Hoenack v. Litchfield Elementary School District No. 79

Opinion

1 WO 2 3 4 5

9 August Jeremy Hoenack, No. CV-22-01903-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Litchfield Elementary School District No. 79, et al., 13 Defendants. 14 15 16 Three motions are at issue. First, Defendant Litchfield Elementary School District 17 No. 79 filed a Motion for Attorneys’ Fees and Non-Taxable Costs (Doc. 95, Fees Mot.), to 18 which pro se Plaintiff August Jeremy Hoenack filed a Response (Doc. 98, Response) and 19 Defendant filed a Reply (Doc. 101, Reply). Second, Plaintiff filed a Motion to Extend Time 20 (Doc. 96) requesting a ten-day extension to the filing deadline for a motion for 21 reconsideration regarding the Court’s prior order awarding summary judgment against 22 Plaintiff. See LRCiv 7.2(g)(2). Defendant has not opposed Plaintiff’s motion to extend. 23 Accordingly, the Court grants it. Third, Plaintiff filed a Motion to Reconsider the Court’s 24 Order and Ruling on Defendant’s Motion for Summary Judgment (Doc. 97, 25 Reconsideration Mot.), which is timely in light of the Court’s extension of the relevant 26 deadline. The Court finds these matters appropriate for resolution without oral argument. 27 See LRCiv 7.2(f). For the reasons set forth below, the Court denies Plaintiff’s motion for 28 reconsideration and grants in part Defendant’s motion for attorney fees. 1 I. Plaintiff’s Motion for Reconsideration 2 The parties are familiar with the factual and procedural background of this case, 3 which the Court described in its order awarding summary judgment against Plaintiff. 4 (Doc. 92.) Plaintiff asserts in his motion for reconsideration that that order was “not based 5 on applicable laws or facts” and that it should accordingly be vacated. (Reconsideration 6 Mot. at 1.) A successful reconsideration motion must present “a showing of manifest error 7 or a showing of new facts or legal authority that could not have been brought to [the 8 Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Plaintiff’s motion 9 demonstrates neither manifest error nor new facts or law. Instead, it (1) presents a legal 10 theory based on established law that Plaintiff could have asserted in his briefing at 11 summary judgment but chose not to and (2) argues that the Court failed to perceive certain 12 established facts that Plaintiff declined to mention in his briefing. Accordingly, the Court 13 could deny Plaintiff’s motion summarily. “Although we construe pleadings liberally in 14 their favor, pro se litigants are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 15 52, 54 (9th Cir. 1995) (emphasis added). Nevertheless, in the interest of justice, the Court 16 will examine the substance of Plaintiff’s motion. 17 A. Legislative Immunity 18 Plaintiff’s primary argument is that the Court committed an error by applying the 19 standard announced in White v. City of Norwalk, 900 F.2d 1421, 1425–26 (9th Cir. 1990). 20 That case held that a public body, such as a school board, does not violate the First 21 Amendment when it “restricts public speakers to the subject at hand” or stops a speaker 22 from speaking “if his speech becomes irrelevant or repetitious.” Id. “A speaker may disrupt 23 a Council meeting by speaking too long, by being unduly repetitious, or by extended 24 discussion of irrelevancies.” Id. In regulating its own meetings, a public body enjoys “a 25 great deal of discretion.” Id. Although this discretion is broad, it does not permit a speaker 26 to be “stopped from speaking because the moderator disagrees with the viewpoint he is 27 expressing.” Id. Plaintiff objects to the Court’s application of the White standard to this 28 case. However, Plaintiff has waived this argument, as Defendant asserted the applicability 1 of White in its motion for summary judgement, (Doc. 73 at 9), and Plaintiff did not contest 2 the case’s applicability in his responsive memorandum, (see Doc. 77). See Brown v. 3 Sperber-Porter, No. CV-16-02801-PHX-SRB, 2017 WL 10410091, at *4 (D. Ariz. Dec. 4 20, 2017) (noting that “a court may consider an argument conceded when a party fails to 5 counter it”). In arguing against the relevance of White now, Plaintiff fails to adduce any 6 legal authority that he could not have offered at summary judgment. Nevertheless, in the 7 interest of accuracy, the Court will address Plaintiff’s substantive argument. 8 Plaintiff contends that the White standard is inapplicable to the facts of this case and 9 that the school board actually possessed no discretion whatsoever and no ability to regulate 10 Plaintiff’s speech at all. (Reconsideration Mot. at 2–5.) Plaintiff’s position is that elected 11 members of quasi-legislative bodies such as school boards enjoy greater First Amendment 12 protections than do their fellow citizens. According to Plaintiff, the White standard applies 13 to members of the public who participate in public meetings but not to elected officials 14 who participate in those same meetings. Plaintiff grounds this proposition in the doctrine 15 of legislative immunity. He is quite forthright in his argumentation, stating that his speech 16 must be categorically “unrestrained” and that he, “as a legislator, had the right to free 17 expression, higher than any discretionary concerns.” (Reconsideration Mot. at 2.) Plaintiff 18 misunderstands the nature of legislative immunity. 19 “Absolute legislative immunity is rooted in common law and embodied in both the 20 United States and the Arizona Constitutions and the principles underlying separation of 21 governmental powers.” Mesnard v. Campagnolo, 251 Ariz. 244, 248 ¶ 12 (2021). “When 22 applicable, the doctrine prevents legislators, their aides, and their contractors from being 23 criminally prosecuted or held civilly liable for their legislative activities.” Id. Thus, 24 legislative immunity is a defense to liability, not a basis upon which suit can be 25 affirmatively brought. The Court is aware of no cases in which the doctrine of legislative 26 immunity has been used in an offensive capacity. Nor is the Court aware of any case in 27 which a court has held that the doctrine creates a heightened First Amendment right that 28 an elected official may assert for a purpose other than defending against liability. The case 1 upon which Defendant relies, like all other cases the Court has encountered, is a garden- 2 variety case in which a legislative speaker was entitled to absolute immunity for the 3 purpose of defending against a defamation claim. See Sanchez v. Coxon, 175 Ariz. 93 4 (1993). Although the Court is not apprised of any cases in which a plaintiff has attempted 5 to use legislative immunity as a sword, there is at least one case in which a federal court 6 has rejected a similar use of judicial immunity. See Marshall v. N.Y. State Pub. High Sch. 7 Athletic Ass’n, Inc., 374 F. Supp. 3d 276, 292 (W.D.N.Y. 2019) (rejecting the invocation 8 of quasi-judicial immunity where a public official “does not assert the doctrine as a 9 defensive guard against liability for a decision rendered, but instead, brandishes it as a 10 sword to beat back its responsibility under federal law”). In the absence of any authority 11 indicating otherwise, the Court rejects Plaintiff’s argument that the doctrine of legislative 12 immunity confers upon him a greater First Amendment right than is enjoyed by the public 13 at large. Therefore, as explained in its prior order, the Court concludes that the White 14 standard governs a school board’s regulation of speech at a public meeting, irrespective of 15 from whose mouth the speech originates. Of course, the application of the White standard 16 might differ as between an elected official and a member of the public, as a person’s status 17 might impact when his speech becomes “too long,” “unduly repetitious,” “irrelevant,” or 18 “disruptive.” See White, 900 F.2d at 1425–26. The Court simply reiterates here that 19 Plaintiff’s speech was subject to reasonable regulation under White and that this regulation 20 involved the discretion inherent in the regulation of speech at a public meeting convened 21 for a specific purpose. Plaintiff’s argument therefore fails. 22 B. Factual Inaccuracy 23 The remainder of Plaintiff’s motion consists of bald and erroneous accusations that 24 the Court ignored or misconstrued the facts presented to it, particularly those contained in 25 Plaintiff’s submission of video evidence. Few of these contentions deserve attention. The 26 only one of Plaintiff’s factual assertions that has merit concerns the agenda from the board 27 meeting held on April 27, 2021. As Plaintiff correctly notes, the agenda for that meeting 28 stated that “[t]he Governing Board members will discuss the Governing Board Equity 1 Statement adopted on December 8, 2020.” (Reconsideration Mot. at 6–7.) However, this 2 fact was buried in Plaintiff’s statement of facts and the attachments thereto. (See Doc. 77-4, 3 Ex. 12.) Plaintiff did not mention this fact in his memorandum opposing summary 4 judgment. (See Doc. 77.) “Memoranda of law filed in support of or in opposition to a 5 motion for summary judgment [] must include citations to the specific paragraph in the 6 statement of facts that supports assertions made in the memoranda regarding any material 7 fact on which the party relies in support of or in opposition to the motion.” LRCiv 56.1(e). 8 Therefore, the Court need not consider Plaintiff’s belated factual argumentation. See 9 Ghazali, 46 F.3d at 54. However, procedure aside, this fact does not change the Court’s 10 ruling. 11 The Court acknowledges that its prior order implied that Plaintiff had strayed from 12 the written agenda during his speech at the April 27 meeting. This was inaccurate. Plaintiff 13 never deviated from the written agenda. But this fact is of little consequence. Plaintiff 14 repeatedly accuses the Court of ignoring the video evidence, but the Court has done no 15 such thing. It reviewed all of the video evidence concerning this meeting, including both 16 Plaintiff’s extremely truncated video submission and Defendant’s more robust video 17 submission. And in ruling on the instant motion, the Court again reviewed the relevant 18 video evidence in its entirety. It is clear from the video that Plaintiff was never 19 impermissibly silenced. He spoke numerous times at length, and he was never materially 20 prevented from saying what he wanted to say. The board and its consultant would 21 occasionally interrupt Plaintiff to ensure that his speech addressed the immediate subject 22 at hand, that it fit within the overall structure of the meeting, and that it was not unduly 23 aggressive or long-winded, but these interruptions hardly amount to unconstitutional 24 silencing. The video plainly shows that Defendant’s actions were well within its 25 permissible discretion under White. 26 Nor did Defendant violate Arizona’s open meeting law by confining the discussion 27 to the subject of equity statements generally, despite the written agenda stating that the 28 discussion would include an examination of a specific past equity statement. The open 1 meeting law prohibits a public body from addressing matters not on the agenda. It does not 2 require a public body to address each and every matter on an agenda. See A.R.S. 3 § 38-431.02(H) (“The public body may discuss, consider or make decisions only on matters 4 listed on the agenda and other matters related thereto.”); Welch v. Cochise Cnty. Bd. of 5 Supervisors, 251 Ariz. 519, 526 ¶ 25 (2021) (“The legislature enacted the law ‘to open the 6 conduct of the business of government to the scrutiny of the public and to ban decision- 7 making in secret.’” (quoting Karol v. Bd. of Ed. Trustees, 122 Ariz. 95, 97 (1979))). 8 Plaintiff cites no cases indicating that a public body commits an actionable violation by not 9 addressing an agendized item. Thus, to the extent Defendant failed to discuss its past equity 10 statement, such failure does not constitute a violation of Arizona’s open meeting law upon 11 which Plaintiff could bring suit. As already noted, neither Plaintiff nor any member of the 12 public was prohibited from speaking. Defendant’s conduct at the April 27 meeting was 13 therefore within the ambit of both the First Amendment and Arizona’s open meeting law. 14 Although the Court incorrectly implied that Plaintiff strayed from the agenda at the 15 April 27 meeting, this is immaterial. The video evidence shows that Plaintiff was not 16 meaningfully prevented from saying what he wanted to say at that meeting. Moreover, 17 where Plaintiff was silenced, such as at the March 3 meeting, the video evidence plainly 18 shows that his speech was digressive, combative, long-winded, and disruptive to the 19 purpose of the meeting. Thus, the board’s restriction of his speech did not run afoul of 20 White. 21 The remainder of Plaintiff’s motion consists of impermissible relitigation of matters 22 already disposed of. Accordingly, the Court will deny Plaintiff’s motion for 23 reconsideration. 24 II. Defendant’s Motion for Attorney Fees 25 Defendant requests attorney fees under 42 U.S.C. § 1988(b) and A.R.S. 26 § 12-349(A)(1). (Fees Mot. at 1.) The basis of the fees request is essentially the same under 27 both statutes. A district court may issue a discretionary award of fees under § 1988(b) to a 28 prevailing defendant “upon a finding that the plaintiff’s action was frivolous, unreasonable, 1 or without foundation, even though not brought in subjective bad faith.” Christiansburg 2 Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412, 421 (1978). Similarly, 3 under § 12-349(A)(1), courts are required to award attorney fees to a prevailing defendant 4 if a plaintiff “[b]rings or defends a claim without substantial justification.” The phrase 5 “without substantial justification” means that the claim “is groundless and is not made in 6 good faith.” A.R.S. § 12-349(F). As the Arizona Supreme Court recently clarified, the 7 condition that a claim not have been made in good faith does not require that the plaintiff 8 made the claim in affirmative bad faith. Ariz. Republican Party v. Richer, 257 Ariz. 210, 9 367 ¶¶ 37–38 (2024). Instead, a claim is not made in good faith if the claim was groundless 10 and the party knew or should have known of the claim’s groundlessness. Id. This 11 assessment is objective. Id. at 368 ¶ 40. Courts must evaluate whether a claim was not 12 brought in good faith against the standard of what a reasonable person would have done in 13 similar circumstances. Id. Therefore, the state and federal fee statutes largely track one 14 another. The primary difference is that the state statute is mandatory, whereas the federal 15 statute is permissive. See A.R.S. § 12-349(A) (providing that “the court shall assess 16 reasonable attorney fees” if a party does one of four enumerated acts (emphasis added)). 17 Under both statutes, courts must specifically explain why an award of fees is warranted. 18 See A.R.S. § 12-350 (requiring that a court awarding fees pursuant to § 12-349 “shall set 19 forth the specific reasons for the award”); Miller v. L.A. Cnty. Bd. of Educ., 827 F.2d 617, 20 620 (9th Cir. 1987). This is especially true where, as here, the losing party has proceeded 21 pro se. Miller, 827 F.2d at 620 (“The Christiansburg standard is applied with particular 22 strictness in cases where the plaintiff proceeds pro se.”). 23 In this case, a partial award of fees is justified. Plaintiff’s claims arose under the 24 First Amendment, Arizona’s open meeting law, and Arizona tort law. “[P]ro se plaintiffs 25 cannot simply be assumed to have the same ability as a plaintiff represented by counsel to 26 recognize the objective merit (or lack of merit) of a claim.” Id. However, the First 27 Amendment is a legal doctrine that is uniquely familiar to laypersons. As the video 28 evidence and the record as a whole indicate, Plaintiff adopted a scorched-earth rhetorical 1 strategy whereby he objected to Defendant’s embrace of critical race theory with 2 aggression and combativeness. His speech at board meetings was routinely belligerent, 3 personally insulting, long-winded, and tangential. It does not require legal training to 4 understand that the board’s regulation of such speech was consistent with the First 5 Amendment. Plaintiff cannot create an environment in which the board has little choice 6 but to regulate his speech, and then himself bring suit asserting that that regulation 7 constitutes a deprivation of his rights. The average person would understand such a claim 8 to be unreasonable and groundless. Plaintiff should have known that his First Amendment 9 claim lacked merit from inception. The Ninth Circuit has counseled that an award of 10 attorney fees against a pro se plaintiff is inappropriate “where the court is unable to 11 conclude that the action may be dismissed without proceeding to trial.” Id. However, 12 despite the court’s use of the technical term “dismiss,” it is clear that a summary judgment 13 is tantamount to a dismissal for purposes of the attorney fees analysis. See Id. (holding that 14 fees were inappropriate because “the district court allowed Miller’s suit to proceed to trial 15 despite the Superintendent’s motion for summary judgment”). The Court’s disposition of 16 all of Plaintiff’s claims at summary judgment therefore does not militate against an award 17 of fees. The Court concludes that Defendant is entitled to an award of fees regarding the 18 First Amendment claims under both fee statutes, as both statutes turn upon objective 19 groundlessness and do not require a finding of subjective bad faith. 20 The same cannot be said of Plaintiff’s claims arising under Arizona’s open meeting 21 law, which is a collection of somewhat dense statutes with which laypersons are generally 22 unfamiliar. Moreover, Plaintiff’s claims brought under Arizona’s open meeting law were 23 not as frivolous as those brought under the First Amendment. As the Arizona Supreme 24 Court recently recognized, a claim may constitute a losing “long shot” without being so 25 devoid of merit as to be groundless. Ariz. Republican Party, 257 Ariz. at 362 ¶ 15. The 26 Court concluded in its prior order that the White standard complements, rather than 27 conflicts with, Arizona’s open meeting law, but that conclusion was not necessarily clear 28 to a layperson from the start. Similarly, although the Court concludes herein that Arizona’s 1 open meeting law does not affirmatively require a public body to fully address every item 2 on an agenda, particularly where the person seeking to address an item intends to do so in 3 a disruptive manner, the Court cannot say that that conclusion is so obvious under Arizona 4 statutory law as to warrant an issuance of attorney fees against Plaintiff. Therefore, to the 5 extent that Defendant’s fees can be disaggregated on a claim-by-claim basis, Defendant is 6 not entitled to its fees incurred in the defense of Plaintiff’s claims arising under Arizona’s 7 open meeting law. 8 Finally, Plaintiff’s claims arising under Arizona tort law were objectively frivolous 9 and thus properly form the basis of a fees award. To the extent that they relied on a showing 10 that Defendant illegally suppressed his speech, they were unreasonable on the same 11 grounds that the speech claims themselves were unreasonable. And to the extent that the 12 tort claims possessed vitality separately from the First Amendment claims, they were 13 unreasonable as repetitious litigation. “[R]epeated attempts by a pro se plaintiff to bring a 14 claim previously found to be frivolous militates in favor of awarding attorney’s fees to a 15 prevailing defendant.” Miller, 827 F.2d at 620. “In such a situation, it is entirely appropriate 16 to hold the plaintiff responsible for knowing that the claim is groundless.” Id. In this case, 17 many of the factual assertions and legal theories underlying Plaintiff’s tort claims had 18 already been adjudicated as meritless by the Arizona state judiciary. His allegations and 19 legal arguments relating to the injunction against harassment had already been rejected by 20 the Maricopa County Superior Court, and his allegations and legal arguments relating to 21 the publication of his concealed-carry request had already been rejected by the Maricopa 22 County Superior Court and the Arizona Court of Appeals. (See Doc. 92 at 16–18.) In 23 attempting to relitigate those claims, Plaintiff presented no new facts to the Court. 24 Therefore, Defendant is entitled to an award of attorney fees under both fee statutes for the 25 expenses incurred in defending Plaintiff’s tort claims. 26 The Court’s conclusion that an award of fees is justified does not end the analysis. 27 Under both statutes, the Court retains broad discretion in fixing the amount of fees. This is 28 clear from the text of § 1988(b), as that provision’s language is permissive. And although 1 the text of § 12-349 is mandatory, Arizona courts have held that the amount of a mandatory 2 award is nevertheless subject to judicial discretion. Cruz v. Miranda, No. 2 CA-CV 2015- 3 0131, 2016 WL 1612748, at *4 ¶ 18 (Ariz. Ct. App. Apr. 21, 2016) (“Therefore, although 4 an award of attorney fees and costs is mandatory upon finding a party engaged in the 5 conducted [sic] enumerated in § 12-349(A)(1) through (4), the court retains discretion to 6 determine a reasonable amount of attorney fees and costs to award.”). Under both statutes, 7 and particularly in a case involving a losing pro se litigant, consideration of the losing 8 party’s financial status is of paramount importance in determining the amount of fees to be 9 awarded. See Miller, 827 F.2d at 621 (“In addition to the Kerr factors, a district court in 10 cases involving 42 U.S.C. §§ 1981, 1983 or Title VII should consider the financial 11 resources of the plaintiff in awarding fees to a prevailing defendant. . . . While an award of 12 attorney’s fees for a frivolous lawsuit may be necessary to fulfill the deterrent purposes of 13 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k), the award should not subject the plaintiff to 14 financial ruin.”); A.R.S. § 12-350(4) (“[T]he court . . . may include the following factors, 15 as relevant, in its consideration: . . . The relative financial positions of the parties 16 involved.”). Ordinarily, the “party asserting a financial hardship must present prima facie 17 evidence of that hardship.” Cruz, 2016 WL 1612748, at *7 ¶ 28. In this case, Plaintiff has 18 presented no evidence of financial hardship. Indeed, his objection to Defendant’s request 19 for fees consists entirely of an attempt to relitigate the merits of the Court’s summary 20 judgment order. Nevertheless, the Court construes the evidentiary burden loosely in light 21 of Plaintiff’s status as a pro se litigant. Plaintiff avers in his extension motion that he is “76 22 years old, 11 years past retirement.” (Doc. 96 at 2.) He also states that he “could not pay 23 his own attorney fees, thus he was pro per.” (Response at 9.) It follows that he likewise 24 cannot afford to pay for Defendant’s attorneys. Given Plaintiff’s status as a pro se litigant, 25 these assertions are sufficient to establish the propriety of a reduction in the amount of 26 attorney fees to be awarded. 27 Defendant requests $121,940.50 in attorney and paralegal fees. Plaintiff does not 28 challenge the reasonableness of this request, which in any event appears reasonable 1 || according to the Court’s independent review. In light of the substantial reduction that the || Court will impose as a result of Plaintiffs financial status, there would be no utility in || conducting an independent review of the Kerr factors, as any adjustment merited 4|| thereunder would be subsumed into the adjustment resulting from Plaintiffs status as a 5 || non-wealthy pro se litigant. Moreover, upon independent review by the Court, no Kerr 6 || adjustment is warranted. 7 The Court, in its discretion, shall award Defendant $8,000.00 in attorney fees. An 8 || award of greater magnitude would likely impose “financial ruin” upon Plaintiff. See Miller, 9|| 827 F.2d at 621. This award includes a substantial downward reduction reflecting || Plaintiffs financial and pro se status, as well as the fact that his claims arising under Arizona’s open meeting law do not merit an award of fees in the first place. Defendant also 12]|| requests $1,355.00 in non-taxable costs. Defendant is entitled to this award, and it is 13} reasonable in basis and amount. 14 IT IS THEREFORE ORDERED granting Plaintiff's Motion to Extend Time. (Doc. 96.) 16 IT IS FURTHER ORDERED denying Plaintiffs Motion to Reconsider the 17 || Court’s Order and Ruling on Defendant’s Motion for Summary Judgement. (Doc. 97.) 18 IT IS FURTHER ORDERED granting in part Defendant’s Motion for Attorneys’ |) Fees and Non-Taxable Costs (Doc. 95) and awarding Defendant $8,000.00 in attorney fees || and $1,355.40 in non-taxable costs. 21 Dated this 20th day of November, 2024. CN 22 “wok: 73 Unifgd State#District Judge 24 25 26 27 28

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