Az Petition Partners v. Hon. thompson/state
1 CA-SA 21-0170
| Ariz. Ct. App. | May 24, 2022Background
- In 2017 Arizona enacted A.R.S. § 19-118.01, banning payment or receipt of money “based on the number of signatures” collected for a statewide initiative and making violations a class 1 misdemeanor.
- AZ Petition Partners (Petitioner) is a paid-signature-gathering business that used hourly pay scales plus bonus incentive programs (Weekend Warriors and Duel for the Dollars) while gathering signatures for the Invest in Education Act.
- The Arizona Supreme Court in Molera v. Hobbs construed § 19-118.01(A) to bar compensation “dependent on or calculated by, in whole or in part, the number of signatures” but allowed prospective pay adjustments based on past productivity.
- The State later filed a 50-count Information alleging Petitioner paid circulators “based on the number of signatures” under two bonus programs and sought enterprise aggravators exposing Petitioner to very large fines.
- Petitioner moved to dismiss for legal insufficiency and, separately, on First Amendment, vagueness, and overbreadth grounds; the superior court denied both motions. On special action review, the court upheld denial of the insufficiency motion but held § 19-118.01(B) (the misdemeanor penalty) unconstitutional and severable.
Issues
| Issue | Petitioner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Legal sufficiency of the Information (Rule 16.4(b)) | Molera limits § 19-118.01 to per-signature pay so the charged bonus payments are legally insufficient to constitute a crime. | Molera supports a broader reading that bans pay “in whole or in part” based on signatures; factual record needed to resolve. | Denial of dismissal affirmed — factual development and admissible evidence required; court lacked record to dismiss. |
| Standard of review under First Amendment (severity of burden) | The statute (as read in Molera) burdens core political speech and paid-circulator practices, triggering exacting scrutiny. | The statute only prohibits one payment type and imposes minimal burden; apply less-exacting Anderson/Burdick balancing. | Court finds statute (with criminal sanctions) severely burdens speech; exacting scrutiny applies. |
| Constitutionality / narrow tailoring of § 19-118.01(B) (criminal penalty) | The misdemeanor penalty is not narrowly tailored to a compelling interest and chills petition activity. | The State has a compelling interest in preventing fraud; legislative findings suffice to justify the statute. | The misdemeanor provision is not narrowly tailored to a sufficient evidentiary showing of fraud and thus violates the First Amendment; (B) is unenforceable but severable. |
| Attorneys’ fees for prevailing in special action | Petitioner seeks fees under A.R.S. § 12-348 and Rule 4(g); prosecution is under title 19 so fees should be available. | State argues § 12-348(H)(2) bars fees for proceedings connected to criminal prosecutions and relies on cases involving title 13/28 prosecutions. | Court awards Petitioner reasonable attorneys’ fees for this special action because the underlying prosecution arises under title 19, not titles 13 or 28. |
Key Cases Cited
- Molera v. Hobbs, 250 Ariz. 13 (Ariz. 2020) (interpreting § 19-118.01(A) to bar pay dependent in whole or in part on signature counts while permitting prospective pay adjustments).
- Meyer v. Grant, 486 U.S. 414 (U.S. 1988) (petition circulation is core political speech; restrictions on circulator pay can chill speech).
- Arizonans for Second Chances v. Hobbs, 249 Ariz. 396 (Ariz. 2020) (Anderson/Burdick framework governs ballot-access restrictions).
- Anderson v. Celebrezze, 460 U.S. 780 (U.S. 1983) (balancing test for burdens on ballot access).
- Burdick v. Takushi, 504 U.S. 428 (U.S. 1992) (flexible balancing of state interests against First Amendment burdens).
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (U.S. 1995) (speech protections applicable to states).
- Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008) (struck broader pay ban; applied exacting scrutiny where compensation rules and penalties severely burdened speech).
- Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) (upheld per-signature ban under less exacting review; allowed productivity-based adjustments).
- Person v. N.Y. State Bd. of Elections, 467 F.3d 141 (2d Cir. 2006) (upheld per-signature prohibition under less exacting review).
- Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (upheld per-signature ban with evidentiary support tying pay method to fraud).
- Pierce v. Stapleton, 505 F. Supp. 3d 1059 (D. Mont. 2020) (upheld a per-signature prohibition while recognizing alternative pay methods and bonuses remain available).
- Buckley v. American Constitutional Law Found., Inc., 525 U.S. 182 (U.S. 1999) (less-burdensome alternatives and invalidation of unlawful signatures are relevant, and states have other safeguards against fraud).