Ousted lawmaker takes case to 9th Circuit

Ousted lawmaker takes case to 9th Circuit

Don Shooter awaits a vote by the state House on whether to expel him on Feb. 1, 2018. He was later removed from office by a vote of 56-3. (Photo by Katie Campbell/Arizona Capitol Times)
Don Shooter awaits a vote by the state House on whether to expel him on Feb. 1, 2018. He was later removed from office by a vote of 56-3. (Photo by Katie Campbell/Arizona Capitol Times)

Former Rep. Don Shooter has hired new legal help in his claim he was wrongfully ousted from the House, a firm that has built a reputation on defending civil rights of college students accused of sexual misconduct.

Attorney Stuart Bernstein told Capitol Media Services he hopes to prove that a federal judge got it wrong when he threw out the lawsuit filed by the Yuma Republican. Bernstein said there is plenty of legal precedent to show that the process used by the state House to expel him early in 2018 were legally insufficient.

And even if that claim fails, Shooter has separate legal claims pending in Maricopa County Superior Court against former House Speaker J.D. Mesnard and Kirk Adams, the former chief of staff to Gov. Doug Ducey. These allege that Shooter was improperly ousted “in retaliation for his investigation into corruption at the highest levels of the Arizona Legislature” according to Andrew Miltenberg, another of Shooter’s new lawyers.

A press statement by the law firm says Miltenberg and Bernstein “specialize in due process violations by universities and other organizations throughout the country.” It also says they are currently representing students and faculty at several institutions including Columbia University, Princeton University and University of Southern California.

Shooter told Capitol Media Services he was quite aware of their client list and their reputation.

“It’s why I hired them,” he said. “I hired them because they defend people whose rights have been trampled on.”

J.D. Mesnard
J.D. Mesnard

Shooter said he is not concerned about going to court with attorneys who have made a name for themselves by representing male students who have been accused of assaulting and harassing women on campus.

“Maybe every guy that was accused by some girl was guilty,” he said.

“I don’t know,” Shooter continued. “But don’t you think you ought to give them a chance to state their case?”

And that, said Shooter, is precisely what is at issue in his case and why his new lawyers are a perfect fit.

“I was the first legislator in the history of the United States to be thrown out of office without a committee hearing,” he said.

That goes to how the complaints of sexual harassment against Shooter were handled by Mesnard.

In general, the procedure for discipline of legislators that had been followed until last year was that someone accused of misconduct would get a hearing before the House Ethics Committee. That also would provide the legislator or his or her lawyer the chance to question witnesses.

The Ethics Committee would then make a recommendation to the full House whether there were sufficient facts to conclude there was misconduct and, if so, what would be the appropriate punishment. That could range from a reprimand or censure to expulsion.

In Shooter’s case, Mesnard hired outside council to prepare a report for the full House. There were no hearings, with the House voting to oust Shooter based on what was in the report.

U.S. District Court Judge Dominic Lanza threw out the civil rights claim earlier this year, ruling that there is no clear settled law that legislators have a right to ask a federal court to intercede in matters involving their removal. And that, the judge wrote, means that Mesnard and Adams are entitled to qualified immunity for any actions they say they took in their official capacity.

But Bernstein said his law firm has won a number of cases in federal appellate court overturning decisions where trial judges said individuals cannot pursue civil rights claims.

Those most notably include male students who have been kicked out of universities after facing charges of sexual assault. Bernstein said the issues there – and here – deal with the due process rights of the accused.

Bernstein conceded that there is really no way for any court to overturn the House vote to oust Shooter. But he said there are other reasons to pursue the case.

“While we may not be able to get him seated again, we certainly can clear his name,” Bernstein said.

Kirk Adams
Kirk Adams

And there’s something else. Bernstein said that the process could “shed light on what he was looking to do before all the shenanigans took place.”

That goes to Shooter’s claim that the charges of sexual harassment against him by another lawmaker, some lobbyists and others was really part of a plan to keep him from looking at no-bid contracts being awarded by the state. If he gets to take his case to court, Shooter’s attorneys will have an opportunity to demand certain documents that he claims are relevant to the case.

Shooter was first removed as chair of the House Appropriations Committee, where he would have had the ability to subpoena documents. Ultimately, though, he was removed following a 56-3 vote of the House which concluded that he had engaged in sexual harassment and other inappropriate conduct.

“Corruption is at the heart of this case,” Bernstein said.

“There are many facts that have yet to be made public,” he said. “This case is important as it exposes the manner in which Don Shooter was victimized by the personal interests of other elected officials.”

Reinstating the lawsuit also could allow him to seek release of documents and interviews done by an outside counsel hired by Mesnard to investigate the sexual harassment allegations. Shooter contends that some of what the investigators discovered about his accusers was not presented to his colleagues before they voted to remove him.

All that, however, is academic unless and until Shooter can get his day in court, assuming the appellate judges say his due process rights were denied.

But attorney Steve Tully, who represents Mesnard, argued to Lanza during a court hearing that Shooter has no property or liberty interests in being a state lawmaker, something Tully said is necessary to claim that he had something illegally taken from him.

As to that due-process claim, Tully said the only legal requirement for removing an elected lawmaker is a two-third vote of the House.

“He received the only process to which he was entitled,” Tully said, telling the judge that this is strictly a “political issue,” and not one for the courts.

Attorney Betsy Lamm, who represents Adams, echoed the theme, saying that nothing in Arizona law says Shooter was entitled to make a written response to the findings in the investigative report. Anyway, she said, the record shows that investigators did interview Shooter, allowed him to respond to the charges of sexual harassment, some of which he admitted were true, and included his response in the report.

Shooter has alleged that, as chairman of the House Appropriations Committee, he found multiple instances where the state was awarding contracts without seeking the lowest bid. Tom Horne, who was Shooter’s attorney at the earlier federal court hearing, 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 by using various charges of sexual harassment. That led to the investigation and, eventually, the House vote to eject Shooter.

Editor’s note: This story has been revised to put greater emphasis on the law firm representing Don Shooter.