Arizona Supreme Court agrees to decide scope of immunity for state lawmakers

PHOENIX — The Arizona Supreme Court has agreed to decide the scope of immunity provided to state lawmakers.

Without comment the justices on Wednesday, 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 finding that Shooter was guilty of sexual harassment of others.

Mesnard claims that falls “within the sphere of legitimate legislative activity” that generally immunizes legislators from legal action.

The court also agreed to decide whether that “sphere” covers the separate decision by Mesnard, now a state senator representing Chandler, to issue a news release explaining his actions.

Shooter contends that release falls outside any official legislative action. He argues that allows him to sue Mesnard over alleged “false and misleading statements” about the report and its findings.

Mesnard has made the same arguments trying to get Shooter’s lawsuit dismissed to a trial judge and the state Court of Appeals.

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 means the state, which is providing Mesnard’s defense, continues to accumulate legal fees.

Potentially more important politically, if Shooter gets to proceed with his case, it could reveal what he contends are provisions of the original report that were favorable to him, which he says Mesnard removed before it was presented to lawmakers and the public.

That report was the basis of a 57-3 vote by the House in early 2018 to expel Shooter, a Yuma Republican.

Nine women, including lawmakers, lobbyists and others, publicly accused Shooter of sexual harassment.

Shooter contends that report was “materially altered” from what the outside investigators originally produced.

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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. She has declined to comment.

And Shooter says Mesnard’s news release, with its alleged false and misleading statements, was defamatory because it made him appear to be untruthful.

But if Mesnard wins and the Supreme Court decides he’s 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. There is, however, a section saying lawmakers are not liable in any civil or criminal prosecution “for words spoken in debate.”

Mesnard’s attorney Steve 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, but also 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.

Tully also contends the news 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, 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.”