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Shooter v. State

United States District Court, D. Arizona

June 7, 2019

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 ...


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