Arizona lawmakers have no right to challenge in court their expulsion from the Legislature, a state judge has ruled.
Maricopa County Superior Court Judge Theodore Campagnolo, a Democrat appointed by Gov. Doug Ducey, has rejected claims by former state Rep. Don Shooter that his rights were violated when the state House voted to oust him in early 2018.
Campagnolo acknowledged Shooter’s claims that the process followed by the House and then-Speaker J.D. Mesnard deprived him of his rights, including to confront his accusers and to examine witnesses. But he said that, whether that’s true or not, it does not matter.
“These rights are not available in a legislative decision to expel a member under the Arizona Constitution,” the judge wrote.
The ruling has implications beyond Shooter. Unless overturned it means that both the House and Senate are free to expel members for whatever reason at all without being second-guessed by the courts.
Campagnolo also threw out separate claims by Shooter that he was defamed and that his privacy was invaded by both Mesnard and Kirk Adams, at the time the chief of staff to Ducey.
Stuart Bernstein, one of Shooter’s attorneys, said he is still reviewing the ruling. And he pointed out that Campagnolo is giving Shooter a chance to refine his complaint to address the issues raised in the decision.
The House voted 56-3 to oust Shooter after an investigative report found there was “credible evidence” Shooter had sexually harassed other lawmakers, lobbyists and others.
Shooter said Mesnard ignored longstanding House policy that such allegations be reviewed by the Ethics Committee where he would have had a chance to present his own evidence and have his counsel question witnesses against him. Instead, Mesnard farmed out the issue to a committee of House staffers who, in turn, hired outside attorneys to investigate.
He also said his rights were violated because he was charged with violating a “zero tolerance” standard for sexual harassment, a policy that did not exist at the time. And he charged that Mesnard had the independent investigators he hired “omit material and exculpatory testimony and evidence,” including allegations against then-Rep. Michelle Ugenti-Rita, R-Scottsdale, who was one of the women who complained about his conduct.
Campagnolo said all that is legally irrelevant.
He cited a provision in the Arizona Constitution which says each house of the Legislature “may punish its members for disorderly behavior, and may, with the concurrence of two-thirds of its members, expel any member.”
“The Arizona Constitution does not give the power of expulsion to the judiciary,” Campagnolo wrote. “There are no judicially discoverable and manageable standards to resolve a House procedure to expel a member.”
The judge pointed out that in 1988 Gov. Evan Mecham raised similar claims that his due process rights would be violated if the state Senate was allowed to go ahead with an impeachment trial against him.
“The (Supreme) Court held that the constitutional provisions that a person shall not be deprived of life, liberty or property without due process do not protect the right to hold the office of governor,” Campagnolo wrote. Anyway, the judge said, these are rights provided to a criminal defendant.
“An impeachment is not a criminal trial,” he said, with the only issue being whether an elected official gets to remain in office.
The same, Campagnolo said, is true where the issue is expulsion from the House.
“The House can do no more than expel a member and cannot impose criminal punishment,” the judge said. “Therefore, it is clear that the expulsion of (Shooter) from the Arizona House of Representatives was a legislative decision under the Arizona Constitution, and any legal challenge to that decision is a non-justiciable political question.”
Separately, Campagnolo said the defamation claims against Mesnard and Adams are “based on innuendo and speculation.”
About the closest the judge said Shooter comes to a legitimate claim relates to the investigative report, the one that became the basis of the vote to oust Shooter.
But Campagnolo pointed out the investigators were hired by legislators. And he said the absolute immunity that lawmakers have against criminal prosecution or civil liability for things they perform as part of their duties extend to the acts of the hired independent contractors.
“Further, whether or not a legislator’s decision to take some action may or may not have had ulterior motives, other than a legislative purpose, that action or decision is protected by absolute legislative immunity,” the judge wrote.
Finally, Campagnolo found no merit in Shooter’s claim that his privacy was invaded in a “false light.”
“The right of privacy does not exist where the plaintiff is a public officer or public figure, and the information is of a public nature,” the judge wrote. And he said even if some of the information was false, public officials can sue only if they can show “actual malice,” meaning that the person disseminating the information acted with the knowledge the information was false or with a reckless disregard of the truth.