By Howard Fischer
Mail | Twitter: @azcapmedia

Attorney General Mark Brnovich is making a last-ditch effort to bring criminal charges against the firm that circulated petitions for the voter-approved 2020 Invest in Ed ballot measure.

In new legal filings, Brnovich is telling the Arizona Supreme Court that the Court of Appeals erred when it concluded earlier this year that state lawmakers acted illegally in making it a crime, complete with stiff fines and possible jail time, to pay petition circulators based in whole or in part on the number of signatures they gather.

Brnovich did not dispute the possible penalties. But he argued that the statute imposes only a minimal burden on circulators and those who hire them.

He also told the justices that having the restriction protects the integrity of the ballot process. And, if nothing else, Brnovich said the courts have no business second-guessing the law, saying "these policy debates belong in the Legislature."

The fight is more than academic.

In ruling against Brnovich, the appellate court quashed a 50-count criminal complaint filed by his office against Petition Partners. Appellate Judge Michael Brown noted that 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.

If the Supreme Court sides with Brnovich, it would provide the go-ahead for him to pursue those criminal charges.

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. But it did offer incentives to encourage greater production of signatures, action that Brnovich contends also violates the law.

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 of 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, 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.

Brnovich, in the new filing, said the appellate judges went too far in voiding the law.

"In a facial challenge, courts must exercise judicial restraint, and speculation is insufficient to show that an alleged burden is severe,'' he wrote. And Brnovich said the fact that the statute has criminal penalties does not give judges the authority to demand a showing from the state that it is appropriate.

Most notably, he argued that the 2017 law does not inherently "significantly inhibit'' core political speech or impose a severe burden on signature-gathering companies or circulators.

"For example, the statute says nothing about a circulator's eligibility,'' Brnovich said.

"It does not establish onerous requirements,'' he continued. "It merely prohibits one form of compensation for some petitions.''

Brnovich also said Petition Partners, in challenging the law, did not cite any significant burden it caused in recruiting, retaining or paying circulators. And he said the firm did manage to get other measures on the ballot in 2018 and 2020 without running afoul of the 2017 law.

Beyond that, he said the law has to be evaluated in the broader context of Arizona laws governing petitions. That includes the fact that proponents have 20 months to gather signatures.

And he said the fact that it was a 50-count indictment, with a potential fine of $20,000 for each violation, does not make it unconstitutional, even with the possibility of jail time.

But Brown, writing for the appellate court, brushed aside claims by Brnovich that the law -- and, more to the point, the penalty -- is needed to reduce the possibility of fraud in gathering petition signatures. The appellate judge 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.

In voiding the criminal penalties, though, the appellate court sidestepped the issue of whether the rest of the statute -- the outright 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 the stiff fines and jail terms they found unacceptable.