damages proved by the evidence to have resulted from that deprivation and/or retaliation. 1. Matthew Shaffer's lost earnings and benefits to date and any decrease in earning power or capacity in the future; 2. The pain, discomfort, suffering, anxiety already experienced, and reasonably probable to be experienced in the future as a result of the defendant's fault; 3. 4. 5. Harm to Matthew Shaffer's reputation. Nominal Damages Punitive Damages

SOURCE: RAJI EM PLOYMENT 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. USE NOTE: Use bracketed language appropriate to the facts.

Given Given as modified Refused

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 26 NOMINAL DAMAG ES The law which applies to Matthew Shaffer's claims for violation of his liberty interest and his First Amendment free speech rights authorizes an award of nominal damages. If you find for the plaintiff but you find that the plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

Source: 9 th Circuit Model Jury Instruction 7. 6. Com ment: Nominal damages are not available in every case. The court must determine whether nominal damages are permitted. See, e. g. , Chew v. Gates, 27 F. 3d 1432, 1437 (9th Cir. 1994) (Section 1983 action), cert. denied, 513 U . S. 1148 (1995); Parton v. GTE North, Inc., 971 F . 2d 150, 154 (8th C ir. 1992) (T itle VII action). Regarding cases brought under 42 U. S.C. § 1983, see George v. City of Long Beach, 973 F . 2d 706 (9th Cir. 1992); Floyd v. Laws, 929 F. 2d 1390 (9th C ir. 1991).

Given Given as modified Refused

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PLAINTIFFS' REQUESTED JURY INSTRUCTION NO. 27 7.5 PUNITIVE DAMAGES If you find for the plaintiff on either (or both) of his claims for violation of his liberty interest or violation of his first amendment right to free speech by retaliation, against Colleen Connor , you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant' s conduct was malicious, or in reckless disregard of the plaintiff' s rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injur ing another . Conduct is in reckless disregard of the plaintiff' s rights if, under the circumstances, it reflects complete indifference to the plaintiff's rights, or the defendant acts in the face of a perceived r isk that its actions will violate the plaintiff's rights under federal law. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant' s conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. Punitive damages may be awar ded even if you award

plaintiff only nominal, and not compensatory, damages.

Comment Punitive damages are not available in every case. For example, punitive damages are not available against municipalities, counties, or other governmental entities unless expressly authorized by statute. City of Newport, et al. v. Fact Concerts, Inc., et al., 453 U.S. 247, 259-71 (1981). Punitive damages may, however, be available against governmental 31 Filed 08/26/2005

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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. In diversity cases, look to state law for an appropriate instruction. Regarding when punitive damages may be awarded in Title VII actions, see Kolstad v. American Dental Assn. , 527 U. S. 526 (1999); Caudle v. Bristol Optical Co. , 224 F. 3d 1014, 1026-27 (9th Cir. 2000). See also Passantino v. Johnson & Johnson Consumer Products, 212 F. 3d 493, 514 (9th C ir. 2000). Punitive and compensatory damages are subject to caps in Title VII cases. See 42 U.S.C. 1981a (b)(3). Regarding the amount of damages available under Title VII, see Gotthardt v. National Railroad Passenger Corp. , 191 F. 3d 1148 (9th Cir. 1999). The cap does not apply to front pay and back pay. See Pollard v. E. I. du Pont de Nemours & Company, 532 U . S. 843 (2001). See also Caudle v. Bristol Optical Co. , 224 F. 3d 1014, 1020 (9th Cir.2000) (includes the definition of front pay and back pay); Introductory Comment to Chapter 12. If punitive damages are available, and evidence of defendant*s financial condition is offered in support of such damages, the judge may be requested to instruct the jury during trial and/or at the end of the case about the limited purpose of such evidence. See Instructions 1.5 (Evidence for Limited Purpose), 2.10 (Limited Purpose Evidence), and the bracketed material in 3.3 (What Is Not Evidence). Regarding degree of reprehensibility and punitive damages generally, see BMW of North America, Inc. v. Gore, 517 U . S. 559 (1996); Pacific Mut. Life Ins. Co. v. Haslip, 499 U . S. 1 (1991). See State Farm Mut. Auto. Ins. Co. v Campbell, 538 U . S. 408 (2003), referring to Gore and Haslip and stating that "[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1, in this case, of 145 to 1. (citation omitted) . . .. Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where `a particularly egregious act has resulted in only a small amount of economic damages.'" (citing Gore, 517 U.S. at 582.)

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Given as modified Refused Withdrawn

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 28 (Tortious Interference With Contractual Relations) (Elements of Claim) Matthew Shaffer claims that Colleen Connor improperly interfered with his employment agreement. To establish this claim, Matthew Shaffer must prove: 1. 2. Matthew Shaffer had a contractual relationship with the CCEC; Colleen Connor knew of that relationship; Colleen Connor intentionally interfered with the Shaffer's contractual relationship, causing the CCEC to breach or terminate the contractual relationship; 4. 5. Colleen Connor's conduct was improper; and Matthew Shaffer suffered damage caused by the breach or termination of the contractual relationship.

0 SOURCE: EMPLOYMENT LAW 14 (RAJI); Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 386, 710 P.2d 1025, 1041 (1985). PLAINTIFF'S NOTE: The court should strike the first three elements from this instruction for the follow ing reasons: Element 1 ­ Existence of an agreement C Employment is contractual as a matter of law (A.R.S. § 23-1501) C The parties stipulate that Shaffer had an employment relationship with Defendant CCEC Element 2 ­ Connor's knowledge of the agreement C This fact is undisputed Element 3 ­ Connor intentionally interfered with the agreement causing the employer to breach or terminate the agreement. C It is undisputed that Connor's termination of Shaffer terminated the agreement between Shaffer and the CCEC. 33 Filed 08/26/2005

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C

It is undisputed that Connor intended for Shaffer's employment with the CCEC to terminate

Given Given as modified

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 29 EMPLOYMENT LAW 15 (RAJI) Tortious Interference with Contract (Damages) If you find that Colleen Connor improperly interfered with Matthew Shaffer's

5 employment agreement with his employer, you must then decide the full amount of 6 money that will reasonably and fairly compensate Matthew Shaffer for each of the 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Given 22 23 24 25 26
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following elements of damages proved by the evidence to have resulted from the interference with the agreement: 1. 2. 3. Loss of the benefits of the agreement; Emotional suffering sustained by Matthew Shaffer; and Harm to Matthew Shaffer's reputation.

SOURCE: RESTATEMENT (SECOND) OF TORTS §§ 774A, 912 (1965); State Farm Mut. Ins. Co. v. St. Joseph's Hosp.,107 Ariz. 498, 489 P.2d 837 (1971); Nelson v. Cail, 120 Ariz. 64, 583 P.2d 1384 (App. 1978). COMMENT: While interference cases always involve contracts, interference with contract is nevertheless a tort. Accordingly, the measure of damages is not limited to those allowed in contract actions. Under appropriate circumstances, the plaintiff may recover damages for emotional distress, injury to reputation, or other consequential damages, such as impaired credit rating. See RESTATEM ENT (SECOND) OF TORTS § 774A comment d (1965).

Given as modified Refused Withdrawn 35 Filed 08/26/2005

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PLAINTIFF'S PRO POSED JURY INSTRUCTION NO. 30 7.4 DAMAGES ARISING IN THE FUTURE* DISCOUNT TO PRESENT CASH VALUE Any award for future economic damages must be for the present cash value of those damages. Noneconomic damages such as pain and suffering and emotional distress or harm to reputation are not reduced to present cash value. Present cash value means the sum of money needed now, which, when invested at a reasonable rate of return, will pay future damages at the times and in the amounts that you find the damages will be incurred or would have been received. The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill. You should also consider decreases in the value of money which may be caused by future inflation. Source: 9th Circuit Model Civil Jury Instructions 7. 4 Comment There must be evidence to support this instruction. See Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 339*42 (1988). See also Passantino v. Johnson & Johnson Consumer Products, Inc. 212 F. 3d 493, 508*509 (9th Cir.2000). Given Given as modified Refused Withdrawn

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