United States District Court, D. Arizona
Donald M. Shooter, Plaintiff,
v.
State of Arizona, et al., Defendants.
ORDER
Dominic W. Lanza, United Slates District Judge
Pending
before the Court are motions to dismiss by Defendants Kirk
Adams (“Adams”) (Doc. 12), J.D. Mesnard
(“Mesnard”) (Doc. 16), and the State of Arizona
(“the State”) (Docs. 13, 21).[1] For the reasons
that follow, the Court will grant these motions with respect
to Plaintiff Don Shooter's (“Shooter”) §
1983 claim and will remand Shooter's remaining state-law
claims to state court.
BACKGROUND
I.
Factual Background
On
February 1, 2018, the Arizona House of Representatives voted
56-3 to expel one of its members, Shooter, following the
release of a report addressing allegations of sexual
harassment and other inappropriate conduct by him. In this
lawsuit, Shooter contends his expulsion was the result of a
conspiracy between the Speaker of the Arizona House of
Representatives (Mesnard), the Arizona Governor's Chief
of Staff (Adams), the State, and certain non-parties to
suppress his attempts to expose corruption in the State's
use of no-bid contracts. The facts alleged by Shooter, which
the Court assumes to be true for purposes of the pending
motions, are as follows.
Shooter
alleges he “began to discover questionable practices
related to State expenditures on technology” when he
was the Chairman of the Senate Appropriations Committee.
(Doc. 1-3 at 7 ¶ 6.)[2] Shooter further alleges he “found
a concerted effort at the Department of Administration to
direct work to specific, high priced, out-of-state companies
by avoiding competition at the expense of Arizona workers and
employers, and to the detriment of Arizona taxpayers.”
(Id. at 9 ¶ 17.)
To
combat this purportedly shady dealing, Shooter introduced SB
1434-legislation that would address these concerns.
(Id. at 10 ¶¶ 19-20.) The bill, however,
was vetoed. (Id. at 10 ¶ 23.) Shooter pressed
forward, reintroducing the bill in the next session.
(Id. at 11 ¶ 24.) Representatives from the
Governor's Office informed him the bill would once again
be vetoed. (Id.) Nevertheless, Shooter continued his
efforts to get the bill passed. (Id. ¶ 27.)
Shooter
alleges his efforts coincided with harassment by Defendants.
For example, Shooter contends he was “surveilled and
followed by a private investigator.” (Id.
¶ 29.) Also, each time Shooter would voice objections to
Adams, who was the Governor's Chief of Staff, “a
local television reporter would show up at the legislature
with a camera man and aggressively follow and film Mr.
Shooter, then run a story derisive of Mr. Shooter.”
(Id. at 12 ¶ 32.)
On
November 1, 2017, Shooter told Adams “that he planned
to use his subpoena power, granted to him as Chair of the
House Appropriations Committee, to gain additional insight
into the irregularities in the procurement process at the
start of the next legislative session unless there was some
movement to address the continued improper use of expensive,
no bid contracts.” (Id. at 13-14 ¶ 41.)
In an effort to dissuade Shooter from these plans, Adams is
alleged to have directed Representative Michelle Ugenti-Rita
(“Ugenti-Rita”) “to misconstrue[ ] [her]
past friendship with . . . Shooter, as the basis for
allegations of past sexual harassment by . . .
Shooter.” (Id. at 16 ¶¶ 55, 57.)
Ugenti-Rita made these statements in a media interview on
November 7, 2017. (Id. ¶ 54.)
After
Ugenti-Rita's interview, the Speaker of the House of
Representatives- Mesnard-is alleged to have “began the
process, in coordination with Adams and another member of the
Governor's Office, of inhibiting and discrediting . . .
Shooter.” (Id. ¶ 58.) Among other things,
Mesnard pressured Shooter to resign. (Id. ¶
60.)
Shooter
didn't resign, instead asking for a complete
investigation into the allegations against him. (Id.
at 17 ¶ 62.) Shooter also asked the House to investigate
allegations against Ugenti-Rita. (Id. ¶ 63.) In
response, Mesnard appointed “a hand-selected committee
of his staff to investigate the allegations”
against Shooter and Ugenti-Rita. (Id. at 18 ¶
68, italics in complaint.) Then, the hand-selected committee
hired the law firm of Sherman & Howard to conduct the
investigation into Shooter and Ugenti-Rita. (Id. at
19 ¶ 72.) This, Shooter alleges, was “the first
time in the Arizona Legislature's history” that a
“special investigation team” was appointed,
rather than an Ethics or Special Committee being convened.
(Id. at 27 ¶ 120.)
Shooter
alleges that Mesnard gave preferential treatment to
Ugenti-Rita throughout the investigation. For example,
Mesnard suspended Shooter from his position as Chairman of
the House Appropriations Committee (id. at 18 ¶
69) but didn't suspend Ugenti-Rita from her position as
Chair of the House Ways and Means Committee (id. at
19 ¶ 76). Additionally, Mesnard repeatedly asked Shooter
to resign but didn't ask Ugenti-Rita to resign.
(Id. at 19-20 ¶¶ 77-78.) Further, Mesnard
agreed to pay a portion of the attorneys' fees incurred
by Shooter, Ugenti-Rita, and Representative Rebecca Rios
(“Rios”) resulting from ethics
investigations[3] but “immediately requested . . .
Shooter not accept the offer.” (Id. at 20-21
¶¶ 82, 83.) Mesnard also paid Ugenti-Rita's
attorney twenty-five percent more than he paid Shooter's
or Rios's attorneys. (Id. at 21 ¶ 84.)
Finally, Mesnard unilaterally created a
“zero-tolerance” policy related to sexual
harassment, which he applied to Shooter but not to
Ugenti-Rita or Rios. (Id. at 22 ¶ 92.)
Sherman
& Howard ultimately issued a report determining that some
of the allegations against Shooter were true. (Id.
at 32 ¶ 136.) In contrast, the report concluded there
was “no credible evidence” that Ugenti-Rita had
“violated the Policy.” (Id. ¶ 137.)
Sixty-five of the seventy-five pages were dedicated to the
investigation of the allegations against Shooter, while only
one-and-a-half pages concerned the allegations against
Ugenti-Rita. (Id. ¶¶ 135, 137.) Also, the
report released to the public omitted “evidence of
sexual misconduct by Ugenti-Rita [that] was far more
egregious than any allegation against . . . Shooter, ”
yet Ugenti-Rita was never disciplined. (Id. at 32-33
¶¶ 139, 141.)
Four
days after the report was disseminated to House members, the
House voted to expel Shooter. (Id. at 28-29 ¶
123.) Shooter had been told “he was entitled to five
days to provide a written response to the investigative
report, ” so the accelerated vote meant he wasn't
given “the opportunity to meaningfully defend himself
in a hearing before his peers.” (Id.)
Shooter
alleges that each of the actions by Mesnard and Adams was
“undertaken to prevent . . . Shooter from issuing
subpoenas and thereby making evident, high-level
corruption.” (Id. at 31 ¶ 134.)
II.
Procedural Background
On
January 29, 2019, Shooter filed this lawsuit in the Maricopa
County Superior Court. (Doc. 1-3 at 5-46.) The complaint
asserts four causes of action: (1) violation of Shooter's
due process and equal protection rights, asserted through 42
U.S.C. § 1983; (2) defamation and aiding and abetting,
and conspiracy to commit defamation; (3) false light invasion
of privacy and aiding and abetting, and conspiracy to commit
false light invasion of privacy; and (4) wrongful
termination. (Id. at 42-45.)[4]
On
March 11, 2019, Adams removed the case to this Court with the
consent of the State. (Doc. 1.)
On
March 18, 2019, Adams filed a motion to dismiss for failure
to state a claim. (Doc. 12.)
On
March 18, 2019, the State joined the motion filed by Adams.
(Doc. 13.)
On
March 29, 2019, Mesnard filed a motion to dismiss for failure
...