PHOENIX — Attorney General Mark Brnovich can't bring criminal charges against the firm that circulated petitions for the successful 2020 Invest in Ed ballot measure.
In a ruling Tuesday, the state Court of Appeals said it was illegal for the Republican-controlled legislature to approve a measure in 2017 that makes it a crime to pay circulators based in whole or in part on the number of signatures they gather. The three-judge panel said the possibility of not just fines but also jail time places an illegal burden on the First Amendment rights of people trying to put issues on the ballot.
More immediately, it quashes the 50-count criminal complaint filed by Brnovich against Petition Partners, a complaint that appellate Judge Michael Brown said could result in fines totaling $5 million even though the attorney general took the possibility of jail time off the table by naming only the company and not individual owners or individual circulators.
A spokeswoman for Brnovich said the office is reviewing the decision and weighing an appeal to the Arizona Supreme Court.
The fight is over a 2017 law crafted by then-Rep. Vince Leach, R-Tucson, now a state senator, who has also been the author of other measures which have effectively created new hurdles for individuals to exercise their constitutional rights to propose their own laws.
It does not make it illegal to pay people to gather signatures. But it spells out that payment cannot be on a per-name basis, the method that, until that time, had been used by companies to encourage people to get as many signatures as necessary to qualify measure for the ballot.
That restriction, however, applies only to ballot measures. It does not limit how political candidates can pay petition circulators.
Petition Partners did not provide per-signature payments when it was hired to put Proposition 208 on the ballot.
That measure, approved by a margin of 51.7% against 47.3%, sought to impose a 3.5% surcharge on incomes of more than $250,000 for individuals and $500 for couples, designed to raise about $900 million a year for K-12 education. That initiative eventually was voided by the state Supreme Court for other reasons.
After voter approval, Brnovich brought charges against the company for programs known as "Duel for the Dollars" and "Weekend Warriors." He said that violated the law against paying people based on the number of signatures collected because circulators could get extra payments from $20 to $150.
Before the trial could be conducted, though, Petition Partners asked the Court of Appeals to intercede to determine whether it was even legal for Brnovich to bring criminal charges.
Brown, writing for the three-judge panel, noted the total bonuses Brnovich said were illegally paid totaled only $4,740 despite a possible $5 million in fines.
He also pointed out that the law is a strict liability offense, meaning that it doesn't require any proof that people intended to break it. And that, the judge said, makes it "undoubtedly easier to obtain a conviction."
"The mere possibility of substantial fines for enterprises, along with fines and possible jail time for circulators, weighs in favor of finding that (the law) imposes a severe burden on petitioner's First Amendment rights," Brown wrote.
He also brushed aside claims by Brnovich that the law and the penalty is needed to reduce the possibility of fraud in gathering petition sgnatures. Brown cited already existing laws against forgery, and bans against signing a petition for profit.
"And, of course, signatures obtained in violation of Arizona's initiative process laws are void and thus not counted toward the validity of an initiative," the judge said.
And there's something else. Brown said that firms like Petition Partners seek to meet the goals of their clients by ensuring that issues do get on the ballot, meaning they would seek to avoid any violations of the law that would undermine those objectives.
"Put another way, because petitioner has a strong incentive in obtaining valid signatures to achieve successful placement on the ballot, that incentive undercuts the state's broad assertions that imposing a criminal penalty for violating compensation restrictions reduces fraud," the judge wrote.
In voiding the criminal penalties, though, the appellate court sidestepped the issue of whether the rest of the statute — the prohibition on paying circulators based on signatures — is constitutional. The judges said it is possible that lawmakers would have enacted that prohibition even absent the possibility of imposing stiff fines and jail terms.
There was no immediate response from Petition Partners.
But when Brnovich filed the lawsuit, company spokesman David Leibowitz called it "political prosecution, pure and simple."
"Instead of protecting the public, this case is designed to interfere with the ability of Arizona citizens to get initiatives on the ballot," he said then.
