IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JAVAN “J.D.”MESNARD AND HOLLYMESNARD,

HUSBAND AND WIFE,

Petitioners,

v.

HON.THEODORECAMPAGNOLO,JUDGEOFTHESUPERIOR

COURTOF THESTATE OF ARIZONA,

IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

DONALDM.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

2

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

VICECHIEFJUSTICETIMMER 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.
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

3

the motion-to-dismiss proceedings. See id. Although the eighty-fivepage 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 UgentiRita” before releasing the final report at the end of January to House 

members and thegeneral 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
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

4

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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

5

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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

6

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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

7

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), vacatedsub 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.
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

8

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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

9

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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

10

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” 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

11

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 ¶ 39;

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. 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

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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 SenatorProxmire 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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13

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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Opinion of the Court

14

¶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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

Opinion of the Court

15

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.
MESNARD V. HON. CAMPAGNOLO/SHOOTER

JUSTICE BOLICK, Concurring in the result

16

BOLICK, J., concurring in the result:

¶37 I agree with the outcome my colleagues have reached but take 

a different route to that destination.

¶38 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.

¶39 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).
MESNARD V. HON. CAMPAGNOLO/SHOOTER

JUSTICE BOLICK, concurring in the result

17

¶40 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).

¶41 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.

¶42 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.

¶43 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 
MESNARD V. HON. CAMPAGNOLO/SHOOTER

JUSTICE BOLICK, concurring in the result

18

Debate Clause 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.