Free Proposed Jury Instructions - 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
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, vs. No. CIV-03-2344-PHX-FJM DEFENDANTS' PROPOSED JURY INSTRUCTIONS

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

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17 Arizona Citizens Clean Election Commission ("CCEC") and Colleen Connor submit the 18 following Proposed Jury Instructions: 19 /// 20 /// /// 21 22
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PRELIMINARY INSTRUCTIONS Ninth Circuit Model Instruction No. 1.1: Duty of Jury. Ninth Circuit Model Instruction No. 1.2: Claims and Defenses (as customized to this case; see attached). Ninth Circuit Model Instruction No. 1.3: What Is Evidence. Ninth Circuit Model Instruction No. 1.4: What Is Not Evidence. Ninth Circuit Model Instruction No. 1.5: Evidence for Limited Purpose. Ninth Circuit Model Instruction No. 1.6: Direct and Circumstantial Evidence. Ninth Circuit Model Instruction No. 1.7: Ruling on Objections. Ninth Circuit Model Instruction No. 1.8: Credibility of Witnesses. Ninth Circuit Model Instruction No. 1.9: Conduct of the Jury. Ninth Circuit Model Instruction No. 1.10: No Transcript Available to Jury. Ninth Circuit Model Instruction No. 1.11: Taking Notes. Ninth Circuit Model Instruction No. 1.12: Outline of Trial.

Ninth Circuit Model Instruction No. 1.13: Burden of Proof: Preponderance of the 15 Evidence. 16 17 18 19 20 21 22
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Ninth Circuit Model Instruction No. 1.15: Question to Witnesses by Jurors. INSTRUCTIONS DURING TRIAL Ninth Circuit Model Instruction No. 2.1: Cautionary Instruction: First Recess. Ninth Circuit Model Instruction No. 2.2: Bench Conferences and Recesses. Ninth Circuit Model Instruction No. 2.6: Deposition as Substantive Evidence. Ninth Circuit Model Instruction No. 2.13: Use of Interrogatories of a Party.

1 2 3 4 5 6 7 8 Law.

INSTRUCTIONS AT END OF CASE Ninth Circuit Model Instruction No. 3.1: Duties of Jury to Find Facts and Follow Ninth Circuit Model Instruction No. 3.2: What Is Evidence. Ninth Circuit Model Instruction No. 3.3: What Is Not Evidence. Ninth Circuit Model Instruction No. 3.5: Direct and Circumstantial Evidence. Ninth Circuit Model Instruction No. 3.6: Credibility of Witnesses. Ninth Circuit Model Instruction No. 3.7: Opinion Evidence, Expert Witnesses.

Ninth Circuit Model Instruction No. 3.11: Two or More Parties -- Different Legal Rights. 9 10 11 12 13 14 15 16 17 18 Ninth Circuit Model Instruction No. 3.12: Impeachment Evidence -- Witness. CONCLUDING INSTRUCTIONS -- JURY DELIBERATIONS Ninth Circuit Model Instruction No. 4.1: Duty to Deliberate. Ninth Circuit Model Instruction No. 4.2: Use of Notes. Ninth Circuit Model Instruction No. 4.3: Communication With Court. Ninth Circuit Model Instruction No. 4.4: Return of Verdict. Ninth Circuit Model Instruction No. 4.5: Additional Instructions of Law (see proposed non-model instructions below). BURDENS OF PROOF

Ninth Circuit Model Instruction No. 5.1: Burden of Proof: Preponderance of the Evidence. 19 20 21 22
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Ninth Circuit Model Instruction No. 5.3: Complete Affirmative Defense.

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DAMAGES Ninth Circuit Model Instruction No. 7.1: Damages -- Proof. Ninth Circuit Model Instruction No. 7.3: Damages -- Mitigation. Ninth Circuit Model Instruction No. 7.4: Damages Arising in the Future -Discount to Present Cash Value.

Ninth Circuit Model Instruction No. 7.5: Punitive Damages (as customized to 6 this case. Defendants request that the Court add: "Punitive damages are not awardable against the State of Arizona as a matter of law. The only claims where you can even consider awarding punitive damages are the § 1983 liberty interest and First Amendment 7 claims against defendant Colleen Connor." 8 CIVIL RIGHTS ACTIONS­42 U.S.C. § 1983 (as customized to this case; see attached). 9 10 11 12 13 14 15 16 17 18 19 20 21 22
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Ninth Circuit Model Instruction No. 11.1: Violations of Federal Civil Rights -Elements and Burden of Proof. Ninth Circuit Model Instruction No. 11.2: Under Color of Law Defined. Ninth Circuit Model Instruction No. 11.3: Qualified Immunity. Ninth Circuit Model Instruction No. 11.13: Official Policy-Makers.

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Defendants also request that the Court give the attached non-model instructions. Defendants reserve any right to modify this request or submit additional proposed jury instructions before this matter is submitted to the jury.

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PROPOSED NON-MODEL INSTRUCTION FOR COUNT 2: WRONGFUL TERMINATION FOR REPORTING VIOLATION OF LAW1

Shaffer also claims that he is a whistleblower and alleges that he was terminated in retaliation for whistleblowing activity. In order to prevail on this claim, Shaffer has the 3 burden of proving three facts. 4 First, Shaffer must prove that he had information or a reasonable belief that the Citizens Clean Election Commission or one of its employees had violated, was violating, 5 or would violate either the Constitution of Arizona or the statutes of this State. 6 Second, Shaffer must prove that he disclosed this information or belief to any one of three parties: 7 8 9 10 11 12 13 14 15 (a) The Citizens Clean Election Commission,

(b) A representative of the Citizens Clean Election Commission whom Shaffer reasonably believed was in a managerial or supervisory position and had the authority to both investigate the information he provided and take action to prevent further violations of the Constitution of Arizona or statutes of this State, or (c) Either an employee or agency of a public body or political subdivision that had the authority to investigate or otherwise act on the information. Third and finally, Shaffer must prove that the Citizens Clean Election Commission terminated him because he disclosed the information or belief.2 Damages

If you find that Shaffer's employment was terminated because he was a 16 whistleblower, you must then decide the full amount of money that will reasonably and fairly compensate Shaffer for each of the following elements of damages proved by the 17 evidence to have resulted from the fault of the Citizens Clean Election Commission: 18 19 20
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1.

Shaffer's lost earnings and benefits to date and any decrease in earning power or capacity in the future;

Count 1 was deliberately omitted from this pleading.

2 See A.R.S. § 23-1501(3)(c)(ii); See also RAJI (Civil) 4th, Employment Law Jury 21 Instruction 9A.

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2.

The pain, discomfort, suffering, anxiety already experienced, and reasonably probable to be experienced in the future as a result of the CCEC's fault; Reasonable expenses of necessary medical care, treatment, and services rendered and reasonably probable to be incurred in the future; Physical injury to Shaffer; Harm to Shaffer's reputation; and Lost insurance coverage for Shaffer's medical bills.3

3. 4. 5. 6.

RAJI (Civil) 4th, Employment Law Jury Instruction 10.
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PROPOSED NON-MODEL INSTRUCTION FOR COUNT 3: DEFAMATION

Shaffer has also brought a cause of action for defamation. Before he can prevail first prove to you that the statements he complains of (1) 3 on this claim, Shaffer must 4 assert or imply actual facts, (2) were false,5 (3) were published or communicated to 4 someone other than Shaffer, and (4) harmed Shaffer's reputation by bringing him into disrepute, contempt, or ridicule, or by impeaching his honesty, integrity, virtue, or 6 5 reputation. In addition, you must decide if Shaffer is a public figure. A public figure is a person who has achieved fame or notoriety or who has voluntarily become involved in a 7 7 public controversy. 6 You must also decide if Connor enjoys a conditional privilege. She enjoys a conditional privilege if you find that the circumstances at issue include a correct or reasonable belief by Connor that (a) there is information that effects a sufficiently 9 important public interest, and (b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged 10 to take action if the defamatory matter is true.8 8 11 If you have concluded that Shaffer is a public figure and/or that Connor enjoys a conditional privilege, Shaffer must also prove by clear and convincing evidence that the 12 statements he complains of were made by Connor with "actual malice" ­ that is, knowledge that they were false or with reckless disregard of whether they were false or 13 not.9 14 15 16 17 18 19 20 21 22
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It is up to you to determine if the publicized statements made by Connor reasonably appear to make an assertion or implication of actual fact. If you determine

Yetman v. English, 168 Ariz. 71, 76 (1991). Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (1989). Godbehere, 162 Ariz. at 341. BLACK'S LAW DICTIONARY 513 (8th ed. 2004). Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d 668, 673 (App. 1993).

Yetman, 168 Ariz. at 74, citing New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964).

1 that the statements are mere opinion, hyperbole, parody, invective, or the like, they are absolutely privileged and your verdict must be for Connor.10 2 Based on the evidence you have seen, you must also decide if the publicized statements made by Connor were false. If you find that the statements made by Connor 3 were substantially true, then you must find in favor of Connor. It is not necessary that the 11 4 publication be absolutely true; substantial truth is all that is required. 5 6 7 8 9 10 11 Finally, when you consider whether Connor acted with a reckless disregard for the truth of her statements, you must keep in mind that "recklessness" implies a higher degree of culpability than "negligence." A failure to exercise ordinary or reasonable care in ascertaining the truth of her statements does not, standing alone, render Connor reckless. Before you can find that Connor acted with recklessness, you must determine that she had a high degree of awareness of the probable falsity of the statement published. Consequently, your inquiry in this area concerns a subjective matter, namely, the state of mind of Connor at the time she made the statement, unless you find from the evidence that obvious reasons existed to have led Connor to doubt the accuracy of the statements published.12 Damages

Damages must be proven as any other issue in this case; that is, Shaffer must 12 prove by the preponderance of the evidence the nature and extent of his damages. If your verdict is for Shaffer and you find he is entitled to an award of damages, you will determine from the preponderance of the evidence the amount of money that 14 will fairly compensate him for the actual injury caused by Connor and/or the CCEC. 13 The law holds Connor responsible for all injury resulting in whole or in part from her acts, even if you should find that Connor could not reasonably have foreseen or 16 anticipated the full extent, nature or consequence of such injury. 15 17 18 19 20 21 22
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Yetman, 168 Ariz. at 81.

Fendler v. Phoenix Newspapers, Inc., 130 Ariz. 475, 479 (Ct. App. 1981); See Federal Jury Practice & Instructions ­ Civil § 124.20 (2000). See Federal Jury Practice & Instructions ­ Civil § 124.22; Modern Jury Instructions ­ Civil, Instruction 91.03 (2005); Hansen v. Stoll, 130 Ariz. 454, 458 (1981).
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You are not to permit bias or prejudice, nor sympathy for Shaffer, to enter into the consideration. Damages must be reasonable. In the event your verdict is for Shaffer, you 2 may award only such damages as will fairly and reasonably compensate him for the injury or damage you find from a preponderance of the evidence Shaffer sustained as a result of Connor's acts. 3 1 You are not permitted to award speculative damages. This means that you are not to include compensation for prospective loss that, although possible, is wholly remote or left to conjecture and/or guess. 5 4 If you should find Shaffer is entitled to a verdict, in fixing the amount of your verdict you may not include in an otherwise just award any sum for the purpose of punishing Connor or to set an example. Nor does the law permit you to include in your 7 award any sum for the payment of court costs or attorney fees. 8 The fact that I have instructed you as to the proper measure of damages should not 9 be construed as suggesting my view as to which party is entitled to prevail in this case. Instructions as to the measure of damages are given for your guidance in the event you 10 find from the evidence in favor of Shaffer. 6 11 12 13 14 15 16 17 18 19 20 21 22
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PROPOSED NON-MODEL INSTRUCTION FOR COUNT 5: LIBERTY INTEREST (42 U.S.C. § 1983)13 Shaffer claims that Connor inappropriately deprived him of a liberty interest by discharging him without providing him with a hearing to dispute stigmatizing statements that had allegedly been published about Shaffer. Before he can receive relief from the claimed deprivation of a liberty interest, Shaffer has the burden of proving all of the following: (1) that he was terminated from employment as a public employee; (2) that charges were publicly disclosed that stigmatize Shaffer by impairing his reputation for honesty, morality, honor, or integrity; (3) that these charges were made in the course of his termination; (4) that the accuracy of the charges were contested by Shaffer; and (5) that Shaffer was refused an opportunity to refute the charge at a hearing that would have provided Shaffer with an opportunity to clear his name.14

Count 4 was deliberately omitted from this pleading.

Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998); Campanelli v. Bockrath, 100 F.3d 1476, 1479, 1482 (9th Cir. 1996); Codd v. Velger, 429 U.S. 624, 21 627 (1997); Board of Regents v. Roth, 408 U.S. 564, 573 (1972). 22
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PROPOSED NON-MODEL INSTRUCTION FOR COUNT 6: FIRST AMENDMENT (42 U.S.C. § 1983)

Shaffer is also requesting relief on his claim that Connor, while acting under color of state law, intentionally deprived Shaffer of his rights under the First Amendment of the 3 Constitution. He alleges that Connor discharged Shaffer from employment because of 15 4 his exercise of the right to free speech. Before Shaffer can prevail on this claim, he must prove by a preponderance of the evidence that: (1) he engaged in speech protected by the First Amendment; (2) Connor 6 took adverse employment action against Shaffer; and (3) Shaffer's speech was a substantial or motivating factor for the adverse employment action.16 7 I, the Judge, must determine whether the speech in question is protected by the 8 First Amendment. The question whether Shaffer's speech is protected by the First Amendment is a question of law and is not a question for you to consider.17 9 I have decided that the Free Speech Clause of the First Amendment protects the 10 following speech in which Shaffer engaged: Shaffer commenting on the Salmon Campaign while he was on administrative leave from the CCEC. 11 You must now determine if Shaffer has proven the remaining elements of this 12 claim. 5 You may determine that Shaffer's protected speech was a substantial or motivating factor in Connor's decision to take action against Shaffer only if it played a 14 substantial part in the decision to take action against him. 13 Connor may have dismissed Shaffer for no reason whatsoever. If so, then Shaffer's protected speech was not a substantial or motivating factor in Connor's 16 decision. 15 17 18 19 20 21 22
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See Federal Jury Practice & Instructions ­ Civil § 168.01.

See Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003); Modern Jury Instructions ­ Civil, Instruction 87-94 & 87-95. See Modern Jury Instructions ­ Civil, Instruction 87-97. Nunez v. Davis, 169 F.3d 1222, 1230 (9th Cir. 1999).

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Connor may have dismissed Shaffer for one sole reason. If that one sole reason was because of Shaffer commenting on the Salmon Campaign while he was on 2 administrative leave from the CCEC, then you must find that Shaffer's protected speech was a substantial or motivating factor in Connor's decision. 3 Connor may have dismissed Shaffer for many different reasons. If so, then you 4 must determine whether one of those reasons was Shaffer commenting on the Salmon Campaign while he was on administrative leave from the CCEC. If it was one of those reasons, then you must determine whether it played a substantial part in the actual 5 decision to terminate Shaffer. If it did not play a substantial part, then you must find that 6 Shaffer's protected speech was not a substantial or motivating factor in Connor's decision.18 7 If you find that Shaffer's protected speech was a substantial or motivating factor in 8 Connor's decision to take action against Shaffer, you must consider whether Connor has presented an adequate defense to Shaffer's claim. 9 Connor presented an adequate defense to Shaffer's claim if Connor has shown, by 10 a preponderance of the evidence, that Connor would have reached the same decision to take action against Shaffer even in the absence of his protected speech. In other words, 11 Connor must have shown by a preponderance of the evidence that she would have made the same decision without considering Shaffer's protected speech.19 12 If Connor had shown by a preponderance of the evidence that she would have 13 reached the same decision without considering Shaffer's protected speech, then you must find in favor of Connor. 14 It is important for you to realize that Connor has not presented an adequate 15 defense if she has shown merely that she had other, valid reasons for taking action against Shaffer. It is a defense only if Connor would have acted on those other reasons in the 16 absence of Shaffer's protected speech. Therefore, if Connor has offered other, valid reasons for taking action against Shaffer, Connor must further have shown that she would 17 have acted on those reasons. Otherwise, she has not presented an adequate defense. 1 18 19 See Modern Jury Instructions ­ Civil, Instruction 87-98; Mount Healthy City Bd. of 20 Educ. v. Doyle, 429 U.S. 274, 286-287 (1977).
19 See Modern Jury Instructions ­ Civil, Instruction 87-99; Doyle, 429 U.S. at 286-287 21 (1977). 18

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PROPOSED NON-MODEL INSTRUCTION FOR COUNT 8: INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS20

Shaffer seeks relief under a claim for intentional interference with an employment contract, a claim he holds the burden of proving.21 3 In order to prevail on this claim, Shaffer must prove (1) the existence of a valid employment agreement; (2) that Connor knew of the agreement; (3) that Connor 5 intentionally interfered with the agreement, causing Shaffer's employer to terminate the agreement; (4) that Connor's conduct was improper; and (5) that Shaffer suffered 22 6 damages as a result. 4 7 8 Plaintiff must show intent by proving that Connor acted with either an intent to interfere or knew with substantial certainty that interference would result.23

In determining whether Connor's actions were "improper," you must consider the following factors:24 9 (a) the nature of Connor's conduct; 10 (b) Connor's motive; 11 (c) the interests of Shaffer with which Connor's conduct interferes; 12 (d) the interests sought to be advanced by Connor; 13 (e) the social interests in protecting the freedom of action of Connor and the 14 contractual interests of Shaffer; 15 16 17 18 19
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(f) and

the proximity or remoteness of Connor's conduct to the interference;

Count 7 was deliberately omitted from this pleading. See RAJI (Civil) 4th, Employment Law Jury Instruction 14.

Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 386-88 (1985); Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 493 (2002). 20 23 Snow v. Western Sav. & Loan Ass'n, 152 Ariz. 27, 34 (1986). 21 24 Wagenseller, 147 Ariz. at 387-388. 22
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(g)

the relations between the parties.

If Shaffer is unable to show the impropriety of Connor's conduct based on an 3 examination of these factors, the conduct is not tortious. 25 4 5 Damages

If you find that Connor improperly interfered with Shaffer's employment 6 agreement, you must then decide the full amount of money that will reasonably and fairly compensate Shaffer for each of the following elements of damages proved by the 7 evidence to have resulted from the interference with the agreement: (1) loss of the benefits of the agreement; (2) emotional suffering sustained by Shaffer; and (3) harm to 8 Shaffer's reputation.26 9 10 11 12 13 14 15 16 17 18 19 20 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

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Id. at 388. RAJI (Civil) 4th, Employment Law Jury Instruction 15.

1 COPY of the foregoing electronically transmitted via the U.S. District Court's 2 Electronic Case Filing system this 26th day of August, 2005 to: 3 Richard J. Harris, Esq. 4 Richard J. Harris Law Offices, P.C. 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 5 Attorney for Plaintiff 6 s/Dawn Sylvester 568-0140/1287161 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
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