Mesnard v. Campagnolo

• Decision Date: 30 June 2021
• Docket Number: No. CV-20-0209-PR,CV-20-0209-PR
• Court: Arizona Supreme Court
• Parties: Javan "J.D." MESNARD and Holly Mesnard, husband and wife, Petitioners, v. Hon. Theodore CAMPAGNOLO, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge, Donald M. Shooter, Real Party in Interest.

251 Ariz. 244

489 P.3d 1189

Javan "J.D." MESNARD and Holly Mesnard, husband and wife, Petitioners,

v.Hon. Theodore CAMPAGNOLO, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge,Donald M. Shooter, Real Party in Interest.

No. CV-20-0209-PR

Supreme Court of Arizona.

June 30, 2021

Stephen W. Tully (argued), Bradley L. Dunn, Hinshaw & Culbertson LLP, Phoenix, Attorneys for Javan "J.D." Mesnard and Holly Mesnard

Philip A. Byler (argued), Andrew T. Miltenberg, Stuart Bernstein, Nesenoff & Miltenberg, LLP, New York, NY; Thomas C. Horne, Horne Slaton, PLLC, Scottsdale, Attorneys for Donald M. Shooter

Andrew G. Pappas, Arizona House of Representatives, Phoenix, Attorneys for Amicus Curiae Russell Bowers, Speaker of the Arizona House of Representatives

Ronald Jay Cohen, Daniel P. Quigley, Betsy J. Lamm, Lauren M. LaPrade, Cohen Dowd Quigley P.C., Phoenix, Attorneys for Amicus Curiae Kirk and Janae Adams

VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL and JUSTICES LOPEZ and MONTGOMERY joined. JUSTICE BOLICK issued an opinion concurring in the result.^*

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1 The Arizona House of Representatives expelled Representative Donald M. Shooter as an elected representative. He sued Javan "J.D." Mesnard, the Speaker of the House during the expulsion proceeding, for defaming him in an investigatory report and a news release. The issue here is whether the trial court correctly denied Mesnard's motion to dismiss under the legislative immunity doctrine. We hold that Mesnard is immune as a matter of law for allegedly defaming Shooter in the investigatory report. We further hold that on this record, Mesnard is not immune for allegedly defaming Shooter in the news release.

BACKGROUND

¶2 In reciting the backdrop to the issues here, we "assume the truth of all well-pleaded factual allegations" in the amended complaint and "indulge all reasonable inferences from those facts." Coleman v. City of Mesa , 230 Ariz. 352, 356 ¶ 9, 284 P.3d 863, 867 (2012). We also draw from relevant exhibits to the amended complaint and the public records relied on by the parties in the motion-to-dismiss proceedings. See id. Although the eighty-five-page amended complaint makes multiple factual allegations, we focus only on those pertinent to resolving the issues here.

¶3 Mesnard, Shooter, and Michelle Ugenti-Rita served together as elected representatives in the Arizona House of Representatives. In 2017, while Mesnard was Speaker of the House, Ugenti-Rita publicly accused Shooter of sexual harassment. Mesnard purportedly pressured Shooter to resign his office, but he refused to do so. Shooter vehemently denied any wrongdoing and asked Mesnard to investigate the allegations against him along with reports that Ugenti-Rita had herself engaged in malfeasance and sexual misconduct.

¶4 Rather than referring the matter to the House Ethics Committee, Mesnard appointed his staff members to a "special investigation team" to investigate the original allegations concerning Shooter and Ugenti-Rita and other misconduct allegations that had emerged involving them and one other representative. At Mesnard's direction, the team hired the law firm of Sherman & Howard to independently determine whether Shooter or Ugenti-Rita had violated Mesnard's newly created "zero-tolerance" workplace harassment policy that was not formally adopted by the House as a rule until after the investigation had concluded.

¶5 Sherman & Howard authored a lengthy investigation report and provided a draft to Mesnard in mid-January 2018. According to Shooter, Mesnard "changed the report to remove exculpatory information about Shooter" and excluded "evidence of sexual misconduct by Ugenti-Rita" before releasing the final report at the end of January to House members and the general public. The final report concluded that although most allegations against Shooter were unsupported, credible evidence demonstrated he had violated the zero-tolerance policy. The report further stated that no credible evidence demonstrated Ugenti-Rita had violated the policy. No mention was made of the third representative under investigation.

¶6 Soon after the report's release, Shooter learned that a legislative aide had been "deeply hurt" by the report's omission of evidence she had provided concerning misconduct by Ugenti-Rita. The aide conveyed she had "lost faith in the process," and her "worst fears had been realized" as she now feared retaliation from Ugenti-Rita. This prompted Shooter to send a letter to all House members on February 1 criticizing the report for omitting the aide's evidence, although he did not identify the aide or Ugenti-Rita by name. The record does not reflect whether Shooter also released this letter to the public.

¶7 Mesnard reacted to Shooter's letter that same day by issuing a statement through this news release:

STATE CAPITOL, PHOENIX—Speaker of the House J.D. Mesnard (R-17) today released the following statement regarding Representative Shooter's continuation and escalation of his improper conduct, even after Speaker Mesnard's warning:

"The outside investigators, who Rep. Shooter praised on Tuesday, have thoroughly examined every allegation made, including the allegation referenced in Rep. Shooter's letter. After addressing issues of privacy and relevancy, they included their findings in the report."

"I've spoken with the individual referenced by Rep. Shooter, and the individual has stated that the letter does not reflect the individual's reaction to the report. Rep. Shooter's letter is nothing more than an effort to use the individual as a pawn—despite repeated requests from the individual's attorney that Rep. Shooter not do anything to jeopardize the individual's anonymity. He's not standing up for the victim but rather is further victimizing the individual."

"Rep. Shooter's letter represents a clear act of retaliation and intimidation, and yet another violation of the House's harassment policy, so I will be moving to expel him from the House of Representatives immediately."

As promised in the news release, Mesnard introduced a bill that day to expel Shooter from the House, which passed overwhelmingly. Mesnard introduced the bill in his capacity as a representative and not as speaker.

¶8 Shooter initiated this lawsuit seeking damages and other relief against Mesnard and other defendants. Relevant here, Shooter alleged multiple causes of action against Mesnard and his wife, including defamation and conspiracy to commit defamation. The defamation claims were based on Mesnard allegedly (1) materially altering the Sherman & Howard report and releasing it to House members and the public and (2) making untrue and defamatory statements about Shooter in the news release.

¶9 Mesnard and the other defendants filed motions to dismiss the amended complaint for failing to state cognizable claims pursuant to Arizona Rule of Civil Procedure 12(b)(6). The trial court granted all motions in part and denied them in part. Pertinent here, the court rejected Mesnard's arguments that his elected office rendered him absolutely immune from any liability for the defamation claims. The court reasoned it could not decide whether absolute legislative immunity applied to those claims "without a well-developed record." It therefore ruled that Shooter had stated viable claims against Mesnard for defamation and conspiracy to commit defamation.

¶10 Mesnard unsuccessfully sought special action relief from the court of appeals. We granted review to address the scope of absolute legislative immunity under Arizona law, an issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

I. General Principles

¶11 We review a trial court's denial of a motion to dismiss de novo. Coleman , 230 Ariz. at 355 ¶ 7, 284 P.3d at 866. Dismissal is appropriate only if a plaintiff "would not be entitled to relief under any interpretation of the facts susceptible of proof" as a matter of law. Id. at 356 ¶8, 284 P.3d at 867 (quoting Fid. Sec. Life Ins. Co. v. State Dep't of Ins. , 191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998) ).

¶12 Absolute legislative immunity is rooted in common law and embodied in both the United States and the Arizona Constitutions and the principles underlying separation of governmental powers. See Ariz. Ind. Redistricting Comm'n (AIRC ) v. Fields , 206 Ariz. 130, 136 ¶ 15, 75 P.3d 1088, 1094 (App. 2003) ; U.S. Const. art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place."); Ariz. Const. art. 4, pt. 2, § 7 ("No member of the Legislature shall be liable in any civil or criminal prosecution for words spoken in debate."). When applicable, the doctrine prevents legislators, their aides, and their contractors from being criminally prosecuted or held civilly liable for their legislative activities. AIRC , 206 Ariz. at 136 ¶ 15, 140 ¶ 30, 75 P.3d at 1094, 1098. Immunity does not exist for legislators’ personal benefit but instead "support[s] the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal." Id. at 137 ¶17, 75 P.3d at 1095 (quoting Coffin v. Coffin , 4 Mass. 1, 27 (1808) ); see also United States v. Brewster , 408 U.S. 501, 507, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (emphasizing that immunity "protect[s] the integrity of the legislative process by insuring the independence of individual legislators"); Gravel v. United States , 408 U.S. 606, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) (describing the Speech or Debate Clause's "central role" as "prevent[ing] intimidation of legislators by the Executive and accountability before a possibly hostile judiciary"). Whether legislative immunity applies is a legal question for the court. See Green Acres Trust v. London , ...