Judge in Mazzeo case preserves issues rightly left up to a jury

Another federal judge might have dismissed the convoluted civil lawsuit filed two years ago by Chrissy Mazzeo. The lawsuit was poorly written and filed by a local attorney who misses deadlines and lacks a top-tier reputation.

Instead, Chief U.S. District Judge Roger Hunt has whittled the case down, dismissing claims and telling Mazzeo's attorney to rewrite his lawsuit and cut out the junk.

The Bee Gees song "Stayin' Alive" still applies, however.

As it stands now, the case has been pared down to two basic claims Hunt ruled deserve to be heard by a jury.

Did Jim Gibbons, weeks before he was elected governor, batter the cocktail waitress while allegedly trying to sexually assault her in a garage after drinking with her and others for several hours on Oct. 13, 2006?

After that, did Gibbons, his adviser Sig Rogich, then-Sheriff Bill Young and Las Vegas police conspire to retaliate against her and violate her First Amendment rights?

Oh yeah. It's no longer a case about sex. The Mazzeo lawsuit is now about First Amendment retaliation.

One critical question about the battery claim: Why didn't either Mazzeo or Gibbons show up on surveillance videos?

Hunt's reasoning for retaining the battery claim: "The contradiction between the eyewitness testimony and surveillance video create triable issues of fact for a jury to decide because reasonable minds could differ about the absence of Mazzeo and Gibbons on the surveillance video. Mazzeo has carried her burden and established a genuine issue of fact by submitting eyewitness testimony that contests the analysis of the surveillance video."

The more interesting legal question revolves around the First Amendment.

What did she do that is constitutionally protected by the First Amendment? She filed a police report and criticized the way the police handled the investigation.

Phone records showed that after the alleged incident there were numerous telephone conversations between Rogich and Young, Gibbons and Young, and Young and Metro employees the day after the drinking party.

The judge said Mazzeo raised a genuine issue of material fact as to whether the defendants agreed to violate her constitutional rights.

The third version of the lawsuit barely resembles the first version filed by attorney Robert Kossack, who started the case by putting up an unprofessional website called vindicatemazzeo.com (since taken down). It was notable for cheesy photos of the brunette.

In some ways, it appears Hunt is doing what he can to help Mazzeo get her day in court. From reading the judge's two summary judgment rulings, one in June 2009 and the second in late October, he's trimmed the case down by tossing half-a-dozen claims without any legal merit and kept alive the issues a jury should decide.

The attorneys representing Young, the police department and Rogich had hoped their clients would be dismissed, leaving only Gibbons to defend himself from the battery claim.

Instead, Hunt kept them all in the case.

Rehashing to a jury what happened that rainy night in 2006 and the next day isn't how Gibbons, Rogich and Young want to spend their time, so this might be the time for settlement talks to make the case go away.

In the paring down process, Las Vegas attorney Don Campbell, who represented Gibbons against the original allegations, was dismissed from the case as a defendant.

So was Mazzeo's drinking pal Pennie Puhek. She was dismissed after agreeing to give her deposition about what happened. (I'm told Puhek's deposition didn't do much to bolster Mazzeo's case.)

Young is appealing Hunt's refusal to dismiss him from the case, which extends the life of the lawsuit.

If the case goes to trial, won't it be a hoot if what started as a tawdry tale ends up as a legitimate First Amendment issue?

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison.