9th Circuit hears ousted lawmaker’s appeal

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)
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)

Attorneys for the state and a former House speaker told a federal court Tuesday that the legislature is free to remove members for any reason at all — including political affiliation and race — as long as they can muster a two-thirds vote.

Steve Tully said there was nothing wrong with the procedures used by J.D. Mesnard, who was speaker in 2018, to investigate then-Rep. Don Shooter and eventually have a vote that resulted in his ouster.

J.D. Mesnard
J.D. Mesnard

Tully, himself a former lawmaker, did not specifically dispute Shooter’s claim that Mesnard ignored decades of precedent which normally allow an accused lawmaker a formal hearing before the Ethics Committee where evidence can be presented and witnesses can be questioned. Nor did he address Shooter allegations that he was being charged with violating a sexual harassment policy that did not yet exist or that Mesnard removed certain information from an investigative report that was given to his fellow lawmakers.

Instead, he told the three-judge panel that lawmakers were free to vote to eject Shooter anyway.

“The right to expel members is granted to the House by the Arizona Constitution,” Tully said, with the only requirement being able to get at least 40 of the 60 members to go along.

That claim drew a skeptical response from Judge Marsha Berzon, a President Clinton appointee. She asked whether if the Democrats controlled most of the seats they could simply decide to remove all Republicans.

“My answer is, yes,” Tully responded. “If they’re at 90 percent (of the House) and they filed a motion to expel a member for being what they thought was disruptive, and they got the votes.”

Berzon said that opens the door to the majority deciding that the minority is being disruptive “because they get up and are making speeches” about why the majority is wrong.

But Tully stuck to his position. And, more to the point in this case, he told the judges that members of the House — including his client — cannot be sued for damages by the expelled member.

It wasn’t just Tully making that argument.

Jeremy Horn, representing the state, said the House can discipline anyone who violates its rules, “whatever the House decides its rules are.”

Berzon questioned that logic.

Marsha Berzon
Marsha Berzon

“If you just let the body expel whoever it wants, with absolutely no oversight by anybody, you could completely undermine democracy?” she asked.

Horn said there is no way for courts to intercede and decide what is proper.

That drew questions from Judge Lawrence VanDyke, a President Trump appointee, about whether lawmakers could decide to remove all black legislators simply because they didn’t want them there.

“It very well may be,” Horn conceded.

What the appellate court ultimately rules will affect more than whether Shooter’s rights were violated and he is entitled to some damages, as reinstatement is not an option. It could set a federal court precedent that gives legislators carte blanche to oust members for whatever reason they want if they can get that two-thirds vote.

The House voted 56-3 in early 2018 to oust Shooter after an investigative report found there was “credible evidence” that he had sexually harassed other lawmakers, lobbyists and others. Since that time, Shooter has been trying to get courts to conclude that his rights were violated and that Mesnard and Kirk Adams, at the time an aide to Gov. Doug Ducey, had defamed him.

Shooter won a small victory last week in Maricopa County Superior Court as Judge Theodore Campagnolo ruled that Shooter is entitled to sue Mesnard over alleged defamatory comments.

The judge acknowledged that elected officials generally have absolute immunity for comments they make during formal sessions.

But Campagnolo said the issues in this case involve claims that Mesnard altered a report about Shooter’s conduct prepared by an outside law firm before it was given to House members and the public. And Shooter also contends that the press release Mesnard issued contained untrue and defamatory statements that went beyond merely stating the facts.

That, Campagnolo said, requires him to reject a bid by Mesnard to simply throw out the case.

The new ruling, however, is not a total victory for Shooter — and not only because all this does is give him a chance to try to make his case.

The judge threw out separate defamation claims made against Adams. Campagnolo said there is nothing in Shooter’s legal briefs containing any specific allegations that Adams had defamed him.

He also said Shooter, as a public figure, had no right to claim invasion of his privacy.

And Campagnolo reaffirmed an earlier decision that the Yuma Republican cannot claim in state courts that he was denied due process in the way he was removed from the House in early 2018. The judge said courts cannot second-guess the procedures used to oust Shooter.

But that claim lives on at the 9th Circuit which led to Tuesday’s hearing.

Philip Byler, Shooter’s attorney, told a three-judge panel of the court that the normal procedure used in the House to discipline or oust a lawmaker involves a hearing before the Ethics Committee. That provides an opportunity for the legislator to not only present evidence but also to question witnesses.

On top of that, Byler said Shooter’s 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.

The appellate judges did not indicate when they will rule.

Lobbyist: Ugenti-Rita sexually harassed her before Shooter expulsion

Rep. Michelle Ugenti, R-Scottsdale, listens to Rep. Don Shooter, R-Yuma, read a statement regarding sexual harassment and other misconduct complaints made against him by Ugenti-Rita and others. Shooters comments came during mandatory sexual harassment and ethics training Jan. 9 on the House floor of the capitol.
Rep. Michelle Ugenti, R-Scottsdale, listens to Rep. Don Shooter, R-Yuma, read a statement regarding sexual harassment and other misconduct complaints made against him by Ugenti-Rita and others. Shooters comments came during mandatory sexual harassment and ethics training Jan. 9, 2018, on the House floor of the capitol.

Sen. Michelle Ugenti-Rita, the Scottsdale Republican who became the face of Arizona’s #MeToo movement when her claims led to a fellow lawmaker’s expulsion, sexually harassed a female lobbyist so severely it took a toll on the woman’s mental health and career, the lobbyist alleged in a sworn deposition.

The deposition was part of a motion filed in Maricopa County Superior Court on Jan. 31 in the defamation lawsuit and counter-lawsuit between Ugenti-Rita and former Rep. Don Shooter. The woman describes a pattern of harassment by Ugenti-Rita and her now-husband, former adviser to the governor Brian Townsend, over the summer of 2016 that led the lobbyist to believe the political power couple was trying to recruit her for a threesome. Repercussions from those unwanted advances led the woman to seek therapy, turn down job offers and miss work days, she said.

A year later, as the #MeToo movement took root in statehouses around the country, Ugenti-Rita detailed sexual harassment she encountered as a lawmaker, including suggestive comments about her body and an exposing yank on her dress at a legislative reception. After several other women, including two more lawmakers, joined her in accusing Shooter of a pattern of inappropriate behavior, the House expelled him in February 2018.

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)
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)

Independent investigators hired by the House heard the woman’s story, but did not include most of it in the report that damned Shooter. It became public on Tuesday, nearly two years to the day after his expulsion, when Shooter included her subpoenaed deposition in a defamation suit.

Ugenti-Rita declined to comment for this story.

In more than three hours of testimony on Nov. 13, the woman describes her fear of Ugenti-Rita, and her struggles to balance her personal discomfort with her professional need to maintain a good relationship with Ugenti-Rita, who she said  served as a “prominent vote” for her employer’s interests and who “had a reputation of seeking retribution.”

The woman describes being intimidated by Ugenti-Rita and Townsend, and telling her bosses that she did not want to be around either of them. Ugenti-Rita even followed her into a bathroom and threatened her in December of 2018, telling her “everyone was going to find out what a liar” the woman was, she said in her deposition.

“They are both powerful people in Arizona politics, and I didn’t want them to affect any future career opportunities or harm me in any other potential way,” the woman said. “I was being strategic and I was trying to navigate the situation to the best of my ability in a time before the Me Too Movement and it was okay to come out about these sorts of things.”


The lobbyist and former Capitol staffer, who is unnamed in court documents, worked with Ugenti-Rita in the House. She said she did not feel uncomfortable around the lawmaker until June 2016, several months after she left the Legislature for a lobbying job.

The woman invited Ugenti-Rita and Townsend to drinks with her and her boyfriend, to celebrate Ugenti-Rita’s birthday and improve her relationship with Ugenti-Rita so she could better lobby for her employer, the woman said.

Townsend didn’t join, and the woman’s boyfriend was late. Earlier in the night, before the woman’s boyfriend arrived, Ugenti-Rita swiped through images of herself in lingerie while showing the woman pictures from her phone, something the lobbyist didn’t think much of at the time.

Ugenti-Rita also laid on a bar for body shots, having the lobbyist and another woman at the bar drink alcohol out of her belly button, lick salt from her stomach and suck a lime from her mouth, the woman said. Ugenti-Rita confirmed the body shots in her own sworn deposition, but said the woman asked to do them.

The next morning, the woman woke up to a text message from Townsend, her former boss at the House of Representatives who is 21 years older than her, with a photo of a naked woman, with no message and the head cropped out of the frame. The lobbyist said there was no question in her mind that the woman in the photograph was Ugenti-Rita.

“I was really distraught and freaked out,” she said in the deposition. “I didn’t know what to do.”

Over the next several weeks, Townsend sent two more photos of himself performing oral sex on a woman, the lobbyist said. One of the messages said something along the lines of “she wants to be with you,” the lobbyist said.

The third text, sent while Townsend and Ugenti-Rita were attending a National Conference of State Legislatures meeting in Chicago, included a message telling the woman she should tell Townsend if she wasn’t interested.

Scared but not wanting to ruin her relationship with the power couple, the lobbyist responded “something along the lines of, ‘Sorry, grandma goes to bed by 10:00, love you both but not like that, hope you’re having fun at NCSL,’” she told attorneys.

Ugenti-Rita confirmed in her own sworn deposition that she was the woman in the photos, and that either she or Townsend took them. But she said she didn’t know Townsend planned to send them, and she didn’t find out the woman had received those photos until after the House’s independent investigator showed them to her.

“They are just something private between him and I,” Ugenti-Rita said.


A few weeks later, while the woman and Ugenti-Rita were both attending a trade association conference in Arizona, Ugenti-Rita asked her to take a selfie to send to Townsend. Ugenti-Rita also asked if the lobbyist could tell she wasn’t wearing a bra and invited her back to the lawmaker’s hotel room multiple times.

Rep. Michelle Ugenti-Rita, R-Scottsdale, stands at her desk on the floor of the Arizona House of Representatives, before a vote to expel Rep. Don Shooter, R-Yuma. Ugenti-Rita’s allegations of sexual harassment by Shooter led a host of women and one man to air similar allegations against him. (Photo by Katie Campbell/Arizona Capitol Times)
Sen. Michelle Ugenti-Rita. (Photo by Katie Campbell/Arizona Capitol Times)

The lobbyist deflected until Ugenti-Rita asked the lobbyist’s boss if she could “steal” her for a second. After her boss agreed, the woman reluctantly followed Ugenti-Rita back to her room. She told lawyers she was uncomfortable saying no, because Ugenti-Rita and Townsend were both in positions of power.

Ugenti-Rita lay on the couch “very provocatively,” the woman said, and invited her to spend the night — or at least stay long enough to greet Townsend when he arrived.

“I was very freaked out by the potential of Brian getting there while I was still there,” the woman said. “I felt like if Brian showed up, it would have put me in a potentially dangerous situation.”

Their interactions that evening convinced her that Ugenti-Rita knew about the lewd messages Townsend sent and that their hotel room interaction was Ugenti-Rita’s attempt to lure her into a threesome, the woman said. She texted her boss asking him to call her and give her an excuse to return to the main conference area.

Ugenti-Rita said in her deposition that the woman was “eager” to come back to her room.

“We were friends,” Ugenti-Rita said. “She had made a big effort to reach out to me quite a bit, engage with me, text me, send me pictures, say very flattering things to me, very complimentary, very friendly and had reached out the day before to see if I was going to be there because she had seen my name on a list of some sort. And I took her at her word that we were friends.”

The next day, still trying to maintain a professional relationship with Ugenti-Rita, the woman texted her and Townsend an invitation to a conference party she knew they would not be able to attend.

“She had told me her kids were going to be there that night, so I knew she wouldn’t be able to, and I was trying to settle the dust after feeling I abruptly left her room the night before,” the woman said.

The woman received one last text from Townsend shortly after that conference — an image of him having sex with a woman from behind and a message saying he would watch if she wanted to have sexual relations with just the woman in the photo. She told him she wasn’t interested and to stop messaging her.

And after that interaction, she decided not to seek a job in the governor’s office because Townsend would have been her supervisor.


The lobbyist described her experiences to an investigator hired by the House in the late fall of 2017 to investigate allegations made against Shooter, Ugenti-Rita and Sen. Rebecca Rios, who was accused of having an affair with a House staffer more than 20 years her junior who was subsequently fired.

The ethics complaint against Rios, who was House Minority Leader at the time, was dismissed as a perceived political dispute between Rios and another lawmaker.

The lobbyist told attorneys she was afraid when an investigator contacted her, because she didn’t know how the team got her name and she “didn’t want to be seen as a target” for Ugenti-Rita or Townsend. And during the investigation, she began seeing a therapist and keeping a journal.

She said she discussed the happy hour and conference, provided copies of the explicit texts and told investigators they could interview her boss. The report focused only on the text messages, relegating the conference interaction to a footnote as an “immaterial” fourth incident.

Investigators determined that Townsend acted alone in sending sexually explicit images and messages to the lobbyist.

“Ms. Ugenti-Rita unequivocally denied any knowledge of, or involvement in, the conduct,” the 2018 report read. “We found her testimony in this regard credible. She was visibly distraught, briefly lost the composure and confidence she had generally displayed during our interactions with her, expressed genuine surprise and shock, and conveyed sincere sympathy for (the woman).”

Townsend, meanwhile, cried and trembled during his interview, saying the texts would be the “death knell” of his career and his relationship with Ugenti-Rita.

His government career was already over — Townsend resigned from the governor’s office on Dec. 23, 2016, one day after he was cited for extreme drunken driving  in Mesa. He pleaded guilty to the charge, and began working as a lobbyist. His final lobbying contracts ended shortly after the House investigators released their report, according to records filed with the Arizona Secretary of State.

But the relationship with Ugenti-Rita continued. The two married in December 2018.

“At that time, that happened a year and a half, almost two years prior,” Ugenti-Rita said in her deposition. “I spent a lot of time soul-searching, and there was a lot of good in our relationship, and he took responsibility. He was extremely remorseful, and we started to heal.”


Ugenti-Rita, in her own deposition, describes years of harassment from Shooter, beginning in her first House term in 2011. Her claims, all of which were previously laid out for House investigators, included Shooter showing up at her hotel room with a six pack of beer during an American Legislative Exchange Council conference, joking that he wished he were her infant when she excused herself to breastfeed and asking if she had had breast implants.

Ugenti-Rita said in her deposition she did not feel comfortable telling Shooter when she found his behavior inappropriate. Individual actions and comments came across as “unwelcoming,” “awkward” and “harassing,” and they had the most effect taken cumulatively, she said.

“I was scared,” she said in her deposition. “I didn’t know what would happen.”

Instead, she described trying to avoid him — staying away from him at events, avoiding entering other representatives’ offices if he was in there and not responding to comments he made.

And on the two occasions she did try to talk to him about how his behavior was inappropriate, Shooter brushed her off, Ugenti-Rita said.

“He just — like, it never resonates, you know,” she said. “Real joking, plays it off, you know, kind of insincere.”

The #MeToo movement allowed for an honest conversation about sexual harassment and emboldened Ugenti-Rita to speak out publicly about what she experienced in the Legislature, she said. But Shooter has continued to harass her even after his expulsion, she said in her deposition.

“He has said derogatory and graphic things to me— about me, excuse me, to other members,” she said.  “He has been a part of making sure everyone associated with me in my private life, in my work life know about the pictures. He has weaponized them. And it feels like a virtual rape over and over again.”

Shooter’s attorneys questioned Ugenti-Rita at length about the parallels between her discomfort around Shooter and the woman’s unease with Ugenti-Rita. The two situations are different, Ugenti-Rita insisted.

“Hers is predicated on her thinking I did something I did not do,” Ugenti-Rita said.

Ugenti-Rita said she was not necessarily in a position of power over the lobbyist, because most of the bills the lobbyist worked on went through a committee other than the one Ugenti-Rita chaired.

She confirmed that she did stop the woman near a bathroom in December 2018 to call her a liar. It was not an act of intimidation or retaliation, Ugenti-Rita said

“[It probably] would have been best if I didn’t, but I saw her out of the blue coming out of the bathroom and in light of her saying I had sent photos that I did not, I said she was lying,” Ugenti-Rita said.


The House investigators’ final report led to Shooter’s expulsion, cleared Ugenti-Rita and did not contain any information about the allegations against Rios.

Shooter responded to the report’s release by reading a letter on the floor of the House describing the woman’s story. Although he did not use her name, she soon heard about the letter from former coworkers at the House who suspected it was about her.

J.D. Mesnard
J.D. Mesnard

Shooter’s letter was a “violation,” and “embarrassing,” the woman said. After its release, then-House Speaker J.D. Mesnard called her, on speaker in a room with several other House employees, to ask about the letter.

“It was intimidating to be on that line,” she said. “Not every day the Speaker wants to talk to you. And I didn’t know a lot of the people in the room, who had previously been coworkers. So it was embarrassing to be in that situation, and uncomfortable.”

She feared that the letter, and Shooter continuing to question why he was expelled and Ugenti-Rita was not, would lead to her own identity being released and hurt her future career and reputation.

Her testimony is critical to a pair of civil lawsuits Shooter filed — one a lawsuit against the state and Mesnard alleging that his constitutional rights to due process were violated, and one a countersuit filed against Ugenti-Rita for defamation after she sued Shooter.

In the case against Mesnard, Maricopa County Superior Court Judge Theodore Campagnolo, a Democrat appointed by Gov. Doug Ducey, rejected Shooter’s claims in a Dec. 24 ruling that his rights were violated when the state House voted to oust him in early 2018. That case is still active, but a U.S. District judge threw out similar federal claims in June.

The woman refused to participate in the litigation until she received a formal subpoena, and told attorneys she was worried about attending her deposition because Ugenti-Rita could be there.

The depositions filed Jan. 31 are the second trove of documents detailing inappropriate relationships between lobbyists and lawmakers to be released during the first few weeks of the legislative session.

A series of intimate letters Rep. David Cook, R-Globe, wrote to Western Growers Association lobbyist AnnaMarie Knorr were shared with reporters last month, raising questions about whether Cook gave preferential treatment to Knorr’s clients.

Knorr has been placed on indefinite leave from the Western Growers Association as it investigates the letters. Cook, like Ugenti-Rita in the Senate, continues to vote on behalf of the people of Arizona.
-Yellow Sheet Report editor Hank Stephenson contributed to this article.