The U.S. Supreme Court has doused the last hope of former state Rep. Don Shooter to claim that his rights were violated when he was expelled in 2018 from the House of Representatives.
Without comment, the justices refused to set aside a ruling by the 9th Circuit Court of Appeals throwing out the lawsuit that the Yuma Republican had filed against former House Speaker J.D. Mesnard and Kirk Adams, a former top adviser for Gov. Doug Ducey.
But in doing so, the justices did not address the claims by Shooter that having him ousted for violating a policy against sexual harassment – one that did not exist at the time of the alleged incidents – was illegal. Instead, the action January 24 simply upholds the conclusion by the appellate court that Mesnard and Adams have qualified immunity for their actions.
“What can I say?” Shooter said when asked for comment.
But he did note that he has one last chance of getting his day in court on a related issue. That’s because the Arizona Supreme Court last year did agree to allow Shooter to pursue a separate defamation claim against Mesnard about his decision to prepare and issue a press release about the report that resulted in Shooter’s ouster.
The Arizona justices concluded that, unlike everything else concerned with the investigation and vote to remove Shooter, that was more of a “political act,” meaning no immunity for Mesnard. A trial is expected later this year.
At the heart of the case are claims by Shooter that Mesnard and Adams, who at the time working for Ducey, were seeking to thwart his efforts to investigate the use of “no-bid” contracts. That’s where the state chooses a vendor who, according to Shooter, then can dictate contract price and service.
After he threatened to issue subpoenas, Shooter said then-Rep. Michelle Ugenti-Rita, R-Scottsdale, accused him of sexual harassment.
Shooter claimed there was a link, saying that she was engaged at the time to a lobbyist who had previously worked for Adams. And Shooter leveled his own charges of inappropriate conduct against Ugenti-Rita.
Under normal House procedures, those allegations would have been reviewed by the Ethics Committee where Shooter could have presented evidence and cross-examined others. Instead, Mesnard named his own staff members to oversee a probe and they, in turn, hired an outside law firm.
That report concluded Shooter “created a hostile working environment” for other lawmakers and those who do business at the Capitol.
It also found “no credible evidence” that Ugenti-Rita had violated the harassment policy, though a female lobbyist later filed a deposition spelling out how she, the lobbyist, was the victim of a pattern of harassment by the legislator.
Four days after the report was issued, and without any hearings, the House voted 56-3 to expel Shooter. That led to Shooter’s claim that his rights had been violated.
The problem with all that, according to the 9th Circuit, is the qualified immunity that exists for government officials performing official acts.
Shooter has conceded that there is merit behind some of the charges against him.
“I’ve said stupid things, I’ve done stupid things,” he told colleagues on the date of the vote, asking they limit his punishment to a public censure. And he reminded other lawmakers that he apologized earlier this year during a House floor session dealing with sexual harassment training.
That legal concept of immunity is also what led to the Arizona Supreme Court to conclude that Mesnard, now a state senator, is entitled to absolute immunity for releasing the report of outside investigators which found Shooter had violated that zero tolerance policy against sexual harassment. The justices said ordering the report and then releasing it is an official legislative function for which lawmakers are constitutionally protected.
But the justices said that immunity did not extend to Mesnard deciding to craft and issue a press release about what was in the report and the events surrounding it, paving the way for a trial in Maricopa County Superior Court.