Az Petition Partners LLC v. Hon. thompson/state ( 2023 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
AZ PETITION PARTNERS LLC D/B/A PETITION PARTNERS, AN ARIZONA
LIMITED LIABILITY COMPANY,
Petitioner,
v.
THE HONORABLE PETER A. THOMPSON, JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
STATE OF ARIZONA,
Real Party in Interest.
No. CR-22-0154-PR
Filed June 21, 2023
Appeal from the Superior Court in Maricopa County
The Honorable Peter A. Thompson, Judge
No. CR 2020-000467-001
REMANDED
Opinion of the Court of Appeals, Division One
253 Ariz. 223 (App. 2022)
REVERSED AND VACATED
Lee Stein, Anne Chapman, Kathleen E. Brody (argued), Mitchell Stein
Carey Chapman, P.C., Phoenix; and D. Andrew Gaona, Coppersmith
Brockelman PLC, Phoenix, Attorneys for Arizona Petition Partners dba
Petition Partners
Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor
General, Casey D. Ball (argued), Assistant Attorney General, Todd C.
Lawson, Senior Litigation Counsel, Phoenix, Attorneys for State of Arizona
AZ PETITION PARTNERS LLC v. HON. THOMPSON/STATE
Opinion of the Court
Jared G. Keenan, American Civil Liberties Union Foundation of Arizona,
Phoenix; R. Adam Lauridsen, Catherine Porto, Amy Philip, Eleanor Brock,
Keker, Van Nest & Peters LLP, San Francisco, CA; and Sarah Brannon,
American Civil Liberties Union Foundation, Washington, DC, Attorneys
for Amicus Curiae American Civil Liberties Union of Arizona
Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix,
Attorneys for Amicus Curiae Arizona Center for Law in the Public Interest
David J. Euchner, Pima County Public Defender’s Office, Tucson, Attorney
for Amicus Curiae Arizona Attorneys for Criminal Justice
_______________
JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
LOPEZ, BEENE, MONTGOMERY, and BERCH (RETIRED) joined. *
_______________
JUSTICE BOLICK, Opinion of the Court:
¶1 We hold that A.R.S. § 19-118.01 does not facially violate the
First Amendment because it only prohibits per-signature compensation to
petition circulators.
*Justice Kathryn Hackett King has recused herself from this case. Pursuant
to article 6, section 3 of the Arizona Constitution, Justice Rebecca White
Berch (Ret.) of the Arizona Supreme Court was designated to sit in this
matter.
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AZ PETITION PARTNERS LLC v. HON. THOMPSON/STATE
Opinion of the Court
BACKGROUND
¶2 In 2017, the legislature enacted a statute restricting payment
for initiative petition gatherers. Under § 19-118.01:
A. 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.
B. A violation of this section is a class 1 misdemeanor.
¶3 Respondent, AZ Petition Partners (“Petition Partners”), is a
business that hires circulators to collect signatures for initiative campaigns.
In 2020, a political action committee hired Petition Partners to collect
signatures for the Invest in Education Act initiative. Petition Partners
outlined three pay scales to compensate circulators. The scales set an
hourly rate and an expected range of the average number of signatures to
gather each hour. Circulators were then able to move between pay scales
depending on their productivity, which was based on several factors,
including the number of hours they worked. However, any adjustment to
the hourly pay was purely prospective, with pay adjusted for the next week
based on the previous week’s productivity. Petition Partners also offered
several bonus programs, including the two at issue here.
¶4 Initiative opponents filed an action for declaratory judgment
against the political action committee, alleging that Petition Partners’
hourly rates and incentive programs violated § 19-118.01. The superior
court held that the hourly rate scales did not violate the statute but that
several of the incentive programs did. On special action before this Court,
we affirmed in part and reversed in part. Molera v. Hobbs, 250 Ariz. 13, 27
¶ 54 (2020). However, because we found that the initiative still had enough
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Opinion of the Court
valid signatures to make it on the ballot, we did not specifically address the
statute’s constitutionality. Id. at 25 ¶ 38.
¶5 Following Molera, the State filed 50 various charges against
Petition Partners, alleging, among other claims, that paying circulators
based in part on the number of signatures and implementing certain
incentive programs violated § 19-118.01. Each charge listed the name of a
circulator who received one of these payments and the amount of payment
received. Because the State also filed allegations of aggravating factors
under A.R.S. § 13-803 and A.R.S. § 13-823, 1 Petition Partners faces a
potential fine of $5 million if convicted. See §§ 13-823(A), -803(A)(2)
(establishing a fine of not more than $20,000 for a class 1 misdemeanor
offense).
¶6 In a motion to dismiss, Petition Partners asserted, among
other things, that under Molera, § 19-118.01(A) bans only per-signature
payments (a fixed rate for each signature), and thus its pay scales and
incentive programs did not violate the statute. The court denied the motion
to dismiss based on the lack of an evidentiary record. Petition Partners
again moved to dismiss, this time asserting that unless § 19-118.01 is
narrowly construed to only ban per-signature payments, it is overbroad
and vague and therefore violates the First Amendment. The superior court
again denied this motion. Petition Partners sought special action relief.
¶7 The court of appeals concluded that, as construed in Molera,
§ 19-118.01(A) bans more than just per-signature payments, and therefore
the statute on its face violates the First Amendment. In reaching that
decision, the court emphasized the criminal misdemeanor penalty under
§ 19-118.01(B).
¶8 The State then petitioned this Court for review of whether
§ 19-118.01 is facially unconstitutional under the First Amendment because
(1) it is impermissibly vague under the Fourteenth Amendment and the
due process protection of the Arizona Constitution; (2) it is overbroad in
1A.R.S. § 13-823(A), in relevant part, authorizes a court to deviate from a
presumptive fine and impose up to five times the maximum fine where the
court finds evidence that an administrative order was violated or that the
offense involved malicious or wanton conduct.
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Opinion of the Court
violation of the free speech protections of the First Amendment and the
Arizona Constitution; or (3) it prescribes a criminal penalty for violation of
its provisions. 2 These are important issues of statewide concern. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 12-120.24.
DISCUSSION
¶9 We review the constitutionality of a statute de novo. State v.
Arevalo, 249 Ariz. 370, 373 ¶ 9 (2020).
¶10 Much of the parties’ dispute revolves around the appropriate
burdens of proof and level of judicial scrutiny. The State argues that
§ 19-118.01 is a nondiscriminatory, content-neutral business regulation that
is entitled to a presumption of constitutionality. It further asserts that in a
facial challenge, Petition Partners must show the statute is unconstitutional
in every possible application. Petition Partners first argues that the statute
regulates and subjects to criminal penalties the act of petitioning, which lies
at the core of First Amendment protection, thus triggering strict judicial
scrutiny. Second, it argues that the ordinary facial challenge burdens are
relaxed because core First Amendment-protected speech is involved. We
address these assertions in turn.
¶11 We begin by recognizing that the right of the people to initiate
legislation and constitutional change is central to Arizona’s political
heritage. See Allen v. State, 14 Ariz. 458, 467 (1913); Tilson v. Wofford,
153 Ariz. 468, 470 (1987) (“The legislative power of the people is as great as
that of the legislature.”); Ariz. Const. art. 4, pt. 1, § 1(2); Ariz. Const. art. 22,
§ 14. In turn, gathering signatures to qualify measures for the ballot is core
political expression protected by the First Amendment. Meyer v. Grant, 486
U.S. 414, 421–22 (1988). But we have recognized that “the right to place an
initiative measure on the ballot is not absolute and ‘substantial regulation
of elections’ is necessary ‘if they are to be fair and honest and if some sort
2 Although we granted review of the first two issues under the Arizona
Constitution, we do not address these questions because Petition Partners
argued that federal precedent conclusively resolves the issues and did not
separately develop state constitutional arguments except with regard to
strict scrutiny analysis.
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Opinion of the Court
of order, rather than chaos, is to accompany the democratic processes.’”
Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz. 396,
408 ¶ 41 (2020) (internal citation omitted) (quoting Storer v. Brown, 415 U.S.
724, 730 (1974)). The mechanism at issue here—per-signature payments—
may be an efficient way of incentivizing signature collection, however, it
may also be susceptible to abuse.
¶12 As the various free-speech doctrines Petition Partners has
invoked here make clear, the state must regulate in this area with great
precision and an even hand, alerting all to the law’s requirements and
proscriptions, and leaving little to nothing by way of subjectivity in
enforcement.
¶13 The State nonetheless characterizes the statute at issue as “a
‘neutral, noncensorial’ statute that regulates economic conduct ‘in the
shadow of the First Amendment,’” citing Broadrick v. Oklahoma,
413 U.S. 601, 614 (1973), thus removing the statute from strict judicial
scrutiny. Both the U.S. Supreme Court and this Court have firmly
repudiated that contention. In Meyer, the Supreme Court struck down a
Colorado statute making paid circulation of petitions a felony, holding that
“the statute trenches upon an area in which the importance of
First Amendment protections is ‘at its zenith.’ For that reason, the burden
that Colorado must overcome to justify this criminal law is well-nigh
insurmountable.” 486 U.S. at 425. Similarly, in Brush & Nib Studio, LC v.
City of Phoenix, 247 Ariz. 269 (2019), we held in the context of custom
wedding invitations that “both the finished product and the process of
creating that product are protected speech,” and that a “business does not
forfeit the protections of the First Amendment because it sells its speech for
profit.” Id. at 286 ¶¶ 65–66; accord Coleman v. City of Mesa, 230 Ariz. 352, 360
¶ 31 (2012) (“Determining that tattooing is protected speech also implies
that the business of tattooing is constitutionally protected.”).
¶14 The State also invokes a presumption of statutory
constitutionality. See Arevalo, 249 Ariz. at 373 ¶ 9. But whatever the
applicability of such a presumption in other contexts, “if a law burdens
fundamental rights, such as free speech or freedom of religion, any
presumption in its favor falls away.” Gallardo v. State, 236 Ariz. 84, 87 ¶ 9
(2014). Therefore, because the statute at issue directly regulates core
political speech, no presumption of constitutionality applies here.
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AZ PETITION PARTNERS LLC v. HON. THOMPSON/STATE
Opinion of the Court
¶15 Petition Partners argues that the statute on its face violates the
First Amendment in three distinct ways. First, vagueness: the statute’s
“terms are ‘so vague, indefinite, and uncertain’ that their meaning cannot
be reasonably ascertained.” State v. Western, 168 Ariz. 169, 171 (1991)
(internal citation omitted). In the speech context, vague laws deprive
individuals of certainty regarding what is unlawful, they provide subjective
authority to law enforcement, and they chill the exercise of First
Amendment rights. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).
Second, overbreadth: the law proscribes substantially more conduct than
the government is entitled to forbid. Broadrick, 413 U.S. at 615. Third, and
finally, the statute exacerbates these defects by subjecting protected conduct
to criminal penalties. United States v. Stevens, 559 U.S. 460, 474 (2010).
¶16 To determine the statute’s constitutionality, we apply the
Anderson/Burdick framework, which weighs the severity of the burden on a
plaintiff’s First and Fourteenth Amendment rights against the state’s
interests. Arizonans for Second Chances, 249 Ariz. at 409 ¶ 42 (citing Anderson
v. Celebrezze, 460 U.S. 780, 789 (1983), and Burdick, 504 U.S. at 434). If the
burden is severe, the restriction is “subject to strict scrutiny and must be
narrowly tailored to advance a compelling state interest.” Id. By contrast,
if the statute imposes a reasonable, nondiscriminatory burden, it triggers
“less exacting review” and “may be justified by the state’s ‘important
regulatory interests.’” Id. (quoting Burdick, 504 U.S. at 434).
¶17 Ordinarily, the severity of burden is a “fact-intensive”
determination. Citizens for Tax Reform v. Deters, 518 F.3d 375, 383 (6th Cir.
2008). In its present posture, beyond the prosecution itself, we have no
evidentiary record upon which to determine the severity of the burden to
Petition Partners’ First Amendment rights. We do not entertain speculative
challenges to laws enacted by the legislative branch. Mills v. Ariz. Bd. of
Tech. Registration, 253 Ariz. 415, 423 ¶ 24 (2022) (noting that this Court
generally is reluctant “to adjudicate hypothetical or abstract questions”).
Accordingly, in a typical facial challenge, we require the challenger to
demonstrate that under no set of circumstances can the law be enforced in
a constitutional manner. State v. Wein, 244 Ariz. 22, 31 ¶ 34 (2018) (citing
United States v. Salerno, 481 U.S. 739, 745 (1987)). That requirement
corresponds to our practice of construing ambiguous statutes, when
possible, in a way that preserves the statute’s constitutionality. Hayes v.
Cont’l Ins. Co., 178 Ariz. 264, 272–73 (1994).
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AZ PETITION PARTNERS LLC v. HON. THOMPSON/STATE
Opinion of the Court
¶18 But that requirement may be relaxed in the First Amendment
context because the law’s mere existence, and the penalties for violating it,
can exert a “chilling” effect on the exercise of First Amendment rights. See,
e.g., Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (noting the overbreadth
doctrine provides an “exception” to normal facial challenge rules because
“the threat of enforcement of an overbroad law may deter or ‘chill’
constitutionally protected speech—especially when the overbroad statute
imposes criminal sanctions.”); Ams. for Prosperity Found. v. Bonta, 141 S. Ct.
2373, 2387 (2022) (holding that under such circumstances a plaintiff needs
only to show that a “substantial number of [the law’s] applications are
unconstitutional” (quoting Stevens, 559 U.S. at 473)). If a person refrains
from engaging in protected speech for fear of plausible potential
consequences, the harm from the law is no less than if it was overtly
enforced. See Brush & Nib, 247 Ariz. at 280–81 ¶ 40 (holding that “the threat
of criminal prosecution and significant penalties” creates a chilling effect).
¶19 Here, the potential chilling effect is readily apparent on the
statute’s face. The law forbids anyone to “pay or receive” anything of value
on a per-signature basis. § 19-118.01(A). A violation is a class 1
misdemeanor. § 19-118.01(B). The law has no mens rea requirement, so
employers and employees are strictly liable for violations. Indeed, an
employee who accepts compensation on a per-signature basis can be
criminally liable for an employer’s violation even if the payment was made
based on a good-faith misinterpretation of the statute.
¶20 From both parties’ arguments, it is clear that the possible
constitutional infirmities flow in large part from disagreement over
whether § 19-118.01 prohibits more than per-signature compensation. The
State asserts that it does, relying not on the statute’s plain language but on
our depiction of the statute in Molera as prohibiting compensation for
petition circulators that is “dependent on or calculated by, in whole or in
part, the number of signatures collected during the compensation period.”
250 Ariz. at 24 ¶ 35. The State’s interpretation of our holding is erroneous;
and in light of the constitutional claims here that were not before us in
Molera, we clarify that holding now.
¶21 The statute is clear that only per-signature payments are
prohibited: “A person shall not pay or receive money or any other thing of
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Opinion of the Court
value based on the number of signatures collected . . . .” § 19-118.01(A). By
“in whole or in part,” we simply recognized in Molera that invalid per-
signature payments could take a variety of forms, such as “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.”
Molera, 250 Ariz. at 24 ¶ 35. Indeed, we expressly rejected a prohibition
based on “a broad connection” between compensation and the number of
signatures collected in favor of a narrower statutory interpretation. Id. ¶ 36.
Although the statute’s constitutionality was not then before us, we
embraced a narrow interpretation of the statute “to minimize any First
Amendment infringement on core political speech.” Id. at 25 ¶ 38.
¶22 In other words, we emphasized substance over form,
interpreting the statute to solely prohibit compensation that can be
determined only by counting the number of signatures already collected.
Thus, we rejected the argument that adjustments to compensation for
collecting a future, unknown number of signatures could not be based on
past productivity. Id. ¶ 40.
¶23 By clarifying that the statute only prohibits per-signature
compensation—that is, an amount of payment that can be determined only
by counting the number of signatures collected—we removed any facial
infirmity from the statute. As we noted in Molera, “[c]ourts in other
jurisdictions have upheld bans on per-signature compensation for
circulators.” Id. ¶ 37 (citing Prete v. Bradbury, 438 F.3d 949, 962 (9th Cir.
2006); Person v. N.Y. State Bd. of Elections, 467 F.3d 141, 143 (2d Cir. 2006);
Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 618 (8th Cir. 2001)).
¶24 Perhaps the closest case on point is the Ninth Circuit’s
opinion in Prete. There the court considered Oregon Measure 26, Or. Const.
art. IV, § 1b, which like the statute here made it “unlawful to pay or receive
money or any other thing of value based on the number of signatures
obtained on an initiative or referendum petition.” 438 F.3d at 952. The
provision goes on to state that it does not prohibit compensation that “is
not based, either directly or indirectly, on the number of signatures
obtained.” Id.
¶25 The court concluded that the measure did not impose a severe
burden on First Amendment rights because it “is quite limited in its
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Opinion of the Court
proscription, barring only the payment of petition circulators on the basis
of the number of signatures gathered.” Id. at 968. As we concluded in
Molera regarding the statute at issue here, 250 Ariz. at 25 ¶ 40, the Ninth
Circuit found that Measure 26 “does not prohibit adjusting salaries or
paying bonuses according to validity rates or productivity.” Prete, 438 F.
3d at 968; see also Deters, 518 F.3d at 385 (distinguishing Prete on the basis
the Ohio statute before it “banned all remuneration to circulators except on
a per-time basis”). In light of the state’s “important regulatory interest in
preventing fraud and its appearances in [the] electoral processes,” Prete, 438
F.3d at 969, the Ninth Circuit found that Measure 26 does not violate the
First Amendment. Id. at 971.
¶26 Since Molera, the Ninth Circuit upheld Montana’s ban on per-
signature compensation in Pierce v. Jacobsen, 44 F.4th 853 (9th Cir. 2022). The
court held that “prohibiting payment by the signature furthers [Montana’s]
important regulatory interest in preventing fraud in the initiative process.”
Id. at 867. It reasoned that “by merely banning one type of payment scheme
while leaving numerous other options available,” the law does not impose
a severe burden on First Amendment rights. Id. The court noted that
“[w]hile it may be possible to demonstrate that a pay-per-signature
restriction—including this one—imposes a severe burden, the record before
us is insufficient to support such a finding.” Id. at 865. We find ourselves
in the same position, attempting to ascertain the impact of a statute without
an evidentiary record.
¶27 Here, overbreadth concerns arise not from the statute itself,
but from the erroneous reading of our decision in Molera. “Facial
overbreadth has not been invoked when a limiting construction has been or
could be placed on the challenged statute.” Broadrick, 413 U.S. at 613. As
we clarify here, the statute forbids only per-signature compensation,
leaving other productivity-based compensation intact. See Prete, 438 F.3d
at 952 n.1 (outlining permissible forms of compensation); cf. Deters, 518 F.3d
at 386 (striking down a statute that allowed hourly pay only, meaning that
employees “cannot be rewarded for being productive and arguably cannot
be punished for being unproductive”). Our clarification also means that
the statute is not vague on its face, as permissible and prohibited conduct
are clearly demarcated.
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AZ PETITION PARTNERS LLC v. HON. THOMPSON/STATE
Opinion of the Court
¶28 Both parties have suggested that constitutional concerns
about the statute could also be diminished if we were to read into it a mens
rea requirement. That is undoubtedly true because establishing a violation
of the statute would then require proof of intent, whereas the statute as
written creates strict liability for violations. See State v. Boyd, 201 Ariz. 27,
30 ¶ 17 (App. 2001) (“The fact that a violation of [a statute] is a strict liability
offense also influences our determination that it failed to give Boyd
adequate notice such as to fulfill the requirements of due process.”).
¶29 However, although we can and should construe statutes to
avoid rendering them unconstitutional where the language makes it
plausible to do so, as a matter of separation of powers, we cannot rewrite
statutes. Ariz. Const. art. 3 (establishing that the departments of
government “shall be separate and distinct, and no one of such departments
shall exercise the powers properly belonging to either of the others”); In re
Nickolas S., 226 Ariz. 182, 186 ¶ 18 (2011) (rewriting a statute would “invade
the legislature’s domain”). The legislature included a mens rea
requirement in other provisions of the section in which this provision
appears. See, e.g., A.R.S. § 19-114.01 (“Any person who knowingly gives or
receives money or any other thing of value for signing an initiative or
referendum petition, excluding payments made to a person for circulating
such petition, is guilty of a class 1 misdemeanor.” (emphasis added)). It did
not do so here, and we therefore must conclude that the legislature intended
to enact the provision without such a requirement. See DePierre v. United
States, 564 U.S. 70, 83 (2011) (“[W]hen the legislature uses certain language
in one part of the statute and different language in another, the court
assumes different meanings were intended.” (quoting Sosa v. Alvarez–
Machain, 542 U.S. 692, 711 n.9 (2004))); see also Hughes v. Jorgenson, 203
Ariz. 71, 73 ¶ 11 (2002) (noting presumption that “the legislature has said
what it means”). Of course, that may make the statute more vulnerable to
an as-applied challenge; but that trade-off is one that only the legislature,
and not the courts, is empowered to make.
¶30 Petition Partners seeks attorney fees pursuant to A.R.S.
§ 12-348(A)(4), which provides such fees to a party successfully challenging
government action in a special action. As Petition Partners did not prevail
here, we deny attorney fees.
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Opinion of the Court
CONCLUSION
¶31 For the foregoing reasons, we vacate the court of appeals’
opinion, although we approve much of its reasoning. We remand to the
trial court for further proceedings consistent with this opinion.
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