Az Petition Partners v. Hon. thompson/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

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. 1 CA-SA 21-0170
FILED 5-24-2022

Appeal from the Superior Court in Maricopa County
No. CR 2020-000467-001
The Honorable Peter A. Thompson, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART

COUNSEL

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

AZ PETITION PARTNERS v. HON THOMPSON/STATE
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶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.

BACKGROUND

¶2 In 2017, the legislature enacted § 19-118.01, which provides as
follows:

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 Petitioner is a signature-gathering business that hires
circulators to collect signatures on statewide initiative campaigns. Molera
v. Hobbs, 250 Ariz. 13, 23, ¶ 28 (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. 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.
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,

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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. 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. 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. 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.

¶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

1 This program “permitted circulators to spin a wheel for prizes each
Monday when they turned in collected signatures. The prizes ranged from
$10 to $100, an extra hour of pay, or double these ‘spins.’” Molera, 250 Ariz.
at 23, ¶ 30.

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maximum fine of $5 million if convicted. See A.R.S. §§ 13-803(A)(2)
(establishing a fine of not more than $20,000 for a class 1 misdemeanor
offense); 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) “Duel for Dollars (sometimes referred to as Clash for the Cash) was
a ‘competition where two circulators duel head to head and see who can
collect more signatures during the week. The winner received a cash
prize.’” 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

2 In compliance with A.R.S. § 12-1841, Petitioner served the Arizona
Senate President and House Speaker with a notice of claim of
unconstitutionality, but nothing in the record shows that either sought to
participate in these proceedings.

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constitutional only if narrowly construed to prohibit nothing more than
per-signature payments. The court denied the motion, and this special
action followed.

DISCUSSION

¶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 (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 (App. 2009),
we accept jurisdiction over the superior court’s rulings on both motions.

I. Legal Sufficiency of the Information

¶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 (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
(reasoning that the legislature’s “focus on eradicating the practice of per-
signature payments, and its awareness of the constitutional implications of
restricting other circulator compensation methods, demonstrate it intended
a narrow application of the term ‘based on’”). The court then held that
§ 19-118.01 bars compensation structures where a circulator’s pay “is
dependent on or calculated by, in whole or in part, the number of signatures
collected during the compensation period.” Id. at 24, ¶ 35 (emphasis
added). Thus, payments “per signature, per completed signature sheet, or

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by an hourly, daily, or weekly rate that is contingent on collecting a
specified number of signatures” are prohibited under § 19-118.01(A). Id.
The court also concluded, however, that “prospective adjustment to hourly
rates in light of a circulator’s past productivity” does not violate the statute.
Id. at 25, ¶ 41. Under our supreme court’s interpretation of § 19-118.01(A),
the two bonus programs at issue here allegedly violate § 19-118.01(A)
because they purportedly paid circulators “in whole or in part” based on
the number of signatures collected.

¶13 Petitioner also argues the superior court erred by finding that
an evidentiary record is necessary to resolve the first motion to dismiss.
According to Petitioner, the legislature did not intend to criminalize the
conduct alleged in the Information, as its circulators were not paid per
signature, but were merely rewarded for productivity alongside their
hourly wages.

¶14 In Molera, the supreme court affirmed the superior court’s
finding that the spin-the-wheel bonus program did not violate § 19-118.01
because the initiative opponents did not show that circulators had to submit
a certain number of signatures to spin the wheel. 250 Ariz. at 25,
¶ 42. Although the program was advertised as giving the circulator an
additional chance to spin depending on how many signatures he or she had
obtained, the supreme court found that if the program had operated that
way, then whether § 19-118.01 was violated “would be a closer question.
But the evidence at trial showed that a circulator did not have to collect any
number of signatures to spin the wheel.” Id. at 26, ¶ 43.

¶15 Unlike the circumstances in Molera, we do not have an
evidentiary record before us to determine whether the two bonus programs
violate § 19-118.01(A). Petitioner relies on evidence presented to the
superior court in the Molera case for its argument that the bonus programs,
as advertised, do not violate § 19-118.01(A). But nothing in this special
action record would permit us to make a legal determination on whether
the execution of the bonus programs violated § 19-118.01(A) sufficient to
qualify as proof beyond a reasonable doubt. The materials Petitioner
included in its first motion to dismiss were presented to a different judge
and parties with a lower standard of proof in a civil proceeding. We lack a
fully developed record, with evidence from both parties and the
opportunity for cross-examination of witnesses, to determine whether the
bonus programs operated in such a way that circulators were paid “based
on the number of signatures collected.” And, by its own admission,
Petitioner intends to dispute certain facts at trial. The superior court did
not abuse its discretion in denying the first motion to dismiss.

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II. Constitutionality of Section 19-118.01(A)

¶16 Petitioner argues that § 19-118.01 implicates First
Amendment rights and must be narrowly interpreted to mean only a
prohibition on per-signature compensation to avoid burdening those
rights. When our supreme court interpreted § 19-118.01(A), it expressly did
not address the statute’s constitutionality. Molera, 250 Ariz. at 25, ¶ 38. We
do so now.

¶17 We review the constitutionality of a statute de novo. State v.
Arevalo, 249 Ariz. 370, 373, ¶ 9 (2020). “An act of the legislature is presumed
constitutional, and where there is a reasonable, even though debatable,
basis for enactment of the statute, the act will be upheld unless it is clearly
unconstitutional.” Id. (citation and quotation omitted). Given the strong
presumption that a statute is constitutional, the challenging party has the
burden to prove otherwise. Id.

A. Standard of Review

¶18 The Arizona Constitution preserves the right of the people to
propose laws through the initiative process. Ariz. Const. Art. IV, pt. 1,
§ 1(1)–(2). Ten percent of all qualified electors (defined as the “number of
votes cast for all candidates for governor at the general election last
preceding the filing of any initiative”), id. § 1(7), are required to propose an
initiative measure for the ballot, id. § 1(2).

¶19 Petition circulation “involves the type of interactive
communication concerning political change that is appropriately described
as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 421–22 (1988). “The
First Amendment protects [a petitioner’s] right not only to advocate their
cause but also to select what they believe to be the most effective means for
so doing.” Id. at 424. Circulators serve a crucial role in the petition process
because they must “express the petitioner’s desire for political change” and
“discuss the merits of the proposed change.” Citizens for Tax Reform v.
Deters, 518 F.3d 375, 383 (6th Cir. 2008).

¶20 As explained in Meyer, restrictions on circulator pay inhibit
political expression because they reduce (1) the number of circulators who
participate in the initiative process in a way that limits the size of the
audience an initiative proponent might reach, and (2) the likelihood that the
proponent’s measure will land on the ballot and become a matter of
statewide discussion. 486 U.S. at 422–23. But the government also has a
substantial interest in regulating elections to maintain fairness and honesty
in “the democratic process,” and the right to engage in the initiative process

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is therefore “not absolute.” Arizonans for Second Chances, Rehab., & Pub.
Safety v. Hobbs, 249 Ariz. 396, 408, ¶ 41 (2020) (citation and quotation
omitted); see Storer v. Brown, 415 U.S. 724, 730 (1974) (recognizing “there
must be a substantial regulation of elections if they are to be fair and honest
and if some sort of order, rather than chaos, is to accompany the democratic
processes”).

¶21 For state election laws that create barriers to the political
process, the Supreme Court has rejected any “litmus-paper test” to
determine the appropriate standard of review. Anderson v. Celebrezze, 460
U.S. 780, 789 (1983) (citation and quotation omitted); see also Burdick v.
Takushi, 504 U.S. 428, 432–33 (1992). Instead, a flexible framework is used
to determine the standard of review for ordinary election laws, see McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995), where courts balance the
burden imposed on the challenger’s First Amendment rights against the
state’s interests offered to justify that burden, Burdick, 504 U.S. at 434;
Anderson, 460 U.S. at 789. Courts then evaluate the “legitimacy and
strength” of the state’s interests and whether they are necessary to burden
the plaintiff’s rights. Anderson, 460 U.S. at 789. Although Petitioner
suggests that strict scrutiny should presumptively apply here, our supreme
court has recognized that the Anderson/Burdick framework governs
constitutional challenges for “all ballot access restrictions.” Arizonans for
Second Chances, 249 Ariz. at 408–09, ¶¶ 41–42 (“Ballot access restrictions
implicate the right to vote and the related right to associate with others to
advance shared political beliefs.”).

B. Anderson/Burdick Framework

¶22 Under the Anderson/Burdick framework, we weigh the
“severity of the burden on a plaintiff’s First and Fourteenth Amendment
rights to determine the level of scrutiny to apply.” Id. at 409, ¶ 42; McIntyre,
514 U.S. at 336 n.1 (“The term ‘liberty’ in the Fourteenth Amendment to the
Constitution makes the First Amendment applicable to the States.”). If a
statute imposes a “severe burden,” the statute must be “narrowly tailored
to advance a compelling state interest.” Arizonans for Second Chances, 249
Ariz. at 409, ¶ 42 (citation and quotation omitted). If a statute imposes a
“reasonable, nondiscriminatory restriction[],” it triggers a “less exacting
review” and “may be justified by the state’s important regulatory
interests.” Id. (citations and quotations omitted). Generally, the question
of the severity of the burden a statute imposes is “fact-intensive.” See
Deters, 518 F.3d at 383.

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¶23 Assuming the truth of the State’s allegations, Petitioner did
pay circulators (at least in part) “based on” the number of signatures
collected through the Weekend Warriors and Duel for the Dollars bonus
programs. As alleged by the State, and depending on the details of how the
programs were actually carried out, those payments would therefore
violate § 19-118.01. See Molera, 250 Ariz. at 27, ¶ 53 (noting that the superior
court “correctly disqualified only signatures collected by circulators during
the pay periods in which they were paid bonuses that violated
§ 19-118.01(A)”). In the context of this criminal prosecution, we consider
whether § 19-118.01, and especially the misdemeanor provision of
subsection (B), severely burdens the First Amendment rights of initiative
proponents who rely on paid circulators to gather signatures.

¶24 Petitioner argues that, as construed by Molera, the statute
imposes a severe burden on First Amendment rights that requires us to
apply exacting review. Petitioner first points to the fact that over the last 30
years, no statewide initiative measure has been placed on a ballot in
Arizona without the work of paid circulators, which the State does not
dispute. Nor does the State dispute Petitioner’s assertion that recruiting
circulators became more challenging after the enactment of § 19-118.01.

¶25 The State counters that § 19-118.01 is a reasonable restriction
and should be subject to a less exacting review. According to the State,
because § 19-118.01 prohibits only “one type of payment to circulators” that
is “based on the number of signatures collected,” the statute (1) does not
decrease the available pool of circulators, (2) places only a minimal burden
on Petitioner’s First Amendment rights, and (3) imposes no burdens on
circulators. But the State’s argument overlooks Molera’s analysis of what
types of compensation the statute permits and fails to account for the risks
of criminal sanctions if the statute is violated. Nor does the State cite any
case upholding, against a First Amendment challenge, circulator
compensation restrictions equivalent to those outlined in Molera. Instead,
the State relies on caselaw interpreting similar statutes from four other
jurisdictions, asserting no material difference exists between § 19-118.01
and the statutes at issue in those cases. See Prete v. Bradbury, 438 F.3d 949,
963–71 (9th Cir. 2006); Person v. N.Y. State Bd. Of Elections, 467 F.3d 141, 143–
44 (2d Cir. 2006); Initiative & Referendum Instit. v. Jaeger, 241 F.3d 614, 616–
18 (8th Cir. 2001); Pierce v. Stapleton, 505 F. Supp. 3d 1059, 1068–76 (D. Mont.
2020).

¶26 Those four cases are distinguishable from this criminal
prosecution. In each case, the regulation at issue prohibited paying
circulators based on the number of signatures collected but left open other

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methods of circulator payment. Person, 467 F.3d at 143; Jaeger, 241 F.3d at
616; Prete, 438 F.3d at 952; Pierce, 505 F. Supp. 3d at 1062. In fact, in Prete the
court held that the statute at issue did “not prohibit adjusting salaries or
paying bonuses according to validity rates or productivity.” 438 F.3d at 968
(emphasis added). The courts in each case applied the less exacting
standard of review and found that the state’s important regulatory interests
were sufficient. Person, 467 F.3d at 143–44; Jaeger, 241 F.3d at 618; Prete, 438
F.3d at 969–71; Pierce, 505 F. Supp. 3d at 1075.3 Although the statutory
wording in each case generally aligned with § 19-118.01, the reviewing
courts made it clear they were analyzing the respective statutes with the
understanding that they precluded “per signature payments.” Person, 467
F.3d at 143 (finding “insufficient support for a claim that the ban on per-
signature payment is akin to the complete prohibition on paying petition
circulators”); Jaeger, 241 F.3d at 618 (noting the state presented sufficient
evidence to justify a per-signature ban because the legislative history
revealed irregularities and fraud in two signature campaigns where
circulators were paid per-signature); Prete, 438 F.3d at 969–71 (considering
evidence that per-signature payments result in two types of fraud: forgery
and false certifications); Pierce, 505 F. Supp. 3d at 1075 (recognizing that
initiative proponents can still pay circulators “on a daily basis, a monthly
basis, by the job, by salary, or would be free to adjust salaries based upon a
circulator meeting certain benchmarks or validity rates” and circulators
may still receive bonuses “even if payment per signature is not allowed”).

¶27 Alternatively, Petitioner argues that if we accept the State’s
reading of Molera—that § 19-118.01 restricts more than per-signature
payments—then the statute imposes a severe burden on First Amendment
rights. Courts in other jurisdictions have applied “exacting scrutiny” in
reviewing statutes that eliminate all or most payment methods. See, e.g.,
Deters, 518 F.3d at 388; accord Indep. Inst. v. Gessler, 936 F. Supp. 2d 1256,

3 The statutes at issue in Jaeger, Prete, Person, and Pierce were not upheld
as constitutional solely because they prohibited only one method of
circulator compensation. Rather, the courts looked at the evidence
presented by the parties challenging the statute to establish the severity of
the burden, and the state’s evidence to support its compelling interest. See,
e.g., Jaeger, 241 F.3d at 618 (noting that “bare assertions” of a burden on First
Amendment rights may be sufficient when the state does not offer any
evidence to support its regulatory interest, but “when the state introduces
evidence justifying the ban on commission payments as a necessary means
to prevent fraud and abuse . . . initiative sponsors may not rest on bare
assertions alone”).

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1259, 1277 (D. Colo. 2013) (applying heightened scrutiny to a statute making
it unlawful for more than 20% of a circulator’s compensation to be based on
the number of signatures collected); Res. Dev. Council for Alaska, Inc. v. Vote
Yes for Alaska’s Fair Share, 494 P.3d 541, 552–53 (Alaska 2021) (applying
exacting review to a statute that placed a “hard cap on circulator
compensation”). In these cases, the reviewing courts found the challenged
statutes were unconstitutional. See, e.g., Deters, 518 F.3d at 388; Gessler, 936
F. Supp. 2d at 1279–80; Vote Yes, 494 P.3d at 553.4 Section 19-118.01 is
analogous to the statute in Deters, where an Ohio statute made it a felony to
pay circulators on any basis other than time worked. 518 F.3d at 377. In
Deters, the court found that “the per-time-only provision adds an element
of risk to the petition process which would otherwise be absent.” Id. at 384.
The court reasoned that the statute there was subject to exacting review
based on “the broader ban on the types of payment and harsher criminal
sanctions for violations.” Id. at 386. Similarly, § 19-118.01, as construed by
Molera, bans more types of payments than just per-signature compensation.
And, as discussed below, § 19-118.01(B) includes criminal penalties for
violations, which subject the statute to a more exacting standard of review.

1. Severity of the Burden

¶28 Petitioner argues the criminal penalties of § 19-118.01(B) place
a significant burden on First Amendment rights. The State counters that
criminal penalties are a minor burden that do not limit the pool of available
circulators. The existence of criminal penalties, however, makes the need
for a more exacting standard of review particularly appropriate.

¶29 The State charged Petitioner with 50 counts of violating
§§ 19-118.01(A) and 13-305 (criminal liability for enterprises), and it alleged
aggravating circumstances under §§ 13-803(F) and 13-823. Noting that the
presumptive fine for an enterprise is $10,000, the State argues that exposure
to such a fine does not increase the burden because the fine is limited only
to enterprises, is “not mandatory,” and is subject to the superior court’s
discretion. However, while the provisions of § 13-803 may be limited to
enterprises, the express language of § 19-118.01(B) states that all “person[s]”

4 Several courts have held that statutes banning per-signature
compensation for circulators violate the First Amendment. On Our Terms
‘97 PAC v. Sec’y of State of Me., 101 F. Supp. 2d 19, 26 (D. Me. 1999); Term
Limits Leadership Council, Inc. v. Clark, 984 F. Supp. 470, 470–71, 475 (S.D.
Miss. 1997); Limit v. Maleng, 874 F. Supp. 1138, 1140–42 (W.D. Wash. 1994).
We do not address that issue because Petitioner does not make that
argument.

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who violate its strictures are subject to prosecution of a class 1
misdemeanor. This includes individual circulators, as § 19-118.01
criminalizes both providing and receiving compensation based on the
number of signatures. In any event, the State also alleged aggravating
circumstances, thereby allowing the court to increase the maximum fine for
Petitioner to $20,000 on each count. See A.R.S. § 13-803(A)(2), (F).
Furthermore, Petitioner is potentially liable for a maximum of $5 million in
fines, even though the total of all the bonus payments it allegedly made to
circulators is $4,740. See A.R.S. § 13-823 (authorizing imposition of up “to
five times the maximum fine” for dangerous and repeat enterprise
offenders).

¶30 The State also contends that a misdemeanor should be
considered a low-level petty offense because it does not generally trigger a
jury trial. But the State cites no authority suggesting that jury-trial
eligibility is a relevant factor in deciding whether the threat of a criminal
sanction for violating a statute imposes a severe burden under First
Amendment analysis. Moreover, we reject the State’s assertion that a class
1 misdemeanor constitutes a petty offense. See A.R.S. § 13-602(C) (“Every
petty offense in this title is expressly designated as such. Any offense
defined outside this title without either designation as a felony or
misdemeanor or specification of the classification or the penalty is a petty
offense.”). Section 19-118.01(B) plainly defines the offense as a class 1
misdemeanor, punishable by up to six months imprisonment, plus fines.
See A.R.S. § 13-707(A)(1). Even as a misdemeanor, although a circulator
who receives any payment in violation of § 19-118.01 is not subject to the
heavier fines applicable to enterprises, he or she still faces those fines
applicable to individuals and the possibility of imprisonment.

¶31 The mere possibility of substantial fines for enterprises, along
with fines and possible jail time for circulators, weighs in favor of finding
that § 19-118.01(A) imposes a severe burden on Petitioner’s First
Amendment rights. See Meyer, 486 U.S. at 421 (noting that the issue of
trucking industry deregulation was a matter of societal concern that
initiative proponents had “a right to discuss publicly without risking
criminal sanctions”). Even though a violation of § 19-118.01(A) is classified
as a misdemeanor, this case shows that a misdemeanor offense can still be
severely burdensome on the rights of enterprises and circulators seeking to
express their desires for political change. See id. at 421 (“The freedom of
speech and of the press guaranteed by the Constitution embraces at the
least the liberty to discuss publicly and truthfully all matters of public
concern without previous restraint or fear of subsequent punishment.”
(citation and quotation omitted)).

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¶32 Petitioner also argues that if § 19-118.01 “is interpreted as a
strict-liability crime, as the State has urged,[] its burden on First
Amendment rights is even greater.” The State counters that the omission
of a mens rea, or mental state, requirement from the statute “has nothing to
do with the severity of the burden.” It contends that this issue is relevant
only as to Petitioner’s vagueness challenge, and if it is necessary to address
that challenge, then we “should hold that the statute implies a knowing
requirement instead of striking it down.”

¶33 While no court has considered the relevance of a mental state
requirement under the Anderson/Burdick framework, it is likely because the
issue has never been raised in the context of a criminal prosecution.
Regardless, we reject the State’s assertion that when the legislature imposes
criminal liability for violation of a statute that restricts circulator
compensation, the lack of a required mental state is irrelevant. Without a
mental state requirement, it is undoubtedly easier to obtain a conviction.
Indeed, an offense not requiring proof of a culpable mental state is referred
to by statute as “one of strict liability.” See A.R.S. § 13-202(B). Because
signature-gathering firms and circulators are subject to the criminal
penalties described above, those who might otherwise desire to work as
paid circulators may decline to participate for fear of criminal prosecution,
and firms that pay such circulators may be less inclined to offer any type of
incentive that is based on productivity. Either of those results would
significantly undermine First Amendment protection. See Meyer, 486 U.S.
at 425 (explaining that a Colorado statute prohibiting circulator
compensation “trenches upon an area in which the importance of First
Amendment protections is ‘at its zenith’”).

¶34 The State’s suggestion that we should impute a knowing
requirement to allow the statute to withstand a vagueness challenge is
untenable. As worded by the legislature, the statute does not include any
mental state requirement and nothing in Molera suggests otherwise. See 250
Ariz. at 24, ¶¶ 28–30 (discussing Petitioner’s pay scales). There is nothing
to indicate that, at the Molera declaratory judgment trial, the standard the
trial court used in assessing whether signatures were invalid was based on
anything other than the statute’s plain wording, without regard to whether
Petitioner knowingly paid circulators in violation of the statute. It would
be odd then for us to conclude that the meaning of the statute should be
read differently, to include a mental state requirement, in dealing with the
criminal charges here.

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2. State’s Interests

¶35 The State argues that under either standard of review, its
interest in preventing fraud is sufficient to justify any burden on First
Amendment rights. The State urges us to defer to the following legislative
findings:

2. Protecting the integrity of the initiative process through the
prevention of fraud is a significant state interest.

4. “There is some consensus among scholars, practitioners,
and even some courts that the practice of paying canvassers
based on the number of signatures they collect is directly
linked to high levels of fraud in the signature-gathering
process.” Jocelyn Friedrichs Benson, Election Fraud and the
Initiative, 34 FORDHAM URB. L.J. 889, 923 (2007).

5. To reduce fraud in the signature collecting process, states
have enacted prohibitions on payment per signature.

6. “[A]vailable evidence—though limited—suggests that
circulators paid by the hour [] have a higher validity rate than
those paid by the signature.” Affidavit of Richard J. Ellis,
Ph.D. at ¶ 5, Prete v. Bradbury, No. 036357-AA, 2004 U.S. Dist.
LEXIS 28738 (D. Or. Feb. 18, 2004), aff’d, 438 F.3d 949 (9th Cir.
2006).

2017 Ariz. Legis. Serv. Ch. 52, § 5(A) (1st Reg. Sess.) (H.B. 2404) (“Legislative
findings; purpose”).

¶36 Findings 5 and 6 are not compelling because they specifically
reference payment per signature. As noted above, § 19-118.01 is more
restrictive. As to Findings 2 and 4, the Supreme Court has advised courts
against assuming professional circulators will engage in fraud when their
“qualifications for similar future assignments may well depend on a
reputation for competence and integrity.” Meyers, 468 U.S. at 426. Thus,
the legislature’s mere assertions of fraud, with no specific proof that it
occurred in the context of signature gathering in Arizona, do not qualify as
the type of evidence courts have generally recognized in considering
whether the government has met its burden. See Deters, 518 F.3d at 387
(requiring evidence in the record to support the state’s interest in
combatting fraud, and to show causation between payment per signature
and any fraudulent acts); Gessler, 936 F. Supp. 2d at 1278–79 (finding that

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AZ PETITION PARTNERS v. HON THOMPSON/STATE
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the legislature’s findings are not entitled to deference in the context of a
First Amendment challenge).

¶37 Moreover, the State can satisfy its legitimate interests in
reducing fraud in the initiative process through other measures. See Buckley
v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 204–05 (1999) (noting that
voiding signatures obtained in violation of circulation laws and
criminalizing forgery are “less problematic measures” by which a state can
meet its “substantial interests in regulating the ballot-initiative process”);
see also Deters, 518 F.3d at 388. Consistent with the Supreme Court’s analysis
in Buckley, 525 U.S. at 204–05, Arizona has “an arsenal of safeguards” to
support its substantial interest in regulating the initiative process, including
laws criminalizing election fraud and forgery. See, e.g., A.R.S. §§ 13-2002
(forgery); 19-112 (requiring circulators to submit affidavits for each sheet of
signatures); 19-114.01 (prohibition on signing petition for profit); 19-115(B)
(making it an unlawful act for a person to sign a petition with a name other
than his own); 19-119.01 (petition signature fraud). 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. See, e.g.,
A.R.S. § 19-118.01(A).

¶38 Finally, it seems plain to us that signature-gathering
businesses approach their tasks hoping to meet their clients’ objectives to
succeed by placing issues on the ballot, which means avoiding any violation
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. See Meyer, 486 U.S. at 425 (noting
“the burden that [the government] must overcome to justify this criminal
law is well-nigh insurmountable”). After consideration of these factors
under the Anderson/Burdick framework, we conclude that § 19-118.01 is
subject to a more exacting review because it severely burdens the initiative
process.

3. Exacting Review

¶39 Having identified the exacting review as applicable here, we
now address whether § 19-118.01 is narrowly tailored to advance the State’s
compelling interest in combatting fraud in the initiative process. See
Arizonans for Second Chances, 249 Ariz. at 409, ¶ 42. The State contends its
interest in combatting fraud in the initiative process meets this higher
standard of review. Although the State seems to concede that legislative

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findings do not constitute actual “evidence,” the State rejects the notion that
it must present actual evidence of fraud to justify its asserted interest. We
disagree with this interpretation of the Anderson/Burdick framework.

¶40 To properly evaluate the legitimacy and strength of the State’s
interest in burdening First Amendment rights, it must provide some
evidence that the burdensome restriction is necessary. A general statement
of the legislature’s purpose or findings is not enough for us to review
whether the State’s interests are legitimate or sufficient under the more
exacting standard of review. See Meyer, 486 U.S. at 426 (rejecting the state’s
argument that circulator compensation may lead to fraud, where no
evidence was “offered to support that speculation”). Although the State
references issues arising in 2008 where signatures collected for several
initiatives were determined invalid, it does not explain how the invalid
signatures, without more, necessarily means that fraudulent activity
occurred or how circulator compensation was a contributing factor.

¶41 For these reasons, the State’s interest in the criminal penalties
authorized by subsection (B) is not narrowly tailored. Thus, the State has
not justified the burden it has placed on those seeking to collect signatures
for an initiative petition by criminalizing any violation of § 19-118.01. We
therefore hold that the misdemeanor provision of the statute is
unenforceable because it violates the First Amendment.

C. Severability

¶42 The law concerning the severability of statutes is “well
settled.” Millett v. Frohmiller, 66 Ariz. 339, 342 (1948). We need not declare
§ 19-118.01 unconstitutional if the unconstitutional portion can be severed.
State v. Prentiss, 163 Ariz. 81, 86 (1989). Whether a statute is severable is a
“question of legislative intent.” State v. Watson, 120 Ariz. 441, 445 (1978).

¶43 The general test for whether a statute can be severed is
whether the unconstitutional provision is connected and interdependent on
the rest of the statute. Millett, 66 Ariz. at 342–43. A statute is not severable
“where the constitutional and unconstitutional provisions are so connected
and interdependent in subject matter, meaning, and purpose as to preclude
the presumption that the legislature would have passed the one without the
other,” and “justify the conclusion that the legislature intended them as a
whole.” Id. at 343. If the court severs a portion of the statute, the “law
enforced after separation must be reasonable in light of the act as originally
drafted.” Id.

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AZ PETITION PARTNERS v. HON THOMPSON/STATE
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¶44 The misdemeanor provision in § 19-118.01(B) violates the
First Amendment but can properly be severed to save the rest of the statute.
Cf. Flamingo Paradise Gaming, LLC v. Chanos, 217 P.3d 546, 561 (Nev. 2009)
(holding that the criminal penalties portion of a statute can be properly
severed if the statute is unconstitutionally vague in a criminal context). The
structure of § 19-118.01 supports the conclusion that the misdemeanor
provision is separate and distinct from the rest of the statute. We can fairly
conclude that the legislature would have adopted section A without section
B and find support for doing so from the legislature’s own severability
clause accompanying the house bill enacting § 19-118.01. See 2017 Ariz.
Legis. Serv. Ch. 52, § 6 (“If a provision of this act or its application to any
person or circumstance is held invalid, the invalidity does not affect other
provisions or applications of the act that can be given effect without the
invalid provision or application, and to this end the provisions of this act
are severable.”). We see no reason why the statute as interpreted by our
supreme court cannot survive our analysis here. Thus, in reaching this
conclusion we are not addressing whether the rest of the statute is
constitutional.

¶45 Because we conclude that the criminal penalty provision is
unenforceable, we need not address Petitioner’s arguments that § 19-118.01
is unconstitutionally vague or overbroad, or that the rule of lenity should
apply.

III. Attorneys’ Fees

¶46 Petitioner requests attorneys’ fees under A.R.S. § 12-348(A)(4)
and Arizona Rule of Procedure for Special Actions (“Rule”) 4(g). The State
objects, asserting that Petitioner cannot recover fees because the underlying
criminal proceedings were brought under provisions of title 13. See A.R.S.
§ 12-348(H)(2) (barring an award of fees for “proceedings brought by this
state pursuant to title 13 or 28”). “We interpret statutory language in view
of the entire text, considering the context and related statutes on the same
subject.” Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019). Our goal in
statutory interpretation is to “give effect to the legislature’s intent.” State v.
Jurden, 239 Ariz. 526, 530, ¶ 15 (2016). If the text is unambiguous, we apply
it as written without using other methods of statutory interpretation. Id.
We apply the same principles of statutory construction to interpreting our
rules. State v. Hansen, 215 Ariz. 287, 289, ¶ 7 (2007).

¶47 Section 12-348(A)(4) states that “a court shall award fees and
other expenses to any party . . . that prevails by an adjudication on the
merits in . . . [a] special action proceeding brought by the party to challenge

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AZ PETITION PARTNERS v. HON THOMPSON/STATE
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an action by this state or a city, town or county against the party.” Section
12-348(A)(4) “does not . . . [a]pply to proceedings brought by this state
pursuant to title 13 or 28.” A.R.S. § 12-348(H)(2). Rule 4(g) states: “In any
special action, a party may claim costs and attorneys’ fees as in other civil
actions.” (Emphasis added.)

¶48 The State argues that § 12-348(H)(2) prohibits Petitioner’s
ability to recover fees because the underlying criminal proceedings were
brought under A.R.S. §§ 13-301; -302; -303; -304; -305; and -803. But this
action was not brought under title 13; the charges were filed under title 19.
Petitioner was not charged for violating any section of title 13 or 28, and the
State’s sentencing allegations under title 13 would be irrelevant without the
underlying title 19 charge. If the legislature wanted to create an exception
for all criminal prosecutions, it could have included language to that effect
in § 12-348. Instead, the legislature excepted only prosecutions brought
under title 13 and title 28, and it is not our role to question that decision.
See Giss v. Jordan, 82 Ariz. 152, 159 (1957) (noting that the legislature alone
decides “questions of the wisdom, justice, policy or expediency of a
statute”). Reading the legislature’s directives in § 12-348 together with the
supreme court’s decision to authorize an award of attorneys’ fees in any
special action, Rule 4(g), we hold that a petitioner in a special action
proceeding who successfully challenges an action by the government that
does not arise out of title 13 or 28 is entitled to seek attorneys’ fees.

¶49 Nonetheless, the State contends that § 12-348(H)(2) has been
construed to prohibit attorneys’ fees “incurred in connection with a special
action in a criminal prosecution.” See Mields v. Villarreal, 159 Ariz. 556, 557
(App. 1989). We are not persuaded. In Mields, the defendant was charged
with driving while intoxicated under title 28. Id. After a city magistrate
denied the defendant’s motion to dismiss, he sought special action relief in
the superior court, asserting the magistrate erred by denying his request for
oral argument and by refusing to allow him to file a reply in support of his
motion. Id. at 557–58. The superior court remanded the case and awarded
attorneys’ fees to the defendant. Id. at 558. The State appealed to this court,
where the defendant asserted the fee award was proper under § 12-348. Id.
at 559. We vacated the award, explaining in part that the defendant failed
to recognize that § 12-348 does not apply to proceedings brought by a city
under title 28. Id. Unlike Mields, the criminal charges here were not filed
under title 13 or 28.5 We therefore grant Petitioner’s request for reasonable

5 The State also relies on State v. Shipman, 208 Ariz. 474, 476 (App. 2004),
for the proposition that Rule 4(g) bars an award of attorneys’ fees for special

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AZ PETITION PARTNERS v. HON THOMPSON/STATE
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attorneys’ fees incurred in this special action, subject to compliance with
Rule 4(g) and ARCAP 21.

CONCLUSION

¶50 Section B of A.R.S. § 19-118.01 is unconstitutional because it
violates the First Amendment. We therefore reverse the superior court’s
order denying Petitioner’s second motion to dismiss and remand for
dismissal of the Information.

AMY M. WOOD • Clerk of the Court
FILED: AA

actions arising from criminal proceedings. But Shipman is not helpful
because it addressed a different issue—whether Arizona Rule of Civil
Procedure 11 was applicable in a special action arising out of a criminal
proceeding. Id. at 474, ¶ 1.

19