IN THE
SUPREME COURT OF THE STATE OF ARIZONA
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
June 30, 2021
Appeal from the Superior Court in Maricopa County
The Honorable Theodore Campagnolo, Judge
No. CV2019-050782
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Order of the Court of Appeals
Division One
No. 1 CA-SA 20-0125
Filed July 13, 2020
COUNSEL:
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
MESNARD V. HON. CAMPAGNOLO/SHOOTER
Opinion of the Court
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 (2012). We also draw from relevant exhibits to
the amended complaint and the public records relied on by the parties in
*
Justice James P. Beene has recused himself from this matter. Before
his retirement from the Court, Justice Andrew W. Gould (Ret.) also recused
himself from this matter.
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MESNARD V. HON. CAMPAGNOLO/SHOOTER
Opinion of the Court
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
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Opinion of the Court
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
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MESNARD V. HON. CAMPAGNOLO/SHOOTER
Opinion of the Court
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. 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 (quoting Fid. Sec. Life
Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224 ¶ 4 (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 (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
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Opinion of the Court
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. 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 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)); see also United States
v. Brewster, 408 U.S. 501, 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 (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, 141 Ariz. 609,
613 (1984).
¶13 Arizona has adopted Restatement of Torts (Second) § 590
(Am. Law Inst. 1977), which is grounded on the federal Speech or Debate
Clause and like state constitutional provisions. See Sanchez v. Coxon, 175
Ariz. 93, 97 (1993); Restatement § 590 cmt. a. Section 590 provides that
federal, state, and local legislators are “absolutely privileged to publish
defamatory matter concerning another in the performance of [their]
legislative functions.” The key inquiry is whether the legislator was
performing a “legislative function” at the time he published the defamatory
matter. See Gravel, 408 U.S. at 624 (stating that a congressional member’s
conduct taken “within the ‘sphere of legitimate legislative activity’” is
immune from “civil or criminal judgment” (quoting Tenney v. Brandhove,
341 U.S. 367, 376 (1951))); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
503 (1975) (concluding that legislators may neither be sued nor made to
testify about their words or conduct when acting in their legislative
capacity); see also Sanchez, 175 Ariz. at 97 (“It is the occasion of the speech,
not the content, that provides the privilege.”).
¶14 Not everything done by a legislator “in any way related to the
legislative process” is afforded absolute immunity as a legislative function.
See Steiger v. Superior Court, 112 Ariz. 1, 4 (1975) (discussing the evidentiary
privilege stemming from legislative immunity); see also Brewster, 408 U.S.
at 516 (reasoning the Speech or Debate Clause was never intended to make
congressional members “super-citizens,” immune from responsibility).
Legislators are unquestionably immune from criminal responsibility and
civil liability when engaging in speech or debate during convened
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Opinion of the Court
legislative proceedings. See Sanchez, 175 Ariz. at 97 (holding that council
member was engaged in a legislative function when speaking at a town
council meeting and thus immune from civil liability for any defamatory
remarks). But immunity has never been limited to such occasions. See
Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (“It would be a narrow view
of the constitutional provision to limit it to words spoken in debate.”).
¶15 Other than speech and debate during a legislative session,
immunity applies to acts that are “an integral part of the deliberative and
communicative processes” by which legislators participate in committee
and chamber proceedings “with respect to the consideration and passage
or rejection of proposed legislation or with respect to other matters which
the Constitution places within the jurisdiction of either House.” Gravel,
408 U.S. at 625; see also Brewster, 408 U.S. at 512 (“[T]he Speech or Debate
Clause prohibits inquiry only into those things generally said or done in the
House or the Senate in the performance of official duties and into the
motivation for those acts.”); Steiger, 112 Ariz. at 3 (to same effect).
Alternately phrased, “the courts have extended the privilege to matters
beyond pure speech or debate in either House, but ‘only when necessary to
prevent indirect impairment of such deliberations.’” Gravel, 408 U.S.
at 625 (quoting United States v. Doe, 455 F.2d 753, 760 (1972), vacated sub nom.
Gravel, 408 U.S. 606). Thus, legislative immunity applies to written
reports, offered resolutions, voting, and other “things generally done in a
session of the House by one of its members in relation to the business before
it.” Kilbourn, 103 U.S. at 204.
¶16 Legislative immunity is consequently inapplicable to many
legitimate and beneficial acts undertaken by legislators. Making speeches
outside the legislative body, performing tasks for constituents, sending
newsletters, issuing news releases, and the like are political acts, which are
unprotected by legislative immunity. See Brewster, 408 U.S. at 512;
Restatement § 590 cmt. a (“The privilege does not protect a legislator who
in private or public discussion outside of his legislative function explains
his reasons for voting on past, pending or proposed legislation or who
otherwise discusses the legislation, or who engages in other activities
incidentally related to legislative affairs but not a part of the legislative
process itself.”). Administrative matters undertaken by legislators, such
as exhorting an executive branch agency to administer a law in a particular
way, are similarly unprotected. See Gravel, 408 U.S. at 625; AIRC, 206 Ariz.
at 137 ¶ 18.
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Opinion of the Court
II. Application Here
A. The Sherman & Howard Report
¶17 Whether Mesnard is absolutely immune from liability for
allegedly defaming Shooter by modifying the draft Sherman & Howard
report to Shooter’s detriment and then releasing it to House members and
the public depends entirely on whether preparation and release of the
report was a legislative function. See Gravel, 408 U.S. at 624; Restatement
§ 590.
¶18 Shooter argues that because Mesnard’s modifications were
surreptitious and dishonest, he did not engage in a legislative function.
But whether Mesnard acted with ill motives or actually defamed Shooter
has no bearing on whether Mesnard was performing a legislative function
to which legislative immunity attaches. See United States v. Johnson, 383
U.S. 169, 180 (1966) (emphasizing that whether a representative gave a
speech on the House floor in return for private remuneration involved an
inquiry into his motives for a legislative function, which “is precisely what
the Speech or Debate Clause generally forecloses from executive and
judicial inquiry”); Sanchez, 175 Ariz. at 97 (“When Councilman Sanchez
made the [allegedly defamatory] statements, he was a legislator speaking
to a legislative body during a formal legislative meeting—clearly a
legislative function.”); see also Green Acres Trust, 141 Ariz. at 613 (stating in
the context of judicial absolute immunity that “the speaker’s motive,
purpose or reasonableness in uttering a false statement do not affect the
defense”). In other words, we examine the act, not the actor. See Walker
v. Jones, 733 F.2d 923, 929 (D.C. Cir. 1984).
¶19 The Arizona Constitution authorizes each legislative chamber
to discipline its members and even expel a member “with the concurrence
of two-thirds of its members.” See Ariz. Const. art. 4, pt. 2, § 11.
Investigating the basis for discipline or expulsion is inherent in this
authority because the investigatory results inform the decision whether to
impose discipline on members or expel them from the chamber. Cf.
Eastland, 421 U.S. at 504 (noting “the power to investigate” is necessary to
enable wise decisions, making it “inherent in the power to make laws,” and
is therefore plainly protected by legislative immunity); Rangel v. Boehner,
785 F.3d 19, 23 (D.C. Cir. 2015) (concluding that a congressional disciplinary
proceeding is a “legislative matter” that the Constitution places within the
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Opinion of the Court
House’s jurisdiction (quoting Gravel, 408 U.S. at 625) (internal quotation
marks omitted)); Gamrat v. Allard, 320 F. Supp. 3d 927, 936 (W.D. Mich. 2018)
(holding that actions associated with the investigation and expulsion of a
member of a state House of Representatives are legislative in nature and
privileged).
¶20 Here, the House, through Mesnard acting as speaker, retained
Sherman & Howard to investigate misconduct allegations against three
House members, including Shooter. The investigation did not lose its
character as a legislative function simply because an outside investigator
conducted it. See Doe v. McMillan, 412 U.S. 306, 312 (1973) (extending
legislative immunity to a consultant); AIRC, 206 Ariz. at 140 ¶¶ 29–30
(acknowledging that “the modern, part-time legislature, in light of
budgetary constraints, contracts with expert consultants on a variety of
subjects rather than retaining staff with such expertise” and extending the
legislative privilege to such contractors’ acts “that would be privileged
legislative conduct if personally performed by the legislator”).
¶21 The resulting investigative report, even if modified by
Mesnard, was “an integral part of the deliberative and communicative
processes” respecting House members’ decisions whether to vote for
Shooter’s expulsion—a matter firmly within the House’s jurisdiction. See
Gravel, 408 U.S. at 625; see also Hutchinson v. Proxmire, 443 U.S. 111, 133
(1979) (acknowledging that preparation of committee reports is protected
by legislative immunity). Preparation of the report and its release to
House members was therefore a legislative function protected by absolute
legislative immunity. See McMillan, 412 U.S. at 313 (holding that
preparing an investigative report and “authorizing the publication and
distribution of that report” were “integral part(s) of the deliberative and
communicative process by which Members participate in committee and
House proceedings with respect to . . . matters which the Constitution
places within the jurisdiction of either House” (quoting Gravel, 408 U.S.
at 625)).
¶22 Mesnard’s act in releasing the report to the public was also a
legislative function protected by legislative immunity. Arizona law
requires public records in the custody of elected officials to be “open to
inspection by any person.” A.R.S. §§ 39-121, -121.01. As an elected
representative who ordered the investigation, participated in drafting the
report, and had custody of it, Mesnard was authorized to permit public
inspection of the report and thus performed a legislative function in doing
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Opinion of the Court
so. The situation here is distinguishable from the one in Gravel, where the
Supreme Court held that a senator who lacked authority to arrange for
private publication of classified materials introduced at a congressional
subcommittee hearing was not shielded by the Speech or Debate Clause.
408 U.S. at 625–26.
¶23 The record does not show whether a member of the public
asked to inspect the report before Mesnard released it. See § 39-121.01(D)
(outlining request process). But even absent such a request, and given his
authority, Mesnard performed a legislative function by releasing the report.
See McMillan, 412 U.S. at 314 (“Members of Congress are themselves
immune for ordering or voting for a publication going beyond the
reasonable requirements of the legislative function.”); Hutchinson, 443 U.S.
at 130, 133 (reaffirming that congressional members cannot be held liable
for voting to publish a committee report and distinguishing private
republication of such reports); Green v. DeCamp, 612 F.2d 368, 372 (8th Cir.
1980) (holding that state senators’ release of committee’s investigative
report “to news reporting and publishing agencies” was a legitimate
legislative activity, making the senators immune from suit); Romero-Barcelo
v. Hernandez-Agosto, 75 F.3d 23, 31 (1st Cir. 1996) (concluding that decision
to “publish” content of legislative hearings through live telecasts
“constituted legislative conduct absolutely immune from civil suit”).
¶24 Shooter also argues that Mesnard’s retention of a law firm to
investigate the allegations against Shooter and then create a report rather
than assigning a House committee to investigate and then conduct public
hearings denied Shooter due process and was outside the “sphere of
legislative activity,” making release of the resulting report unprotected by
legislative immunity. The sole authorities cited for this argument are
cases emphasizing Arizona’s reluctance to immunize public servants from
liability. See, e.g., Sanchez, 175 Ariz. at 97 (“We do not favor immunity
from common law liability.”).
¶25 We are unpersuaded. Whether Mesnard violated House
rules, statutory law, or even the state or federal Constitution has no bearing
on whether his actions were legislative functions and thus afforded
immunity. See Kilbourn, 103 U.S. at 203–04 (acknowledging that immunity
applies to legislative functions “without inquiring whether the exercise was
regular, according to the rules of the House, or irregular and against their
rules” (quoting Coffin, 4 Mass. at 27)); McMillan, 412 U.S. at 312–13 (noting
legislative immunity applies to acts taken within the “legislative sphere”
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Opinion of the Court
even if in other contexts the action would be “unconstitutional or otherwise
contrary to criminal or civil statutes”); Eastland, 421 U.S. at 509–10 (same);
Rangel, 785 F.3d at 24 (“An act does not lose its legislative character simply
because a plaintiff alleges that it violated the House Rules or even the
Constitution . . . .” (citation omitted)). Such sweeping protection “has
enabled reckless men to slander and even destroy others with impunity,
but that was the conscious choice of the Framers.” Brewster, 408 U.S. at 516
& n.11 (“The injury to the reputation of a private citizen is of less
importance to the commonwealth, than the free and unreserved exercise of
the duties of a representative, unawed by the fear of legal prosecutions.”
(quoting Coffin, 4 Mass. at 28)). Any remedy for such abuses must come
from the voters, not the courts. See Tenney, 341 U.S. at 378 (“In times of
political passion, dishonest or vindictive motives are readily attributed to
legislative conduct and as readily believed. Courts are not the place for
such controversies. Self-discipline and the voters must be the ultimate
reliance for discouraging or correcting such abuses.”).
¶26 In sum, Mesnard performed a legislative function when he
modified the draft Sherman & Howard report and then released it to House
members and the general public. He is therefore absolutely immune from
liability to Shooter based on these actions.
¶27 We briefly address Justice Bolick’s separate concurrence,
which raises an unargued issue and then incorrectly resolves it. He asserts
that Shooter’s defamation claims involving the Sherman & Howard report
are nonjusticiable political questions because our constitution tasks the
legislature alone with disciplining or expelling a member. See infra ¶ 40;
see also Forty-Seventh Legislature of State v. Napolitano, 213 Ariz. 482, 485 ¶ 7
(2006) (“’Political questions,’ broadly defined, involve decisions that the
constitution commits to one of the political branches of government and
raise issues not susceptible to judicial resolution according to discoverable
and manageable standards.”). But the defamation claims do not challenge
the House’s decisions to investigate Shooter or expel him. Instead, they
focus on an individual legislator’s publication of allegedly defamatory
statements contained within the investigative report. Adjudication of
such claims, including an immunity defense, is a matter constitutionally
committed to the judicial branch, not the legislative branch, and is therefore
justiciable. See Ariz. Const. art. 6, § 1.
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Opinion of the Court
B. The News Release
¶28 Whether Mesnard is absolutely immune from liability for
issuing a defamatory news release also depends on whether doing so was
a legislative function. See Gravel, 408 U.S. at 624; Restatement § 590. As
previously explained, see supra ¶ 16, a legislator who issues a news release
does not perform a legislative function but instead engages in a political act.
Mesnard nevertheless argues that issuing the news release here was a
legislative function because the release explained the basis for his decision
to seek Shooter’s expulsion, the release was issued during the legislative
session, and he was acting as the speaker.
¶29 Putting aside, for now, Mesnard’s role as speaker, he did not
perform a legislative function by issuing the news release because
informing the public about his decision to seek Shooter’s expulsion was not
“an integral part of the deliberative and communicative processes”
concerning the House investigation or any contemplated disciplinary
action against Shooter. See Gravel, 408 U.S. at 625; see also Steiger, 112 Ariz.
at 3. Mesnard’s explanation to his colleagues on the House floor later that
day, which repeated and expanded on the thrust of the news release, served
that purpose and was immune as a legislative function. See id.
¶30 The Supreme Court’s opinion in Hutchinson v. Proxmire, 443
U.S. 111, is instructive. The issue there was whether Senator Proxmire was
absolutely immune for publishing allegedly defamatory statements about
the plaintiff in news releases and newsletters highlighting what the senator
perceived to be wasteful government spending. Id. at 113–14. The
senator argued that issuing those documents was a protected legislative
function because they communicated legislative positions to other senators
in a focused manner and informed constituents of issues under
consideration. Id. at 130–32. The Court rejected both arguments,
reasoning that, at best, such missives only related to the legislative process
but were not essential to it. See id. at 131–33 (“Valuable and desirable as it
may be in broad terms, the transmittal of such information by individual
Members in order to inform the public and other Members is not a part of
the legislative function or the deliberations that make up the legislative
process.”).
¶31 Like the news releases in Hutchinson, the release here was not
essential to the legislative process and thus fell outside the reach of
legislative immunity. See id. at 133 (describing news releases and
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Opinion of the Court
newsletters as means of primarily informing people “outside the legislative
forum” and thus not subject to immunity); see also Brewster, 408 U.S. at 514
(“[O]nly acts generally done in the course of the process of enacting
legislation were protected.”). It makes no difference that the subject of the
release addressed a matter coming before the House. Cf. United States v.
Helstoski, 442 U.S. 477, 489 (1979) (“Promises by a Member to perform an act
in the future are not legislative acts.”). The key consideration is whether
issuing the news release was essential to members’ deliberation or
communication about the investigation or its ramifications. See Gravel, 408
U.S. at 625; Steiger, 112 Ariz. at 3. It was not.
¶32 Mesnard urges us to follow two out-of-state court cases
decided before Hutchinson. See State ex rel. Okla. Bar Ass’n v. Nix, 295 P.2d
286, 291–93 (Okla. 1956) (holding that a legislator was immune for issuing
an in-session press release that referred to the legislator’s speech on the
floor); Abercrombie v. McClung, 525 P.2d 594, 600–01 (Haw. 1974)
(concluding that a legislator was immune for a statement to the press that
clarified a speech delivered on the floor). These decisions are
unpersuasive because they based immunity on the close relationship
between the challenged actions and legitimate legislative functions. See
Nix, 295 P.2d at 288 (press release issued in conjunction with floor speech);
Abercrombie, 525 P.2d at 600 (clarifying floor speech). They did not focus,
as we do, on whether the challenged actions were integral parts of the
deliberative and communicative processes engaged in by members
regarding a matter before them. See Gravel, 403 U.S. at 625.
¶33 Mesnard’s role as speaker does not require a different result.
Mesnard and amici stress he was the speaker at the time he issued the news
release. But they provide no evidence that the House authorized Mesnard
to speak on its behalf or that, apart from identifying himself as speaker,
Mesnard was acting in that capacity when he issued the news release. Our
review of the constitution, statutes, House procedural rules, and caselaw
does not reveal such authority. And even assuming the speaker performs
a legislative function when authorized to issue a news release on the
House’s behalf, an issue we do not decide today, we cannot conclude as a
matter of law that Mesnard exercised that authority here because the release
communicates only his personal views and plans rather than those of the
House.
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¶34 At oral argument, Mesnard asserted he issued the news
release as an exercise of the speaker’s inherent authority, relying on Barr v.
Matteo, 360 U.S. 564 (1959). There, former employees of the Office of Rent
Stabilization sued that agency’s acting director for issuing an allegedly
libelous news release announcing his decision to fire them for authorizing
a publicly controversial employee-leave reimbursement plan. Id. at 565–
68. The Supreme Court held that although “[t]he question is a close one,”
the acting director was absolutely immune from liability under the common
law doctrine of official immunity. Id. at 574. It noted that “[t]he integrity
of the internal operations of the agency” as evidenced by “charges made on
the floor of the Senate and given wide publicity” had been challenged. Id.
at 574. Under these circumstances, the acting director was necessarily
bestowed with authority to issue the release “if the public service is to
function effectively.” Id. at 574–75. “It would be an unduly restrictive
view of the scope of the duties of a policy-making executive official to hold
that a public statement of agency policy in respect to matters of wide public
interest and concerns is not action in the line of duty.” Id. at 575.
¶35 Barr does not persuade us that Mesnard is absolutely immune
as a matter of law. This Court has previously rejected Barr’s applicability
to Arizona’s common law official immunity doctrine. See Chamberlain v.
Mathis, 151 Ariz. 551, 558–60 (1986) (adopting a general rule of qualified
immunity for executive officials and stating that absolute immunity applies
only when essential to conducting public business); see also Goddard v. Fields,
214 Ariz. 175, 178 ¶ 10 (App. 2007) (concluding the attorney general does
not have absolute immunity for issuing allegedly defamatory news release
that informed the public of pending litigation). But even assuming the
speaker had inherent authority to issue a news release announcing House
action taken to restore public trust in the chamber, akin to the situation in
Barr, the record here does not establish such circumstances. Nothing
suggests that Shooter’s letter had been released to the public or that public
trust in the House’s internal operations was at risk; the letter and news
release were issued the same day. And the release did not announce
House action or purport to reflect any members’ views other than
Mesnard’s.
¶36 In sum, issuing news releases is not generally a legislative
function protected by legislative immunity. See Brewster, 408 U.S. at 512;
Hutchinson, 443 U.S. at 131–33; AIRC, 206 Ariz. at 137 ¶ 18. The record
does not establish as a matter of law that issuing the release here was
14
MESNARD V. HON. CAMPAGNOLO/SHOOTER
Opinion of the Court
integral to the House members’ deliberative or communicative processes
regarding a pending matter. See Gravel, 408 U.S. at 625.
CONCLUSION
¶37 For the foregoing reasons, we affirm the trial court’s denial of
Mesnard’s motion to dismiss as it concerns his issuance of the news release.
We reverse its ruling denying the motion as it concerns Mesnard’s alleged
modification and release of the Sherman & Howard report. We remand to
the trial court with directions to dismiss the defamation claims regarding
the report and to proceed with the claims regarding the news release,
subject to any evidence that Mesnard was authorized to issue the release as
speaker and that exercising such authority constituted a legislative function
subject to absolute immunity.
15
MESNARD V. HON. CAMPAGNOLO/SHOOTER
JUSTICE BOLICK, Concurring in the result
BOLICK, J., concurring in the result:
¶38 I agree with the outcome my colleagues have reached but take a
different route to that destination.
¶39 The Court devotes the bulk of its analysis to the question of
whether the challenged actions are a legislative function. But that begs the
question of what exactly the function is. All the actions here were integral
parts of punishing or expelling a member. And the Constitution expressly
invests that function solely in the legislature. It is therefore a
nonjusticiable political question.
¶40 Our Constitution so greatly values separation of powers that
it devotes an entire article to it, commanding: “The powers of the
government of the state of Arizona shall be divided into three separate
departments, the legislative, the executive, and the judicial; and, except as
provided in this constitution, such departments shall be separate and
distinct, and no one of such departments shall exercise the powers properly
belonging to either of the others.” Ariz. Const. art. 3. Thus, “before we
reach the merits of [a constitutional] claim, we must decide whether it is
‘justiciable,’ that is, whether it is a claim that may be resolved by the courts.”
Nixon v. United States, 506 U.S. 224, 226 (1993). Although it is the power of
the courts to declare “what the law is,” Marbury v. Madison, 5 U.S. 137, 177
(1803), sometimes “the law is that the judicial department has no business
entertaining the claim of unlawfulness—because the question is entrusted
to one of the political branches . . . .” Vieth v. Jubelirer, 541 U.S. 267, 277
(2004); see also Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 7
(2006). 1
1
The courts have defined a second type of nonjusticiable political question
as “issues not susceptible to judicial resolution according to discoverable
and manageable standards.” Napolitano, 213 Ariz. at 485 ¶ 7. Although
judicial avoidance of matters entrusted to the legislative or executive
branches is a separation of powers maxim, I have observed elsewhere that
the second type of political question, “as a standalone doctrine . . .
abdicat[es] the judiciary’s central role of constitutional interpretation.”
State v. Maestas, 244 Ariz. 9, 15 ¶ 27 (2018) (Bolick, J., concurring).
16
MESNARD V. HON. CAMPAGNOLO/SHOOTER
JUSTICE BOLICK, concurring in the result
¶41 The “courts possess power to review either legislative or
executive action that transgresses identifiable textual limits,” Nixon, 506
U.S. at 238, but not where the Constitution places specific authority
exclusively within the power of a political branch. Thus, in Nixon, the
Court held that the Constitution vested sole authority in the Senate to
choose impeachment procedures; whereas in Powell v. McCormack, the
question of whether the U.S. House of Representatives could expel a
member under its constitutional power to judge the qualifications of its
members was justiciable because the Constitution separately defined those
qualifications. 395 U.S. 486, 548 (1969).
¶42 Article 4, part 2, section 11 of the Arizona Constitution
provides: “Each house may punish its members for disorderly behavior,
and may, with the concurrence of two-thirds of its members, expel any
member.” Ariz. Const. art. 4, pt. 2, § 11. This textual commitment of
authority to a political branch is about as clear as constitutional language
gets, and no relevant additional constitutional constraints exist to empower
us to inquire further into the legislature’s decision making or processes.
Therefore, it is beyond the judicial power to second-guess the legislature’s
methods and actions. The remedy for abuse of such constitutionally
assigned powers is political, not legal.
¶43 The analysis here largely parallels my colleagues’ approach
under the Speech and Debate Clause, Ariz. Const. art. 4, pt. 2, § 7: the
legislature’s actions in “[i]nvestigating the basis for discipline or expulsion
is inherent in [the constitutional power] because the investigatory results
inform the decision whether to impose discipline on members or expel
them from the chamber.” Supra ¶ 19. This is precisely the power
invested in the legislature by article 4, part 2, section 11, making it a
nonjusticiable political question. Thus, the Sherman & Howard report,
along with its alleged adulteration, are not matters for the judiciary to
adjudicate. Mesnard’s news release, by contrast, does not appear to be
part of that process, so I agree with my colleagues that, based on the existing
record, it may be actionable.
¶44 I believe the case should be resolved on political question rather
than on speech or debate grounds for three reasons. First, justiciability is
a threshold question that should be determined before the Court proceeds
to the merits. See Nixon, 506 U.S. at 226. Second, as my colleagues
acknowledge, supra ¶¶ 13–15, the reach of the Speech and Debate Clause
17
MESNARD V. HON. CAMPAGNOLO/SHOOTER
JUSTICE BOLICK, concurring in the result
has been greatly expanded beyond speech and debate. 2 I am troubled by
the judicial expansion of legislative immunity—or immunity of any public
officials, for that matter—beyond that which is expressly constitutionally
provided. Third, and relatedly, as the Court’s decision illustrates, the
contours of that immunity are not easily determined. I prefer the brighter-
line approach in which a matter constitutionally assigned to a political
branch is beyond the judiciary’s purview. But as my colleagues reach the
correct result through different means, with great respect I join that result.
2
Indeed, Mesnard’s news release more resembles the “debate” that is
textually contemplated by the Speech and Debate Clause than does the
Sherman & Howard report, which is plainly neither legislative speech nor
debate. Moreover, our state constitutional provision is even more precise,
and arguably narrower, than its federal counterpart, in that it immunizes
only “words spoken in debate.” Ariz. Const. art. 4, pt. 2, § 7. But I
recognize that case law, as it is prone to do, has rendered opaque the text’s
plain meaning.
18