Mesnard v. Campagnolo (6/30/2021)
Arizona Supreme Court holds that absolute legislative immunity covers an investigative report but not a news release.
After two elected members of the Arizona House of Representatives levied accusations of sexual assault and misconduct against one another, the speaker of the House launched an investigation. An outside firm drafted an investigatory report, which the speaker modified and published. The speaker issued a short news release addressing the controversy and, on the same day, successfully introduced a bill expelling one of the embroiled representatives.
The expelled representative alleged defamation against the speaker based on his modifications to and publication of the investigatory report and his statements in the news release. The speaker unsuccessfully moved to dismiss. After the Court of Appeals denied the speaker’s special action petition, the Supreme Court granted review to address whether the doctrine of absolute legislative immunity applied as a matter of law.
The Supreme Court held that the speaker was absolutely immune from liability as a matter of law for the allegedly defamatory statements made in the investigatory report but not the news release.
A legislator, the Court explained, is absolutely immune from defamation for statements made while performing a legislative function. This includes constitutionally protected “speech or debate” during legislative proceedings as well as acts integral to the “deliberative and communicative” processes of legislation or within the Legislature’s constitutional jurisdiction. Whether the legislator has ill intent, or even whether he violated House rules, statute, or the Constitution is not relevant to the immunity analysis.
The Court found that the initiation and modification of the investigatory report were integral to the constitutionally authorized “deliberative and communicative” process of the House regarding member expulsion. Publication of the report was statutorily authorized by Arizona’s public records law.
The news release, the Court held, was not integral to the legislative process and thus fell outside the reach of legislative immunity as a matter of law. The Court instructed the trial court to proceed with this claim, subject to evidence that the speaker was authorized to publish the news release such that it constituted a legislative function subject to immunity.
The opinion quickly dispensed with the concurrence’s political question doctrine argument as unargued by the parties and inapplicable because the action challenged the speaker’s alleged defamation, which is justiciable, not the Legislature’s investigatory processes.
Vice Chief Justice Timmer 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. Justices Beene and Gould (Ret.) were recused.