JUDGE FINDS THAT THE FIRST AMENDMENT DOES NOT PROTECT HIM FROM THE SANCTIONS IMPOSED BY THE TOWN COUNCIL
In a “Tentative Ruling” dated July 30, 2024, the Honorable Dominic Lanza, the judge assigned to the action: Allen Skillicorn v. Ginny Dickey et al., concluded that Skillicorn’s claims were without merit. In an 18-page decision Judge Lanza, appointed to the Federal District Court bench by Donald Trump in 2018, concluded that under established Supreme Court precedent, the Town Council had the right to censure and discipline Skillicorn.
Judge Lanza expressly rejected Skillicorn’s claim that the imposition of sanctions violated his First Amendment rights. The Court also found that Skillicorn’s claims against Mayor Dickey and the three individual councilmembers who voted in favor of the sanctions were barred by the Doctrine of Legislative Immunity.
In reflecting on what brings an end to the ignominious litigation Skillicorn falsely claimed would expose corruption, it is important to recall how we got here and the members of the Town Council who acted with integrity and those who did not.
The Ethics Complaints
During his 18-month tenure on the Town Council Skillicorn has been the subject of at least nine ethics complaints. Some of those complaints were erroneously found to be without merit because the lawyer retained to review them did not find the controlling precedent.
Skillicorn’s lawsuit was based primarily on ethical violations he committed in September 2023 and January 2024. The September 2023 incident resulted in ethics complaints brought against him by Pam Cap and Councilmembers Sharron Grzybowski and Brenda Kalivianakis. The January 2024 incident resulted in an ethics complaint filed by Councilmember Grzybowski.
The four ethics complaints arising out of these two incidents were found to have merit by Tina Vannucci, the outside attorney retained to investigate them. Ms. Vannucci was also named as a defendant in Skilicorn’s lawsuit based on her purportedly “sham investigation.” Following Ms. Vannucci’s determination, the matter was referred to the Town Council to determine the appropriate sanctions.
Skillicorn’s Unlawful Pursuit of Peter Lucchese
On Sept. 23, 2023, during the school bond campaign, Skillicorn, a rabid opponent of the proposal, placed one of his “No Bond” signs in an unauthorized location. The sign, which Skillicorn had equipped with a tracking device, was removed by Peter Lucchese, a Code Enforcement officer. Minutes after Lucchese placed the sign in his vehicle and was back on the street, Skillicorn (who appears to have been lying in wait) drove up behind him, honking his horn and flashing his high beams. Not knowing who was pursuing him and concerned that his pursuer could be armed Lucchese drove to Town Hall where he parked near the Sheriff’s office. The subsequent encounter was captured on the responding deputy’s body camera, which can be viewed here, April 6 Flourish Fountain Hills Facebook post: https://fb.watch/tOdBbKz3_I/
After the incident and to this day Skillicorn claims that Officer Lucchese “stole” his sign and he was justified in chasing him in his vehicle and confronting him in the Town Hall parking lot. In the lawsuit, Skillicorn’s encounter with Lucchese is misleadingly described as follows: “…(a) Town employee confiscated a political sign that advocated against a Town bond measure. Councilman Skillicorn simply wanted to know why his political sign had been removed…and in fact it was he who was subject to aggressive behavior.” (Skillicorn Complaint, Preliminary Statement, p2.)
Skillicorn’s Scurrilous Attack on the Mayor and Members of the Town Council
During the Jan. 17, 2024, hearing on the proposed zoning change for the Target Plaza property, Skillicorn abruptly attempted to disrupt the proceedings with a “point of order.” Skillicorn then demanded that he be allowed to individually question the mayor and other councilmembers to determine if they had engaged in “ex parte” communications with or accepted “campaign contributions” from representatives of the developers of the Four Peaks project.
Skillicorn was ultimately ruled to be “out of order” but not before he fed the rumors, still in circulation, that members of the Town Council engaged in inappropriate “private” communications with the developers and accepted campaign contributions from them. The ethics complaints brought against Councilmember Kalivianakis that resulted from Skillicorn’s grandstanding were found to be without merit. There is no evidence that the mayor or any member of the Town Council accepted a campaign contribution from the developer of the Four Peaks Project. Yet Skillicorn continues to defame his colleagues.
Recently on his X account, Skillicorn published a promo for “part 2” of an article, written by Rachel Alexander (a sham journalist for an alt-right publication), that provided:
“Part two of my devastating reveal about the far leftists running our super red Town of Fountain Hills and conspiring against conservatives. Here I go over a lawsuit that conservative Town Councilman @allenskillicorn was forced to file against the town’s leadership for coming after him due to his conservatism-they are disciplining him, including preventing him from serving as vice mayor, for confronting a town employee stealing one of his signs, and for questioning other council members over voting issues regarding developers who had contributed to their campaigns.”
The Hearing
On March 29, 2004, the Town Council held a special hearing to determine the sanctions, if any, to be imposed on Councilmember Skillicorn based on two distinct violations of the Town’s Code of Ethics. The council chamber was at capacity, which was not surprising considering the unprecedented nature of the proceeding and the media attention that Skillicorn eagerly sought to complain of his “political persecution” and the “efforts to silence him.”
During the proceeding, Skillicorn offered no defense to the charges but sat in his chair, red-faced and sullen, glowering at councilmembers as they recounted their reasons for supporting an award of sanctions. Mayor Dickey impressed many of the attendees with her calm and measured management of the proceeding, which she described as disheartening but necessary to ensure that residents and staff could maintain trust in the integrity of its elected officials.
Councilmember Toth was not physically present but, without providing any justification for Skillicorn’s obvious violations of the Code of Ethics, voiced her opposition to any effort to discipline him. Toth did make oblique references to Bible verses that she appeared to believe had some relevance to the proceedings.
Councilmember Friedel advised those in attendance that although he was “not a fan of Allen’s arrogant, rude, bullying style” he would not vote to support an award of sanctions because of a letter he and other members of the council had received. This letter, authored by Skillicorn’s lawyer, Timothy LaSota, threatened legal action if the hearing was allowed to continue and resulted in an award of sanctions.
Friedel claimed that he had given LaSota’s letter to his personal attorney who advised him not to vote in favor of any sanctions. Friedel concluded by weakly attempting to justify his failure to fulfill his obligation to enforce the Code of Ethics as follows: “I am sorry I had to reach out to legal counsel, but I respect my counsel and I will follow his advice.”
Those familiar with the well-established law of insulating elected officials from personal liability arising out of the performance of their official duties did not accept Friedel’s explanation. No damages could be awarded against Friedel or other Town Council members based on their decision to sanction Skillicorn. Friedel was also aware that the legal fees incurred in any litigation would be paid by the Town’s risk management pool.
It was clear to many that Friedel’s unprincipled refusal to sanction Skillicorn was not based on the advice of an attorney but on his fear of alienating ROT and its supporters. Friedel was not concerned with protecting the reputation of the town or the well-being and safety of employees. Friedel was only concerned with how his vote to sanction Skillicorn would be viewed by his supporters.
The Sanctions
Based on the determination made by Ms. Vannucci that the ethics complaints had merit, Mayor Dickey and Councilmembers McMahon, Grzybowski, and Kalivianakis voted to censure and impose specific sanctions on Skillicorn.
In the Complaint Mr. LaSota (who represented ROT in the ill-fated Referendum litigation) unartfully described the sanctions as follows:
- Skillicorn cannot be elected (sic) Vice Mayor;
- The Town will not pay for any travel for Councilman Skillicorn for travel related to his official duties;
- Mr. Skillicorn (sic) has been barred from interacting with Town employees unless another individual is present; and
- The Town Council is badgering Councilman Skillicorn to “apologize to the Town employee at issue, compelled speech that Councilman Skillicorn refuses to engage in. His refusal will undoubtedly lead to attempts to impose additional sanctions. (Complaint, Preliminary Statement, p.2)
The Lawsuit
Skillicorn’s lawsuit was brought against the Town of Fountain Hills, the mayor, the three councilmembers who voted in favor of the sanctions, and Ms. Vanucci.
The Complaint, signed by LaSota, is a sloppy stream-of-consciousness diatribe consisting almost entirely of argument. One section of the Complaint is actually titled: “Continuing Fallout and New Ethics Complaints Targeting Councilman Skillicorn’s First Amendment Rights Emerge.”
In this section it is alleged that: “The Defendant Councilmembers have begun a campaign of harassment, attempting to badger councilmember Skillicorn into apologizing to Town employee Peter Luchese (sic).” (Complaint P. 59). The harassment complained of included a single email from Councilmember McMahon stating: “Please provide me with a copy of your letter of apology to Peter Lucchese, Code Enforcement Officer.” (Complaint P. 54). Paragraph 55 of the Complaint is not an allegation but a defiant statement: “Councilman Skillicorn owes no apology to Mr. Luchese (sic), he will not be apologizing to Mr. Luchese (sic) and the Town will likely attempt to impose additional illegal sanctions on Skillicorn for his refusal.”
In the “Prayer for Relief” Section of the Complaint Skillicorn requested an award of compensatory and punitive damages, his attorneys’ fees and costs, and injunctive relief. It was the request for injunctive relief that resulted in Judge Lanza’s Tentative Ruling signaling that he has determined that Skillicorn’s claims against the Town and the individual defendants have no merit.
In a civil action, the plaintiff is generally seeking redress for an injury sustained because of the defendant’s unlawful conduct. The remedies may include monetary damages either as compensation for the injury or to punish the defendant for willful or malicious conduct.
If the law provides for the matter to be tried by a jury and if a jury trial is requested, the jury will determine, based on the evidence and applicable law, if the plaintiff is entitled to damages. The jury will also determine the amount of damages to be awarded. Skillicorn requested a jury trial; however, the Tentative Ruling makes it clear that his claims against the Town and the individual defendants will never make it to a jury because the Judge has determined, as a matter of law, that those claims to be without merit.
Normally, the determination that a claim has no merit as a matter or law would be made by the Judge in the context of a Motion to Dismiss or a Motion for Summary Judgment. However, as noted above, in the Complaint Skillicorn also requested injunctive relief. Injunctive relief is appropriate where the plaintiff establishes that he will sustain further injury unless the court orders the defendant to do or refrain from doing something.
Only Judges can award injunctive relief. A Judge will issue an order providing injunctive relief only if he first determines that, as a matter of law, it is likely that the plaintiff will prevail on his claim against the defendant. If, as a matter of law the claim has no merit, injunctive relief will not be granted.
Here, Skillicorn brought a Motion asking Judge Lanza to issue a preliminary injunction that would prohibit the Town and the four individual members of the Town Council from violating his “rights” in the future and taking any action to enforce the sanctions that had been imposed.
The Motion was scheduled for a Hearing on August 13, 2024. Prior to the Hearing, the Plaintiff and the Defendants submitted briefs setting out the facts and the law in support of their respective positions.
On July 30, 2024, Judge Lanza took the highly unusual action of issuing a Tentative Ruling denying the Motion for a Preliminary Injunction because Skillicorn “has not established a likelihood of success on, or even serious questions going to, the merits of his claims” (Tentative Order pg. 18). In other words, the Judge has determined that even if Skillicorn’s highly skewed version of the facts were found to be true, he could not prevail because there is no legal basis for his claims.
The Court’s decision was based on the determination that, as a matter of law:
• The Town Council did not violate Skillicorn’s Constitutional Rights by sanctioning him for his unethical conduct; and
• The doctrine of legislative immunity precludes Skillicorn from asserting any claim against the individual defendants based on their performance of the legislative act of disciplining another councilmember.
The Court’s Conclusion That Skillicorn’s Constitutional Rights Were Not Violated
Judge Lanza began his analysis of the merits of Skillicorn’s claim that his Constitutional Rights were violated by chiding his lawyer for making a demonstrably false argument as follows: “Although Plaintiff contends that there is ‘zero support’ in ‘federal case law’ for the notion that the members of a municipal legislative body, such as the Town Council, may censure or discipline a fellow councilmember for conduct that would otherwise be protected by the First Amendment, Plaintiff overlooks that there is, in fact, a significant body of law on this topic.” (Tentative Ruling pg.12)
Judge Lanza proceeded to discuss the ‘significant body of case law’ including, most notably, a recent unanimous decision of the United States Supreme Court. In that case, Houston Community College v. Wilson, 595 U.S. 4 (2022), the Supreme Court observed that “elected bodies in this country have long exercised the power to censure their members” and there is “little reason to think the First Amendment was designed or commonly understood to upend this practice.”
Based on this decision and cases reaching the same conclusion, Judge Lanza found that Skillicorn’s First Amendment rights were not violated by the sanctions that were imposed.
The Court’s Conclusion That the Doctrine of Legislative Immunity Precludes Skillicorn From Asserting Any Claim Against the Individual Defendants
Judge Lanza’s determination that Skillicorn’s claims are without merit was also based on his application of the long-standing legal principle that members of a legislative body cannot be sued for actions they take while performing their legislative duties. In his analysis, Judge Lanza relied on decisions from multiple jurisdictions concluding that a governing body’s discipline of a member is a legislative act.
Accordingly, Judge Lanza concluded that Skillicorn’s claims against the individual defendants were without merit.
Where Do We Go From Here?
If Skillicorn and his lawyer had any sense they would cancel the hearing and dismiss this ridiculous lawsuit. Judge Lanza has carefully explained the basis for his determination that Skillicorn’s claims are without merit. The Judge has sent a clear message to Skillicorn and LaSota that the lawsuit should be dismissed.
If the action is not dismissed voluntarily and continues, we expect that the Defendants will seek sanctions under Rule 11 of the Federal Rules of Civil Procedure. Rule 11 authorizes the court to sanction an attorney and, in some cases, a litigant, where claims or contentions are made for an improper purpose or unwarranted under existing law by a “nonfrivolous argument” for extending or modifying the law. The sanctions can include an award of an opponent’s attorney’s fees and costs.
Judge Lanza’s Tentative Order would be viewed by any reasonable litigant or lawyer that it is time to fold up the carnival tent, dismiss the lawsuit, and move on.
We don’t hold out much hope that Skillicorn or LaSota will act reasonably. After all, after the Town Council awarded sanctions against him Skillicorn issued a press release stating: “No one seriously believes that I have violated our community’s standards of ethics.” After the body cam video was released Skillicorn republished the video on Rumble and his X account with a photo of Peter Lucchese with his hands in the air and the caption: “Skillicorn Versus Sign Thief.”
In all likelihood, Skillicorn will continue to convene poorly attended press conferences, plant fake stories in rarely read online outlets complaining of his persecution and “corruption”. He remains blissfully unaware that he is increasingly viewed, even by those who once supported him, as a bumbling fool.
Unfortunately for Skillicorn, he cannot continue this frivolous lawsuit without invoking the ire of a Federal Judge. Federal Judges don’t tolerate litigants who lie for sport and whose lawyers ignore the law. We eagerly await the next sanctions hearing.
For those interested in reading Judge Lanza’s Order follow this link: https://www.flourishfh.com/wp-content/uploads/2024/08/Doc-32-Skillicorn-Tentative-Ruling.pdf