PHOENIX — A federal appeals court on Thursday tossed out the claims of former state Rep. Don Shooter that his rights were violated when he was expelled in 2018 from the House of Representatives.
In a unanimous opinion, the 9th Circuit Court of Appeals said the claims of the Yuma Republican against former House Speaker J.D. Mesnard and former gubernatorial aide Kirk Adams can’t survive the fact they have qualified immunity for their actions.
Judge Daniel Collins, writing for the three-judge panel said that can be overcome only if it was clear that Mesnard and Adams had violated rights that were “clearly established.” Given the facts of this case, the judge wrote, Shooter could not reach that burden.
Collins also pointed out the Arizona Constitution empowers the House to discipline its own members and even oust them with a two-thirds vote. He said that limits the ability of federal courts to second-guess the procedures used here.
Finally, the judges rebuffed Shooter’s contention that he had been ejected for violating a zero-tolerance standard against sexual harassment that did not exist before the move to remove him. But they said that argument fails because Shooter had failed to show that the House policy “allowed the sort of conduct of which he was accused.”
In this case, the court noted, the allegations ranged from commenting about the breasts of a female lawmaker, making “sexualized comments” about a female lobbyist’s appearance, that he made sexual gestures in front of a female lobbyist from the Arizona Supreme Court, that he made a sexual joke to the then-publisher of The Arizona Republic, and that he hugged a female newspaper intern “in a prolonged, uncomfortable, and inappropriate manner.”
“The notion that the Arizona Legislature previous permitted this type of conduct is simply implausible, and nothing in Shooter’s complaint supports such an inference,” Collins wrote.
Shooter has conceded there is merit behind some charges.
“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.
On Thursday, Shooter said some charges are untrue and others were taken out of context. But he said he and his attorney were still reviewing the ruling and had no immediate comment.
At the heart of the case are claims by Shooter that Mesnard and Adams, at the time working for Gov. Doug Ducey, were seeking to thwart an investigation about the use of “no-bid” contracts to make technology purposes. That’s where the state chooses a vendor who, according to Shooter, then is able to dictate contract price and service.
After he threatened to issue subpoenas, Shooter said Rep. Michelle Ugenti-Rita, R-Scottsdale, accused him of sexual harassment.
He claimed there was a link, saying she was engaged at the time to a lobbyist who previously worked for Adams. And Shooter leveled his own charges of inappropriate conduct against her.
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 violated the harassment policy, though a lobbyist later filed a deposition spelling out how she 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 him. That led to Shooter’s claim that his rights had been violated.
Collins said the problem with the case is that Mesnard and Adams, as state officials, are entitled to qualified immunity.
The only exception, the judge said, is if an official violates a statutory or constitutional right that was “clearly established” at the time of the conduct. But Collins said Shooter could not meet that legal burden given the state constitutional power of the Arizona House to discipline its own members.
And Collins said while there was no Ethics Committee probe, Shooter had been given a chance to respond to the outside counsel. He said that clearly had an effect, as some of the original charges ended up being found without merit.
Thursday’s ruling comes less than a month after the Arizona Supreme Court, ruling in a separate case filed by Shooter, found that Mesnard, who is now a state senator, is entitled to absolute immunity for releasing the report of outside investigators that found Shooter 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 state’s high court said that immunity did not extend Mesnard’s decision to prepare and release a press release about the report and the events surrounding it, concluding that was more a “political act” than a legislative one. That paves the way for Shooter to pursue his claims of defamation against Mesnard in state court.
No date has been set for that trial.