Free Objection - 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 hereby submits the following objections to the Defendants' proposed jury instructions filed on August 26, 2005: DAMAGES 9 th Cir. Model 7.3 Mitigation Because RAJI 6 on mitigation in employment cases will be given on state law claims, this unnecessarily complicates the instructions. (This matter was briefed by Plaintiff already) 9 th Cir. Model 7.5 This language is not neutral. Plaintiff's proposed instruction on punitive damages is. CIVIL RIGHTS ACTIONS 9 th Cir. Model 11.3 This is not an instruction, but a comment CV03 2344 PHX FJM PLAINTIFFS OBJECTIONS TO DEFENDANTS' PROPOSED JURY INSTRUCTIONS

Case 2:03-cv-02344-FJM

Document 104

Filed 09/16/2005

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9 th Cir. Model 11.13 Policy Makers This does not apply, it is an instruction to determine whether a defendant (not a plaintiff) is a policy maker such that a municipality can be held liable under § 1983 (see 11.12) NON MODEL INSTRUCTIONS Count II: Wrongful Termination Unnecessarily complicated. Since Colleen Connor was undisputedly the CCEC representative; Shaffer's supervisor; and an employee of a public body with authority to act, there is no need to state the legal definition of the three entities to whom whistleblower reports can be made. See Plaintiff's Proposed instruction 5. Damages: Because there is no evidence of medical care or physical injury, there is no need for those items to be in the damage instruction. Count III: Defamation 1. Unnecessarily complicated. The instructions relating to conditional privilege or other defenses are all overcome by Plaintiff's burden to prove by clear and convincing evidence that Connor acted with actual malice. Therefore, it can only serve to confuse the jury to have them waste time on factual findings which will not advance any defense and will not relieve Plaintiff of his duty to prove actual malice. 2. Misstates the Law. The instruction that Connor's statement was opinion has been rejected by the court. "We reject Defendants' argument that Connor's statements are statements of opinion . . . ." Order p. 12:3-4 3. Misuse of word "Publicized" ­ should be "Published." 4. Misuse of plural for "statements." Plaintiff may prevail on any one or more of Defendants' defamatory statements 5. Misuse of singular for "defendant." The finding on this count should be against both Connor and the CCEC jointly and severally because she was in the course and scope of 2 Case 2:03-cv-02344-FJM Document 104 Filed 09/16/2005 Page 2 of 4

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her employment when she made the statements. 6. Misstates the law by precluding "presumed damages." Liberty Interest 1. Misstates the law by requiring that Connor publicly disclosed her statements. The court has already ruled that merely placing the statement in Shaffer's personnel file would satisfy the "dissemination" requirement. 2. Misstates the law by requiring Shaffer to prove that Connor's statements "did" stigmatize him while the Supreme Court standard is that the statements "might" stigmatize him. 3. Misstates the law. Plaintiff is entitled to a meaningful name clearing hearing. The court already referenced this standard in its order denying Connor summary judgment on this claim. First Amendment 1. Misstates the finding of the court. The court has found that the following speech from Shaffer would be of public concern: (a) about unequal treatment of the Salmon campaign; (b) the improper political nature of the attack on Salmon; and (c) that Connor had engaged in an improper meeting with Jessica Funkhouser. improper conduct at the CCEC is of public concern."). 2. Ignores that Shaffer may have a claim under the First Amendment merely for Connor's demand that he not speak to the media about a matter which the court has already held to have been of public concern. CONCLUSION Generally, all of Defendants' jury instructions are slanted and not written neutrally as the court instructed. Plaintiff urges that rather than using defendants instructions, the court accept Plaintiff's instructions on file with the court. /// 3 Case 2:03-cv-02344-FJM Document 104 Filed 09/16/2005 Page 3 of 4 ("Speech about allegedly

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SUBM ITTED this September 16, 2005 R ICHARD J. H ARRIS L AW O FFICES, P.C.

By: s/Richard J. Harris Richard J. Harris 4445 E. Holmes Ave., Suite 106 Mesa, AZ 85206 Copy of the foregoing electronically transmitted via the U.S. District Court's Electronic Case Filing System this September 16, 2005 and to: Jay Zweig Melissa Berrens Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants

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Shaffer\pleadings\Objections to Defendants' Jury Instructions

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