Galassini v. Fountain Hills, Town of et al

Filing 134

FINAL PRETRIAL ORDER. Signed by Senior Judge James A Teilborg on 6/4/2014. (TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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)
DINA GALASSINI,
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Plaintiff,
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v.
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TOWN OF FOUNTAIN
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HILLS, ARIZONA;
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Defendant,
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and
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STATE OF ARIZONA,
Intervenor-Defendant.
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___________________________________ )

CV-11-02097-PHX-JAT

FINAL PRETRIAL
ORDER

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The following is the joint Final Pretrial Order considered at the Final Pretrial
Conference on June 4, 2014.
A.

COUNSEL FOR THE PARTIES

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Plaintiff:
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Paul V. Avelar
Timothy D. Keller
Institute for Justice
398 South Mill Avenue, Ste. 301
Tempe, AZ 85281
Email: [e-mail]
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Email: [e-mail]
Phone: [phone]
Fax: [phone]

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Defendant:

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Jeffrey Thomas Murray
Kristin Marie Mackin
Sims Murray Limited
2020 N Central Ave., Ste. 670
Phoenix, AZ 85004
Email: [e-mail]
Email: [e-mail]
Phone: [phone]
Fax: [phone]

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Intervenor-Defendant:1

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Diana Day
Paula S Bickett
Todd Mitchell Allison
Office of the Attorney General
1275 W Washington St.
Phoenix, AZ 85007-2926
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Phone: [phone]
Fax: [phone]

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B.

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STATEMENT OF JURISDICTION
1.

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Jurisdiction in this case is based on a federal question under 28

U.S.C. § 1331.

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2.

Jurisdiction is not disputed.

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The Intervenor Defendant asserts that based on the Court’s previous orders, the issues for trial are between
Plaintiff and the Town only. The State’s interest in this litigation is solely in the constitutionality of the statute,
which the Court has already decided. Therefore, the State has not listed any witnesses or exhibits in this Joint
Pretrial Statement. As a party to the case, however, the State reserves its rights to participate in the trial, including
argument, questioning of witnesses, and asserting objections as appropriate.
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C.

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1.

The following facts are admitted by the parties and require no

proof:

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STIPULATIONS AND UNCONTESTED FACTS AND LAW

In 2011, the Town of Fountain Hills, Arizona, placed on the November
2011 ballot a bond issue to pay for road reconstruction.

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On October 6, 2011, Plaintiff Dina Galassini sent an email to 23 friends

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and neighbors explaining why people should oppose the bond. Ms. Galassini called on

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the email recipients to make their own signs opposing the bond—the signs were to say

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things like “Vote No on the Bond, “Bonds are BONDAGE,” etc.—and join her at one or

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both of two planned protest rallies in the Town.
Paul Mood, the Development Services Director for the Town of Fountain

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Hills received Ms. Galassini’s email through a consultant who was working on the plans
for the road maintenance for the Town. Mr. Mood sent Ms. Galassini’s email to Julie

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Ghetti, then Interim Town Manager for Fountain Hills, and Andrew McGuire, the

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Fountain Hills Town Attorney. Ms. Galassini’s email was in turn forwarded to Bevelyn

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Bender, Fountain Hills Town Clerk and election official, by Ms. Ghetti.

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After receiving Ms. Galassini’s email, Ms. Bender and Ms. Ghetti

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consulted with the Town Attorney and decided that Ms. Bender would write a letter to

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Ms. Galassini. On or about October 12, 2011, Ms. Bender sent a letter to Ms. Galassini.

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It stated:

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A recent email was brought to my attention that called for
organized action by numerous individuals regarding the November 8,
2011 Bond Election.
Although an individual acting alone is not a political committee
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under Arizona law and need not file a statement of organization, if any
additional person or persons join the effort (as defined in A.R.S. §16901(19) - see below) begun by an individual, the association of persons
has become a “political committee” under Arizona law, and must file a
statement of organization before accepting contributions, making
expenditures, distributing literature or circulating petitions.
Please be advised that according to State Statutes, as specifically
outlined in Title 16, one or more persons working to impact the results of
an election are considered to be a Political Action Committee (PAC)
subject to all of the requirements associated with a PAC. In order to
comply with the law a Statement of Organization must be filed in the
office of the Town Clerk prior to any electioneering taking place. I would
strongly encourage you to cease any campaign related activities until the
requirements of the law have been met.
As this Court found and determined in its decision, this letter was not an

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enforcement of Arizona’s campaign finance laws, but was a threatened enforcement of
the statutory scheme.

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2.

The following facts although not admitted, will not be contested at

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trial by evidence to the contrary:
Upon receiving the letter on October 13, 2011, Ms. Galassini testified that

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she became scared of breaking the law and decided to cancel her two protest rallies.

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3.

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parties:

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The following issues of law are uncontested and stipulated to by the

State law designates the Town Clerk as the filing officer and Town
Attorney as enforcer of the State’s campaign finance statutes in Town elections. A.R.S.

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§ 16-924(A).

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According to this Court’s prior decision, Arizona’s definition of “political

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committee,” A.R.S. § 16-901(19), is unconstitutionally vague and overbroad. (The

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State and the Town take no position on this previous finding by the Court for purposes

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of trial.)

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According to this Court’s prior decision, Arizona’s campaign finance

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laws, A.R.S. § 16-901 et seq., imposed on small groups that seek to combine to

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influence the results of an election are not substantially related to the State’s disclosure

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interest. (The State and the Town take no position on this previous finding by the Court

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for purposes of trial.)

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“[A] local government may not be sued under § 1983 for an injury

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inflicted solely by its employees or agents. Instead, it is when execution of a

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government’s policy or custom, whether made by its lawmakers or by those whose

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edicts or acts may fairly be said to represent official policy, inflicts the injury that the

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government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978).

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“[A] municipality can be liable for an isolated constitutional violation
when the person causing the violation has ‘final policymaking authority.’ Whether an

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official has policymaking authority is a question for the court to decide based on state

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law.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (internal quotation marks

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and citations omitted).

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D.

CONTESTED ISSUES OF FACT AND LAW

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1.

The following are the issues of fact to be tried and decided:

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Issue # 1: Whether the Town of Fountain Hills has a policy of applying
state statutes regardless of their constitutionality.
Plaintiff Contends: The Town’s Clerk, Interim Town Manager, and Town
Attorney made a conscious decision to threaten to apply or threaten to apply Arizona’s
campaign finance statutes to Plaintiff without regard to the constitutionality of those

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laws. Moreover, Arizona campaign finance statutes are so vague and complicated that

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they permit (intentionally or not) local variation, and the Town thus had to form local

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policies and customs in enforcing those laws.

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Defendant Contends: The Town does not have a policy of applying state

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statutes regardless of their constitutionality. In this case in particular, the Town made

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no conscious decision to apply a state statute regardless of its constitutionality because

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the Town made no decision to apply state statute against Ms. Galassini at all. This

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Court has already determined that there was no enforcement action by the Town and

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against the Plaintiff of Arizona’s Campaign Finance laws. In fact, there is no evidence

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of any policy of the Town – whether it be a longstanding Town policy or one made by

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an individual policymaker – to apply or threaten to apply Arizona’s campaign finance

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statutes to Plaintiff without regard to the constitutionality of those laws. In fact, the

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only testimony on the subject is that the Town had never before sent a letter like the one
sent to Ms. Galassini and that the Town Clerk would never again send such a letter.

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2.

The following are the issues of law to be tried and determined:

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Issue # 1: Whether the Town of Fountain Hills is liable under Monell v.

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Department of Social Services, 436 U.S. 658 (1978), for sending the October 12, 2011

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letter to Ms. Galassini.

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Plaintiff Contends: Because the Town’s officers made a conscious
decision to apply Arizona’s campaign finance laws against Ms. Galassini, without
regard to their constitutionality, the Town of Fountain Hills is liable under Monell v.

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Department of Social Services, 436 U.S. 658 (1978), for the harm to Plaintiffs’ First
Amendment rights.

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Defendant Contends: That this Court has already determined that the
Town did not enforce Arizona’s Campaign Finance Laws against the Plaintiff. Again,

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no one at the Town made a conscious decision by anyone to apply Arizona’s campaign

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finance laws to Ms. Galassini. After consultation with the Town Attorney, the Town

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Clerk sent a letter to inform Ms. Galassini of the existence of certain potentially

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applicable statutes. Under state law, neither the Town Clerk nor the Town Attorney is a

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policymaker with respect to campaign finance laws and thus, the decision to send the

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letter does not subject the Town to liability under Monell. There is also no evidence that

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the Town has a custom, practice or policy of enforcing state statutes without regard to

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their constitutionality and therefore, the Town is not subject to liability under Monell.

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E.

LIST OF WITNESSES
1.

Plaintiff:
Witnesses who shall be called at trial

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Bevelyn Bender

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Town Clerk, Town of Fountain Hills

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Town of Fountain Hills

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16705 E. Avenue of the Fountains

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Fountain Hills, AZ 85268

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Fact Witness – Ms. Bender is the Town Clerk and “filing officer” for the Town

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and will testify that the decision to send the letter of October 12, 2011, sent from Ms.

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Bender to Plaintiff, was made after consultation between herself, the Town Attorney

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(Andrew McGuire), and the then Interim Town Manager (Julie Ghetti). Ms. Bender will

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further testify that the Town’s policy when enforcing campaign finance laws is to abide

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by Arizona statutory law as written without further consideration of the constitutionality
of those laws.

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Andrew McGuire

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Town Attorney, Town of Fountain Hills

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Town of Fountain Hills

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16705 E. Avenue of the Fountains

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Fountain Hills, AZ 85268

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Fact Witness – Mr. McGuire is the Town Attorney and will testify that that the

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decision to send the letter of October 12, 2011, sent from the Town Clerk to Plaintiff,

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was made after a brief consultation between himself, the Town Clerk (Bevelyn Bender),

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and the then Interim Town Manager (Julie Ghetti). Mr. McGuire will further testify that

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the Town’s policy is to abide by Arizona statutory law as written when enforcing

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campaign finance laws without making an independent determination of the

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constitutionality of those laws.

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Witnesses who may be called at trial

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Witnesses who are unlikely to be called at trial

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Julie Ghetti
Deputy Town Manager/Finance Director, Town of Fountain Hills

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Town of Fountain Hills

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16705 E. Avenue of the Fountains

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Fountain Hills, AZ 85268

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Fact Witness – Ms. Ghetti was the Interim Town Manager at the time the

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decision to send the letter of October 12, 2011, sent from the Town Clerk to Plaintiff,

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was made. If Bevelyn Bender and/or Andrew McGuire do not so testify, she would

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testify that the decision to send the letter was made after consultation between herself,

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the Town Attorney (Andrew McGuire), and the Town Clerk (Bevelyn Bender).

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2.

Defendant:
Witnesses who shall be called at trial

Bevelyn Bender

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Town Clerk, Town of Fountain Hills

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Town of Fountain Hills

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16705 E. Avenue of the Fountains

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Fountain Hills, AZ 85268

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Ms. Bender is the Town Clerk for the Town of Fountain Hills. She is expected to

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testify about her role as the election officer for the Town and regarding what lead up to

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and followed her drafting of the October 12, 2011 letter to Ms. Galassini, which

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includes that no enforcement action was ever taken against Ms. Galassini, and that no

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enforcement action was ever intended to be taken against Ms. Galassini. She is

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expected to testify that while she follows what is written in state statute, she seeks

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advice or counsel from the Town Attorney regarding interpretation of most issues

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regarding the campaign finance statutes. She is also expected to testify that the October

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practice with regard to enforcement of the campaign finance laws. Finally, she is

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expected to testify that Town does not enforce campaign finance statutes without regard

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to their constitutionality. She is also expected to testify that the October 12 letter was

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not issued pursuant to Town policy, but rather only as a good faith gesture to put

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Plaintiff on notice that her proposed actions may in fact be subject to Arizona statutes.

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Andrew McGuire

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Town Attorney, Town of Fountain Hills

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Town of Fountain Hills

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16705 E. Avenue of the Fountains

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Fountain Hills, AZ 85268

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Mr. McGuire is the Town Attorney for the Town of Fountain Hills. He is

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expected to testify that in his role as Town Attorney, under the statutes, he is charged

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with enforcing the campaign finance laws. He is also expected to testify that the Town

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has no policies regarding the enforcement of campaign finance laws and that he

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provides advice to the Town on issues raised under the campaign finance statutes on a

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case-by-case basis. He is expected to testify that the Town does not have a policy or

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custom of enforcing statutes without regard to their constitutionality. He is also

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expected to testify that the October 12 letter was not issued pursuant to Town policy, but

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rather only as a good faith gesture to put Plaintiff on notice that her proposed actions
may be subject to Arizona statutes.

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Witnesses who may be called at trial

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Julie Ghetti

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Deputy Town Manager/Finance Director, Town of Fountain Hills

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Town of Fountain Hills

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16705 E. Avenue of the Fountains

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Fountain Hills, AZ 85268
If called, Ms. Ghetti is expected to testify that in her role as Interim Town
Manager, her job was to see that the policies of the Town Council, the Town
policymaker, were carried out. She is expected to testify that there is and was no Town

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policy regarding enforcement of Arizona’s campaign finance statutes. She is also

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expected to testify that the October 12 letter was not issued pursuant to Town policy, but

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rather only as a good faith gesture to put Plaintiff on notice that her proposed actions

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may in fact be subject to Arizona statutes.

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Dina Galassini

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She is expected to testify that she has no knowledge or evidence of the Town’s

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enforcement of any campaign finance statute – or any other statute – against her. She is

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also expected to testify that she has no knowledge or evidence related to any Town

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policy regarding the Town’s enforcement of state statutes without regard to their

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constitutionality. Finally, she is expected to testify that the October 12, 2011 letter was
the one and only political interaction she had ever had with the Town.

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Witnesses who are unlikely to be called at trial

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Amy Chan – Deposition testimony only

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Jim Drake – Deposition testimony only

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Each party understands that it is responsible for ensuring that the

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witnesses it wishes to call to testify are subpoenaed. Each party further understands that

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any witness a party wishes to call shall be listed on that party’s list of witnesses above

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and that party cannot rely on that witness having been listed or subpoenaed by another

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party.

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F.

LIST OF EXHIBITS
1.

marked in evidence by the Clerk:

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The following exhibits are admissible in evidence and may be

a.
1.

Plaintiff’s Exhibits:

Letter from Town Clerk to Plaintiff (October 12, 2011) including

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attached email from Ms. Galassini (personal contact information redacted)
(FTNHILLS00209-12)
2.

Campaign Finance 101 for City and Town Clerks – Arizona

Municipal Clerks Association Election Training – July 2009 – Reference Outline

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(ARIZ002572-97)
3.

Email from Jim Drake to James Barton dated October 28, 2011 RE:

FW: registration of committee question for Fountain Hills (ARIZ000016-17)

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b.

Defendant’s Exhibits:

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1.

Email string between Bev Bender to Dina Galassini dated October

17, 2011 (FTNHILLS00191-00192; also PL0013-0014)
2.

Email from Bev Bender to Mayor and Council dated October 12,

2011 (FTNHILLS00197)

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3.

Email from Jim Drake to Amy Chan and Kris Kingsmore dated

October 17, 2011 (ARIZ00001)
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Email from Kris Kingsmore to Jim Drake and Amy Chan dated

October 17, 2011 (ARIZ00002)

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5.

Email from Amy Chan to Kris Kingsmore and Jim Drake dated

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October 17, 2011 (ARIZ00005-00006)

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FW: Registration of committee question for Fountain Hills (ARIZ00016-00017)

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Email from Jim Drake to James Barton dated October 28, 2011 Re:

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Email from Dina Galassini to [e-mail]

dated October 18, 2011 (PL0011)

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8.

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18, 2011 (PL0012)

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Email from Dina Galassini to “Schweikert David” dated October

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Email from Dina Galassini to Stephen and Diane Jones dated

October 13, 2011 (PL0027)

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2.

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stipulations:

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As to the following exhibits, the parties have reached the following

a.

Plaintiff’s Exhibits: 1 & 3. Defendant will stipulate to the

admission of pages ARIZ002572 and ARIZ002576 from Plaintiff’s Ex. No. 2.

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b.

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admission of Defendant’s Exhibits 1-6.

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Defendant’s Exhibits: Plaintiff will stipulate to the

3.

As to the following exhibits, the party (“objection party”) against

whom the exhibit is to be offered objects to the admission of the exhibit and offers the

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objection (legal objection stated in few words – no narrative) stated below:
a.

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Plaintiff’s Exhibits: Defendant stipulates to admission of

Plaintiff’s exhibits subject to qualifications above.

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b.

Defendant’s Exhibits: Exhibits 7-9 – Objection: Not

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Relevant.

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c.

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If the objecting party seeks to use an exhibit listed by an

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offering party, an asterisk shall be placed next to that exhibit number, and the offering

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party shall set forth any objections that party reserves if the objecting party offers that

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exhibit.

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d.

The offering party shall bring all marked exhibits to trial the

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morning of trial; the offering party may not remove any exhibits after the parties’

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meeting. In other words, all exhibits marked at the meeting shall be brought, in their

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complete form, to trial.

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4.

Each party hereby acknowledges by signing this joint Proposed

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Final Pretrial Order that any objections not specifically raised herein are waived.

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G.

DEPOSITIONS TO BE OFFERED

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30(b)(6) Deposition of Amy Chan (August 23, 2012)

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Start

Stop

9:5

9:17

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10:16

10:24

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12:4

13:5

40:10

40:25

41:16

42:4

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page/line

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30(b)(6) Deposition of Jim Drake (August 23, 2012)

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Start
Page/line

Stop

10:4

10:21

10:22

11:6

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24:15

24:25

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25:1

25:17

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27:17

27:24

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28:17

29:17

30:15

31:14

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Deposition of Julie Ghetti (August 20, 2012)
Start

Stop

9:2

9:7

9:19

9:21

17:5

18:8

13

21:9

21:12

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22:3

22:7

22:16

22:25

24:16

24:18

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Page/line

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Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order that

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any deposition not listed as provided herein will not be allowed, absent good cause.

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H.

MOTIONS IN LIMINE (JURY TRIAL)

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None. This case shall be tried to the Court.

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I.

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LIST OF PENDING MOTIONS
Notice of Seeking Injunction as a Remedy

J.

ESTIMATED LENGTH OF TRIAL

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0 hours - Jury selection (not applicable)

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.5 hours - Opening statements

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2.5 hour - Plaintiff's case (including rebuttal, if any)

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2.5 hour - Defendant's case

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.5 hour - Closing arguments

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6.0 hours - Total

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K.

September 3, 2014

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TRIAL DATE

L.

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JURY DEMAND
No jury trial has been requested.

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M-1. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
The separately lodged Proposed Findings of Fact and Conclusions of Law are
incorporated by reference into this joint Proposed Final Pretrial Order.
N.

CERTIFICATIONS

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The undersigned counsel for each of the parties in this action do hereby certify
and acknowledge the following:
1.

All discovery has been completed.

2.

The identity of each witness has been disclosed to opposing counsel.

3.

Each exhibit listed herein: (1) is in existence; (2) is numbered; and (3) has

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been disclosed and shown to opposing counsel.
4.

The parties have complied in all respects with the mandates of the

Court’s Rule 16 Scheduling Order and Order Setting Final Pretrial Conference.

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5.

The parties have made all of the disclosures required by the Federal Rules

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of Civil Procedure. (Unless otherwise previously ordered to the contrary.)
6.

The parties acknowledge that once this joint Proposed Final Pretrial Order

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has been signed and lodged by the parties, no amendments to this Order can be made

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without leave of Court.

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APPROVED AS TO FORM AND CONTENT:

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/s/ Paul Avelar
Attorney for Plaintiff

/s/ Jeffrey T. Murray
Attorney for Defendant

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/s/ Diana Day
Attorney for Intervenor-Defendant

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Based on the foregoing,
IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the
parties is hereby APPROVED and ADOPTED as amended as the official Pretrial
Order of this Court.
Dated this 4th day of June, 2014.

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