Attorneys for the former state House speaker and the former top aide to Gov. Doug Ducey asked a federal judge Wednesday to dismiss a lawsuit filed against them by ousted state Rep. Don Shooter.
Neither the lawyer for J.D. Mesnard, now a state senator from Chandler, or Kirk Adams who left Ducey’s employment in December, disputed claims that the procedure used by the House to investigate and eventually eject Shooter last year did not follow similar procedures when other lawmakers have been disciplined. That included committee hearings and an opportunity for Shooter to present evidence and confront witnesses.
But Steve Tully, himself a former lawmaker who now represents Mesnard, told U.S. District Court Judge Dominic Lanza that there is no basis for the lawsuit.
It starts, said Tully, with the basis for Shooter’s claim that his civil rights were violated through the procedure. The flaw in that, Tully said, is that Shooter has no property or liberty interests in being a state lawmaker, a prerequisite the attorney said is necessary to claim that he had something illegally taken from him.
More significant, Tully said the only thing Shooter might have been able to claim is that his rights of due process had been violated.
In this case, Tully said, the only legal requirement for removing an elected lawmaker is a two-thirds vote of the House. The actual vote was 56-3.
“He received the only process to which he was entitled,” Tully said. And he told Lanza that this is strictly a “political issue,” and not one for the courts.
That’s also part of the argument presented by Betsy Lamm, who represents Adams.
She said there is nothing in Arizona law that says Shooter was entitled to make a written response to the findings in the investigative report. Anyway, Lamm said, the record shows that the investigators did interview Shooter, allowed him to respond to the charges of sexual harassment against other lawmakers, staffers and lobbyists – some of which he admitted were true – and included his response in the report.
But former state Attorney General Tom Horne, who is representing Shooter, said there is more than enough evidence for Lanza to let the lawsuit continue.
“It was not done under normal procedures,” he said of Shooter’s ouster. Horne in particular noted that prior and subsequent moves to discipline state lawmakers have gone through the House Ethics Committee, where there are procedures to be followed.
In this case, Horne said, Mesnard set up a separate process with legislative staff who hired an outside law firm to investigate. Then that report – or Horne claims only parts of it – were given to lawmakers who used that to make their decision.
Horne also claims that Shooter is a victim of “an extremely evil conspiracy.”
It started when Shooter, then chairman of the House Appropriations Committee, said he found multiple instances where the state was awarding contracts without seeking the lowest bid. Horne said Shooter approached Adams as Ducey’s chief of staff and threatened to have hearings and subpoena witnesses and documents unless the situation was remedied.
What happened, said Horne, is that Adams worked with Mesnard to suspend Shooter from his role as chairman of the panel with various charges of sexual harassment. That led to the investigation and, eventually, the House vote to eject Shooter.
Horne claims and wants the opportunity to prove that this was “all for the purpose of hiding the corrpution.” And he brushed aside the argument that Mesnard cannot be sued because he had legislative immunity.
“They can’t hide behind immunity to hide their behavior,” Horne told the judge.
Even if Lanza dismisses the civil rights complaint, that doesn’t necessarily end the lawsuit, and not just because Shooter is expected to appeal.
He has other claims against Mesnard, Adams and the state as their employer, including that Mesnard, in making public just parts of the investigative report and background materials, is guilty of defamation.
The judge took the arguments under advisement.