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Under new law, fate of initiatives depends on whether circulators show up in court

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Hundreds of signature gatherers came to Arizona this year, most hoping to make a quick buck getting voters to agree to raise the minimum wage.

For 40 of those circulators, a judge may rule that all their work was in vain.

A provision in an elections bill, adopted by near unanimous votes in 2014, requires a judge to invalidate the signatures of all circulators who register with the Secretary of State’s Office, are properly subpoenaed and fail to appear at trial to address legal challenges to their signature-gathering efforts.

The law, adopted as an amendment pushed by then-Sen. Michele Reagan to HB2107, places the burden on circulators and the committee they work for to ensure that circulators come back to Arizona and appear in Maricopa County Superior Court, where legal challenges to statewide ballot initiatives are heard.  But many of the circulators are nomadic, traveling each election cycle to seek work for the latest initiative or candidate in need of signatures.

Simply failing to appear can put hundreds or thousands of signatures at stake, and could prove fatal for citizen initiatives – Arizona’s method for voters to bypass the Legislature and adopt laws.

It may have already proved costly for an initiative to cap the pay of hospital executives. Backers of the Hospital Executive Compensation Act pulled the plug on Aug. 15, the night before they were due in court to defend themselves against a legal challenge to their petitions led by the Arizona Chamber of Commerce and Industry. Lawyers for the chamber subpoenaed 130 circulators to appear at trial on August 16, arguing that they weren’t legally allowed to gather signatures.

A spokesman for SEIU-United Healthcare Workers West said the union’s money is better spent elsewhere than on a costly legal challenge to their initiative.

Subpoenas could aid efforts to keep the minimum wage initiative off the ballot as well. Backers are asking voters to approve a hike in minimum wage to $12 an hour by 2020 and require paid leave. Attorneys challenging the initiative on behalf of the Arizona Restaurant Association tried to subpoena 170 circulators who gathered signatures for the ballot measure. Though a judge quashed over 80 of those subpoenas, dozens were forced to sit in a courtroom lobby and jury rooms all day on August 11, waiting to be called or get word that they were allowed to leave.

The legal strategy has already proven valuable for the restaurant association. Maricopa County Superior Court Judge Joshua Rogers invalidated roughly 50,000 signatures that day in court, according to a press release from the Arizona Healthy Working Families initiative. That leaves the committee with roughly 189,000 signatures – and that’s before accounting for signatures yet to be declared invalid by the judge, as well as signatures invalidated by county elections officials. They are now scouring samples of petitions to determine how many signatures must be deducted from the total. It takes at least 150,642 valid signatures of registered voters to get a measure on the ballot.

In past election cycles, those challenging citizen initiatives relied heavily on invalidations by counties in the hopes that circulators failed to gather the signatures necessary to get initiatives on the ballot. But with the provision adopted in HB2107, the law has been tipped in favor of the plaintiffs challenging citizen initiatives in these cases.

Subpoenaing circulators is “the smart move,” said elections attorney Kory Langhofer, whose firm represents the committee seeking to legalize recreational marijuana via the ballot.

“It would be a mistake to challenge an initiative and not try to make hay out of that new provision.”

A ‘little trick’

Attorney Jim Barton has faced subpoenas of his clients’ circulators in two cases this election cycle – he represents backers of the hospital pay and the minimum wage initiatives. Barton described the subpoena process as a “little trick” that can be used to get potentially valid signatures tossed.

Essentially, Barton contends that some circulators were issued subpoenas without a compelling reason to believe that the signatures they gathered were invalid. Attorneys for the Arizona Restaurant Association were just hoping circulators wouldn’t show up to trial, he said. For 40 circulators, the strategy may have worked perfectly, Barton said. It doesn’t matter why they were subpoenaed, or if the reason for the subpoena was right or wrong. The signatures they collected may be completely invalid, he said.

Another 17 circulators responded to subpoenas but were dismissed from the courthouse without ever having been called to the witness stand, Barton noted in his closing arguments.

“They were subpoenaed just to see if they wouldn’t show up,” Barton told the Arizona Capitol Times.

Given the way the law is written – that a judge must invalidate a circulator’s petitions if they’re properly served but fail to appear – it’s in the best interest of challengers to subpoena as many circulators as possible, Barton concluded.

“It seems like it. That seems to be what we’ve learned from this cycle,” he said.

Andy Gordon, an attorney for the Arizona Restaurant Association, said there’s nothing untoward about the new subpoena process. Attorneys must have a valid reason to issue a subpoena, and would not do so frivolously, he said.

Besides, the defense can ask the judge to quash them, he said. In the minimum wage case, Barton did challenge dozens of subpoenas – some on the grounds that they were not served properly, a motion that was granted, and others on the grounds that they weren’t served in a timely manner, a motion the judge rejected. As for the subpoenas that stuck, Gordon argued they’re an important new legal tool to determine if signatures are gathered properly. In practice, that meant Gordon got to question circulators on the witness stand about when, or if, they signed documents related to the signature-gathering process.

“They’re the people that have the best information regarding that,” Gordon said.

In past elections, circulators could technically be subpoenaed, but it was difficult without a proper Arizona address to serve a subpoena. HB2107 now requires that all out-of-state circulators, as well as all paid in-state-circulators, provide the secretary of state with an address in Arizona where they can be served.

Gordon likened the situation to a company doing business in Arizona that must register a local address at which they can be held accountable. So, too, must circulators who come to Arizona to engage in the lucrative business of gathering signatures, he argued. It’s not unfair, he said, but is now the cost of doing business in the state. And he argued that he has no incentive to serve illicit subpoenas.

“I’ve been at this for 43 years, and I know the Superior Court judges don’t have a hell of a lot of patience if they think you’re trying to game the system,” he said.

Langhofer said trial subpoenas were rarely used in previous election cycles given that the evidence needed to invalidate petitions was often clear to attorneys. For example, if an attorney found what they thought was a discrepancy with paperwork, either on a circulator’s registration or an affidavit, that issue was historically resolved between attorneys working for and against a ballot measure. If the issue couldn’t be resolved that way, maybe a circulator would be called in for a pretrial deposition.

But never before have so many circulators been called to appear for trial, Langhofer said.

“The difference this year is because there’s a statute and it’s a way of getting signatures thrown out, and gives the other side a chance to screw up,” Langhofer said.

The subpoena process is burdensome for circulators required to wait all day in trial. Though they knew the validity of the petitions they gathered were being challenged, many had no idea why.

‘Waste of time’

Jonathan Anderson, a 53-year-old substitute teacher from Tucson, was subpoenaed as part of the minimum wage challenge. He said it wasn’t too tough for him to get to the Valley, but there were lots of other circulators from other states, including Colorado and California, who have much farther to travel and potentially had to forgo a day of wages. The petition firm, Sign Here Petitions, offered to give him a ride from Tucson, if needed, he said.

Bonita Burks, who runs Sign Here Petitions, did not return a call requesting comment.

The plaintiffs challenged Anderson’s registration because, they allege, the service of process address on his registration form was a post office box, not a physical address. Anderson said he moved during the time he was petitioning, and he appeared in court to explain.

“I think they were looking for anything they could find” to disqualify circulators, he told the Arizona Capitol Times.

Several circulators, the plaintiffs allege, were ineligible to collect signatures because they were convicted felons. The plaintiffs hired private investigators to research the backgrounds of the circulators using a database often used by law enforcement to identify any felonies.

One circulator, Brenda Luchetti, testified that she pleaded guilty to a felony drug paraphernalia charge and had not taken the steps to get her rights restored, which the plaintiffs say makes her signatures invalid.

In each case, the defendants questioned the validity of the information found by the private investigators. In a closing statement, the minimum wage committee noted the investigators said they “could not vouch for the reliability” of the database, and that many important details, like the outcome of the charges and restoration of rights, weren’t included in background checks.

Paul Williams, a circulator the plaintiffs claim is a felon without the ability to gather signatures, testified that he was initially charged with a felony, but pleaded guilty to a misdemeanor as part of a plea bargain. He also said his brother had “on occasion used his identity and been charged with felonies,” but that Williams himself had never been convicted of a felony.

Williams spent a relatively short time in court. Given a travel need, he was called to the witness stand shortly before noon. Anderson said he arrived at court around 9 a.m. and wasn’t called by the plaintiffs until about 4:30 p.m.

“It was interesting, it was educational, and sort of a waste of time. I think they were just grasping at straws,” Anderson said.

Barton highlighted what he alleged were some instances of straw-grasping in his closing arguments. Three or four circulators were subpoenaed simply because they’d collected one to two petition sheets before they were properly registered with the secretary of state, he wrote.

“You saw at least four witnesses who took the stand, and only a handful, maybe one or two petitions each were thrown out,” Barton said. “When you use it in that way, you’ve now created this test, this little trick, where if they don’t comply with the test, then their petitions are thrown out.”

Attorneys for the restaurant association “very likely (didn’t) need to” subpoena those circulators to prove that point and have the few petition sheets they collected while they weren’t properly registered invalidated, Langhofer said.

“The documents likely would have been enough,” Langhofer said, though he added attorneys can argue they’re entitled to prove their case as they see fit.

‘Sound policy’

However, Langhofer said calling people in to testify about incontrovertible facts, or issues that are not reasonably contested, is unnecessary. Another option available to avoid a subpoena would’ve been to simply approach Barton and have him stipulate that the one or two petition sheets are invalid. Instead, the dispute was left to be resolved on the witness stand, leaving the minimum wage committee at the mercy of the circulator to show up in court.

“If they’re asking them questions the answers to which are obvious, it seems like they’re subpoenaing them because there’s a chance they won’t show and not because they really are curious as to whether they transposed figures on that date,” Langhofer said.

Andrew Chavez, who owns the signature gathering firm Petition Partners, said keeping up with new election laws and ensuring compliance is all part of the process for citizen initiatives. Chavez’s firm gathered signatures for an initiative to legalize recreational marijuana. It faces a legal challenge of its own, but is the only case this cycle in which circulators weren’t subpoenaed.

“The subpoena process was designed to be a suppression tool. … We just have to deal with playing within these brand-new rules,” Chavez said.

Chavez’s firm has been operating in Arizona since 1999, so he said he’s well-versed in keeping up with new laws and anticipating how they will be applied. He knew right away the subpoena law would be used to suppress ballot measures, he said.

The fact that none of his circulators were subpoenaed shows how well his firm handled the new law, Chavez said.

“I believe we dealt with it so well that it persuaded our challengers not to even come toward us. … If they would have, they would have failed. That might be the reason why they didn’t,” he said.

A spokesman for Reagan, who’s now Arizona’s secretary of state, said the law allowing circulators to be subpoenaed is “sound policy that can be improved,” and added that Reagan is considering seeking an amendment to the statute, including moving forward the date that petitions for citizen initiatives must be filed.

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