Jaime a Molera v. Katie Hobbs

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
JAIME A. MOLERA, AN INDIVIDUAL AND QUALIFIED ELECTOR; ARIZONANS
FOR GREAT SCHOOLS AND A STRONG ECONOMY, A POLITICAL ACTION
COMMITTEE,
Plaintiffs/Appellees/Cross-Appellants,
v.
KATIE HOBBS, IN HER OFFICIAL CAPACITY AS ARIZONA SECRETARY OF
STATE; INVEST IN EDUCATION (SPONSORED BY AEA AND STAND FOR
CHILDREN), A POLITICAL ACTION COMMITTEE,
Defendants/Appellants/Cross-Appellees
No. CV-20-0213-AP/EL
Filed October 26, 2020
Appeal from the Superior Court in Maricopa County
The Honorable Christopher A. Coury, Judge
No. CV2020-007964
AFFIRMED IN PART, REVERSED IN PART
COUNSEL:
Brett W. Johnson, Eric H. Spencer, Colin P. Ahler, Snell & Wilmer L.L.P.,
Phoenix; Dominic E. Draye, Greenberg Traurig, LLP, Phoenix, Attorneys
for Jaime A. Molera, et al.
Roopali H. Desai, D. Andrew Gaona, Marvin C. Ruth, Kristen Yost,
Coppersmith Brockelman PLC, Phoenix, Attorneys for Invest in Education
(Sponsored by AEA and Stand for Children)
Grant Woods, Michael Riikola, Gallagher & Kennedy, P.A., Phoenix,
Attorneys for Amicus Curiae Wes Oswald and Kelley Fisher, et al.
Rhonda L. Barnes, Jane Ahern, Arizona House of Representatives, Phoenix;
Lisette Flores, Arizona Senate, Phoenix, Attorneys for Amici Legislative
Democrats
JAIME A. MOLERA et al. v. KATIE HOBBS et al.
Opinion of the Court
Oscar S. Lizardi, Rebecca K. O’Brien, Rusing Lopez & Lizardi, P.L.L.C.,
Tucson; Isaac S. Crum, Rusing Lopez & Lizardi, P.L.L.C., Scottsdale,
Attorneys for Amicus Curiae The Arizona Business Community
Erin Adele Scharff, Sandra Day O’Connor College of Law, Phoenix,
Attorney for Amici Curiae Tax Scholars
Roy Herrera, Daniel A. Arellano, Jillian L. Andrews, Ballard Spahr LLP,
Phoenix, Attorneys for Amici Curiae Ballot Initiative Strategy Center, et al.
Shawn K. Aiken, Shawn Aiken, PLLC, Phoenix, Attorney for Amici Curiae
Changing Hands Bookstore, Inc., et al.
Paul F. Eckstein, Daniel C. Barr, Austin C. Yost, Margo R. Casselman,
Perkins Coie LLP, Phoenix, Attorneys for Amici Curiae Kathy Hoffman, et
al.
Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix,
Attorneys for Amici Curiae Save Our Schools Arizona, et al.
Timothy Sandefur, Christina Sandefur, Scharf-Norton Center for
Constitutional Litigation at the Goldwater Institute, Attorneys for Amici
Curiae Goldwater Institute, et al.
Mary R. O’Grady, Joshua D. Bendor, Emma J. Cone-Roddy, Osborn
Maledon, P.A., Phoenix, Attorneys for Amici Curiae Arizona Non-Profit
Organizations, et al.
Lisa T. Hauser, Bonnett, Fairbourn, Friedman & Balint, PC, Phoenix,
Attorneys for Amicus Curiae Lisa T. Hauser
Kory Langhofer, Statecraft, Phoenix, Attorney for Amicus Curiae Rich
Crandall
Kraig J. Marton, Jeffrey A. Silence, Jaburg & Wilk, P.C., Phoenix; Patricia
Ronan, Patricia E. Ronan Law, LLC, Phoenix; Christopher Houk, Houk Law
Firm, PLLC, Tempe, Attorneys for Amicus Curiae Arizona Employment
Lawyers Association
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Opinion of the Court
VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, and JUSTICES BOLICK, GOULD, LOPEZ,
BEENE, and MONTGOMERY joined.
VICE CHIEF JUSTICE TIMMER, opinion of the Court:
¶1 In Molera v. Reagan, 245 Ariz. 291, 293 ¶ 1 (2018), we
disqualified an “Invest in Education Act” initiative from the 2018 ballot
because proponents failed to comply with A.R.S. § 19-102(A), which
requires that petition sheets used to gather signatures contain a short
description of the initiative’s principal provisions (the “100-word
description”). Now, we are asked to decide whether the 100-word
description for the currently proposed “Invest in Education Act” initiative
complied with § 19-102(A). We also address whether petition circulators
were paid in accordance with A.R.S. § 19-118.01(A), which prohibits
payments “based on the number of signatures collected.” We hold that
the initiative proponents complied with § 19-102(A) and gathered enough
signatures under § 19-118.01(A) to qualify for the November 3, 2020 General
Election ballot.
BACKGROUND
¶2 Defendant is a political action committee (the “Committee”)
seeking to place the “Invest in Education Act” initiative (“Initiative”) on the
2020 ballot. To qualify, the Committee was required to obtain 237,645
valid petition signatures demonstrating support for the measure. See Ariz.
Const. art. IV, pt. 1, § 1(2); 2020 Initiative & Referendum Quick Reference
Guide, Ariz. Sec’y of State, https://azsos.gov/sites/default/files/2020_
Initiative%20_Referendum_Guide.pdf (last visited Oct. 22, 2020). On July
2, 2020, the Committee filed petition sheets containing 435,669 signatures
with the Secretary of State. The Secretary reviewed the sheets for statutory
compliance pursuant to A.R.S. § 19-121.01(A) and determined that 377,456
signatures were eligible for verification by county recorders. See
§ 19-121.01(B).
¶3 Plaintiffs are a qualified elector and a political action
committee (“Challengers”) who oppose the Initiative. On July 10, before
completion of the signature verification process, they filed a verified
complaint asking the superior court to enjoin the Secretary from placing the
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Initiative on the ballot because (1) the 100-word description on petition
sheets violated § 19-102(A), and (2) after removing signatures gathered by
petition circulators who were paid in violation of § 19-118.01(A), the
measure lacked enough signatures.
¶4 After conducting a bench trial, the superior court rejected the
Challengers’ signature-based objection. But it found that the 100-word
description on the petition signature sheets failed to comply with
§ 19-102(A). The court therefore enjoined the Secretary from certifying
and placing the Initiative on the 2020 ballot.
¶5 This expedited appeal and cross-appeal followed. After
considering the briefs and authorities filed by the parties and amici, this
Court issued an order reversing in part and affirming in part the superior
court’s judgment and directing the Secretary to include the Initiative in the
general election publicity pamphlet and to place it on the general election
ballot. This opinion explains our reasoning.
DISCUSSION
I. The 100-word description
A. General principles
¶6 Section 19-102(A) requires initiative sponsors to insert on
petition signature sheets “a description of no more than one hundred words
of the principal provisions of the proposed measure.” The description
must be followed by this language:
Notice: This is only a description of the proposed measure (or
constitutional amendment) prepared by the sponsor of the
measure. It may not include every provision contained in the
measure. Before signing, make sure the title and text of the
measure are attached. You have the right to read or examine
the title and text before signing.
§ 19-102(A).
¶7 Increasingly, sponsors, opponents, and courts have struggled
both to identify “principal provisions” in measures and to determine
whether their descriptions satisfy § 19-102(A), particularly when the
proposed measures are lengthy or complex. There is also confusion about
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whether omission of a principal provision alone disqualifies a measure
from the ballot or whether the omission also must make the description
misleading or confusing. Further guidance on what § 19-102(A) does and
does not require is warranted before addressing the superior court’s ruling
here.
¶8 There are two grounds on which to challenge a measure’s 100-
word description under § 19-102(A). The first is that the sponsor omitted
a “principal provision” of the measure from the description. If the court
agrees, it should disqualify the measure from the ballot without further
inquiry. Whether the omission made the description misleading,
confusing, or unfair is irrelevant. We did not intend to suggest otherwise
in Molera, where we observed that omitting a principal provision
concerning the elimination of tax indexing also “create[d] a significant risk
of confusion or unfairness and could certainly materially impact whether a
person would sign the petition.” 245 Ariz. at 297 ¶ 25. Section 19-102(A)
requires a sponsor to describe all principal provisions of a measure.
¶9 What are “principal provisions”? They are the “most
important,” “consequential,” and “primary” features of the initiative. Id.
¶ 24 (quoting Sklar v. Town of Fountain Hills, 220 Ariz. 449, 453 ¶ 13 (App.
2008)). They are not all provisions. The 100-word description serves as
the “elevator pitch” that alerts prospective signatories to the measure’s key
operative provisions, enabling them to decide in short order whether to
sign the petition, refuse to do so, or make further inquiry about the
measure. See id. at 297 ¶ 27 (stating that the purpose of the description is
to enable prospective signatories to determine whether to endorse the
measure for the ballot); see also Kromko v. Superior Court, 168 Ariz. 51, 60
(1991) (observing that “rare is the elector who stops long enough in the
summer heat to read or listen to a complete description of the entire nature
and scope of a proposed measure”).
¶10 The second ground on which to challenge a 100-word
description focuses on the manner of describing the measure’s principal
provisions. Section 19-102(A) does not require the description to be
impartial. Save Our Vote, Opposing C-03-2012 v. Bennett, 231 Ariz. 145, 152
¶ 28 (2013). But to comply, the description must describe the principal
provisions to accurately communicate their general objectives. In light of
the 100-word limit, and the constitutional right to propose initiatives of any
length, the sponsor may cast the description in broad terms, and more
complex or multi-faceted initiatives may be unavoidably less detailed than
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shorter measures. See Quality Educ. & Jobs Supporting I-16-2012 v. Bennett,
231 Ariz. 206, 208 ¶ 9 (2013) (providing that “[t]he length and complexity of
the initiative” and the fifty-word limit for the Secretary of State’s ballot
summary are “factors in assessing compliance” with the statute requiring
that summary). If necessary, a sponsor may refer potential signatories to
the measure’s text for more detail when explaining technical terms or
difficult-to-grasp concepts.
¶11 Reasonable people can differ about the best way to describe a
principal provision, but a court should not enmesh itself in such quarrels.
See id. at 209 ¶ 13. If the chosen language would alert a reasonable person
to the principal provisions’ general objectives, that is sufficient. Applying
this reasonable person standard, the trial judge should ordinarily decide
the sufficiency of a description without expert witness evidence. See Ariz.
R. Evid. 702.
¶12 What constitutes a deficient description under § 19-102(A)?
In recent years, we have described such deficiencies as those that are
“fraudulent or create[] a significant danger of confusion or unfairness,”
Molera, 245 Ariz. at 295 ¶ 13 (quoting Save Our Vote, 231 Ariz. at 152 ¶ 26),
contain “untrue representations designed to defraud potential signatories,”
or “obscure[]” a measure’s principal provisions or “thrust,” Wilhelm v.
Brewer, 219 Ariz. 45, 48 ¶¶ 13–15 (2008) (quoting Kromko, 168 Ariz. at 59).
We now rephrase these standards more precisely to assist both initiative
sponsors in complying with § 19-102(A) and courts in deciding whether
sponsors did so.
¶13 The court should disqualify an initiative from the ballot
whenever the 100-word description either communicates objectively false
or misleading information or obscures the principal provisions’ basic
thrust. The latter can occur through the language used to describe the
principal provisions or by failing to refer to key features of those provisions.
In other words, although sponsors are free to describe the measure in a
positive way and emphasize its most popular features, they may not engage
in a “bait and switch” in which the summary attracts signers but
misrepresents or omits key provisions. In addressing challenges, a court
should “consider the meaning a reasonable person would ascribe to the
description.” Ariz. Chapter of the Associated Gen. Contractors of Am. v. City
of Phoenix, 247 Ariz. 45, 48 ¶ 15 (2019).
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B. Application to this case
¶14 The Initiative is nine pages long and proposes to amend both
A.R.S. Title 15 (Education) and Title 43 (Taxation of Income). The 100-
word description in the petition signature sheets for the Initiative provides:
The Invest in Education Act provides additional funding for
public education by establishing a 3.5% surcharge on taxable
income above $250,000 annually for single persons or married
persons filing separately, and on taxable income above
$500,000 annually for married persons filing jointly or head of
household filers; dedicates additional revenue to (a) hire and
increase salaries for teachers, classroom support personnel
and student support services personnel, (b) mentoring and
retention programs for new classroom teachers, (c) career
training and post-secondary preparation programs, (d)
Arizona Teachers Academy; amends the Arizona Teachers
Academy statute; requires annual accounting of additional
revenue.
The notice required by § 19-102(A) followed the description. See supra ¶ 6.
¶15 The superior court found that this summary omitted five
principal provisions, which also made the description misleading and
“created a significant danger of confusion or unfairness to a reasonable
Arizona voter.” It further ruled that use of the word “surcharge” masked
the Initiative’s proposal to substantially increase the tax rate for wealthier
taxpayers. We review the court’s ruling de novo. See Molera, 245 Ariz.
at 294 ¶ 8.
¶16 (1) Percentage distribution of new revenues. The 100-word
description listed who would receive the new tax revenues but not in what
percentages. The superior court reasoned that the percentage distribution
is a principal provision because a reasonable voter’s decision whether to
support or reject the measure might turn on that knowledge. It pointed
out that “[t]o some reasonable voters, devoting 50% of the money generated
by the Initiative directly to teacher salaries may have sounded too rich; to
other reasonable voters, devoting 50% of the money raised directly to
teacher salaries may have sounded too modest.” The court also found that
this omission risked confusing reasonable voters “who may believe that
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more or less than 50% of the funds raised would be used to increase teacher
salaries.”
¶17 The percentage distribution is not a principal provision
because it is not the Initiative’s “most important,” “consequential,” or
“primary” provision that must be described to alert prospective petition
signatories to the measure’s key operative provisions. See Molera, 245
Ariz. at 297 ¶¶ 24, 27. The Initiative’s principal provisions impose a
substantially increased tax rate on individuals’ taxable income exceeding
$250,000 and $500,000, depending on filing status (the “marginal tax rate”),
and dedicate the resulting revenues to public education needs. The 100-
word description sufficiently describes these provisions by setting out the
tax rate increase and identifying the recipients who will divide the resulting
revenues. It was not necessary to describe the percentage distribution for
the reader to understand these provisions. Similarly, omission of this
detail did not make any part of the description false or misleading or
obscure the Initiative’s key operative provisions. Pursuant to the required
notice beneath the 100-word description, prospective signatories interested
in learning the percentage distribution could readily discover it by reading
the Initiative text appended to the petition.
¶18 (2) The percentage increase in the marginal tax rate. The
superior court found that the Committee omitted a principal provision by
failing to describe the percentage increase in the marginal tax rate. It
construed Molera, 245 Ariz. at 298 ¶ 29, which disqualified that initiative for
falsely describing the proposed percentage increase of a marginal tax rate,
as meaning that the percentage increase of the marginal tax rate is a
principal provision. Likewise, the court ruled that omission of that
information concealed “how profoundly taxes are being increased” for
wealthier individuals.
¶19 The superior court misconstrued Molera and therefore erred
in its ruling. The 100-word description there stated that the measure
would raise the tax rate “by 3.46%” on individual incomes over $250,000
and household incomes over $500,000, and “by 4.46%” for individual
incomes over $500,000 and household incomes over $1,000,000. Id. at 293
¶ 2. In fact, the affected tax rates would have increased by 76% and 98%,
respectively, making the description false. Id. at 298 ¶ 29. But in finding
that the description of the tax rate increase was false, we did not require
that any percentage increase in a given tax rate must be included in an
initiative description to comply with § 19-102(A), as the superior court here
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surmised. See id. ¶ 30 (acknowledging that the sponsor could have stated
that the marginal tax rate would “increase[] by 3.46 and 4.46 percentage
points” without providing the rate’s percentage increase). Rather, we
specified that any description of the increase must be truthful. See id.
(stating that the sponsor was not required to describe the change in the tax
rate in great detail but could not do so “in a confusing way”).
¶20 The description here accurately stated that a 3.5% surcharge
would be imposed on individuals’ taxable incomes over specified amounts.
This sufficiently communicated a principal provision—raising the marginal
tax rate on wealthier taxpayers—to alert a prospective signatory to the
Initiative’s substance. See Ariz. Chapter of the Associated Gen. Contractors of
Am., 247 Ariz. at 49 ¶ 18 (stating sponsors are not required to describe “all
potential effects of a measure”). Although the Committee could have
provided the percentage increase, it was entitled to cast its description in
the best light to garner support, as long as the wording was accurate and
did not obscure the tax increase. See Molera, 245 Ariz. at 295 ¶ 13 (noting
that a sponsor is not required to use neutral wording); Save Our Vote, 231
Ariz. at 152–53 ¶¶ 27–28 (to same effect).
¶21 Relatedly, the court found the word “surcharge” confusing
because prospective signatories could have understood it “to mean a
temporary tax, or to mean a modest 3.5% increase of the existing tax rate.”
But neither the definition of “surcharge” nor other language in the
description supports this finding. The term is commonly understood to
mean an additional charge, not a temporary one. See Surcharge, Webster’s
Third New International Dictionary (3d ed. 2002) (defining “surcharge” as
meaning “a charge in excess of the usual or normal amount: an additional
tax, cost, or impost”); see also Saban Rent-a-Car LLC v. Ariz. Dep’t of Revenue,
246 Ariz. 89, 98 ¶ 34 (2019) (recognizing that a surcharge can be a “special
tax” not levied generally on all businesses). And because the summary
describes the Initiative as providing “additional funding” for K-12
education that is subject to an “annual accounting” requirement, it is
doubtful a reasonable voter would have believed the surcharge to be
temporary. Also, unlike the situation in Molera, the description here did
not assign a percentage increase to the existing tax rate. Instead, it
accurately described an additional 3.5% tax on taxable incomes exceeding
$250,000.
¶22 (3) The applicability to pass-through business income.
Under existing tax law, income generated by some businesses, for example,
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Subchapter S corporations and partnerships, is “passed through” to owners
and taxed as individual taxable income. See, e.g., Watts v. Ariz. Dep’t of
Revenue, 221 Ariz. 97, 100 ¶ 8 (App. 2009). The superior court found that
the description omitted a principal provision by failing to alert prospective
signatories that the proposed marginal tax rate would apply to business
income. It further found that this omission created a substantial danger
that a signatory would fail to appreciate this fact. We disagree.
¶23 What is taxable as income is dictated by state and federal law.
The Initiative does not alter or affect the type of income Arizona has chosen
to tax as individual taxable income, including business income. The fact
the increased marginal tax rate on individual taxable income would
encompass business income taxable to individuals is therefore not a
principal provision, but rather is an effect of a principal provision that was
not required to be included in the description. See Ariz. Chapter of the
Associated Gen. Contractors of Am., 247 Ariz. at 49 ¶ 18. Also, omission of
language describing this application does not make any language in the
description false or misleading, nor does it obscure a basic thrust of the
Initiative. Challengers and amici argue that the Initiative’s applicability to
pass-through taxable income is material to reasonable voters due to the
“impact on economic growth, employment, and the uneven profits that a
business generates from year to year.” That may be so, but “[t]he proper
forum to argue the consequences of passing the Initiative is in statements
of support and opposition, editorials, and the like.” See id.
¶24 (4) The proscription on decreasing other education funding.
The Initiative proposes adding § 15-1284(E), which provides that monies
received by school districts, charter schools, and career technical education
districts under the Initiative “are in addition to any other appropriation,
transfer or allocation of public or private monies from any other source and
may not supplant, replace or cause a reduction in other funding sources.”
The superior court found that this is a principal provision that should have
been described because it “[c]urtail[s] the discretion, authority, and
operations of the Legislature as it relates to funding public education,”
which is a constitutionally bestowed function. It additionally found that
the omission was confusing because a prospective signatory would not be
put on notice of this curtailment.
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¶25 The Committee did not violate § 19-102(A) by omitting
mention of § 15-1284(E) or its impact on legislative funding decisions in the
100-word description. Curtailing legislative discretion is not the
Initiative’s most important, consequential, or primary feature, so the
proposed statute is not a principal provision. And omitting it from the
100-word description is not fatal. The description states that the new tax
revenue would be “additional funding for public education,” and proposed
§ 15-1284(E) furthers that purpose. See Wilhelm, 219 Ariz. at 48 ¶ 15
(rejecting challenge to 100-word summary because proposed extension of a
statute of repose not mentioned in the description was nevertheless
“consistent with the ten-year warranty” highlighted in the description). A
reasonable person would not expect that the legislature could effectively
nullify that “additional funding” by using the fact of new funding to
decrease education funding from other sources. Whether § 15-1284(E)
unconstitutionally curtails legislative authority, as the superior court
implies, cannot be decided until after its adoption. See Tilson v. Mofford,
153 Ariz. 468, 473 (1987) (concluding that the proper time to consider the
constitutionality of a proposed initiative is after its adoption when affected
litigants can present the issue).
¶26 (5) Expenditure limitation. Article 9, section 21 of the
Arizona Constitution imposes an expenditure limitation on school districts.
Proposed § 15-1285(1) declares that this limitation does not apply to
revenues generated by the new tax. The court found that the failure to
describe this provision’s application to districts’ expenditures of Initiative-
generated revenues constituted an omission of a principal provision, and
that prospective signatories would have been confused by not appreciating
that “the Initiative was an attempt to change and/or circumvent
Constitutional spending limits.” But whether article 9, section 21 limits
district expenditures despite § 15-1285(1) is undecided and will remain so
unless the Initiative is adopted and later challenged. See Tilson, 153 Ariz.
at 473. Section 19-102(A) does not require mention that article 9, section
21 may limit district expenditures or that proposed § 15-1285(1) may be
unconstitutional. See Iman v. Bolin, 98 Ariz. 358, 364–65 (1965) (“[E]ven
were the measure in conflict with the Constitution, this has no bearing on
the right of the people to enact it. The same is true of an act of the
legislature.” (internal citation omitted)).
¶27 In sum, the 100-word description here complies with
§ 19-102(A). The description sufficed to alert prospective signatories to
the Initiative’s principal provisions to enable them to endorse the measure
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for the ballot, reject it, or seek more information. It did not contain any
objectively false or misleading information or conceal a basic thrust of the
Initiative. The superior court erred by ruling otherwise. In light of our
holding, we do not address the Committee’s additional arguments
concerning the 100-word description.
II. Circulator compensation
¶28 The Committee hired AZ Petition Partners, LLC (“Petition
Partners”), a signature-gathering business, to obtain enough signatures to
qualify the Initiative for the ballot. Petition Partners employed registered
circulators and paid them an hourly rate on a weekly basis to collect
signatures on petitions for all Petition Partners’ clients, including the
Committee.
¶29 Although three pay scales applied while the Initiative
petitions circulated, they operated similarly. The scales had multiple
levels, each of which set an hourly rate and an expected average number-
range of signatures to be gathered each hour. The higher the productivity
expectation the higher the rate, and vice versa. Circulators were eligible
to move up or down the pay scale from week to week depending on
whether they exceeded or fell below their level’s productivity expectation
the week before and the existence of other factors, such as the number of
hours worked and how the circulators conducted themselves. All
adjustments to hourly rates were prospective only.
¶30 Circulators could also earn additional money each week
through incentive programs. One such program offered in June 2020
permitted circulators to spin a wheel for prizes each Monday when they
turned in collected signatures. The prizes ranged from $10 to $100, an
extra hour of pay, or double these “spins.”
¶31 The superior court rejected Challengers’ arguments that
Petition Partners’ hourly rate structure and the “spin-the-wheel” program
violated § 19-118.01(A), which prohibits paying circulators “based on the
number of signatures collected.” It agreed with Challengers that four
other incentive programs violated § 19-118.01(A). But after
approximating the number of disqualified signatures, the court concluded
that more than 300,000 valid signatures remained, which was “well in
excess of the legal requirement.”
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A. Hourly rate structure and spin-the-wheel program
¶32 In 2017, the legislature enacted § 19-118.01(A), which
provides:
A person shall not pay or receive money or any other thing of
value based on the number of signatures collected on a
statewide initiative or referendum petition. Signatures that
are obtained by a paid circulator who violates this section are
void and shall not be counted in determining the legal
sufficiency of the petition.
Paying or receiving compensation in violation of this restriction is
punishable as a class one misdemeanor. § 19-118.01(B).
¶33 Challengers argue that Petition Partners’ “forward-looking
rates” and the spin-the-wheel program violated § 19-118.01(A) because they
were “based on” the number of signatures collected the prior week. The
Committee counters, and the superior court agreed, that § 19-118.01(A)
imposes a narrower restriction and does not preclude consideration of
productivity in compensating circulators.
¶34 Resolving this dispute depends on the meaning of “based on”
in § 19-118.01(A), an issue we review de novo. See Ariz. Chapter of the
Associated Gen. Contractors of Am., 247 Ariz. at 47 ¶ 7. “In doing so, ‘[w]e
interpret statutory language in view of the entire text, considering the
context and related statutes on the same subject.’” Id. (quoting Nicaise v.
Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019)). If the language is clear and has
only one reasonable meaning, we will apply that meaning. See State v.
Francis, 243 Ariz. 434, 435 ¶ 6 (2018). But if the language is susceptible to
more than one reasonable meaning, we apply secondary interpretive
principles, such as considering “the statute’s subject matter, historical
background, effect and consequences, and spirit and purpose.” See Rosas
v. Ariz. Dep’t of Econ. Sec., 249 Ariz. 26, 28 ¶ 13 (2020).
¶35 The legislature did not define “based on,” so we give the term
its common meaning. See Chaparro v. Shinn, 248 Ariz. 138, 141 ¶ 14 (2020).
Dictionaries define the verb “base,” in relevant part, as “to use as a base or
basis for: establish, found,” see Base, Webster’s Third New International
Dictionary (3d ed. 2002), and “to ground,” see Base, Black’s Law Dictionary
(11th ed. 2019). Applying these definitions, § 19-118.01(A) is violated if the
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compensation paid to a circulator for collecting signatures is dependent on
or calculated by, in whole or in part, the number of signatures collected
during the compensation period. Thus, for example, § 19-118.01(A)
prohibits a circulator from being paid per signature, per completed
signature sheet, or by an hourly, daily, or weekly rate that is contingent on
collecting a specified number of signatures.
¶36 We reject Challengers’ assertion that “based on” “indicates a
broad connection between two things,” and Petition Partners was therefore
prohibited from basing prospective hourly rates on, or otherwise rewarding
circulators for, past productivity. The plain meaning of “base,” which
uses descriptors like “ground[ing],” “establish[ing],” and “foundation[al]”
rather than words like “relating to” does not support this view. But even
if “based on” could reasonably mean “a broad connection between two
things,” we would reject this interpretation in favor of our narrower one
after applying secondary interpretive principles. See Rosas, 249 Ariz. at 28
¶ 13.
¶37 First, adopting a narrow interpretation of “based on” avoids
possible constitutional conflict. See Slayton v. Shumway, 166 Ariz. 87, 92
(1990) (“[W]here alternate constructions are available, we should choose
that which avoids constitutional difficulty.”). By limiting how circulators
may be paid, § 19-118.01(A) restricts “core political speech,” and the
constitutionality of the provision depends on the severity of the burden
imposed and its justification. See Meyer v. Grant, 486 U.S. 414, 421–22, 428
(1988) (holding that a Colorado statute prohibiting payment of initiative
petition circulators imposed an unjustified burden on core political speech
and therefore violated the First and Fourteenth Amendments). Courts in
other jurisdictions have upheld bans on per-signature compensation for
circulators. See, e.g., Prete v. Bradbury, 438 F.3d 949, 962 (9th Cir. 2006)
(distinguishing Meyer because the per-signature ban simply “prohibit[ed]
one method of payment”); Person v. N.Y. State Bd. of Elections, 467 F.3d 141,
143 (2d Cir. 2006) (to similar effect); Initiative & Referendum Inst. v. Jaeger,
241 F.3d 614, 618 (8th Cir. 2001) (to similar effect). The Sixth Circuit,
however, struck an Ohio law that limited circulator compensation to pay
“on the basis of time worked.” Citizens for Tax Reform v. Deters, 518 F.3d
375, 377 (6th Cir. 2008). The court reasoned that “[w]hile petitioners are
not constitutionally guaranteed an endless variety of means, when their
means are limited to volunteers and to paid hourly workers who cannot be
rewarded for being productive and arguably cannot be punished for being
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unproductive, they carry a significant burden in exercising their right to
core political speech.” Id. at 386–87.
¶38 The constitutionality of § 19-118.01(A) is not before us.
Regardless, we are further persuaded to reject Challengers’ broad
interpretation of the statutory restriction to minimize any First Amendment
infringement on core political speech. See Slayton, 166 Ariz. at 92.
¶39 Second, the legislative history for § 19-118.01(A) supports a
narrow interpretation of “based on.” See Rosas, 249 Ariz. at 28 ¶ 13. The
legislature found that other states had “enacted prohibitions on payment
per signature” to “reduce fraud in the signature collecting process,” and
that evidence “suggest[ed] that circulators paid by the hour [] have a higher
validity rate than those paid by the signature.” 2017 Ariz. Sess. Laws. ch.
52, § 5 (1st Reg. Sess.). The bill’s sponsor similarly testified at a House
committee hearing that the provision would end “the practice of paying
circulators per signature.” The House rules attorney, apparently aware
that the legislature was swimming in constitutionally choppy waters,
explained at another hearing that “after lots of discussion” among lawyers,
the proposed “restriction against petition circulators being paid on a per
signature basis” was likely constitutional because it was “similar enough”
to the ban upheld in Prete that it “could be upheld.” The legislature’s focus
on eradicating the practice of per-signature payments, and its awareness of
the constitutional implications of restricting other circulator compensation
methods, demonstrate it intended a narrow application of the term “based
on.”
¶40 Finally, we are persuaded to apply a narrow interpretation of
“based on” by considering the practical application of Challengers’ broader
view. See Rosas, 249 Ariz. at 28 ¶ 13. Interpreting “based on” as a “broad
connection between two things” would mean that circulators’
compensation could not relate in any way to their only assigned task—
collecting signatures. Taken to its logical conclusion, Challengers’
interpretation would prohibit a sponsor from requiring circulators to gather
any number of signatures as doing so would constitute payment “based on
the number of signatures collected.” Such a result would be peculiar
considering the legislature permits the practice of paying circulators to
collect signatures, see A.R.S. § 19-118, and it would likely violate the First
and Fourteenth Amendments as described in Meyer.
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¶41 Turning to the record here, we agree with the superior court
that Petition Partners’ graduated hourly wage scales did not violate § 19-
118.01(A). Petition Partners paid circulators “based on” the number of
hours worked each week at fixed hourly rates, regardless of the number of
signatures collected. Its prospective adjustment to hourly rates in light of
a circulator’s past productivity did not make subsequent payments at the
new rate “based on the number of signatures collected.” Payment at the
new rate remained payment for the hours worked rather than the number
of signatures collected.
¶42 The superior court likewise did not err by rejecting the
challenge to the spin-the-wheel program as violating § 19-118.01(A). The
court ruled that Challengers had failed to prove a “correlation to actual
number of signatures turned in and a circulator’s ability to ‘spin the
wheel.’” It further found that “[t]his program appeared to be used to
enhance morale among petition circulators” rather than to compensate for
signatures. We defer to the court’s factual findings if supported by
sufficient evidence, but we review whether Challengers proved a violation
of § 19-118.01(A) de novo. See Helvetica Servicing, Inc. v. Pasquan, 249 Ariz.
349, 352 ¶ 10 (2020).
¶43 The record supports the court’s factual findings. Petition
Partners advertised that a circulator could spin the wheel once or twice,
depending, in part, on the number of self-reported signatures collected. If
the program operated that way, whether it violated § 19-118.01(A) would
be a closer question. But the evidence at trial showed that a circulator did
not have to collect any number of signatures to spin the wheel.
¶44 Circulator Colby Jensen testified he “[didn’t] know of any
prerequisites” to spin the wheel, including “the number of signatures [a
circulator] collected.” He characterized the program as “a fun thing at the
end of turn-in to keep everyone from getting depressed having to stand in
a parking lot around a ton of people for hours,” and said he never saw
anyone turned away from spinning the wheel who wanted to.
¶45 Petition Partners manager Tom Bilsten similarly described the
program as a “show” and stated that the number of self-reported signatures
did not disqualify a circulator from spinning the wheel. He said Petition
Partners “did not deny anyone an opportunity to spin the wheel as long as
they were an employee in good standing and they were nice to people.”
Bilsten emphasized that Petition Partners never conditioned a spin-the-
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wheel opportunity on the number of signatures collected by a circulator.
Owner Andrew Chavez echoed this testimony, stating that “people who
actually didn’t get their signatures . . . spun the wheel too.”
¶46 In light of this evidence, the superior court did not err in
ruling that the spin-the-wheel program did not violate § 19-118.01(A).
Because circulators did not spin the wheel in exchange for collecting a
specific number of signatures but did so as a consequence of employment,
the prizes were not payments “based on the number of signatures
collected.”
B. Identifying disqualified signatures
¶47 Challengers next argue the superior court incorrectly
disqualified only signatures collected by circulators during the weeks they
participated in one or more of the bonus programs that violated
§ 19-118.01(A). They assert that § 19-118.01(A) disqualifies all signatures
collected by those circulators even when they were paid in compliance with
that statute. We disagree.
¶48 Section 19-118.01(A) could reasonably mean that all
signatures ever gathered by a circulator are disqualified or that only
signatures gathered when the circulator was paid in violation of the statute
are disqualified. We adopt the latter interpretation because it serves the
legislative purpose in reducing fraud in the signature collecting process, see
supra ¶ 39, while imposing a lesser burden on core political speech, see supra
¶¶ 37–38.
C. Preliminary injunction
¶49 Challengers finally argue the superior court erred by refusing
to preliminarily enjoin the Initiative from the ballot to permit them to
conduct discovery to identify the number of signatures collected during the
weeks circulators were paid bonuses in violation of § 19-118.01(A). We
review the denial of a preliminary injunction for an abuse of discretion.
Valley Med. Specialists v. Farber, 194 Ariz. 363, 370 ¶ 21 (1999).
¶50 The superior court ruled that Challengers did not have a
strong likelihood of successfully voiding enough signatures to keep the
Initiative from the ballot. See Apache Produce Imps., LLC v. Malena Produce,
Inc., 247 Ariz. 160, 164 ¶ 10 (App. 2019) (listing “a strong likelihood of
success” on the merits as a consideration in ruling on a preliminary
injunction request). Although the court found that 146 circulators
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received weekly compensation that included improper payments, the
record did not reflect exactly how many signatures were collected during
those weeks. Regardless, the court reasoned that even if those circulators
worked forty hours per week and collected twelve signatures per hour—
the maximum collected by the most productive circulators—only 70,080
signatures would be voided. Because the Secretary had approved 377,456
signatures, subtracting the voided signatures would leave more than the
237,645 signatures required to place the measure on the ballot.
¶51 Challengers argue that their inability to demonstrate a
likelihood of success on the merits was “tied to [the Committee’s] failure to
maintain sufficient records,” and so the Committee “should bear the
burden of proving that the circulators who were improperly paid collected
too few ballots to enjoin the Initiative.” Even if we agreed, we fail to see
how enjoining the Initiative to permit discovery would have remedied
insufficient record-keeping or a misplaced burden of proof. Regardless,
we reject Challengers’ implicit premise that the Committee was obligated
to maintain any records linking circulator compensation to the number of
signatures collected. Neither § 19-118.01(A) nor any other authority cited
by Challengers required such record-keeping.
¶52 We also disagree that Challengers’ burden to prove the
invalidity of petition signatures by clear and convincing evidence, see Leach
v. Reagan, 245 Ariz. 430, 437 ¶ 30 (2018), shifted to the Committee to prove
that the number of signatures collected under the improper bonus
programs were too few to disqualify the Initiative. The caselaw relied on
by Challengers shifts the burden of coming forward with evidence, not the
burden of proof, “[w]hen proof of a negative assertion lies ‘peculiarly
within the knowledge of the adverse party.’” See Woerth v. City of Flagstaff,
167 Ariz. 412, 419 (App. 1990) (quoting Sw. Cotton Co. v. Ryan, 22 Ariz. 520,
533 (1921)); see also Parker v. City of Tucson, 233 Ariz. 422, 432 ¶ 24 n.9 (App.
2013). Here, Challengers were not tasked with proving a negative by
establishing the number of signatures that were collected by 146 circulators
during the weeks in which they received payment in violation of § 19-
118.01(A).
¶53 In sum, the superior court did not err by ruling that Petition
Partners’ graduated hourly rate scale and spin-the-wheel program
complied with § 19-118.01(A). The court correctly disqualified only
signatures collected by circulators during the pay periods in which they
were paid bonuses that violated § 19-118.01(A), and properly denied
Challengers’ request for a preliminary injunction. In light of our holding,
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we need not address the Committee’s arguments that the court erred by
invalidating any signatures under § 19-118.01(A).
CONCLUSION
¶54 For the foregoing reasons, we affirm the superior court’s
judgment in part and reverse in part. The Initiative will be placed on the
November 3, 2020 ballot.
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