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 8 Matthew Shaffer,
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CIV-03-2344-PHX-FJM DEFENDANTS' TRIAL MEMORANDUM OF LAW

9 10 vs.

Plaintiff,

11 State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad 12 Jacobs, husband and wife; and Jessica Funkhouser and Lindy Funkhouser, 13 husband and wife; John Does I-X; Jane Does I-X, 14 Defendants. 15 16 Pursuant to the Scheduling Order entered on April 23, 2004, defendants State of

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17 Arizona Citizens Clean Election Commission ("CCEC") and Colleen Connor submit the
1 18 following Trial Memorandum of Law:

19 20 To supplement the law provided in this Trial Memorandum of Law, defendants CCEC and Connor incorporate by reference the law cited in their respective Motions for 21 Summary Judgment and Replies in Support of their Motions for Summary Judgment. 22
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2 1 COUNT TWO :

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

WRONGFUL TERMINATION FOR REPORTING VIOLATION OF LAW

To succeed on a claim of wrongful termination for reporting a violation of law under A.R.S. §23-1501(3)(c)(ii), a plaintiff must prove: (1) that he made a disclosure that he believed an employee of his employer had violated, was violating, or was going to violate Arizona's constitution or statutes; (2) that the disclosure was reasonable; (3) that the disclosure was made to a representative of the employer that the plaintiff reasonably believed was in a managerial or supervisory position, had the authority to investigate the information provided, and had the authority to take action to prevent further violations; and (4) that this all resulted in the termination of the plaintiff's employment. A.R.S. § 231501(3)(C)(ii).

COUNT THREE: DEFAMATION To prevail on a defamation claim, a plaintiff must prove that the statements he complains of (1) assert or imply actual facts; (2) were false; (3) were published or communicated to someone other than the plaintiff; and (4) harmed the plaintiff's reputation by bringing him into disrepute, contempt, or ridicule, or by impeaching his honesty, integrity, value or reputation. Yetman v. English, 168 Ariz. 71, 76, 811 P.2d

Count One (Wrongful Termination for Refusal to Violate the Law) was deliberately 20 omitted from this form because the Court granted summary judgment with respect to that count on August 23, 2005. 21 22
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1 323, 328 (1991); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 2 781, 787 (1989). 3 A public official has qualified immunity from a plaintiff's defamation claim unless

4 the plaintiff can show malice. Id. The public official forfeits her qualified immunity "if, 5 and only if, [she] (1) acted outside the outer perimeter of [her] required or discretionary 6 functions, or (2) acted with malice in that [she] knew [her] statements regarding plaintiffs 7 were false or acted in reckless disregard of the truth." Western Technologies v. Neal, 159 8 Ariz. 433, 439, 768 P.2d 165, 171 (App. 1988). 9 A public official also is protected from suit, "if the circumstances include a correct

10 or reasonable belief that (a) there is information that effects a sufficiently important public 11 interest, and (b) the public interest requires the communication of the defamatory matter to 12 a public officer or a private citizen who is authorized or privileged to take action if the 13 defamatory matter is true." Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d 668, 673 (App. 14 1993); see also Restatement (Second) Torts, § 598 (1977). The rule "is applicable to 15 defamatory communications to public officials concerning matters that affect the 16 discharge of their duties." Id. (citations omitted). In other words, qualified immunity will 17 protect a public official if the facts establish that a reasonable person, with the information 18 available to the official, could have formed a reasonable belief that the defamatory 19 statement in question was true and that the publication was an appropriate means for 20 serving the interests that justified the privilege. Chamberlain v. Mathis, 151 Ariz. 551, 21 559, 729 P.2d 905, 913 (1986). 22
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Additionally, for a public figure plaintiff to succeed on defamation claim against

2 any defendant, he must prove, by clear and convincing evidence, "actual malice," which is 3 defined as "knowledge that [the defamatory statement] was false or with reckless 4 disregard of whether it was false or not." Currier v. Western Newspapers, 175 Ariz. 290, 5 292, 855 P.2d 1351, 1353 (1993). 6 Substantial truth is a complete defense to a defamation claim. Turner v. Devlin,

7 174 Ariz. 201, 205, 848 P.2d 286, 190 (1993); Fendler v. Phoenix Newspapers, Inc., 130 8 Ariz. 475, 479, 636 P.2d 1257, 1261 (Ct. App. 1981). 9
3 10 COUNT FIVE :

LIBERTY INTEREST, 42 U.S.C. § 1983

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Qualified immunity applies to protect a government official from a § 1983

12 violation of liberty interest claim unless (1) the conduct of the official violated the 13 plaintiff's constitutional right, and (2) the contours of the right were clearly established. 14 Cox v. Roskelley, 359 F.3d 1105, 1109 (9th Cir. 2004). 15 "In order to maintain a constitutional due process claim arising out of the

16 termination of his employment, a public employee must first demonstrate that he has a 17 reasonable expectation arising out of a statute, rule, or contract, that he will continue to be 18 employed." Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002) 19 Count Four (False Light Invasion of Privacy) was deliberately omitted from this form because the Court granted summary judgment with respect to that count on August 23, 20 2005. 21 22
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1 (citations omitted). "A nontenured government employee has a liberty interest and is 2 entitled to a name-clearing hearing `if the employer creates and disseminates a false and 3 defamatory impression about the employee in connection with his termination.'" Brady v. 4 Gebbie, 859 F.2d 1543 (9th Cir. 1988) (quoting Codd v. Velger, 429 U.S. 624, 628 5 (1972)). 6 A public employee with a liberty interest must satisfy five elements to succeed on

7 a claim for the deprivation of a liberty interest without due process of law: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
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(1) the alleged statements must level a `charge against the employee that might seriously damage his standing and assertions in his community' and place his `good name, reputation, honor, or integrity at stake;' (2) the employee must dispute that the charges made against him are false; (3) the government must have intentionally publicized the stigmatizing statements; (4) an alteration of the plaintiff's legal status, such as the termination of his employment, must have occurred in conjunction with the stigmatizing statements; and (5) `the government must have failed to comply with the employee's request for an adequate nameclearing opportunity.' Wojcik, 300 F.3d at 103 (citations omitted). "Charges that carry the stigma of moral turpitude may implicate a liberty interest, but charges of incompetence or inability to get along with others do not." Wheaton v. Webb-Petett, 931 F.2d 613, 617 (9th Cir. 1991); Chilingirian v. Boris, 822 F.2d 200, 205 (6th Cir. 1989) ("liberty interests are not implicated...by allegations of improper or inadequate performance or, in some cases, by charges of incompetence, neglect of duty or malfeasance"). A charge that merely makes a plaintiff less attractive to other employers but leaves open a definite range of opportunity does not constitute a liberty deprivation."

th 1 Gregory v. Hunt, 24 F.3d 781, 788 (6 Cir. 1994) (quoting Chilingirian, 882 F.2d at 205-

2 06). 3 "A name-clearing hearing is required only if an employer creates a false and

4 defamatory impression about a particular employee in connection with his termination." 5 Chilingirian, 882 F.2d at 205. 6 A defendant can only succeed on a deprivation of liberty interest claim for failure

7 to receive a name-clearing hearing if the government "failed to comply with the 8 employee's request for an adequate name-clearing opportunity." Wojcik, 300 F.3d at 103 9 (emphasis added) (citation omitted). 10 Finally, "A name-clearing hearing `need only provide an opportunity to clear

11 one's name and need not comply with formal procedures to be valid. No particular 12 procedures are required except that the person receive a hearing at which he receives an 13 opportunity to clear his name.'" Gregory, 24 F.3d at 789 (citing Chilingirian, 882 F.2d at 14 206). 15 16 COUNT SIX: 17 FIRST AMENDMENT, 42 U.S.C. § 1983

"In order to maintain a constitutional due process claim arising out of the

18 termination of his employment, a public employee must first demonstrate that he has a 19 reasonable expectation arising out of a statute, rule, or contract, that he will continue to be 20 employed." Wojcik, 300 F.3d at 101 (citations omitted). 21 22
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"Although public employees do not relinquish their right to free speech by virtue of

2 their employment, neither do they enjoy absolute First Amendment rights." Ceballos v. 3 Garcetti, 361 F.3d at 1173 (emphasis omitted) (citing Waters v. Churchill, 511 U.S. 611, 4 671-74 (1994)); Brewster, 149 F.3d at 981. A "`confidential' or `policy-making' 5 employee ­ one who works closely with the leaders of the organization and is privy to 6 confidential information ­ is expected to be loyal to his employer, and therefore `does not 7 have much protection under the First Amendment when he speaks or acts in a hostile way 8 toward his employer.'" Flood v. Alabama Dep't of Indus. Rels., 948 F. Supp. 1535, 1544 9 (M.D. Ala. 1996) (quoting Bates v. Hunt, 3 F.3d 374, 378 (11th Cir. 1993)). 10 The Ninth Circuit has a two-part test to determine First Amendment protections for

11 a public employee's speech: "(1) [does] the speech address[] a matter of public concern, 12 and, if it does, (2) we engage in an inquiry, commonly known as the Pickering balancing 13 test, to determine whether [plaintiff's] interest in expressing himself outweighs the 14 government's interest in promoting workplace efficiency and avoiding workplace 15 disruption." Ceballos, 361 F.3d at 1173 (citing Pickering v. Board of Educ., 391 U.S. 563 16 (1968)) (internal quotation and citation omitted). 17 Even if a plaintiff's free speech claim survives the balancing test, qualified

18 immunity still is appropriate if the government employee's speech did not play a 19 "substantial part" in his firing. Bryson v. Waycross, 888 F.2d 1562, 1565 (11th Cir. 20 1989); Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir. 2004) (stating, "[t]o 21 establish that his First Amendment rights were violated, [plaintiff] must prove that chilling 22
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1 his political speech was a substantial or motivating factor in the defendants' wrongful 2 conduct") (citations omitted). Plaintiff must establish a causal link between the contested 3 speech and the adverse employment action, and "must show `had it not been for the 4 violation,'" the adverse action would not have occurred. Rakovich v. Wade, 850 F.2d 5 1180, 1189 (7th Cir. 1988) (en banc) (citations omitted). 6 7 COUNT EIGHT4: INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 8 To succeed on a claim of intentional interference with contractual relations, a 9 plaintiff must prove: "(1) existence of a valid contractual relationship, (2) knowledge of 10 the relationship on the part of the interferor, (3) intentional interference inducing or 11 causing a breach, (4) resultant damage to the party whose relationship has been disrupted, 12 and (5) that the defendant acted improperly." Wells Fargo Bank v. Ariz. Laborers, 13 Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 38 P.3d 14 12 (2002) (citing Snow v. Western Sav. & Loan Ass'n, 152 Ariz. 27, 34, 730 P.2d 204, 211 15 (1986); Restatement (Second) of Torts § 766 (1977)). 16 "When an employer's employees are acting within the scope of their employment, 17 they cannot be liable for interference with another employee's relationship with the 18 employer." Kelley v. City of Mesa, 873 F. Supp. 320, 333 (D. Ariz. 1994). 19 Count Seven (Negligent Retention) was deliberately omitted from this form because plaintiff agreed to the dismissal of that count in his Response to the CCEC's Motion for 21 Summary Judgment, and the Court granted summary judgment of that count in its August 23, 2005 Order. 22 Case 2:03-cv-02344-FJM Document 79 Filed 08/26/2005 Page 8 of 10 8 20
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1 PUNITIVE DAMAGES 2 Punitive damages are inappropriate where there is no evidence that a defendant

3 had evil motive or intent, or that she was recklessly indifferent to plaintiff's rights. See, 4 e.g., Smith v. Wade, 461 U.S. 30, 56 (1983). Evidence that a defendant engaged in 5 constitutionally offensive conduct in itself is insufficient to support an award of punitive 6 damages. A defendant's conduct may have violated a plaintiff's federally protected 7 rights even though that conduct was not the product of an evil motive or callous or 8 reckless disregard of the plaintiff's rights. Id. 9 Punitive damages require a showing that a defendant derived satisfaction from

10 hurting the plaintiff or, that the defendant, "while not having any particular desire to hurt 11 the plaintiff, trample[d] on the plaintiff's rights in a fashion that can be fairly called 12 reckless, to accomplish [her] own aims." See Soderbeck v. Burnett County, 752 F.2d 285, 13 289 (7th. Cir.), cert. denied, 471 U.S. 117 (1985). 14 The only claim in this case where plaintiff has even pled a prayer for punitive

15 damages is in the § 1983 claim against Colleen Connor. The State of Arizona by law is 16 not a party to this claim and is not subject to an award of punitive damages. A.R.S. § 1217 820.04. Further, the Ninth Circuit has held that it is improper to instruct a jury whether 18 an individual defendant, such as Ms. Connor, will be indemnified by the government 19 entity for punitive or compensatory damages. Larez v. Holcomb, 16 F.3rd 1513, 1521 20 (9th Cir. 1994). 21 22
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RESPECTFULLY SUBMITTED this 26th 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

COPY of the foregoing electronically 8 transmitted via the U.S. District Court's Electronic Case Filing system this 26th day of August, 2005 to: 9 10 Richard J. Harris, Esq. Richard J. Harris Law Offices, P.C. 11 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 12 Attorney for Plaintiff 13 14 15 16 17 18 19 20 21 22
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568-0140/1287208

s/Dawn Sylvester