Tuesday, March 9, 2021

BREAKING: Shooter Can't Butt In As AZ Supreme Court Considers Whether Mesnard Had Legislative Immunity In Discussing Sexual Harassment Investigation

Former Arizona Rep. Don Shooter tried to supplement his counsel's arguments to the Arizona Supreme Court, but was rebuffed. The brief interaction occurred after the Justices grilled both sides about whether former House Speaker J.D. Mesnard had immunity while expelling Shooter for sexual harassment charges.

Shooter claims that Mesnard defamed him and lost his legislative immunity when he edited and released the investigative report in 2018, and when he then issued a press release explaining his actions to expel. Mesnard's counsel told the Justices that "he was Speaker and he was doing something that is immediate" and therefore the absolute immunity should apply to both the report and the release.

The one thing that both attorneys seemed to agree on, albeit for different reasons, is that Mesnard did not get special immunity coverage because of his role as Speaker. Several of the Justices pressed the idea, and Justice Bill Montgomery finally told a very hesitant Stephen Tully (representing the Mesnards) that "these aren't gotcha questions".

Philip Byler represented Shooter and tried to emphasize that Mesnard was "making it up (as he goes along) and that's why he should not be having immunity." Justices seemed equally frustrated with many of his responses, and Byler closed by warning the Court that "the facts of this case are pretty ugly - do you want that absolutely immune?"

Justice Ann Timmer repeatedly asked why the press release should not be covered by the Arizona Constitution's immunity provisions, and mused whether Shooter's position would force Arizonans to watching hours of ACTV (Arizona Capitol Television) to know what their lawmakers were doing.

Chief Justice Robert Brutinel thanked the attorneys at the close of arguments. Shooter then started speaking up, although it was not audible on the livestream. Brutinel shut him down, saying "I'm sorry, Mr. Shooter, we are not going to hear from you, sir." (Shooter can be seen moving down to the front row during Tully's arguments, above.)

Shooter is primarily represented by Tom Horne, a former Arizona Attorney General. Tully also presently represents state Senate Republicans in the November election audit wars with Maricopa County.

The video from the oral arguments can be watched here.

There was no decision below on whether Mesnard actually defamed Shooter in his characterization of the report. This appeal is strictly on the immunity issue. The decision will be made by five of Arizona's seven Justices, as both Andrew Gould and James Beene did not participate.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

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