Shooter Denied Due Process By Hurried Expulsion Vote

On February 1, members of the Arizona Legislature voted 56-3 to expel Rep. Don Shooter from the House of Representatives. Shooter had been urged to resign in the aftermath of the issuance of a report in which multiple harassment allegations were found to be credible.

While it is nearly impossible to find someone, including Rep. David Stringer, who thinks that Shooter’s behavior was acceptable, questions as to the process employed by House leadership, and the apparent double standards for behavior have been raised by politicians and members of the public.

On February 2, Stringer, who cast one of the three “no” votes, explained the concerns he had about the process and the reasoning behind his vote in an interview on KFYI’s James T. Harris Show. “There are [a] few reasons,” said Stringer referring to his vote, “and they relate to due process considerations.” Stringer, an attorney by trade, explained that his “decision had nothing to do with the merits of the allegations.”

[Listen to Rep. Stringer’s interview here]

“If those allegations have been proven to my satisfaction, rather than just relying on a report I was handed, they might warrant some form of discipline,” said Stringer. Lawmakers were only provided with a report compiled by independent attorneys hired by Speaker of the House J.D. Mesnard.

“I made no judgment on the merits of the allegation or anyway minimizes the importance of and seriousness of sexual harassment in the workplace, and that is really what the allegations were about,” Stringer told Harris. “Had they been substantiated, I likely would have voted for discipline. My focus was on the due process. Basically a representative – any sitting legislator – is occupying a constitutional position in the state of Arizona. A member has rights, but so to the constituents. The people, who sent Mr. Shooter to Phoenix, selected him as their representative and they have a right to be heard, and I feel that the process we used did not fully comport with my understanding of due process.”

Mesnard had announced his intention to ask members to vote on censuring Shooter. That wasn’t enough for some members, and on January 31, Rep. Kelly Townsend called on Rep. Don Shooter to resign or face expulsion.

Townsend invoked House Rule 20 and Art. IV, Part 2, Section 16 to “emphatically call upon Rep. Shooter to resign, effective immediately.” She claimed she made the “request in the spirit of prevention, to spare our colleagues from the certain unpleasantry of having to vote for further action, which will most certainly fracture and permanently stain this House. Should you decide to not resign, I will support and move forward tomorrow with the most severe action to be taken, as there should and will be zero tolerance for such undignified behavior here.”

Townsend said Shooter has given us lawmakers “no choice,” and that she couldn’t “move in any direction other than expulsion.”

On the morning of the expulsion vote, Shooter sent an email to members that prompted Mesnard to embrace Townsend’s demands. In the email, Shooter questioned why other lawmakers and their associates were not disciplined for their questionable, and in once instance, criminal behavior.

Mesnard claimed that Shooter’s email constituted a “continuation and escalation of his improper conduct.” Mesnard alleged in a press release that that Shooter’s email represented “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.”

Harris asked Stringer what the process should have looked like to which he responded: “Basically due process would have involved taking statements of witnesses under oath; and that simply was not done. None of the people, who made statements against Mr. Shooter, were ever put under oath.”

“Typically in a due process hearing,” explained Stringer, “you have a right to confront your accuser and examine your accuser under oath. None of that was done in this case. Mr. Shooter did not have that opportunity because we didn’t have a due process hearing. The investigators, who prepared the report that we relied on, they didn’t put these people under oath either.”

“The second issue – and maybe an even bigger issue – is that as an elected official, who’s being asked to judge another colleague, who’s occupying a constitutionally office, has a responsibility to make judgments; independent judgments. Independent judgments based on our assessment of the facts and the law, and that simply was not done in this case,” said Stringer. “We were handed a report that was full of findings of fact and conclusions of law, but we were not allowed to either examine the people who offered statements, or even examine the people who prepared the report. So we were making sort of a vicarious judgment. We were delegating the responsibility to make credibility determinations and to assess the law. We were delegating that to hired attorneys that the Speaker had retained to prepare the report. There is not a single legislator, who voted to expel Mr. Shooter, who had an opportunity to make an independent determination as to the facts and what is the law. I take exception to that. I think it’s a horrible mistake; we set a horrible precedent.”

Many of Shooter’s constituents felt that there had been a rush to judgment. Harris asked Stringer if that might have been the case. “There is this spirit of vengeance in our country right now. A lot of people are being accused of sexual harassment. Maybe they’re guilty – in some cases we know they’re guilty because they admitted as much – but nevertheless, when someone is accused and denies and wants an opportunity to be heard, we should afford them that fundamental right. I think it there’s this sort of hysteria – if you will – that’s going on in our country. The easy thing to do was to expel Mr. Shooter and the hard thing to do was demand an independent review of the evidence, and a more deliberative process.”

Stringer said that before the expulsion vote, he had an opportunity to speak to the speaker and other members of House leadership. “I spoke with several members of the House leadership and I was told that I should vote my conscience. I expressed the concerns and they said ‘we respect your right to have your opinion go ahead and vote your conscience’ and that’s exactly what I did. I articulated the same concerns I’ve said here. After the vote, I met with the speaker and have spoken to at least one other member of leadership and nobody’s mad at me. There won’t be any reprisals. Every member was allowed to vote their conscience and my conscience took me in another direction and I was a “no” vote.

One of the reasons most frequently cited by members when they elected Mesnard to the speaker’s position was his fairness and unwillingness to retaliate for fellow lawmakers’ various votes.

Stringer did note that the there is some precedent that should have determined a process through which Shooter’s due process rights could have been protected. “The last time this came up,” said Stringer, “there was a due process hearing. The member in that case resigned before they took the vote, but there was at least a process; an independent examination of the evidence. In this case we simply didn’t do it.”

Stringer said that the “speaker hired out some lawyers to do a report and I think they acted in good faith.”

Stringer said that he supported Rep. Anthony Kern’s call for an investigation into allegations about House Minority Leader Rep. Rebecca Rios, and Rep. Michelle Ugenti-Rita’s fiancée, Brian Townsend (no relation to Rep. Townsend) that were also found to be credible in the report. “Whenever there is an allegation of illegal conduct, it needs to be followed up,” said Stringer. “I support his call for an investigation into the credible allegations of misconduct. It’s not just appropriate, it’s required.”

Stringer said he hoped that nothing like this ever happens again. He stated that he hoped “in the future – should something like this come up again – I hope no one is put in Mr. Shooter’s position. I hope that when anything like this ever comes up again, regardless of the type of allegations, that we do have a due process hearing. That we do take statement under oath. That a member is allowed to confront the witnesses against him, and that the members make independent determinations as to what the facts and the law are. My regret is that we did not do that in the case of Mr. Shooter. That does not make Mr. Shooter innocent; that just means that the process is unfair.”

When asked by Harris if he thought Shooter’s expulsion ended the matter. “It depends on Mr. Shooter,” responded Stringer, “because I believe he has a basis of a lawsuit. If I’m correct – that there has been a denial of due process – we’ve deprive Mr. Shooter of a constitutional office. We deprived his constituents representation that they’re entitled to under the constitution, and that was would seem to be legally actionable.”

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