AZ Petition Partners LLC v. Thompson
| Decision Date | 24 May 2022 |
| Docket Number | 1 CA-SA 21-0170 |
| Citation | 253 Ariz. 223,511 P.3d 570 |
| Parties | 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. |
| Court | Arizona Court of Appeals |
Mitchell Stein Carey Chapman PC, Phoenix, By Kathleen E. Brody, Lee D. Stein, Anne M. Chapman, Co-Counsel for Petitioner
Coppersmith Brockelman PLC, Phoenix, By Roopali H. Desai, D. Andrew Gaona Co-Counsel for Petitioner
Arizona Attorney General's Office, Phoenix, By Linley Wilson, Todd C. Lawson, Counsel for Real Party in Interest
¶1 AZ Petition Partners, LLC ("Petitioner") seeks special action review of the superior court's denial of its two motions seeking dismissal of an Information charging multiple misdemeanor violations of A.R.S. § 19-118.01(A), which prohibits paying or receiving money "based on the number of signatures" collected for a statewide initiative or referendum. We accept jurisdiction and grant relief in part because the misdemeanor provision of § 19-118.01(B) violates the First Amendment.
¶2 In 2017, the legislature enacted § 19-118.01, which provides as follows:
¶3 Petitioner is a signature-gathering business that hires circulators to collect signatures on statewide initiative campaigns. Molera v. Hobbs , 250 Ariz. 13, 23, ¶ 28, 474 P.3d 667, 677 (2020). In 2020, a political action committee hired Petitioner to collect signatures for the Invest in Education Act initiative. Id. at 18, 23, ¶¶ 2, 28, 474 P.3d at 672, 677. Petitioner compensated its circulators based on three pay scales, "which set an hourly rate and an expected average number-range of signatures to be gathered each hour." Id. at 23, ¶ 29, 474 P.3d at 677. Circulators could fluctuate between the scales depending on their productivity for the prior week, along with other factors, including "the number of hours worked and how the circulators conducted themselves," but any adjustment to a circulator's hourly pay was prospective only. Id. Petitioner also offered several incentive bonus programs to circulators, including the two at issue here as well as the spin-the-wheel program.1 Id. ¶¶ 28, 30, 31.
¶4 Opponents to the initiative filed a declaratory judgment complaint in superior court against the political action committee to disqualify the initiative from the ballot, alleging Petitioner's hourly rates and bonus incentive programs violated § 19-118.01(A). Id. at 18, ¶ 3, 474 P.3d at 672. The court held that the hourly rates and the spin-the-wheel bonus program did not violate § 19-118.01(A). Id. at 23, ¶ 31, 474 P.3d at 677. But the court also concluded that "four other incentive programs violated § 19-118.01(A)." Id. Both the political action committee and its opponents appealed to our supreme court, which affirmed in part and reversed in part the superior court's order. Id. at 19, ¶ 5, 474 P.3d at 673. In doing so, the supreme court did not specifically analyze whether the four bonus programs, including the two here, violate § 19-118.01(A), because it found that even after removing the signatures obtained in violation of the statute, the initiative still had enough signatures to be placed on the ballot. Id. at 27, ¶ 53, 474 P.3d at 681.
¶5 Shortly after Molera was decided, the State filed a 50-count Information, alleging Petitioner violated § 19-118.01(A) by paying circulators "based on the number of signatures collected" through its "Weekend Warriors" and "Duel for the Dollars" bonus incentive programs. Each count of the Information listed the name of a circulator who received a bonus payment and the amount of the payment, which ranged from $10 to $150 (except for Count One, which alleged a payment of $1200).
¶6 The State also filed an allegation of aggravating circumstances under A.R.S. § 13-803(F) (1), (4), and (7) (fines against enterprises), listing these factors: (1) "[t]he income and assets of the enterprise and the economic impact of the penalty on the enterprise"; (2) whether the offense led to pecuniary gain; and (3) "[t]he role of the directors, officers or principals of the enterprise in the offense." The State's allegation of aggravating circumstances also cited A.R.S. § 13-823, which authorizes a court to deviate from the presumptive fine and impose up "to five times the maximum fine" if the court finds evidence of violation of a judicial or administrative order, the offense involved malicious or wanton conduct, or the offense involved conduct that posed an imminent and substantial hazard (or serious actual harm) to human health or the environment. Thus, Petitioner faces a maximum fine of $5 million if convicted. See A.R.S. §§ 13-803(A)(2) (); 13-823(A).
¶7 Petitioner moved to dismiss the charges under Arizona Rule of Criminal Procedure 16.4(b), challenging the legal sufficiency of the Information. Included in Petitioner's motion were transcript excerpts and the superior court's ruling from the declaratory judgment trial. Petitioner also included emails announcing the winners for the Duel for the Dollars and Weekend Warriors bonus programs and descriptions of how the Weekend Warriors program was promoted to circulators. Petitioner asserted that under its reading of Molera , § 19-118.01(A) bans only per-signature payments (a fixed rate for each signature) and thus payments to circulators under these two bonus programs do not violate the statute. Petitioner also noted that COVID-19 created several challenges to signature gathering and hampered its ability to timely account for the number of signatures each circulator had collected. Thus, according to Petitioner, payments under the two bonus programs were generally not tied to the number of signatures obtained by a circulator because the two bonus programs were not implemented as initially contemplated.
¶8 The State countered that dismissal was improper because the superior court would draw the same conclusion it did following the declaratory judgment trial in Molera —that the bonus programs violated § 19-118.01(A) because circulators were compensated, in part, based on the number of signatures collected. Referencing the superior court's ruling in Molera , the State explained that (1) "Weekend Warriors was available only to circulators who worked 20 hours during the week and 10-15 hours over the weekend while gathering at least three ‘sets’ of signatures per hour," and (2) " The court denied Petitioner's motion to dismiss based on the lack of an evidentiary record.
¶9 Petitioner then moved to dismiss a second time, asserting § 19-118.01 violates the First Amendment and is unconstitutionally vague and overbroad.2 Alternatively, Petitioner argued that the statute is constitutional only if narrowly construed to prohibit nothing more than per-signature payments. The court denied the motion, and this special action followed.
¶10 Special action jurisdiction is proper when a petitioner has no equally plain, speedy, or adequate remedy on appeal. Ariz. R.P. Spec. Act. 1(a). Review may also be appropriate when the petition presents purely legal questions of first impression and statewide importance. Gilbert Prosecutor's Office v. Foster , 245 Ariz. 15, 17, ¶ 5, 424 P.3d 416, 418 (App. 2018). The State urges us to deny jurisdiction on the first motion to dismiss, which challenges the legal sufficiency of the Information. As for the second motion, given the constitutional issues at stake the State asks us to address the matter.
In our discretion, and because courts should decide cases on non-constitutional grounds when possible, State v. Payne , 223 Ariz. 555, 561, ¶ 14, 225 P.3d 1131, 1137 (App. 2009), we accept jurisdiction over the superior court's rulings on both motions.
¶11 "On a defendant's motion, the court must order a prosecution's dismissal if it finds that the indictment, information, or complaint is insufficient as a matter of law." Ariz. R. Crim. P. 16.4(b). A charging document is insufficient as a matter of law if the "defendant can admit to all the allegations charged ... and still not have committed a crime." Mejak v. Granville , 212 Ariz. 555, 556, ¶ 4, 136 P.3d 874, 875 (2006). As it did in the superior court, Petitioner claims that under Molera , § 19-118.01(A) bans only per-signature payments and thus payments to circulators under the two bonus programs do not violate the statute.
¶12 If the supreme court in Molera was inclined to construe the statute as solely prohibiting per-signature compensation, it would have said as much. Instead, the court specifically noted that it was not addressing the constitutionality of § 19-118.01, but found that the legislative history supported a "narrow" reading. Molera , 250 Ariz. at 25, ¶¶ 38–39, 474 P.3d at 679 ()....
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