Vince Leach v. Katie Hobbs

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
VINCE LEACH, AN INDIVIDUAL AND QUALIFIED ELECTOR; SANDRA
SEVERSON, AN INDIVIDUAL AND QUALIFIED ELECTOR; VICKI BUCHDA, AN
INDIVIDUAL AND QUALIFIED ELECTOR; ARIZONANS FOR BETTER
HEALTHCARE, A NONPROFIT CORPORATION; ARIZONA MEDICAL
ASSOCIATION, INC., A NONPROFIT CORPORATION; HEALTH SYSTEM
ALLIANCE OF ARIZONA, A NONPROFIT CORPORATION; ARIZONA NURSES
ASSOCIATION, A NONPROFIT CORPORATION,
Plaintiffs/Appellees,
v.
KATIE HOBBS, ARIZONA SECRETARY OF STATE AND ARIZONANS FED UP
WITH FAILING HEALTHCARE (HEALTHCARE RISING AZ), A POLITICAL
ACTION COMMITTEE,
Defendants/Appellants.
ARIZONANS FED UP WITH FAILING HEALTHCARE (HEALTHCARE RISING
AZ), A POLITICAL ACTION COMMITTEE,
Plaintiff/Appellant,
v.
KATIE HOBBS, IN HER OFFICIAL CAPACITY AS ARIZONA SECRETARY OF
STATE,
Defendant/Appellant.
No. CV-20-0233-AP/EL
Filed March 31, 2021
Appeal from the Superior Court in Maricopa County
The Honorable Pamela S. Gates, Judge
The Honorable M. Scott McCoy, Judge
No. CV2020-007961; CV2020-009087
AFFIRMED
LEACH, ET AL. V. HOBBS, ET AL.
Opinion of the Court
COUNSEL:
Brett W. Johnson, Eric H. Spencer, Colin P. Ahler, Tracy A. Olson, Ian R.
Joyce, Snell & Wilmer L.L.P., Phoenix, Attorneys for Vince Leach, Sandra
Severson, Vicki Buchda, Arizonans for Better Healthcare, The Arizona
Medical Association Inc, Health System Alliance of Arizona, and Arizona
Nurses Association
James E. Barton, II, Jacqueline Mendez Soto, Torres Law Group, PLLC,
Tempe, Attorneys for Arizonans Fed Up With Failing Healthcare
(Healthcare Rising AZ)
Paul F. Eckstein, Daniel C. Barr, Austin C. Yost, Margo R. Casselman,
Perkins Coie LLP, Phoenix, Attorneys for Amici Curiae Kathy Hoffman, et
al.
JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES
BOLICK, GOULD, BEENE, and MONTGOMERY joined. JUSTICE
BOLICK authored a concurring opinion.
JUSTICE LOPEZ, opinion of the Court:
¶1 We explain today the reasons for our prior decision order
disqualifying the “Stop Surprise Billing and Protect Patients Act” ballot
initiative (“the Initiative”) from the November 2020 general election ballot.
We hold that a registered petition circulator, by “de-registering” pursuant
to provisions of the Arizona Secretary of State 2019 Election Procedures
Manual (“2019 EPM”), may not evade the statutory requirement in A.R.S.
§ 19-118(E) that registered circulators subpoenaed in an election challenge
appear for trial. We further hold that the subpoenas were properly served
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Opinion of the Court
on the circulators, and, as a result, signatures were stricken, leaving an
insufficient number to qualify for the ballot.
¶2 Because our opinion affirming the trial court’s
disqualification of signatures gathered by non-appearing subpoenaed
circulators is dispositive as to whether the Initiative would have appeared
on the ballot, we decline to consider, as moot, the trial court’s ruling
regarding the Initiative’s 100-word summary or the Challengers’ cross-
appeal.
I. BACKGROUND
¶3 The people retained the right to initiate constitutional
amendments and propose statutes when delegating legislative authority to
the Arizona legislature. Stanwitz v. Reagan, 245 Ariz. 344, 346 ¶ 2 (2018); see
Ariz. Const. art. 4, pt. 1, § 1(1)–(2). “To exercise this right, a sufficient
number of qualified electors must sign verified petitions in support of the
proposed measure and submit them as prescribed by law.” Stanwitz, 245
Ariz. at 346 ¶ 2; see also A.R.S. tit. 19 ch. 1 (setting forth the specific
procedure by which such petitions are to be submitted and processed). A
constitutional initiative requires signatures from 15% of all qualified
electors. Stanwitz, 245 Ariz. at 346 ¶ 2; see Ariz. Const. art. 4, pt. 1, § 1(2).
“For a statewide initiative, the Arizona Secretary of State (the ‘Secretary’) is
required to review the submitted petitions, remove petition sheets and
individual signatures on petition sheets that fail to comply with statutory
requirements, and count the remaining signatures on the petition sheets.”
Stanwitz, 245 Ariz. at 346 ¶ 2; see A.R.S. § 19-121.01(A). If, after satisfying
other Title 19 requirements not relevant here, the Secretary determines that
the initiative is supported by a sufficient number of valid signatures, the
measure is placed on the ballot. Stanwitz, 245 Ariz. at 346 ¶ 2; see A.R.S.
§§ 19-121.04(B), -125.
¶4 Proponent Arizonans Fed Up with Failing Healthcare (“the
Committee”) is a political action committee that sought to place the
Initiative on the ballot for the 2020 general election. The Committee filed
signature petition sheets with the Secretary to qualify the Initiative for the
November 2020 ballot. The Committee needed at least 237,645 valid
signatures to qualify the Initiative for the ballot. The Committee ultimately
submitted petition sheets containing more than the required minimum
number of signatures.
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Opinion of the Court
¶5 The Leach Challengers (“Challengers”) filed a complaint
pursuant to A.R.S. § 19-118(F) on July 10, 2020, challenging the validity of
certain petitions based on various objections to petition circulators and
signatures. On that same day, the Committee cancelled all its circulators’
registrations. Before trial, Challengers subpoenaed 332 out of 1167 petition
circulators to appear as witnesses. Challengers served the circulators by
delivering subpoenas to the Committee’s address on August 4. On August
7, the matter proceeded to trial. Due to the COVID-19 pandemic and
pursuant to court administrative orders, witnesses were not permitted to
report to the courthouse or to testify in-person at trial.
¶6 Because of the prohibition on in-person testimony, the trial
court implemented procedures to ensure that subpoenaed circulators could
appear at trial via video or telephone. To facilitate this process, the court
ordered that trial begin on August 6, for the limited purpose of checking in
circulator witnesses. The parties stipulated to this procedure on July 30. At
check-in, the circulators were provided a “group number,” a date and time
for their trial testimony, and login information for their trial appearances.
The court also ordered the parties to provide witnesses with the court’s
telephone number in the event of technical difficulties with their virtual
appearance.
¶7 Despite these stipulated procedures, ninety-four subpoenaed
circulators failed to appear at trial. After Challengers moved to strike the
non-appearing circulators’ signatures, the Committee objected, arguing
that the circulators were not required to appear for trial pursuant to
§ 19-118(E) because they had been “de-registered” and that valid
subpoenas were not properly served.
¶8 The court rejected the Committee’s contention that “de-
registration” of a circulator pursuant to a provision in the 2019 EPM prior
to service of a subpoena eliminated the consequence of failing to appear,
reasoning that such a reading of the statute would allow a committee to
avoid the consequences of failing to appear and testify by “simply de-
registering all circulators before service of a valid subpoena.”
¶9 The Committee also argued that service of process problems
prevented the court from disqualifying non-appearing circulators’
signatures: (1) Challengers did not properly serve the circulators as the
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Opinion of the Court
subpoenas did not provide a reasonable time to comply; (2) the Secretary
did not provide the subpoenas to the Committee electronically; and (3) the
subpoenas failed to specify a check-in time. The court rejected all of these
arguments.
¶10 The court noted (1) that the Committee acknowledged receipt
of the subpoenas and the associated “tickets”—which accompanied the
subpoenas and included check-in time, date, and access information for
each circulator—and that they were served with adequate time for the
circulators to comply and appear at trial; (2) that Rule 45(a)(1) of the
Arizona Rules of Civil Procedure did not require that a subpoena or its
associated “ticket” be provided in electronic form and that the Committee’s
counsel was served with a complete set of trial subpoenas with tickets and
instructions on accessing the virtual courtroom on August 4; and (3) that
the parties’ counsel stipulated to the virtual check-in process on July 30, and
the court followed up by sending the access codes the following day.
¶11 The court exhibited further flexibility by declining to
disqualify circulators’ signatures if they appeared for trial but failed to
produce required documents. The court credited numerous witnesses’
assertions that they were unaware of the obligation to produce documents
and that no instruction was given on how to produce the documents to the
court. The court ruled that, given these circumstances and the short
timeframe between the subpoena and the trial, these circulators’ signatures
were not subject to invalidation under § 19-118(E). Moreover, the court
noted that the petitions requested from the circulators are public records
and that § 19-118 “cannot be used as a tool to require the production of
already produced documents absent a finding of good cause.”
¶12 The court appointed a special master who ultimately
concluded that only 227,215 of the obtained signatures were valid. The trial
court agreed and incorporated its rulings to disqualify another 5679
signatures—ultimately holding that the Committee had only gathered
221,536 of the requisite 237,645 valid signatures and was therefore
approximately 16,000 signatures short of qualifying for the ballot.
¶13 The Committee and Challengers filed expedited appeals in
this Court pursuant to A.R.S. § 19-122(A). We have jurisdiction over this
matter pursuant to article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 19-122(C).
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Opinion of the Court
II. DISCUSSION
¶14 The Committee argues that signatures gathered by registered
circulators may not be disqualified pursuant to § 19-118(E) if the circulators
“de-registered” pursuant to provisions of the 2019 EPM before the
signatures are challenged, and that the subpoenas were not properly served
on the circulators. We address, in turn, each argument.
A.
¶15 We recently rejected facial and as-applied constitutional
challenges to § 19-118(E), 1 the statute at issue. We reasoned that the
statute’s requirement that registered petition circulators subpoenaed in an
election challenge appear for trial “‘does not unreasonably hinder or
restrict’ the initiative process and it ‘reasonably supplements the
constitutional purpose’ by fostering the integrity of the process.” Stanwitz,
245 Ariz. at 346 ¶ 1 (quoting Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5
(1972)). We reiterate the importance of registered circulators because “[t]he
circulator is the only person in the process who is required to make a sworn
statement and is, therefore, the person under the greatest compulsion to
lend credibility to the process.” Id. at 349 ¶ 18 (quoting W. Devcor, Inc. v.
City of Scottsdale, 168 Ariz. 426, 432 (1991)).
¶16 Section 19-118(E) provides, in part, that:
If a registered circulator is properly served with a subpoena
to provide evidence in an action regarding circulation of
petitions and fails to appear or produce documents as
provided for in the subpoena, all signatures collected by that
circulator are deemed invalid.
¶17 Based on the elements of the statute, we conclude that a three-
part analysis is appropriate to determine whether a party complied with
§ 19-118(E). First, is the person a “registered circulator”? Second, was the
circulator properly served? Third, did the circulator fail to appear or
1In Stanwitz, we considered challenges to A.R.S. § 19-118(C), the identical
provision now renumbered as A.R.S. § 19-118(E).
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LEACH, ET AL. V. HOBBS, ET AL.
Opinion of the Court
produce documents as requested in the subpoena? This case concerns the
first two requirements.
B.
¶18 The Committee argues that signatures gathered by “de-
registered” circulators may not be disqualified pursuant to § 19-118(E)
because “strict compliance” under A.R.S. § 19-102.01(A) limits application
of § 19-118(E) to circulators registered at the time of a challenge. We
disagree.
¶19 Registration and regulation of circulators is governed by
statute. Section 19-118(A) provides that the Secretary “shall establish in the
instructions and procedures manual issued pursuant to § 16-452 a
procedure for registering circulators, including circulator registration
applications, and shall publish on a website maintained by the [Secretary]
all information regarding circulators that is required pursuant to this
section.” Section 19-118(B)(3), in turn, requires that circulators submit “[a]
statement that the circulator consents to the jurisdiction of the courts of this
state in resolving any disputes concerning the circulation of petitions by
that circulator.” Circulators must also provide an address “at which the
circulator will accept service of process related to disputes concerning
circulation of that circulator’s petitions.” § 19-118(B)(4). A circulator must
attest to the accuracy of this information, under criminal penalty, in a
notarized affidavit. § 19-118(B)(5). Thus, the statutory text manifests the
legislature’s plain intent: circulators must be available for court
proceedings if the signatures they gather are challenged.
¶20 The language and purpose of the statute rebut the
Committee’s position. In context, the reference to a “registered circulator”
in § 19-118(E) must necessarily apply to circulators who are registered at the
time they circulate the petitions, regardless of whether they “de-registered” at
a later time. Crucially, there is no statutory procedure for a circulator to de-
register. Although the EPM provides for cancellation of a circulator’s
registration—putting aside for the moment whether the EPM may abrogate
a statutory duty—it does not even purport to discharge a circulator’s duty
to comply with the statutory obligation to honor a subpoena. See 2019 EPM
at 253. The Committee’s approach would permit a committee to avoid any
obligation under § 19-118 to present its circulators to testify under subpoena
by simply cancelling circulator registrations before a challenge. The
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Opinion of the Court
Committee’s interpretation of the statute is untenable and, thus, does not
implicate the strict compliance standard under § 19-102.01(A). 2
¶21 Further, an EPM regulation that exceeds the scope of its
statutory authorization or contravenes an election statute’s purpose does
not have the force of law. See, e.g., McKenna v. Soto, No. CV-20-0123-AP/EL,
2021 WL 712966, *4 ¶¶ 20–21 (Ariz. Feb. 17, 2021) (“Because the statute that
authorizes the EPM does not authorize rulemaking pertaining to candidate
nomination petitions, those portions of the EPM relied upon . . . to
invalidate the signatures without a complete date were not adopted
‘pursuant to’ § 16-452.”). Thus, a registered circulator may not evade
§ 19-118(E)’s requirement that a circulator answer a properly served
subpoena merely by “de-registering.” Any other interpretation would
vitiate the statute’s purpose to foster the integrity of the initiative process.
See Stanwitz, 245 Ariz. at 346 ¶ 1.
C.
¶22 The Committee next argues that signatures gathered by
registered circulators may not be disqualified pursuant to § 19-118(E)
because the circulators were not properly and timely served with
subpoenas.
¶23 We review a trial court’s denial of a motion to quash a
subpoena duces tecum for an abuse of discretion. Schwartz v. Superior Court,
186 Ariz. 617, 619 (App. 1996).
¶24 “Service of process is effected under [§ 19-118] by delivering
a copy of the subpoena to that person individually, by leaving a copy of the
subpoena with a person of suitable age or by mailing a copy of the subpoena
to the committee by certified mail to the address provided.” § 19-118(B)(4).
Section 19-118 does not impose any time requirements for service of process
regarding subpoenas. Section 19-118(E), however, requires that a registered
circulator be “properly served.” We have evaluated whether service of a
subpoena on a registered circulator is proper under § 19-118(E) by applying
2Because we resolve this issue on statutory grounds, we need not consider
the constitutionality of the strict compliance requirement of § 19-102.01(A).
See, e.g., Stanwitz, 245 Ariz. at 348 ¶ 12.
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Opinion of the Court
the requirements of Rule 45 of the Arizona Rules of Civil Procedure. See,
e.g., Stanwitz, 245 Ariz. at 351 ¶ 28. Rule 45 requires proof of service of the
subpoenas, Ariz. R. Civ. P. 45(d)(3), and to do so within a “reasonable time
to comply,” Ariz. R. Civ. P. 45(e)(2)(A)(i).
¶25 Here, the Committee’s arguments concerning defective and
untimely service of the subpoenas are unavailing. First, the Committee
failed to file a motion to quash the subpoenas pursuant to Rule 45. Ariz. R.
Civ. P. 45(e)(2)(A)(i) (“On timely motion, the court . . . must quash or modify
a subpoena if it . . . fails to allow a reasonable time to comply.”). Second, as
noted, supra ¶ 10, the Committee acknowledged receipt of the subpoenas
and the associated “tickets” and that they were served with adequate time
for the circulators to comply and appear at trial. Third, Challengers sent a
litigation hold letter to all 1167 registered circulators on July 17 and
Fieldworks, the company who employed most of the circulators, began
alerting them they might be required to appear at trial well before the final
list of 332 circulators was disclosed on August 3. Fourth, Rule 45(a)(1) does
not require that a subpoena or its associated “ticket” be provided in
electronic form. In any event, the Committee’s counsel was served with a
complete set of trial subpoenas with tickets and instructions on accessing
the virtual courtroom on August 4. Fifth, the parties’ counsel stipulated to
the virtual check-in process on July 30, and the court followed up by
sending the access codes the following day. Thus, because the trial court
implemented several effective procedures to facilitate timely service of, and
compliance with, the subpoenas; trial appearances were virtual; and the
court exhibited flexibility in accommodating circulators, the record belies
the Committee’s claim of inadequate service and notice. We conclude that
the Committee and circulators were provided sufficient notice of the
subpoenas.
D.
¶26 The Committee contends that Challengers “abused”
§ 19-118(E)’s circulator subpoena process, but it did not raise a
constitutional challenge to the application of the statute. In Stanwitz,
initiative proponents raised an “as applied” challenge to § 19-118(E),
alleging that initiative challengers essentially used the subpoena process as
a procedural trap to disqualify non-appearing circulators’ signatures
because the challengers “had no intention of actually relying on testimony
by [the subpoenaed circulators]” as the testimony was unnecessary or
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Opinion of the Court
irrelevant to the challengers’ claims. 245 Ariz. at 350 ¶ 22. There, we
rejected the argument because the challengers issued subpoenas to only 15
circulators—approximately .6% of all circulators—and the trial court ruled
that the circulators’ failure to testify prejudiced the fact-finding process on
material issues. Id. at 347 ¶ 6, 350 ¶ 23. Here, Challengers issued notably
more subpoenas to circulators—approximately 30% (332 out of 1167) of the
Committee’s circulators. But, as in Stanwitz, the court carefully assessed the
importance of each subpoenaed circulator’s testimony to the fact-finding
process and concluded that “the failure to appear by the identified
circulators materially prejudiced the fact-finding process.”
¶27 We reiterate that § 19-118(E) serves a critical function in
fostering the integrity of the initiative process. Id. at 346 ¶ 1. Our courts,
however, must remain vigilant to ensure that initiative challengers do not
abuse the subpoena provision in § 19-118(E) by wielding it as a procedural
sword to disqualify petition signatures rather than using it as a tool to
advance the fact-finding process.
III. CONCLUSION
¶28 For the reasons set forth above, we affirm the trial court’s
judgment disqualifying the Initiative from the November 2020 ballot. We
also deny Challengers’ request for attorney fees.
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JUSTICE BOLICK, Concurring
BOLICK, J., concurring:
¶29 I join fully in the Court’s opinion. Although we need not
reach the proposed initiative’s 100-word summary, I do so to provide
guidance to future initiative sponsors. See Molera v. Hobbs (Molera II), 250
Ariz. 13, 19 ¶ 7 (2020) (“Further guidance on what [A.R.S.] § 19-102(A) does
and does not require is warranted . . . .”). Because an initiative’s summary
must provide potential petition supporters with fair notice of the measure’s
principal provisions before they sign, I would affirm the trial court’s
conclusion that the summary here was misleading and confusing, which
accordingly would provide an additional basis to enjoin placing the
measure on the ballot.
¶30 Section 19-102(A) requires initiative sponsors to place on
petition signature sheets “a description of no more than one hundred words
of the principal provisions of the proposed measure.” A.R.S. § 19-102(A).
As we recently observed in Molera II, where we approved the petition
summary for the Invest in Education initiative that was subsequently
enacted, a summary may run afoul of the requirement in either or both of
two ways: it may omit a principal provision of the initiative, 250 Ariz. at 19
¶ 8, or it may present objectively false or misleading information or obscure
the principal provisions’ basic thrust. Id. at 20 ¶ 13. As the Court explained,
“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.” Id.
¶31 This can be a difficult task, given the complexity of many
proposed initiatives and the fact that the sponsors have a strong interest in
persuading voters to sign the petitions. But accuracy is absolutely essential,
as few voters are likely to read the entirety of a proposed initiative, and thus
the written summary (and whatever the signature gatherer orally tells
them) will often be the only information voters have before deciding
whether to sign the petition to place a proposed law on the ballot.
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LEACH, ET AL. V. HOBBS, ET AL.
JUSTICE BOLICK, Concurring
¶32 For this initiative, the sponsors attached to the petitions this
93-word summary:
This Act prohibits insurers from discriminating based on
preexisting conditions; bans surprise out-of-network bills,
redefined as bills above in-network cost sharing
requirements; bans balance bills for ambulance care; and
amends the surprise bill dispute process. Insurers must
reimburse providers, facilities and ambulances at specified
rates. Sets new minimum wages for direct care workers at
private hospitals by requiring raises of at least five percent for
each of four years. Private hospitals must meet national
safety standards regarding hospital acquired infections,
under Department of Health Services enforcement authority,
funded by fees paid by private hospitals.
¶33 The trial court found, and I agree, that multiple passages in
the summary were misleading to potential signers. The first misleading
passage is the summary’s opening clause, which prohibits insurers from
discriminating based on preexisting conditions. Given that this prohibition
appears first in the summary, the sponsors plainly deemed it a principal
provision. But the term “insurers” is defined in the text of the initiative to
include only insurers in the individual or group markets, which would
exclude, as the sponsors’ expert testified at trial, approximately 60 percent
of individuals who are insured by employers’ self-funded insurance plans.
Because the summary refers generically to “insurers,” voters would have
no reason to know that the prohibition would not apply to most insurance
policies. The sponsors could easily have avoided this serious
misimpression by inserting the term “certain” before “insurers,” or
following the term “insurers” with the words “as defined in the Act,” or
language to similar effect. See id. at 20 ¶ 10 (“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.”). Instead, typical
petition signers would assume that if they have an insurer, they would be
protected by the prohibition, although in most instances that assumption
would be untrue. Yet this misleading language would inevitably provide
powerful incentive for many voters to sign the petition.
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LEACH, ET AL. V. HOBBS, ET AL.
JUSTICE BOLICK, Concurring
¶34 The wording of this provision resembles another that led us
to reject the first Invest in Education initiative in Molera v. Reagan (Molera I).
That initiative’s summary described a tax increase on wealthy taxpayers,
but did not note that a change in tax indexing would affect many more
taxpayers. 245 Ariz. 291, 297 ¶ 25 (2018). The Court observed, “[a]
description indicating that other people’s taxes will be raised, but not the
taxes of most of those signing the petition, creates a significant risk of
confusion or unfairness and could certainly materially impact whether a
person would sign the petition.” Id. Here, most signers would consider
themselves included in the protection against discrimination on the basis of
preexisting conditions and could be induced to sign the petition on that
basis, without realizing that many insured people will not be protected.
¶35 The second misleading provision is contained within this
sentence: “Sets new minimum wages for direct care workers at private
hospitals by requiring raises of at least five percent for each of four years.”
The term “direct care workers” is readily understood by a reasonable
person to include, as the initiative defines it, “any nonmanagerial worker
who is employed to . . . provide direct patient care.” The measure notes
that it includes nurses, aides, and technicians. Many would view doctors
as direct care workers, but they are excluded.
¶36 This provision would likely have been an important selling
point for prospective signatories. When petitions were circulated, direct
care workers were at the front lines of the COVID-19 pandemic, often
risking their lives to help save others. Providing a higher minimum wage
and pay increases to direct care workers would likely attract great public
support and, by extension, petition signatures.
¶37 Absent from this summary, however, is that the initiative also
provides for pay increases for janitors, housekeepers, food service workers,
and nonmanagerial administrative staff. The initiative’s text itself defines
these occupations not as “direct care workers,” but rather as employees that
provide “services directly supporting direct care.” But the initiative
nonetheless requires substantial pay increases not only for direct care
workers, but for support staff and most hospital employees other than
doctors and management. The 100-word summary’s emphasis on pay
raises for direct care workers and omission of pay raises for other hospital
workers contained within the initiative “obscure[s]” a principal provision’s
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JUSTICE BOLICK, Concurring
“basic thrust.” Molera II, 250 Ariz. at 20 ¶ 13. A reasonable voter, believing
that front-line medical workers are uniquely deserving of a pay raise, might
favor the former but not the latter, especially as broader pay raises might
lead to higher hospital costs. The trial court was correct to conclude that
the provision was “materially misleading.”
¶38 Again, the proponents could have easily made this provision
unobjectionable by, for instance, adding “plus others” or “and support
workers” to the term “direct care workers.” Such clarity is necessary to
“accurately communicate” the principal provisions’ general objectives. Id.
at 20 ¶ 10.
¶39 In concluding that “the danger of confusion and voters being
materially misled undermines any assurance that the voters received
adequate notice of what they were signing,” the trial court aptly cited Mark
Twain, who observed that “the difference between the almost right word
and the right word is really a large matter—‘tis the difference between the
lightning bug and the lightning.” The Wit and Wisdom of Mark Twain (Bob
Blaisdell ed., 1987). Indeed, the difference of a few words can separate an
initiative summary that meets statutory standards of fair notice and
accuracy from one that bears insufficient indicia that those who signed a
petition were sufficiently informed of its contents. Given the central
importance of initiatives in Arizona’s system of popular sovereignty, I hope
that the clarity provided by our recent decisions will minimize the need to
remove proposed measures from the ballot.
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