Sign Here Petitions LLC v. Chavez

• Decision Date: 29 August 2017
• Docket Number: No. 1 CA-CV 16-0363.,1 CA-CV 16-0363.
• Citation: 402 P.3d 457
• Parties: SIGN HERE PETITIONS LLC, Plaintiff/Appellant, v. Andrew D. CHAVEZ, et al., Defendants/Appellees.
• Court: Arizona Court of Appeals

402 P.3d 457

SIGN HERE PETITIONS LLC, Plaintiff/Appellant,

v.Andrew D. CHAVEZ, et al., Defendants/Appellees.

No. 1 CA-CV 16-0363.

Court of Appeals of Arizona, Division 1.

FILED August 29, 2017

Law Offices of Paul Weich, Tempe, By Paul M. Weich, Counsel for Plaintiff/Appellant

Coppersmith Brockelman PLC, Phoenix, By Roopali H. Desai, D. Andrew Gaona, Counsel for Defendants/Appellees

Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.

OPINION

McMURDIE, Judge:

¶ 1 Sign Here Petitions, LLC ("Sign Here") appeals from a judgment dismissing, with prejudice, all claims against Andrew D. Chavez, Petition Partners, LLC, and AZ Petition Partners, LLC ("Petition Partners") and the denial of Sign Here's post-judgment motion. We affirm and hold when ruling on a motion for summary judgment in a defamation case: (1) the superior court must act as gatekeeper protecting the right to free speech from meritless litigation to avoid a chilling effect on free expression; (2) in that role, before allowing a defamation claim to proceed to trial, the superior court must first determine whether a statement is capable of bearing a defamatory meaning by considering all of the circumstances surrounding the statement; and (3) in doing so, the superior court is to evaluate the circumstances surrounding an allegedly defamatory statement from the point of view of a reasonable person.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Sign Here and Petition Partners are in the business of collecting voter signatures on petitions proposing ballot measures in Arizona. Each also engages in "suppression" of signature-gathering efforts. Chavez is a managing member of Petition Partners. Chavez participates in social media websites, such as Twitter and Facebook, to promote his businesses. Approximately 1000 people followed Chavez on Twitter in November 2015.

¶ 3 In late 2014, Sign Here conducted a signature drive on behalf of Citizens for Fair Dealing to place a zoning referendum measure on the ballot in the City of Phoenix. In December, 2014, the city clerk found the referendum petition insufficient because it lacked the required 16,987 valid signatures to qualify. While Sign Here provided 20,172 signatures, only 12,659 of those signatures were valid, a failure rate of almost 40%. The failure rate was based in part on Sign Here's use of two convicted felons to gather signatures. The City disqualified all signatures gathered by those two circulators because they were ineligible to circulate petition sheets, invalidating 714 signatures. Sign Here's managing member, Bonita Burks, stated in 2015 that Sign Here conducted criminal background checks on potential circulators, but she acknowledged the disqualified felons passed their background checks.

¶ 4 It is undisputed that the total amount Sign Here was to be paid on the Cholla referendum contract with Citizens for Fair Dealing was approximately $71,000. Citizens for Fair Dealing withheld approximately $17,000 of that amount because of a dispute with Sign Here related to the terms of, and performance under, the contract.

¶ 5 Chavez published several statements on his Twitter account about Sign Here's signature collection effort. In March 2015, Sign Here filed a complaint against Chavez and Petition Partners, alleging Chavez's Twitter postings defamed Sign Here. The tweets posted on Chavez's account included the following statements:

September 24, 2014: "Rivals ready for referendum on #Phoenix 19thAve and Cholla Castle renovation project. Expensive pissing match begins on Thursday Oct. 3rd."

November 14, 2014: "Phx 19thAve/Cholla referendum failure eminent. If so, it's 38th of 38 municipal projects across country we worked against to fail this year."¹

November 25, 2014 (two tweets): (1) "The first and only project Sign Here Petitions attempted to qualify on their own will fail. #Phx 19th Ave Castle Referendum is a disaster"; and (2) "#PHX 19th/Cholla Referendum will fail b/c of bad signatures. Company that failed in hot water for using felons. @petitionpartner wins again."

December 11, 2014: "To date more than ? of sigs collected by Sign Here Petitions are suspected of being collected by felons. Bad gets worse on #phx referendum."

January 23, 2015: "Phx 19th Ave/Cholla Referendum failure official today. $100k+ spent w/ Sign Here Petitions who delivered less than ½ valid sigs necessary."

¶ 6 Petition Partners moved for summary judgment arguing the six tweets were incapable of defamatory meaning, any claim relating to other unidentified statements was time-barred, the claim of tortious interference was unsupported by a single fact, and the measure of damages (the $17,000 withheld by its client) was unrelated to statements or actions by Petition Partners. The superior court granted the motion and dismissed the case with prejudice.

¶ 7 Petition Partners filed a Motion for Relief from Judgment per Arizona Rule of Civil Procedure 60(c), taking issue with two tweets Chavez posted after the grant of summary judgment:

(1) "ICYMI: Judge dismisses case against us and our honest tweets about Sign Here Petitions failed signature drive. Good guys win again"; and

(2) "Chicken dinner!"

¶ 8 The superior court denied the post-judgment motion. This timely appeal followed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12–120.21(A)(1), and –2101(A)(1).²

DISCUSSION

¶ 9 "Freedom of speech ‘is the matrix, the indispensable condition, of nearly every other form of freedom.’ " State ex rel. Corbin v. Tolleson , 160 Ariz. 385, 389, 773 P.2d 490, 494 (App. 1989) (quoting Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled on other grounds by Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ).

¶ 10 The Arizona Constitution grants a broad right to free speech. "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." Ariz. Const. art. 2, § 6. The right to free speech is granted directly to every Arizonan and is not merely a protection against government action, as is the First Amendment to the United States Constitution. Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n , 160 Ariz. 350, 354, 773 P.2d 455, 459 (1989). Where the guarantees of the Arizona Constitution are in question, "we first consult our constitution." Mountain States , 160 Ariz. at 356, 773 P.2d at 461 ; see Phoenix Newspapers, Inc. v. Jennings , 107 Ariz. 557, 559, 490 P.2d 563, 565 (1971) (the United States Constitution applied but "[a]rticle II of the Arizona Constitution [was] sufficient to resolve the litigation"); see also Phoenix Newspapers, Inc. v. Super. Ct. , 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966) (where ban on publication violated the Arizona Constitution, the court did "not reach the further questions presented concerning the application of the First and Fourteenth Amendments of the Federal Constitution").

¶ 11 Because this case raises issues concerning the right to free speech, we conduct an "enhanced appellate review" to assure "the foregoing determinations will be made in a manner so as not to constitute a forbidden intrusion of the field of free expression." Turner v. Devlin , 174 Ariz. 201, 202, 204, 848 P.2d 286, 287, 289 (1993) (internal quotation omitted) (quoting Yetman v. English , 168 Ariz. 71, 75–76, 811 P.2d 323, 327–328 (1991) ). "The framers of our constitution did not give our judges authority to censor speech or decide how much speech the constitution allows." Mountain States , 160 Ariz. at 357, 773 P.2d at 462 (citing Phoenix Newspapers , 101 Ariz. at 259, 418 P.2d at 596 ). Instead, judges are responsible for upholding and enforcing those rights. Id.

A. The Superior Court Did Not Err by Granting the Motion for Summary Judgment.

¶ 12 Sign Here argues the superior court erred by granting summary judgment in favor of Chavez and Petition Partners because (1) the defamatory statements were "indisputably false and actionable"; and (2) there were disputed underlying facts relating to Petition Partners' defense of substantial truth.

¶ 13 On appeal from a summary judgment, we view the facts in the light most favorable to the party against whom judgment was granted, Riley, Hoggatt & Suagee, P.C. v. English , 177 Ariz. 10, 12–13, 864 P.2d 1042, 1044–45 (1993), and "determine de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co. , 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). We will affirm the superior court's grant of summary judgment if it is correct for any reason. See City of Tempe v. Outdoor Sys., Inc. , 201 Ariz. 106, 111, ¶ 14, 32 P.3d 31, 36 (App. 2001).

¶ 14 To defeat a defendant's motion for summary judgment in a defamation case, the plaintiff must present evidence "sufficient to establish a prima facie case with convincing clarity ." Read v. Phoenix Newspapers, Inc. , 169 Ariz. 353, 356–57, 819 P.2d 939, 942–43 (1991) (emphasis added). We place a higher burden on the plaintiff to show a triable issue because the expense of defending a meritless defamation case could have a chilling effect on free speech. Id. at 357, 819 P.2d at 943.

¶ 15 Under Arizona common law, a defamatory publication by a private figure on matters of private concern "must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach [that person]'s honesty, integrity, virtue, or reputation." Turner , 174 Ariz. at 203–04, 848 P.2d at 288–289 (quoting Godbehere v. Phoenix Newspapers, Inc. , 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989) ); see also Dombey v. Phoenix Newspapers, Inc. , 150 Ariz. 476, 481, 724 P.2d 562, 567 (1986) ("[W]hen a plaintiff is a private figure and the speech is of private concern, the states are free to retain common...