A federal appeals court 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 Thursday, 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 cannot survive the fact that 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 that 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 previously permitted this type of conduct is simply implausible, and nothing in Shooter's complaint supports such an inference,'' Collins wrote.
Shooter has conceded that there is merit behind some of the 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 of the 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 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 her.
Thursday's ruling comes less than a month after the Arizona Supreme Court, ruling in a separate case filed by Shooter, that Mesnard, who is 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 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.
