Justices: Subpoenaed petition circulators must show for court

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The Arizona Supreme Court has upheld the constitutionality of a legal tactic used by those seeking to keep voter-proposed laws off the ballot.

In a unanimous ruling Wednesday, the justices reaffirmed the right of people to craft initiatives and seek to have them approved.

“And we are reluctant to impede such civic efforts,” they said.

But Justice John Lopez, writing for the court, said there is nothing unduly burdensome about requiring paid circulators to register and provide an address where they can be subpoenaed. More to the point, Lopez said throwing out the signatures collected by those who don’t show up in court does not impair the constitutional rights of people to propose their own laws.

Wednesday’s ruling most immediately explains the decision the justices made months ago to block a vote on the “Outlaw Dirty Money” proposal. But the implications go far deeper, providing a legal road map for others who want to challenge ballot measures.

“It’s going to be almost impossible for anybody who doesn’t have incredibly deep pockets to carry a petition using paid circulators,” said Terry Goddard who was the prime moving force behind the measure the Supreme Court knocked off the ballot.

The initiative would have inserted a “right-to-know” provision in the Arizona Constitution requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000. Organizations that the Arizona Legislature has exempted from disclosure and would have been forced to identify donors sued, contending there were not enough valid signatures.

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building which had been used by a company that had hired the paid circulators. When none of the circulators appeared at trial, the judge disqualified the 8,824 signatures they had collected.

It was ultimately ruled that the initiative drive came up short of the 225,962 valid signatures needed to qualify for the ballot.

Attorney Kim Demarchi, representing the initiative drive, challenged the automatic disqualification of the signatures as unconstitutional. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

Lopez acknowledged that it took a lot of work to gather the signatures.

“We do not discount the civic activism or the resources devoted to this campaign,” he wrote.

But Lopez said the right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation of the initiative process.”

And in this case, he said, requiring circulators to appear in court and tossing the signatures they gathered if they don’t show up it fits within what can be regulated.

“The statute represents a reasonable means of fostering transparency, facilitating the judicial fact-finding process, including compliance with valid compulsory process, and mitigating the threat or fraud or other wrongdoing infecting the petition process,” Lopez wrote. “It furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

Goddard, however, suggested the justices got it backwards.

He said the prime concern should be to determine, in whatever way possible, whether an individual’s signature is valid. Goddard said what the court has ruled is that otherwise valid signatures can be disqualified solely because the person who collected them didn’t show up in court.

That gets to the issue of the additional financial burden.

“You not only have to get valid signatures but then you have to keep the circulator around and have them appear at a hearing or all their signatures are going to be determined invalid,” said Goddard, a former state attorney general. “I think that undercuts our citizens’ right to petition our government, which is guaranteed in the constitution.”

The justices also rejected the contention that the subpoenas could not be enforced because they were not properly served. Rather than being left with the individuals — or even with an adult at the office that the petition company had rented — 14 of the subpoenas were left with a guard stationed on the first floor of the office building.

Lopez said that was a reasonable effort at serving the subpoenas.

Anyway, he said, requiring subpoenas to be served in person or at a specific office address “would encourage a circulator to register a statutory service address beyond the reach of a process server.” And that, said Lopez, would remove the deterrence of circulators to commit fraud because they could never be called to court to account for their actions.

But Goddard said that is contrary to court rules which require reasonable efforts be made to ensure people know they have been subpoenaed.

“Most tenants in a building don’t say, ‘If you want to subpoena me for a trial it’s OK to just leave it with a guard,” he said.