Judge rules ex-lawmaker has no case to challenge expulsion

court decisions binders

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.

Don Shooter
Don Shooter

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.”

Ted Campagnolo
Ted Campagnolo

“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.

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.