Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Richard J. Harris #013859 Richard J. Harris Law Offices, P.C. 4445 East Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 (480) 854-3500 Fax (480) 654-3669 David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, vs. State of Arizona Citizens Clean Election Commission; Colleen Conner and Chad Jacobs, husband and wife; Defendants. Plaintiff Matthew Shaffer hereby responds to defendants' Motion for Judgment as a Matter of Law regarding punitive damages. The Court should deny the motion. Defendants argue that there is insufficient evidence to support a punitive damages claim in plaintiff's claims pursuant to 42 U.S.C. § 1983 for violation of his first amendment constitutional right to freedom of speech and retaliation against him for exercising his free speech rights and for depriving him of his 14th Amendment liberty interest without due process. In each case, whether punitive damages are recoverable in a 42 U.S.C. § 1983 case is a factual question dependent upon defendant Colleen Connor's state of mind, i.e., generally whether she acted with an evil motive or with reckless indifference in violating or depriving plaintiff of his rights. The Court has denied defendant's motion for judgment as a matter of law on the underlying § 1983 claims on the grounds that there is sufficient evidence that a reasonable juror could find that Colleen Connor violated plaintiff's right to No. CIV 03-2344-PHX-FJM PLAINTIFF'S RESPONSE TO DEFENDANT COLLEEN CONNOR'S MOTION FOR JUDGMENT AS A MATTER OF LAW REGARDING PUNITIVE DAMAGES

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freedom of speech and deprived him of his liberty interest without due process. As such, whether punitive damages is appropriate on these claims depends upon whether the evidence also is sufficient for the jury to also find that Colleen Connor violated his rights with evil motive or intent or acted with reckless or callous indifference to those rights. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983)("A jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.") Thus, whether punitive damages are assessable is a matter of defendant's Connor's state of mind when she committed the acts that the jury finds to violate Shaffer's constitutional rights. "State of mind is generally a jury question and juries are free to make any inferences supported by the evidence." Lichtenstein v. Kidder, Peabody & Co., 777 F.Supp. 423, 427 (W.D. Pa.1991); Raisdana v. City of Wichita, 1993 WL 302233, *12 (D.Kan.) (D.Kan.,1993) ( "Because the necessary element of establishing punitive damages is premised upon a state of mind, the issue is a jury question."). Here, at a minimum, there is sufficient evidence from which the jury could infer both evil motive or intent and reckless or callous indifference, for example: 1. Timing shows ill will or spite. Shaffer was stigmatized with false allegations

for felony fraudulent scheme without due process in violation of his liberty interest only two business days after he exercised his First Amendment rights to report improper conduct to the media. His statements were reported on Friday, Sept. 6, 2002, he was reported to DPS on Tuesday, Sept. 10, 2002. Colleen Connor testified that she knew that anything she wrote became public document. She could not articulate any facts upon which her allegation of felony fraudulent scheme was based. The jury could easily infer, at a minimum, reckless disregard of Shaffer's liberty interest in his good name by alleging felony fraud without any factual basis. The jury could also infer evil intent if it believes that Connor was using Shaffer as a scapegoat to divert attention and focus from her own failures. Ciechon v. City of

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Chicago, 686 F.2d 511, 524 (7th Cir.1982)(Scapegoating is an improper motive for a public official, i.e. "scapegoating is not a legitimate tactic of public officials any more than stealing is.") 2. Complete indifference to plaintiff's rights. Connor did not care that Shaffer

requested a meaningful opportunity to clear his name. He made the request on Sept. 12, 2002, but was not given a name clearing hearing. He informed the CCEC that he had a right to such a hearing in his notice of claim letter. Still Connor gave Shaffer no such opportunity to a meaningful name-clearing hearing. Connor testified that she was a lawyer who was trained in both First Amendment law and in 14th Amendment law. A jury could conclude that she flouted the law she had been trained in. 3. Evidence that Connor had no reasonable basis in fact for her stigmatizing false

statements to DPS shows reckless indifference to Shaffer's liberty interest. 4. Connor's inability to articulate a legitimate non-retaliatory reason for

terminating Shaffer is evidence from which the jury could infer that her reason was retaliatory and therefore, further supports an inference of evil motive or reason. 5. The disparate treatment of similarly situated employee Hecksel who was not

terminated or even disciplined when she gave Connor false information, $484,000 Salmon campaign violations, supports an inference of ill-will or spite and evil motive. 6. Connor's express prohibition of Shaffer speaking to the media on a matter of

great public concern shows open hostility to Shaffer's first amendment right.

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For all of the foregoing reasons, the Court should deny the motion for judgment as a matter of law regarding punitive damages and allow the jury to make the determination of whether the evidence is sufficient to support a claim for punitive damages on plaintiff's § 1983 claims. Dated this 20th day of September, 2005. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin Attorney for Plaintiff AND Richard J. Harris RICHARD J. HARRIS LAW OFFICES, P.C. Attorney for Plaintiff

Electronic notice and service of documents provided to: Jay A. Zweig, Esq. Melissa R. Berren, Esq. Gallagher & Kennedy, P.A. 2575 East Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants /s David C. Larkin

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