Free Motion for Judgment - 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' MOTION FOR JUDGMENT AS A MATTER 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, husband 13 and wife; John Does I-X; Jane Does I-X, 14 15 16 17 18 19 20 21 22 Defendants. Pursuant to Fed. R. Civ. P. 50, defendants CCEC, Colleen Connor and Chad Jacobs move this Court for an order entering judgment in their favor as a matter of law on plaintiff's claims against defendants. Plaintiff has been fully heard on all of his issues, and there is no legally sufficient basis for a reasonable jury to find for plaintiff on any of those issues. See McSherry v. City of Long Beach, CV-02-03767-RGK (9th Cir. Sept. 8, 2005); Echeverria v. Chevron USA Inc., 391 F.3d 607, 611-12 (5th Cir. 2004) (cited in McSherry for proposition that party has been fully heard once he has submitted all his
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1 evidence and closed his case). Because plaintiff has not carried his burden of proof on 2 any of his claims against defendants, judgment for defendants as a matter of law is 3 proper. Id.; Fed. R. Civ. P. 50. This Motion is supported by the following Memorandum 4 of Points and Authorities and this Court's record on file and at trial. 5 6 7 8 9 10 11 12 13 14 15 I. RESPECTFULLY SUBMITTED this 20th day of September, 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

MEMORANDUM OF POINTS AND AUTHORITIES SECTION 1983 FIRST AMENDMENT CLAIM AGAINST CONNOR. A. Plaintiff's First Amendment Claim Is Barred As A Matter Of Law Because Plaintiff Failed To Include It In His Notice Of Claims.

Plaintiff did not provide defendants with the statutorily required notice of a First

16 Amendment claim in his pre-suit Notice of Claims, dated March 25, 2003. A.R.S. § 1217 821.01(A) provides that: 18 19 20 21 22
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Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the

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public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon. A.R.S. § 12-821.01(A) (emphasis added). Plaintiff's Notice of Claims is Exhibit 39, in evidence. Because plaintiff failed to file a notice of claim of his First Amendment claim within 180 days after that cause of action accrued, plaintiff's First Amendment claim is barred as a matter of law. Id.; State v. Brooks, 23 Ariz. App. 463, 466, 534 P.2d 271, 274 (App. 1975) (remanding case to trial court for dismissal because claim was "obviously defective" in that it did not contain sufficient information to allow state to fully investigate potential validity of all claims), superseded on different grounds by Creasy v. Coxon, 156 Ariz. 145, 750 P.2d 903 (1987) (superseding Brooks on ground that notice of claim need not be served in same manner as civil summons and complaint). Plaintiff's Notice of Claims asserted a specific list of claims and the alleged factual support for each claim the plaintiff threatened against defendants. Notably and fatally absent from plaintiff's Notice of Claims was any mention of a First Amendment claim. This Court should enter judgment as a matter of law dismissing plaintiff's § 1983 First Amendment claim.

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B.

Plaintiff's First Amendment Claim Should Also Be Dismissed As A Matter Of Law Because Plaintiff Is A Policymaker.

Even if plaintiff had complied with Arizona law and provided a pre-suit notice of a First Amendment claim, there is no factual basis to support such a claim.1 Plaintiff's allegations include his theory that his First Amendment rights were violated because Connor instructed him not to talk with the media about the Salmon Campaign and that, when he did speak with the media, Connor fired plaintiff in retaliation for that speech. But the law is that if plaintiff was a policymaker when he was Deputy Director of the CCEC in 2002, that is directly relevant to plaintiff's First Amendment claim because, where political affiliation is a "legitimate matter to be considered" (as it is in employment with the strictly nonpartisan CCEC), "an employee's status as a policymaking or confidential employee would be dispositive of any First Amendment retaliation claim." Hobler v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003); Biggs v. Best, Best & Krieger, 189 F.3d 989, 994-95 (9th Cir. 1999).2 The Ninth Circuit noted in Biggs that the factors relevant to whether a person is a policymaker are "whether the plaintiff has vague or broad responsibilities, in addition to the plaintiff's relative pay, technical competence, power to control others, authority to speak in the names of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders." Biggs See Connor's Amended Motion for Summary Judgment at pages 9-12.

Defendants incorporate their Memorandum of Law re Applicability of Policymaker Doctrine to Whistleblower Claim, filed on September 7, 2005.
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1 v. Best, Best & Krieger, 189 F.3d 989, 995 (9th Cir. 1999). The evidence has shown that 2 these factors were part of plaintiff's job as Deputy Director of the CCEC. 3 The jury has heard evidence establishing that the plaintiff's job as CCEC Deputy

4 Director required technical skill and required plaintiff to be responsive to partisan politics 5 and political leaders. And on cross-examination, plaintiff admitted that his job 6 responsibilities included the factors listed in Biggs, establishing plaintiff as a 7 policymaker. Plaintiff testified that his job description contained broad responsibilities. 8 See Reporter's Excerpted Transcript of Proceedings, Cross-Examination of Matthew 9 Shaffer, dated September 14 and 15, 2005 ("Shaffer Cross-Examination"), attached as 10 Exhibit "A", at p. 15, ll. 2-4. Plaintiff testified that, relative to others at the CCEC, he 11 was highly compensated. See Exhibit A at p. 15, ll. 7-9. Acknowledging that he 12 supervised and assigned work to others at the CCEC, any reasonable jury would also 13 understand that plaintiff had the power to control others at the CCEC. See Exhibit A at 14 p. 15, ll. 10-23. Plaintiff testified that he influenced programs at the CCEC. See, e.g., 15 Exhibit A at p. 15, l. 24 ­ p. 16, l. 6. And plaintiff further testified that he had contact 16 and interfaced with elected officials. See Exhibit A at p. 16, ll. 14-20. 17 Even if the Court were not compelled to dismiss plaintiff's First Amendment

18 claim because plaintiff failed to include it in his Notice of Claims, this Court should enter 19 judgment as a matter of law in defendants' favor on plaintiff's First Amendment claim 20 because plaintiff was a policymaker, which barred his First Amendment claim as a matter 21 of law. 22
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PLAINTIFF'S SECTION 1983 LIBERTY INTEREST CLAIM AGAINST CONNOR ALSO FAILS. Judgment as a matter of law is also proper on plaintiff's § 1983 liberty interest

claim against Connor because plaintiff was provided an adequate opportunity to clear his name in connection with the termination of his at-will employment. "[T]he fundamental requirement of due process is an opportunity to be heard at a meaningful time and in a meaningful manner." Brady v. Gebbie, 859 F.2d 1543, 1547-48 (9th Cir. 1988). A name-clearing hearing "need only provide an opportunity to clear one's name and need not comply with formal procedures to be valid." Gregory v. Hunt, 24 F.3d 781, 789 (6th Cir. 1994). This Court has advised that a name-clearing hearing occurs at a meaningful time when it occurs after the last allegedly offending action. See August 23, 2005 Order at p. 4. As a matter of law, plaintiff's October 8, 2002 presentation to the CCEC in defense of himself suffices as a name-clearing hearing. Exhibit 87, admitted in evidence, begins by plaintiff telling the CCEC and the public, including media, that he was speaking to tell his "side of the story." This final opportunity for plaintiff to clear his name, after plaintiff declined an earlier opportunity to appear publicly before the CCEC, occurred on October 8, 2002, one week after his employment was terminated and approximately one month after Connor published the allegedly defamatory memorandum to DPS. Plaintiff had also been given notice of the charges against him verbally by Connor on August 27, 2002, and in an email from her later that same day. See Exhibit 5,

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1 admitted in evidence. Plaintiff received earlier opportunities to clear his name on 2 September 4 and 9, 2002. See Exhibits 6, 14 and 17, admitted in evidence. 3 Plaintiff's testimony on cross-examination confirmed that he had been given

4 notice of all the charges against him and that he had already retained his attorney before 5 making his October 8, 2002 presentation to the CCEC. See Exhibit A at p. 23, l. 23 ­ 6 p. 24, l. 20. And, as exactly stated in his October 8, 2002 CCEC public speech, and as 7 plaintiff testified on cross-examination, plaintiff viewed the October 8, 2002 presentation 8 as an opportunity to tell his side of the story. See Exhibit A at p. 23, ll. 8-22. Because 9 plaintiff was given notice of all the charges against him and a meaningful opportunity to 10 clear his name, there is no legally sufficient evidentiary basis for a reasonable jury to find 11 for plaintiff on plaintiff's § 1983 liberty interest claim against Colleen Connor. 12 Accordingly, defendants respectfully request that the Court enter judgment as a matter of 13 law in their favor on plaintiff's § 1983 liberty interest claim. 14 III. 15 16 17 18 19 20 21 22
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PLAINTIFF HAS FAILED TO SUSTAIN HIS WHISTLEBLOWER CLAIM AGAINST CONNOR AND THE CCEC. A reasonable jury could only conclude that plaintiff has presented no evidence that

he was terminated in retaliation for protected whistleblower activity.3 Plaintiff presented no specific evidence as to when he made whistleblower statements to Ms. Connor, except to say generally on direct examination that he made them "some time" before August 27, 2002. Plaintiff presented the jury with no evidence sufficient to allow a reasonable jury

See also CCEC's Reply in Support of Motion for Summary Judgment at pages 2-8. 7Filed 09/20/2005
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1 to conclude that it is true that he blew the whistle before August 27, 2002. Plaintiff even 2 presented the jury with some information that makes it impossible for a reasonable jury to 3 conclude that plaintiff engaged in any protected activity. For example, plaintiff testified 4 that he believed, on August 27, 2002, that Jessica Funkhouser was violating the law by 5 talking with Connor after Ms. Funkhouser had recused herself from a portion of the 6 Salmon matter. But no reasonable jury could reconcile how plaintiff could have 7 informed Ms. Connor of this alleged legal violation before August 27, 2002, if the first 8 time plaintiff learned of it was on August 27, 2002. 9 Given the dearth of evidence presented by plaintiff, no reasonable jury could find

10 that plaintiff was terminated in retaliation for being a whistleblower. As a matter of law, 11 plaintiff has not proven his claims under A.R.S. § 23-1501(c). Accordingly, defendants 12 request that the Court enter judgment as a matter of law in their favor on plaintiff's 13 whistleblower claim. 14 IV. 15 16 17 18 19 20 21 22
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PLAINTIFF'S DEFAMATION CLAIM AGAINST CONNOR AND THE CCEC SHOULD BE DISMISSED. Plaintiff has admitted that he was a public figure as Deputy Director of the CCEC.

He testified that he voluntarily spoke to the media numerous times about a highly publicized political matter, thus injecting himself into the public eye. To succeed on his defamation claim, the jury must find that plaintiff has proven, by clear and convincing evidence, that Connor acted with actual malice, "knowledge that [her statement] was false or with reckless disregard of whether it was false or not." Currier v. Western

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4 1 Newspapers, 175 Ariz. 290, 292, 855 P.2d 1351, 1353 (1993). No reasonable jury

2 would conclude that plaintiff has met his burden of showing actual malice by Connor in 3 sending the September 10, 2002 memorandum to the Arizona Department of Public 4 Safety. 5 Plaintiff has only contested the truth of the last paragraph of the memorandum to

6 DPS, in which Connor wrote to DPS about what statutes Connor "believed" plaintiff had 7 violated. Plaintiff has no, let alone any clear and convincing evidence that Connor wrote 8 that paragraph with actual malice. Further, a reasonable jury could conclude nothing 9 other than that the statements in this ("I believe") paragraph revealed Connor's opinions. 10 A defamation case cannot stand when an author's conclusions about statutory violations 11 are nothing more than opinion. Buchholtz v. Dugan, 977 S.W.2d 24 (Ken. App. 1998). 12 Instead, based on the evidence presented by plaintiff, a reasonable jury could

13 conclude only that Connor had a reasonable belief that the information she had about 14 plaintiff effected "a sufficiently important public interest" and that "the public interest 15 requires the communication of the defamatory matter to a public officer or a private 16 citizen who is authorized or privileged to take action if the defamatory matter is true." 17 Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d 668, 673 (App. 1993). Therefore, a 18 reasonable jury would conclude that Connor's memo to DPS was privileged because the 19 memorandum addressed the CCEC's concerns about plaintiff's failure to perform his 20
4 See also CCEC's Reply in Support of Motion for Summary Judgment at pages 8-12; 21 Connor's Amended Motion for Summary Judgment at pages 14-15;

22
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1 duties as a State agent under the law. Id. Accordingly, defendants request that the Court 2 enter judgment as a matter of law in their favor on plaintiff's defamation claim against 3 them. 4 V. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
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INTENTIONAL INTERFERENCE WITH CONTRACT CLAIM AGAINST CONNOR. No reasonable jury could conclude that plaintiff presented evidence at trial that

Connor acted wrongfully or improperly. Plaintiff has presented no evidence that Connor did not act in good faith or reasonably. See Kelley v. City of Mesa, 873 F. Supp. 330, 333 (D. Ariz. 1994); Carroll v. Robinson, 178 Ariz. 453, 456, 874 P.2d 1010, 1013 (App. 1994).5 Therefore, defendants request that the Court enter judgment as a matter of law in favor of Colleen Connor and Chad Jacobs on plaintiff's claim that Connor intentionally interfered with plaintiff's employment with the CCEC. VI. PUNITIVE DAMAGES CLAIMS AGAINST CONNOR. Plaintiff has sought punitive damages on his § 1983 liberty interest and First Amendment claims against Colleen Connor and Chad Jacobs. Punitive damages are not supported in plaintiff's § 1983 First Amendment or liberty interest claims against Connor because there is no evidence that Connor had evil motive or intent, or that she was recklessly indifferent to plaintiff's rights. And no reasonable jury could conclude that Connor acted with such evil motive or intent or reckless indifference. Smith v. Wade, 461 U.S. 30, 56 (1983). See also Connor's Amended Motion for Summary Judgment at page 15-16; Funkhouser's Motion for Summary Judgment at pages 9-11.

1

Because there is no legally sufficient evidentiary basis for a reasonable jury to

2 award punitive damages against Colleen Connor, defendants respectfully request that this 3 Court enter judgment as a matter of law denying plaintiff's claims for punitive damages 4 against Colleen Connor and Chad Jacobs. 5 For these reasons, defendants request that this Court enter judgment as a matter of

6 law in their favor on all of plaintiff's claims. 7 8 9 10 11 12 RESPECTFULLY SUBMITTED this 20th day of September, 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 13 transmitted via the U.S. District Court Electronic Case Filing system and hand-delivered 14 this 20th day of September, 2005 to: 15 Richard J. Harris, Esq. Richard J. Harris Law Offices, P.C. 16 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 17 Co-Counsel for Plaintiff 18 David C. Larkin, Esq. David C. Larkin, P.C. 19 4645 S. Lakeshore Drive, Suite 6 Tempe, Arizona 85282-3747 20 Co-Counsel for Plaintiff 21 22
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568-0140/1298932

s/Dawn Sylvester