AZ Supreme Court: Even Former Initiative Circulators Still Must Appear in Court

Today the Arizona Supreme Court issued its full opinion in Leach v. Hobbs, which explains its decision order from August that kept the “Stop Surprise Billing and Protect Patients Act” off the 2020 general election ballot. In doing so, the Supreme Court validated the unique processes used to challenge a major ballot initiative last summer and thus greenlit this roadmap for future litigation.

At trial, the plaintiffs had subpoenaed certain petition circulators to appear virtually to provide testimony. Various subpoenaed circulators never appeared, and pursuant to A.R.S. § 19-118(E), the trial invalidated approximately 28,000 signatures collected by those circulators. The statute in question provides:

If a registered circulator is properly served with a subpoena to provide evidence in an action regarding circulation of petitions and fails to appear or produce documents as provided for in the subpoena, all signatures collected by that circulator are deemed invalid.

The initiative’s proponent argued the circulators were not subject to the subpoena law because they had “de-registered” with the Secretary of State just prior to trial. In other words, the initiative’s backer sought to avoid the signature sanction because its army of paid circulators were no longer “registered circulators”  at the time of being subpoenaed.

The trial court rejected that defense and, after invalidating nearly 200,000 other signatures on various grounds, ruled that the initiative did not qualify for the ballot. The Supreme Court affirmed the trial court a few days later in this terse order:

The trial court struck approximately 28,000 signatures when the circulators did not comply with subpoenas to appear for trial under A.R.S. § 19-118(C) [sic]. The Court rejects proponent’s claim that the statute does not apply to circulators who have filed papers with the Secretary of State to deregister as circulators and affirms the trial court ruling enjoining the initiative from the ballot. This ruling being dispositive as to the issue of whether the initiative will appear on the ballot, IT IS ORDERED affirming the trial court and enjoining the Stop Surprise Billing and Protect Patients Act from appearing on the general election ballot.

Today the Supreme Court issued its full opinion explaining that 2020 decision.  First, the high court concluded the initiative proponents’ argument would essentially defeat the entire intent of the subpoena statute:

The language and purpose of the statute rebut the Committee’s position. In context, the reference to a “registered circulator” in § 19-118(E) must necessarily apply to circulators who are registered at the time they circulate the petitions, regardless of whether they “de-registered” at a later time. Crucially, there is no statutory procedure for a circulator to deregister. Although the EPM provides for cancellation of a circulator’s registration—putting aside for the moment whether the EPM may abrogate a statutory duty—it does not even purport to discharge a circulator’s duty to comply with the statutory obligation to honor a subpoena. The Committee’s approach would permit a committee to avoid any obligation under § 19-118 to present its circulators to testify under subpoena by simply cancelling circulator registrations before a challenge. The Committee’s interpretation of the statute is untenable[.]

Additionally, citing the recent case in McKenna v. Soto, the Supreme Court cast doubt on propriety of a “de-registration” procedure existing in the first place in the Secretary of State’s Election Procedures Manual:

Further, an EPM regulation that exceeds the scope of its statutory authorization or contravenes an election statute’s purpose does not have the force of law. See, e.g., McKenna v. Soto (Ariz. Feb. 17, 2021). . . . Thus, a registered circulator may not evade § 19-118(E)’s requirement that a circulator answer a properly served subpoena merely by “de-registering.”

This is further confirmation that any election litigant relying on the Manual must be certain that the underlying provision was properly promulgated to begin with.

The Supreme Court also upheld the validity of the subpoenas. Despite subpoenaing 332 circulators for testimony, those subpoenas were enforceable in light of the trial court’s flexibility in managing virtual trial appearance and the fair notice provided to the initiative committee’s attorneys. The Court reiterated that a scattershot approach to subpoenaing circulators is not acceptable, but the procedure employed in this particular case more than passed muster.

Finally, Justice Bolick wrote a concurring opinion making clear he would have also removed the initiative from the ballot based on its misleading 100-word summary:

In concluding that “the danger of confusion and voters being materially misled undermines any assurance that the voters received adequate notice of what they were signing,” the trial court aptly cited Mark Twain, who observed that “the difference between the almost right word and the right word is really a large matter—‘tis the difference between the lightning bug and the lightning.” Indeed, the difference of a few words can separate an initiative summary that meets statutory standards of fair notice and accuracy from one that bears insufficient indicia that those who signed a petition were sufficiently informed of its contents. Given the central importance of initiatives in Arizona’s system of popular sovereignty, I hope that the clarity provided by our recent decisions will minimize the need to remove proposed measures from the ballot.

The message from Justice Bolick: if proponents simply ease back on the slick sales pitch, the Supreme Court will (happily) stay out of 100-word summary fights that have become the recent norm.

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