Free Memorandum - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorney for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., Defendants. Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright, submit this Trial Memorandum of Law as follows: I. FACTUAL STATEMENT On October 30, 2002, an inspection was conducted on Plaintiff's property to ensure compliance with La Paz County Zoning and Planning ordinances pursuant to an administrative search warrant. Due to numerous health and safety violations, a "Notice and Order for Abatement" was prepared on November 5, 2002. This Order stated: "The County finds conditions that are hazardous to the life safety of the residents living on the site. The County has concluded that the hazards are considerable and that immediate LA PAZ COUNTY DEFENDANTS' TRIAL MEMORANDUM OF LAW CV 03-2214-PHX SRB

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action must be taken to prevent any injury to residents or visitors." In addition, "Due to the nature and scope of the electrical problems, the County is forced to take action by instructing the local utility company, Arizona Public Service ("APS"), to cut power to the site. This is done in the interest of public safety." Plaintiff received a copy of the Abatement Order on or around November 12, 2002. Also on November 12, 2002, the electrical service to Plaintiff's property was terminated by APS pursuant to Section 14, Article 2-211(B) of the Arizona Administrative Code.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 health and safety hazard to the public. If so, Plaintiff was not entitled to due process
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Since November 12, 2002, La Paz County has attempted to work with Plaintiff in complying with the County ordinances. First, on November 26, 2002, the Defendants provided Plaintiff with an Abatement Order Compliance Agreement. Plaintiff, however, refused to sign the agreement. Second, La Paz County conducted an inspection of the Plaintiff's property on January 13, 2005, and found numerous outstanding violations. After the inspection, La Paz County developed an updated checklist of items that Plaintiff needed to repair on the property in order to have the electrical service "green tagged" by La Paz County. Because Plaintiff has failed to cure the outstanding violations on the property, electrical service has not yet been restored. II. LEGAL ANALYSIS Pursuant to the Court's April 27, 2006 Order, there remains one issue to be determined by the jury in this matter related to the La Paz County Defendants: Whether the La Paz County Defendants believed that the conditions on Plaintiff's property posed a

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before La Paz County recommended termination of his electrical service to APS pursuant to Article 2-211(B) of the Arizona Administrative Code. Defendants provide the following legal analysis regarding this issue. A. Plaintiff was Not Entitled to Due Process Because of Health and Safety Hazards on his Property. Due process generally requires notice and an opportunity to be heard prior to the deprivation of a protected property interest. See, e.g. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Due process is a flexible concept and "calls for such procedural protections as the particular situation demands." Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). As noted in Gilbert, "where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the due process clause." Id. at 930. See also FDIC v. Mallen, 486 U.S. 230, 240 (1988) (when there is an "important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted," there may be justification in delaying "the opportunity to be heard until after the initial deprivation.") Generally, no pre-deprivation process is legally due when government officials have reasonable grounds to believe that there is an immediate jeopardy to public safety. See Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333 (5th Cir. 2002) (en banc). In Patel, two incidents regarding medical care provided by Dr. Patel caught the attention of the hospital's medical executive committee. After the committee

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convened regarding these incidents, it was determined that due to safety concerns, Dr. Patel's non-cardiac peripheral privileges would be revoked. At the request of Dr. Patel, a post-suspension hearing was subsequently convened so that additional review of Dr. Patel's medical practice could be evaluated. Id. at 338. After the hearing, Dr. Patel's medical privileges were restored, although the hearing officers found that the suspension of medical privileges was reasonable under the circumstances at the time. Dr. Patel subsequently filed suit alleging, among other things,

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 believed that Dr. Caine posed a danger to his patients, he was suspended without having a formal hearing. The Court in Caine held that "where the safety of the public is at risk, an
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a violation of his due process rights under 42 U.S.C. § 1983. The Court in Patel stated that the key question in due process cases is whether there were "reasonable grounds" at the time of the termination of a specific right (in Patel's case, his medical privileges). In other words, if there was a danger to the safety of the public, termination of a right must be reasonable under the circumstances at that time. Id at 341. Patel held that "[b]ecause, under the particular circumstances of this case, prompt action was necessary to secure patient safety, we conclude that Dr. Patel received all the pre-suspension process he was constitutionally due. Id. Similarly, in Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991), the Court considered what pre-suspension process was due to an anesthesiologist working at a public hospital. In Caine, Dr. Caine was suspended after the hospital determined that there were severe medical deficiencies in his performance of duties. Because the hospital

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adequate post-suspension remedy satisfies the requirements of due process." Id. at 1412. Finally, in Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997), a father brought a claim under 42 U.S.C. § 1983 after his children were removed from his custody without prior notice or a hearing by CPS and a police officer. The Court stated that, [N]ormally, notice and a hearing are required before the children can be removed, even temporarily, from the custody of their parents. A state official cannot remove children from their parents unless the official has a reasonable belief that the children are in imminent danger. An indictment or serious allegations of abuse which are investigated and corroborated usually gives rise to a reasonable inference of imminent danger sufficient to justify taking children into temporary custody. Id. at 1311. See also Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989) ("reversing district court's denial of summary judgment where children were taken into protective custody two days after allegations of abuse and an investigation yielded evidence of abuse.") In this case, the evidence will clearly show that there were significant health and safety hazards on Plaintiff's property in November of 2002. In fact, over thirty-five violations of the electrical and other applicable laws were noted in the inspection report prepared in November of 2002. As a result of the dangerous conditions, and because of the significant threat to public safety, Defendants were thus authorized to recommend termination of Plaintiff's electrical service to APS. Further, Defendants provided Plaintiff with post-deprivation process by preparing the Abatement Order Compliance Agreement, which Plaintiff has refused to sign.

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B.

La Paz County Does Not Have Authority to Terminate Electrical Service.

The Arizona Constitution vests power in the Arizona Corporation Commission ("ACC") to regulate public service corporations, like APS. See Ariz. Const. Art. 15, § 3; A.R.S. § 40-202(B) (authorizing the ACC to "[e]stablish reasonable requirements for ... regulating electricity suppliers that are public service corporations.") The ACC also has rules concerning circumstances where public service corporations can terminate electrical power. See Ariz. Admin. Code, Art. 2, R14-2-201, et. seq. As a result of these rules, the power to terminate electrical service reside with the public service corporation, APS. Thus, La Paz County did not have authority to terminate electrical service to Plaintiff's property. III. CONCLUSION The trial of this matter should be simple and straightforward. Testimony concerning the safety and health hazards on Plaintiff's property should be considered. Those witnesses will describe what they saw, and the jury can then apply the standards outlined in Patel, Caine, and Ram to those facts. Plaintiff seeks to muddy the waters and confuse these simple issues and the jury. Plaintiff's attempts at obfuscation should be thwarted by the Court.

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DATED this 23rd day of May, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY s/ Jennifer Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, La Paz County, Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright COPY of the foregoing mailed (certified copy) this even date to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorney for Co-Defendants s/ Jennifer Holsman

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