Don Shooter was expelled from Arizona’s House of Representatives after being accused of sexually harassing another member Ugenti-Rita. Before he was expelled there was an investigation of both Shooter and Ugenti-Rita. Shooter believed the Speaker of House J.D. Mesnard removed information from the investigation report that exculpated him and inculpated Ugenti-Rita.

Shooter fired off a letter to other members of the House, and Mesnard responded with a news release. Shooter sued Mesnard claiming he was defamed. Mesnard filed a motion to dismiss and pulled out his Arizona constitutional legislative immunity card (art. 4, pt. 2 § 7 (“No member of the Legislature shall be liable in any civil or criminal prosecution for words spoken in debate.”). (Readers may recall a couple of years ago Mesnard was critical of another representative who pulled out a different legislative immunity card after being stopped for speeding – art. 4, pt. 2 § 6.)

The Arizona Supreme Court agrees Mesnard is entitled to immunity for the preparation and release of the report (legislative function), but because the press release was outside that process, it may be actionable. The line is fuzzy. Justice Bolick concurs with the result but believes this case should be decided under separation of powers. Courts should stay out of the legislature and its processes involved in expelling its own. This is a political not a legal issue and should not be resolved by the fuzziness of defining what is and is not protected by legislative immunity. It is beyond the judicial power, writes Justice Bolick, to second-guess the legislature’s methods and actions. “The remedy for abuse of such constitutionally assigned powers is political, not legal.” What if the legislature ordered the dispute resolved at 20 paces?