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Former Rep. Don Shooter makes a point during a speech on the floor of the Arizona State House before the vote to expel him from the chamber on Feb. 1, 2018. (Photo by Howard Fischer/Capitol Media Services)
The Arizona Supreme Court has agreed to decide the scope of immunity provided to state lawmakers.
Without comment the justices on December 16 agreed to hear arguments by former House Speaker J.D. Mesnard that he cannot be sued by ousted state Rep. Don Shooter because he released an investigative report nearly three years ago concluding that the Yuma Republican was guilty of sexual harassment of others. Mesnard claims that falls “within the sphere of legitimate legislative activity” which generally immunizes legislators from legal action.
The court also has agreed to decide whether that “sphere” covers the separate decision by Mesnard, now a state senator representing Chandler, to issue a press release explaining his actions.
Shooter contends that release falls outside any official legislative action. And that, he argues, allows him to sue Mesnard over alleged “false and misleading statements” about the report and its findings.
The Supreme Court likely is Mesnard’s last remaining effort to have the lawsuit filed by Shooter dismissed.
Mesnard’s attorney, Steve Tully, has made the same arguments to both a trial judge and the state Court of Appeals. But in both cases the courts declined to grant blanket immunity and said they needed to hear more before deciding whether Mesnard’s actions are legally shielded.
That, however, means Mesnard continues to accumulate legal fees.
If Shooter gets to proceed with his case, that could publicly expose what the former lawmaker contends are provisions of the original report that were favorable to him, provisions he says Mesnard removed before it was presented to lawmakers and the public.
J.D. Mesnard
That report was the basis of a 57-3 vote by the House in early 2018 to expel Shooter.
Attorneys for Shooter contend that report was “materially altered” from what the outside investigators originally produced.
Among the items missing from the final report, the lawsuit says, is evidence that then-Rep. Michelle Ugenti-Rita, who had been one of Shooter’s accusers, had herself sexually harassed a female former legislative staffer. That information, Shooter contends, could have undermined Ugenti-Rita’s credibility.
And Shooter says Mesnard’s press release, with its alleged false and misleading statements, was defamatory because it made him appear to be untruthful.
But if Mesnard gets his way and the Supreme Court decides he’s absolutely immune from being sued, all that will be legally irrelevant.
There is no specific provision in the Arizona Constitution granting broad immunity to state legislators. What there is, however, is a section saying that lawmakers are not liable in any civil or criminal prosecution “for words spoken in debate.”
Tully, himself a former legislator, told the Supreme Court that the question that needs to be resolved is whether a lawmaker’s actions “fall within the sphere of legitimate legislative activity.” If they do, he said, the “speech and debate clause” of the Arizona Constitution prohibits them from even being questioned about them, much less sued.
He argues that covers not just pure speech during legislative sessions. Tully said that includes legislators “performing a legislative function.”
In this case, he said, the investigation was conducted and the report was prepared as part of the constitutional power of the House to investigate claims against its own members.
“The report was an integral part of the work of the investigation and well within the legislative sphere,” Tully told the justices.
But Shooter’s lawyers said that all changed due to “Mesnard’s surreptitious editing” of the report to remove exculpatory information about Shooter.
“Mesnard was not performing a legislative function but rather was engaged in an attack on Shooter,” wrote attorney Philip Byler.
Tully, however, denies that Mesnard either altered the report himself or directed investigators to make changes.
Mesnard’s attorney also contends the press release is protected because it “occurred during a legislative session and concerned legislative matters.”
“It was issued from the speaker’s office on government letterhead,” Tully argued. “It informed the public of the actions taken by the speaker in response to actions taken by Shooter as a member of the Arizona House of Representatives.”
Byler, however, said the press release was not legislative but “political in nature,” similar to lawmakers preparing newsletters for constituents and speeches delivered outside the legislative chambers.
“While these are legitimate actions for a legislator to perform, the U.S. Supreme Court has held they are not protected by the privilege,” Byler told the justices.
No date has been set for the hearing.
