Shooter v. Arizona

4 F.4th 955

Donald SHOOTER, Plaintiff-Appellant,

v.State of ARIZONA; Kirk Adams, Husband; Janae Adams, Wife; Javan Mesnard, Named as Javan "J.D." Mesnard, Husband; Holly Mesnard, Wife, Defendants-Appellees.

No. 19-16248

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2020 Portland, Oregon

Filed July 22, 2021

Philip A. Byler (argued), Andrew T. Miltenberg, and Stuart Bernstein, Nesenoff & Miltenberg LLP, New York, New York; Thomas C. Horne, Horne Slaton PLLC, Scottsdale, Arizona; for Plaintiff-Appellant.

Betsy J. Lamm (argued), Ronald Jay Cohen, and Daniel P. Quigley, Cohen Dowd Quigley P.C., Phoenix, Arizona, for Defendants-Appellees Kirk and Janae Adams.

Stephen W. Tully (argued) and Bradley L. Dunn, Hinshaw & Culbertson LLP, Phoenix, Arizona, for Defendants-Appellees Javan "J.D." and Holly Mesnard.

Jeremy Horn (argued), Assistant Attorney General; Michael Tryon, Senior Litigation Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; Defendant-Appellee State of Arizona.

Before: Marsha S. Berzon, Daniel P. Collins, and Lawrence J. VanDyke, Circuit Judges.

COLLINS, Circuit Judge:

In early 2018, Appellant Donald Shooter was expelled from the Arizona House of Representatives by a 56–3 vote after a legislative investigation into sexual harassment allegations concluded that he had created a hostile work environment. About a year later, Shooter filed this suit in Arizona state court, alleging that the Speaker of the Arizona House and the Governor's Chief of Staff had wrongly engineered his expulsion in violation of his rights under federal and state law. After the action was removed to federal court, the district court dismissed Shooter's sole federal claim and remanded the state-law claims back to state court. We agree that Shooter's federal cause of action under 42 U.S.C. § 1983 was properly dismissed for failure to state a claim upon which relief may be granted, see Fed. R. Civ. P. 12(b)(6), and we therefore affirm the district court's judgment.

I

A

For purposes of reviewing the district court's dismissal for failure to state a claim, we "accept[ ] all factual allegations in the complaint as true and constru[e] them in the light most favorable to the nonmoving party." Fields v. Twitter, Inc. , 881 F.3d 739, 743 (9th Cir. 2018) (citations and internal quotation marks omitted). "We may also consider ‘materials incorporated into the complaint by reference’ and any ‘matters of which we may take judicial notice.’ " Wochos v. Tesla, Inc. , 985 F.3d 1180, 1185 (9th Cir. 2021) (citation omitted). Applying these rules, we take the following facts as true.

Donald Shooter served in the Arizona Senate from January 2011 until January 2017 and thereafter in the Arizona House of Representatives until his expulsion in February 2018. Shooter alleges that while he was Chairman of the Senate Appropriations Committee, he discovered "questionable practices" relating to the State's use of "no-bid" contracts in making technology purchases—i.e. , contracts "where the State does not engage in a competitive bidding process, but rather chooses a vendor" who is then "able to dictate many of the contract terms including price and service level agreements." In response, Shooter introduced legislation in the Arizona Senate to address such practices. Shooter's proposed legislation passed both the Arizona House and Senate, but the Governor vetoed it.

After beginning his term in the Arizona House during the next legislative session in 2017, Shooter reintroduced his proposed legislation and continued to work for its passage. Shooter claims that, during this time, he learned that a private investigator was "following his every move." He also alleges that, every time he raised objections about no-bid contracts to the Governor's Chief of Staff, Kirk Adams, a few days later "a local television reporter" named Dennis Welch "would show up at the Legislature with a camera man and aggressively follow and film" Shooter and "then run a story derisive" of him. Shooter began to suspect that the reporter's actions resulted from collaboration with Adams.

In early November 2017, while serving as Chairman of the House Appropriations Committee, Shooter informed Adams that he intended to use his subpoena power to launch an investigation into the State's use of no-bid contracts. Five days later, Welch conducted and publicized an interview with another member of the Arizona House, Representative Michelle Ugenti-Rita, in which the latter accused Shooter of sexual harassment. Shooter claims that Ugenti-Rita's comments in the interview "misconstrued" her "past friendship" with him. Shooter alleges that, at the time of the interview, Ugenti-Rita was engaged to a lobbyist who had previously worked for Adams in the Governor's office, and he asserts that Ugenti-Rita collaborated with Welch in conducting and promoting the interview.

After the interview, Speaker of the House Javan ("J.D.") Mesnard began pressuring Shooter to resign. Rather than resign, Shooter called for a "complete investigation" into the sexual harassment claims against him as well as into "allegations that had surfaced concerning malfeasance and sexual misconduct by Representative Ugenti-Rita." Shooter expected that the two investigations would be assigned to the Arizona House's Ethics Committee, but Speaker Mesnard instead appointed "a hand-selected committee of his staff " to oversee the matter. On November 15, 2017, those staff members hired the outside law firm of Sherman & Howard to conduct the investigations of both Shooter and Ugenti-Rita. Mesnard suspended Shooter from his position as Chairman of the Appropriations Committee pending the investigation, but he did not suspend Ugenti-Rita from her committee chairmanship. Shooter alleges that although the two representatives were each partly reimbursed for their attorneys’ fees during the investigation, Ugenti-Rita's attorney was paid 25 percent more than Shooter's.

Shooter also asserts that, in November 2017, Speaker Mesnard unilaterally "created a substantially more restrictive" sexual harassment policy that he then provided to Sherman & Howard to apply retroactively and selectively in assessing the misconduct allegations against Shooter.

After interviewing more than 40 people, Sherman & Howard prepared a detailed 75-page report in late January 2018. Speaker Mesnard released the report to the public shortly thereafter. The report concluded that Shooter "created a hostile working environment" by engaging "in a pattern of unwelcome and hostile conduct toward other Members of the Legislature and those who have business at the Capitol." Specifically, the report found credible evidence that Shooter had "made unwelcome sexualized comments to and about Ms. Ugenti-Rita, including about her breasts"; that he "grabbed and shook his crotch" in front of a female government affairs officer from the Arizona Supreme Court; that he had physically embraced a female newspaper intern "in a prolonged, uncomfortable, and inappropriate manner"; that he made "sexualized comments" about the appearance of a female lobbyist; and that he made a sexual joke to a newspaper publisher and lawyer. The report also summarized the allegations against Ugenti-Rita and concluded that there was no "credible evidence" that she had violated the harassment policy.

Shooter claims that he was "assured both orally and in writing during the investigation and on the day the report was made available to the public that he was entitled to five days to provide a written response to the investigative report." However, four days later—assertedly before Shooter was able to issue a written reply to the report—the House voted 56–3 to expel him.

B

On January 29, 2019, Shooter filed suit in state court against Mesnard, Adams, and the State of Arizona, alleging that his expulsion was the product of a conspiracy among Mesnard and Adams to suppress his anti-corruption efforts. Shooter's complaint asserted a cause of action under 42 U.S.C. § 1983 based on alleged due process and equal protection violations, as well as three state-law causes of action: (1) defamation, (2) false light invasion of privacy, and (3) wrongful termination. The complaint sought only damages and declaratory relief.¹

In his complaint, Shooter argued that his expulsion deprived him of "a protected liberty interest" and "property right" without due process of law. According to Shooter, his investigation was "the first time in the Arizona Legislature's history" that a "special investigation team" consisting only of the Speaker's staff was used, rather than the Arizona House's "Ethics (or Special) Committee[,] to evaluate conduct complaints." Shooter claims that the investigation and subsequent expulsion proceedings deprived him of "the opportunity to meaningfully defend himself in a hearing before his peers," and that he should have been afforded "the protections of the traditional Ethics Committee" and given "the complete investigative file including the investigators’ notes describing the testimony of material witnesses." Shooter alleges that Mesnard violated his due process rights by failing to provide him with these procedural protections and by unilaterally adopting a November 2017 policy that improperly sought to impose a retroactive "zero-tolerance" sexual harassment standard "solely" against Shooter.

On March 11, 2019, Adams and Mesnard removed the action to federal court, with the State's consent. Shortly thereafter, Adams moved to dismiss the complaint for failure to state a claim on which relief may be granted. See Fed. R. Civ. P. 12(b)(6). With respect to Shooter's § 1983 claim, Adams argued, inter alia , that the claim raised a nonjusticiable political question and was barred by absolute and qualified immunity. Mesnard filed a separate motion to dismiss in which he argued, inter alia , that Shooter's § 1983 cause of action was barred by absolute immunity. Mesnard's motion...