153. Mr. Shooter does not seek to require the victim of sexual harassment by Ugenti-Rita to again provide her testimony when the victim already provided her detailed testimony to Sherman & Howard investigators which was documented. Mr. Shooter seeks to spare the victim and her corroborating, contemporaneous witnesses from the need to come forward and present testimony a second time. Mr. Shooter has testimony by requesting, repeatedly the House and Sherman & Howard to admit the existence of witnesses against Ugenti-Rita that were excluded from the report and to provide the witnesses statements as given to the independent investigators.
Furthermore, Mr. Shooter does not wish to make their identities public without their express permission.
154. When interviewed by the Phoenix Business Journal in April 2018 about his work investigating sexual harassment claims, including the Shooter & Ugenti investigation, the lead investigator for the House, Craig Morgan of Sherman & Howard advised “… the most important part of harassment investigations is getting to the truth and having due process for all involved. That means taking allegations seriously and dealing with them accordingly, if true.”
155. “To find the truth was the most important thing,” Morgan said of the Shooter investigation.
156. Mr. Shooter is in agreement with Mr. Morgan’s recommendations and therefore seeks due process, requests that Ugenti-Rita’s victim’s allegations are taken seriously and dealt with accordingly. This can only be achieved by the full and open disclosure of the sexual harassment and true victimization of Ugenti-Rita’s direct subordinate, a young staff member formerly under Ugenti-Rita’s direction in the Arizona House of Representatives.
II. GENERAL LEGAL BASES FOR SHOOTER’S CLAIMS
157. Mr. Shooter has been damaged by the actions and inactions of the Defendants. He has suffered violations of his Constitutional rights and has been the victim of common law torts. His constitutional rights under both the United States and Arizona constitutions have been violated. His rights to due process, equal protection, and to confront and cross examine his accusers were breached.
158. The Arizona violations include the failure to provide due process as required under the Arizona Constitution. Representative Shooter was discriminated against when Mesnard unilaterally, retroactively and without authority applied a “zero tolerance” subjective policy solely to Mr. Shooter, a violation also of House Rules which necessitated members to vote on the adoption of the “zero-tolerance” policy.
Speaker Mesnard intentionally violated House Rules when he submitted the specially constructed, never adopted policy to be applied retroactively. This is evidenced by the fact that after Mr. Shooter’s expulsion, Mesnard failed to seek nor obtain the approval of members to adopt any Code of Conduct, let alone the subjective, “zero-tolerance,” retroactive policy he created then claimed was violated which required that Mr. Shooter be expelled from office.
159. The allegations against Representative Shooter were made at the time Mesnard introduced a proposed policy for members and which will never be voted on let alone adopted by the legislative members which was required under House Rule.
160. It is a violation of Representative Shooter’s Constitutional rights for Mesnard to create a new, unadopted policy to apply to alleged actions dating back as far as 2011.
161. The same factual predicate outlined above is evidence that Mesnard, in his leadership position acted in concert to violate Representative Shooter’s due process rights and to deny him the privileges and immunities granted to him as a citizen of both Arizona and the United States.
162. Representative Shooter’s right to due process includes the Constitutional right to examine his accusers and confront the witnesses against him.
163. Although the expulsion of Representative Shooter is not a judicial proceeding, the House vote to expel him was to deprive him of his seat in the House of Representatives, which was a property right to which he was deprived without due process of law.
164. The entire removal process was undertaken without the protections of the traditional Ethics Committee or any of the rights the Courts find so important.
165. At a bare minimum, Representative Shooter should have been provided access to the complete investigative file including the investigators’ notes describing the testimony of material witnesses so that he could properly mount a defense to the allegations raised against him. He should, at the very least, have had timely access to the information in order to question the bias, interest, and motive of his accusers.
166. He was denied that right by Mesnard’s decision to release only the redacted 82 page report. Representative Shooter was wrongfully terminated from his position as Representative of legislative district 13.
167. Expulsion from a state legislature without due process is an important and ripe issue for Arizona’s Courts. Just a little over a month after the Arizona Speaker bypassed long established procedural and parliamentary norms and expectations for a fair disciplinary process and Representative Shooter became the first state legislator in the United States to be expelled without the matter considered by an ethics or special committee of his peers, Colorado followed suit and expelled a lawmaker also without first providing the protections required for due process.
168. Notably, the legislature requires a committee hearing before a bill may progress to a floor vote. It seems a minimal expectation that before a legislator is expelled from office, a hearing is first necessitated.
169. To be clear, it is the Constitutional right of every state legislature and Congress to expel an elected member of its chamber. But it is also clear, that such a vote cannot and must not occur without the elected member afforded some due process. Those two principles are not in conflict and are, in fact, complementary.
“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978).”
170. It is a fundamental American principle, embraced to distinguish our system of justice from a monarchy. At its core, due process is notice and an opportunity to be heard by an impartial tribunal.
171. Procedural rules “minimize substantively unfair or mistaken deprivations of life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, supra, 407 U.S. 67, 81 (1972).
172. In United States v. Ballin, 144 U.S. 1, 5 (1892) the Supreme Court held that, while the House’s rulemaking power was broad, in exercising that power, the House “may not by its rules ignore constitutional restraints or violate fundamental rights. It would seem that the same limit may be applicable to the expulsion power.”
ADDITIONAL LEGAL BASES OF THE CLAIMS
173. There is no question that the Supreme Court can and will intervene when other branches of state government act improperly. In the case of Arizona Indep. Redistricting Comm’n v. Brewer, 229 Ariz. 347, 275 P.3d 1267 (2012), the Court found the governor did not have the power to remove a member of the Independent Redistricting Commission. In doing so, the Court made some applicable observations:
The gubernatorial removal power derives from the Constitution, not statute. That fact, however, does not alter or lessen a court’s power to review whether removal of an independent commissioner meets constitutional requirements” (229 Ariz. at 354, 275 P.3d at 1274)
174. Well-established legal principles exist to guide us in determining whether the Governor’s removal of Mathis meets constitutional requirements, without ‘substituting our subjective judgment’ on facts or on the nature and severity of Mathis’s alleged wrongs.” (229 Ariz. at 354, 275 P.3d at 1274).
175. “The requirement of two-thirds Senate concurrence is a significant check on the governor’s removal power and poses a potentially formidable hurdle to curb abuse of executive discretion. *353 **1273 But the absence in Section 1(10) of the other procedural and substantive safeguards found in Article 8 distinguishes the Senate’s role under Section 1(10) from its role in an impeachment.” (229 Ariz. at 352–53, 275 P.3d at 1272–73).
176. “To determine whether a branch of state government has exceeded the powers granted by the Arizona Constitution requires that we construe the language of the constitution and declare what the constitution requires. The interpretation of the laws is the proper and peculiar province of the courts and a constitution is and must be regarded by the judges as fundamental law. It is emphatically the province and duty of the judicial department to say what the law is.” (229 Ariz. at 355, 275 P.3d at 1275)(internal cites and punctuation omitted).
177. Although the expulsion of Representative Shooter is not a judicial proceeding, the clear intent of the House vote to expel him was to deprive him of his seat in the Arizona House of Representatives. As the Supreme Court said in Greene v. McElroy, 360 U.S. 474, 496— 497 (1959):
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment. This Court has been zealous to protect these rights from erosion. In January 2018, the Congressional Research Service published “Expulsion of Members from Congress: Legal Authority and Historical Practice”. The authors note that there are very few court decisions on the use of the Constitution’s Expulsion Clause.