Clerk of the Superior Court *** Filed *** SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 CLERK OF THE COURT S. Ortega Deputy HON. PAMELA GATES VINCE LEACH, ET AL. BRETT W JOHNSON v. KATIE HOBBS, ET AL. KARA MARIE KARLSON JAMES E BARTON II COURT ADMIN-CIVIL-ARB DESK DOCKET-CIVIL-CCC MINUTE ENTRY The people hold the power to propose laws and amendments to the Constitution and to enact or reject those laws and amendments at the polls, independently of the legislature. See Ariz. Const. art. 4, pt. 1, § 1(1). Under constitutional separation of powers, courts do not intrude upon the people’s power to legislate; however, the court is obligated to apply constitutional and statutory mandates. Arizona Revised Statutes § 19-102.01(A) provides that “[c]onstitutional and statutory requirements for statewide initiative measures must be strictly construed and persons using the initiative process must strictly comply with those constitutional and statutory requirements.” Satisfying the “strict compliance” standard “requires nearly perfect compliance with constitutional and statutory” mandates. Arrett v. Bower, 237 Ariz. 74, 81 (App. 2015) (citation and internal quotations omitted). “Strict compliance” applies to “all constitutional and statutory provisions, no matter how minor,” Homebuilders Ass’n of Cent. Ariz. v. City of Scottsdale, 186 Ariz. 642, 648 (App. 1996), even if its application results in what may seem to be “harsh consequences” caused by nothing more than an “unfortunate mistake.” Arrett, 237 Ariz. at 80, 83 (citation and internal quotations omitted). Docket Code 901 Form V000A Page 1 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Here, Plaintiffs challenge the legal sufficiency of the Initiative titled “Stop Surprise Billing and Protect Patients Act” on several grounds and ask the court to enjoin its placement on the ballot. Plaintiffs assert four challenges: 1) Defendant Arizonans Fed Up with Failing Healthcare (Healthcare Rising AZ) (hereinafter referred to as “Defendant Committee” or “the Committee”) has not submitted a sufficient number of valid signatures to qualify the Initiative for the 2020 general election; 2) Defendant Committee defrauded potential signatories based on the Defendant Committee’s name in violation of Kromko v. Superior Court,168 Ariz. 51, 59 (1991); 3) The Title of the Initiative fails to comply strictly with the Title and Text Rule found in the Arizona Constitution; and 4) The Initiative’s 100-word description is misleading, creates a significant danger of confusion, and omits “principal provisions” of the Initiative. After evaluating the evidence and testimony in this case, the court finds that the Initiative fails to comply strictly with applicable statutory and constitutional requirements for initiatives and the Initiative should not be referred to the ballot for the November 2020 general election in the State of Arizona for two independent reasons. First, the Initiative Petition contains fewer than the 237,645 valid signatures required to refer the Initiative to the ballot. Second, the Initiative Petition violates A.R.S. § 19-102(A) and § 19-121(A)(1) because the 100-word summary is inaccurate, materially misleading, and creates a significant danger of confusion or unfairness. 1. DEFENDANT COMMITTEE HAS NOT SUBMITTED A SUFFICIENT NUMBER OF VALID SIGNATURES TO QUALIFY THE INITIATIVE FOR THE 2020 GENERAL ELECTION. Pursuant to the Arizona Constitution, a statutory initiative petition in the 2020 election cycle must have at least 237,645 valid signatures to qualify for the ballot. Ariz. Const. art. 4, pt. 1, § 1(2) & (7). The Committee filed the Initiative Petition with the Secretary of State purporting to contain 430,680 signatures. The Secretary of State determined that the Committee submitted 385,771 signatures that were eligible for random sampling. Based on the rulings by the court together with the stipulations of the parties1 and the findings of fact by the Special Master, the Committee has failed to collect the requisite 237,645 valid signatures from qualified electors to qualify the Initiative for placement on the November 2020 general election ballot. During trial, the parties, the Special Master, and the court relied on a database referred to as “the Scoreboard.” After incorporating all rulings by the court, stipulations 1 The parties stipulated that 111,337 of the signatures were invalid. Form V000A Docket Code 901 Page 2 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 of the parties, and findings of fact by the Special Master, the Scoreboard was used to calculate valid signatures. The Scoreboard2 confirmed 221,536 valid signatures.3 Because the Initiative did not receive at least 237,645 valid signatures, the Secretary of State cannot certify that the Initiative should be placed on the November 2020 ballot. See A.R.S. § 19121.04(B). A. Circulators’ Failure to Appear and Produce Documents. Plaintiffs request an order from the court directing the Secretary of State to remove any signatures collected by a registered circulator properly served with a subpoena to provide evidence in an action regarding circulation of petitions and who failed to appear and produce documents as provided for in the subpoena. See A.R.S. § 19-118(E). Defendant Committee asserts that the sanction of A.R.S. § 19-118(E) is inapplicable in this case because: 1) the subpoenas were not served timely; 2) Defendant Committee failed to provide the subpoenas to the Committee electronically; and 3) the subpoenas failed to include the specific check-in time for the subpoenaed circulator. Defendant Committee also argues that the provisions of A.R.S. § 19-118(E) do not apply because each circulator was de-registered by the time Plaintiffs served the circulator with the trial subpoena. Finally, Defendant Committee contends that it is improper for the court to direct the Secretary of State to remove any signatures collected by registered circulators who appeared for trial, but only failed to produce documents as provided for in the subpoena. 1. The Circulators Were Timely and Properly Served with Trial Subpoenas. “Service of process is effected [on a registered circulator under § 19-118] by delivering a copy of the subpoena to that person individually or by leaving a copy of the subpoena at the address designated by the circulator with a person of suitable age or mailing a copy of the subpoena to the [C]ommittee by certified mail to the address provided.” A.R.S. § 19-118(B)(2); see also Ariz. R. Civ. P. 4.1(d)(1)-(3)(service is proper if an individual is served personally, if a copy of the served document is left at their dwelling or usual place of abode with a person of suitable age, or if the service is performed on an authorized agent). Although the Committee acknowledges receipt of a complete paper copy of the circulators’ subpoenas and associated “tickets,”4 the Committee 2 The Scoreboard has been marked and admitted for appellate purposes as Exhibit 2797. Defendant Committee agreed it did not seek to rehabilitate any additional signatures deemed ineligible for random sampling by the Secretary of State. 4 A “ticket” was provided to a circulator with the subpoena to identify the specific check-in time, date, and access information for a particular circulator to appear virtually in response to the Form V000A Docket Code 901 Page 3 3 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 challenges the Plaintiffs delay in providing it with a complete electronic copy of the circulators’ subpoenas and “tickets.” The Committee also contends that the circulators were not served properly with a subpoena because the subpoenas failed to provide the specific check-in time. Rule 45(a)(1)(C) of the Arizona Rules of Civil Procedure requires that a subpoena must state the specified time and place for the witness to attend and testify at trial. Due to the unprecedented times, the court ordered consistent with the Administrative Orders that no witness would be permitted to report to the courthouse or testify in-person at trial. See Admin. Order of the Arizona Supreme Court at p.4 (“During Phases I and II, judicial leadership should limit in-person contact in the conduct of court business as much as possible by using available technologies, including alternative means of filing, teleconferencing, video conferencing, and use of email and text messages to reasonably ensure the health and safety of all participants.”); Admin. Order 2020-78 of the Super. Court of the State of Ariz., Maricopa Cty. at pp. 2 & 6 (“It remains the presumption that proceedings be conducted via audio and video unless both authorized by this order and deemed necessary by the assigned judicial officer.” . . . . “[U]nless ordered by the court, civil proceedings will presumptively proceed through the use of audio and video appearances.”). Prior to the August 7, 2020 trial, consistent with the parties’ stipulation, the court ordered that “trial” will begin on August 6, 2020 for the limited purpose of checking in circulator witnesses.5 The court further ordered that at check-in, each circulator will be provided: (i) a group number, (ii) a specific date and time for which they will actually appear at trial to testify, and (iii) log in information for that appearance. In addition, the court ordered that trial witnesses must be informed that at the time of trial they will access the video platform and be placed in a virtual waiting room until called into the virtual courtroom to testify. The court also ordered that trial witnesses must be provided with the court’s telephone number to call in the event of technical emergencies or if they are experiencing challenges accessing the platform at the time of trial. At approximately 8:00 a.m. on August 6, 2020, five virtual courtrooms were “opened.” The court and representatives of Plaintiffs and Defendant Committee appeared in each virtual courtroom. The court ordered that subpoenaed witnesses could appear on camera. Recognizing that individuals may not have access to an external or embedded webcam, the court ordered that the witnesses were allowed to appear in the virtual courtrooms by telephone. Seventy-three of the 332 subpoenaed circulators failed to appear on August 6, 2020. subpoena. See, e.g., Exhibit 2756. A complete set of trial subpoenas with tickets and instructions on accessing the virtual courtrooms and waiting space was served on Defendant Committee’s counsel, James Barton, on August 4, 2020 at 4:50 p.m. 5 The court received the parties’ stipulation regarding the check-in process via email on July 30, 2020 at 11:58 p.m. The court transmitted the order that included the access codes at 3:31 p.m. on July 31, 2020. Form V000A Docket Code 901 Page 4 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Trial testimony began on August 7, 2020. During trial, the court granted a representative of each side full functionality of the platform to monitor the names of any circulator who may have entered the virtual waiting room. No circulator other than individuals summoned to testify on August 7, 2020 appeared in the virtual waiting space. Moreover, the court monitored its voicemail throughout trial and included on the voicemail a hotline number to Fieldworks to redirect the subpoenaed circulators to Defendant Committee if any subpoenaed witness was intending to appear in response to a subpoena. Unlike typical in-person trial requirements, in this unique trial, the responsibility of a witness was simply to enter a web address and access code6 or dial a telephone number to appear at trial. Witnesses did not have to take days off of work or arrange childcare.7 The court finds that the subpoenas complied with Rule 45 of the Arizona Rules of Civil Procedure by providing a time and virtual place for the witnesses to appear for trial. The court also finds that the subpoenas were served with adequate time for the witness to comply with the requirement that the witness appear at trial. See Ariz. R. Civ. P. 45(e)(2)(A)(i)(stating that the court must quash or modify a subpoena if it fails to allow a reasonable time to comply). 2. The Signatures Collected by a Circulator Who Appeared at Trial in Response to the Trial Subpoena but Failed to Produce Documents as Provided for in the Subpoena Are Note Deemed Invalid. Plaintiffs requested an order directing the Secretary of State to remove any signatures collected by Alberto Partida, Alec Trow, Alexzander Schell, Andrew Standifird, Andre Jeanisse, Jacob Jones, Joshua Morrison, Lisa Ruble, Omar Castanon Rodriguez, Justin Herrington, and Timothy Boyd, 6 The subpoenaed witnesses were provided a uniform resource locator (URL), access code, and a telephone number for the virtual courtroom. The access information was sealed until the trial was concluded to prevent problems associated with the appearance of non-participants exceeding the 26 video frame capacity and resulting in the virtual exclusion of testifying witnesses from the courtroom due to reaching maximum load. 7 In Leach v. Reagan, the plaintiffs subpoenaed 1,180 witnesses. Nine hundred and thirteen of the subpoenaed witnesses physically appeared at the courthouse on the morning of August 20, 2018. Of the 913 subpoenaed witnesses, 665 were directed by the plaintiff to return later in the week to testify. Of the 665 subpoenaed witnesses ordered to return, 233 were directed to return on August 21, 2018, 220 were directed to return on August 22, 2018, and 212 were directed to return on August 23, 2018. See Leach v. Reagan, CV2018-009919665 at *8 (Ariz. Super. Ct. August 27, 2018). The Sheraton was rented out to house the circulators who were required to remain in Phoenix to comply with their subpoena. Unlike what occurred in 2018, in this trial, subpoenaed circulators often appeared from their place of work, their homes, and their vehicles. Form V000A Docket Code 901 Page 5 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Jr. (hereinafter referred to as “the Testifying Circulator Witnesses”). The Testifying Circulator Witnesses did not produce all documents requested in the subpoena.8 None of the Testifying Circulator Witnesses produced circulator registration documents when asked. Rule 45(e) of the Arizona Rules of Civil Procedure states “[a] party or an attorney responsible for serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Absent good cause, a subpoena may not seek production of materials that have already been produced in the action or that are available from parties to the action.” Here, the registration documents requested from the Testifying Circulator Witnesses other than a form of identification were produced by a party in the case. Moreover, the subpoenas in this case requiring the production of documents were served immediately before trial. Most Testifying Circulator Witnesses stated that they were unaware of the obligation to produce documents. In some instances the Testifying Circulator Witnesses stated that they did not possess the requested documents. In other instances the Testifying Circulator Witnesses told counsel that they may possess the documents electronically. Witnesses were not provided with instructions on how to produce the documents by emailing the documents or uploading the documents to DropBox or AdobeCloud or how to produce the documents to a nonco-located person. Witnesses who testified they may have the electronic documents were not asked to present the documents by locating the documents in their email and sharing the screen with the court. Unlike the minimal effort for witnesses to “comply” with the subpoena and appear for trial, the analysis for compliance with the production requirement in the subpoena is different. Defendant Committee objected to the production requirement in the subpoena, obligating the circulator to produce employment records and registration documents. The court finds Defendant Committee’s objection well founded and modifies the subpoena to eliminate the compelled obligation to produce documents that have already been produced in the action or that are available from parties to the action. As noted by the Arizona Supreme Court in Stanwitz v. Reagan, 245 Ariz. 344, 350 ¶ 21 (2018), A.R.S. § 19-118 “represents a reasonable means of fostering transparency, facilitating the judicial The Subpoena requested: 1) a driver’s license or other government-issued identification; 2) proof of residential address; 3) the witness’ FieldWorks employment agreement, paystubs, bonus, incentives, correspondence, and any other documents relating to the witness’ employment by FieldWorks; 4) any and all petition signature sheets circulated by the witness for the Initiative; 5) any and all of the witness’ Secretary of State circulator registration forms; and 6) any and all emails and other communication with the Secretary of State regarding the witness’ circulator registration. Form V000A Docket Code 901 Page 6 8 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 fact-finding process, inducing compliance with valid compulsory process, and mitigating the threat of fraud or other wrongdoing infecting the petition process.” However, the statute cannot be used as a tool to require the production of already produced documents absent a finding of good cause. The court finds this particularly relevant in this unique trial where the subpoenaed witnesses were subpoenaed immediately before trial, did not appear in the same physical space as the lawyers, and were not provided with instructions on how to “produce” documents.9 B. A.R.S. § 19-118(E) Applies to Circulators Who Registered Pursuant A.R.S. § 19118(A). Arizona Revised Statutes § 19-118(E) states “[i]f 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.” Arizona Revised Statutes § 19-102.01(A) provides that “[c]onstitutional and statutory requirements for statewide initiative measures must be strictly construed and persons using the initiative process must strictly comply with those constitutional and statutory requirements.” Defendant Committee argues that de-registration prior to service of the subpoena eliminates the consequence of a circulator failing to appear or produce documents in response to a validly served subpoena. Arizona Revised Statutes § 19-118(A) states that the “Secretary of State shall establish in the instructions and procedures manual issued pursuant to § 16-452 a procedure for registering circulators, including circulator registration applications, and shall publish on a website maintained by the Secretary of State all information regarding circulators that is required pursuant to this section.” Section 19-118 does not include a requirement that the Secretary of State establish a process to de-register circulators. No provision in A.R.S. § 19-118 addresses the de-registration of circulators. The court’s responsibility in interpreting a statute is to fulfill the intent of the legislature that wrote it. See Leach v. Reagan, 245 Ariz. 430, 438 ¶ 33 (2018); Bilke v. State, 206 Ariz. 462, 464 ¶ 11 (2003). A circulator is the most likely person to have knowledge relevant to disputes over the validity of the signatures the circulator collected. See Stanwitz, 245 Ariz. at 349 ¶ 18 (“The circulator is the only person in the process who is required to make a sworn statement and is, therefore, the person under the greatest compulsion to lend credibility to the process.”)(quoting W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 432 (1991). Under the reading of the statute advanced by Defendant Committee, the Section 118(E) consequence of failing to appear to provide the necessary information for the court to assess the challenge would be circumvented by simply de-registering 9 If the petition sheets of the Testifying Circulator Witnesses were deemed invalid under A.R.S. § 19-118(E), the net reduction would be 14,189 signatures. Form V000A Docket Code 901 Page 7 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 all circulators before service of a valid subpoena. The court reads the statute as written and with the intent of avoiding a construction that would produce an absurd result. Of the 1167 circulators, Plaintiffs subpoenaed 332. To confirm the importance of each subpoenaed circulator’s testimony to the fact-finding process in this case, the court requested that Plaintiffs file a notice with the court, identifying the areas of testimony for each of the 332 subpoenaed witnesses. After reviewing the notice, the court finds the testimony of the subpoenaed circulators who failed to appear was essential to probe the collection of duplicative signatures, the submission of false affidavits, the inconsistency in identifying as both a paid and volunteer circulator, understanding and verifying the details of the circulator’s residence and email address, and verifying the notarization date. When the Plaintiffs subpoenaed the 332 circulators, Plaintiffs did not have the benefit of knowing which petition sheets or signatures the court would deem invalid as a matter of law. Plaintiffs subpoenaed approximately 30% of the registered circulators. The court finds that the failure to appear by the identified circulators materially prejudiced the fact-finding process. The integrity of the initiative process is dependent on the probity of the petition circulators. See Ariz. Const. art. 4, pt. 1, § 1(9). The consequence of A.R.S. § 19-118(E) is not to invalidate signatures based on a technicality; rather, the consequence of Subsection E is reflective of the importance of circulators and their veracity in enabling the people to propose laws and amendments to the Constitution independent of the legislature. As noted above, the court required the parties to monitor the virtual waiting rooms during trial, and the court permitted Defendant Committee to request a motion to reconsider invaliding a circulator’s signatures if the circulator appeared during trial. The following circulators failed to appear at the August 6, 2020 check-in but they appeared to testify on their designated trial day. Andres Amaya Armin Manizadeh Charmaine Calvino Jessica Nieto Julianne Braun Justin Herrington Luthine Stewart Terrance Williams Veronica Leos Troy Palmer Docket Code 901 8/7/2020 8/7/2020 8/7/2020 8/10/2020 8/10/20 8/10/2020 8/10/20 8/10/2020 8/10/20 8/10/2020 8/11/20 8/11/2020 8/11/20 8/11/2020 8/11/20 8/11/2020 Form V000A Page 8 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 The court will not invalidate the petition sheets of the circulators who failed to appear at the August 6, 2020 check-in but they appeared at trial to testify in compliance with their subpoenas. The court finds the following circulators, registered pursuant A.R.S. § 19-118(A), were served properly a subpoena to testify but failed to appear as provided for in the subpoena. Therefore, IT IS ORDERED directing the Secretary of State to remove any signatures collected by the following circulators who failed to appear in response to their trial subpoena: Abel Rodriguez AZ85343 Adam Cole AZ74853 Amber Schnepp AZ40052 Anthony Alderiso AZ23692 Antonio Johnson AZ74582 Ashstin Bowers AZ18214 Austin Geist AZ96585 Bhart Roberts AZ52914 Brian Floyd AZ65894 Cassie Sanchez AZ49830 Cheryl Rohrick AZ66399 Christal Dames AZ28196 Christopher Holland AZ92941 Cody Huber AZ66258 Cynthia Coronel AZ68787 Daine Froehlich AZ14116 Damon Calvert Jr. AZ47133 Darrel Muhammad Eli AZ53321 Darren McCadden AZ85182 Deijha Franklin AZ94382 Emma Krajewski AZ18978 Ethan Espe AZ55614 Gary Barnard Jr. AZ95365 Glenna Geist AZ58457 Gloria Leonard AZ68219 Inti Santos AZ44786 Isidro Lizarraga AZ87034 Jalen Stohlgren AZ96940 James Miller AZ16306 Jasmine Ackie AZ43508 Jazari Goff AZ96763 Docket Code 901 Form V000A Page 9 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Jelani Netters AZ80759 Jennifer Lee AZ85996 Jennifer Lozoya Diaz AZ66414 Joe Fry AZ47670 Joeena Pennington AZ48086 John Handy AZ94495 Jordan Butler AZ52110 Katherine Nelson AZ14678 Kilee Kowalczyk AZ26072 Lamar Miller Jr. AZ77998 Manelich Luna AZ80798 Mark Herd AZ22988 Max Zingler AZ74561 Melvin Acquaah AZ53823 Michael Ciambella AZ49433 Mykah Brown AZ40621 Oswaldo Valenzuela Chagoya Jr. AZ63718 Phanashia Germain AZ24237 Porter Vaughn AZ14795 Raelyn Castillo AZ70422 Rebecca Baldenegro AZ98608 Rebecca Hurtado AZ25880 Sarah Butler AZ99748 Sarah Rivard AZ37769 Scott Wolbert AZ18965 Stephanie Wasilishin AZ34318 Taylor Krejci AZ43987 Thomas Ball AZ70640 Timothy Johnson AZ19587 Tyiesha Hunter AZ71992-A Valentina Wells AZ25917 Zachary Hamilton AZ21838 Plaintiffs further seek to invalidate the signatures collected by the circulators who were subpoenaed properly to appear on August 7, 2020 but failed to appear. IT IS FURTHER ORDERED directing the Secretary of State to remove any signatures collected by the following circulators who failed to appear in response to their trial subpoenas, requiring them to appear on August 7, 2020: Docket Code 901 Form V000A Page 10 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Abdullah Mohammad Ali AZ49980 Alejandra Jimenez AZ56699 Alexander Shi-Shi AZ61956 Amber Beasley AZ19175 Andre Matthews AZ82862 Antonio Leyba AZ45597 Benjamin Gardner Jr. AZ25946 Carole Hunter AZ12720 Charity Morris AZ29877 David Lammon AZ58422 Edrise Bayo AZ58828 Eileen Baese AZ72277 Plaintiffs further seek to invalidate the signatures collected by the circulators who were subpoenaed properly to appear on August 10, 2020 but failed to appear. IT IS FURTHER ORDERED directing the Secretary of State to remove any signatures collected by the following circulators who failed to appear in response to their trial subpoenas, requiring them to appear on August 10, 2020: Haley Musgrove AZ84421 Jacob Foster AZ46163 Jacquelyn Williams AZ93542 Jonathan Bachanos AZ26771 Lisa Garrett AZ62259 Plaintiffs further seek to invalidate the signatures collected by the circulators who were subpoenaed properly to appear on August 11, 2020 but failed to appear. IT IS FURTHER ORDERED directing the Secretary of State to remove any signatures collected by the following circulators who failed to appear in response to their trial subpoenas, requiring them to appear on August 11, 2020: Meagan Hamblen AZ17638 Michael Moses AZ84816 Milford Slowe AZ50960 Montgomery Glaser AZ41905 Paul Head AZ26407 Peggy Gomez AZ52588 Rafael Montijo Martinez AZ22425 Docket Code 901 Form V000A Page 11 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Ryan Hanners AZ59865 Sam Hernandez Jr. AZ65878 Samuel Christian AZ99028 Schelly Frazier AZ54897 Trinidad Cardona AZ43959 William Joyce AZ38861 Zane Druyon AZ6142110 C. Special Master Report. The court ordered the appointment of retired judge Christopher Skelly as Special Master in this matter. The Special Master’s authority was limited to making findings of fact related to Plaintiffs’ challenges to the validity of petitions and signatures submitted to the Secretary of State by Defendant Committee. The Special Master and the parties worked tirelessly11 to review the signature- or petition-based challenges contained in the Verified Complaint (or any subsequent amendments). The Special Master submitted his 886-page report to the court on August 11, 2020. As noted in the Special Master’s Report, the Secretary of State determined the Defendant Committee submitted 385,771 signatures that were eligible for random sampling. See Special Master Report Exhibits A-C. Each County Recorder was directed by the Defendant Arizona Secretary of State to review a random sample of the signatures pursuant to A.R.S. § 19-121.02. See Exhibit A. As of August 11, 2020, six counties reported to the Defendant Arizona Secretary of State with determinations of validity and invalidity of specific randomly sampled signatures. The parties have stipulated that, except for signatures determined invalid due to lack of voter registration, lack of timely registration, or a mismatched/invalid signature that renders it impossible to confirm voter registrations, other determinations of invalidity by the County Recorders are applied to these proceedings. As such, the Special Master found that five signatures were also invalid as a part of these proceedings based on the available individual counties’ determinations.12 10 If the Defendant Committee was successful in convincing the trial court that de-registration of the circulators immunized the circulators who registered from the consequences of A.R.S. § 19118(E), the result would have been a 28,842 net increase of signatures. 11 The Special Master held hearings on July 31, 2020, August 1, 2, 4, 5, and 8, 2020. 12 The following signatures were invalided by County Recorders pursuant to A.R.S. § 19-121.02 as of August 10, 2020: 23885:1 (Apache, invalid date), 27145:1 (Gila, invalid date), 42667:11 (Yavapai, illegible), 42734:1 (Yavapai, invalid date), and 42751:1 (Yavapai, duplicate). See Special Master Report Exhibit D. Form V000A Docket Code 901 Page 12 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 The parties agreed to submit objections to the Special Master’s Report by August 12, 2020. Although Plaintiffs did not submit an objection, Plaintiffs offered testimony of circulator witness, Tim Boyd, and argued that the Special Master’s factual findings were incorrect. After considering the testimony of Mr. Boyd, the court affirms the Special Master’s factual findings regarding Mr. Boyd.13 Neither party submitted any further objections to the Special Master’s factual findings. After reviewing the Special Master’s report and all the attachments, IT IS FURTHER ORDERED adopting, in whole, the Special Master’s factual findings as set forth in the Report of Special Master on Factual Challenges to the Validity of Signatures. After reviewing the evidence presented by the parties, the findings of fact made by the Special Master, and after applying the applicable strict compliance standard of review, the court enters the following orders: IT IS FURTHER ORDERED pursuant to the parties’ stipulation individual signatures and circulator sheets as identified in the Report of Special Master on Factual Challenges to the Validity of Signatures as “STIPULATED OUT” are deemed invalid. IT IS FURTHER ORDERED that the individual signatures and circulator sheets as identified in the Report of Special Master on Factual Challenges to the Validity of Signatures as “FINDING OUT” are deemed invalid. Because some of the findings of the Special Master rest upon the court’s legal conclusions, the court will summarize its analysis regarding 15 legal deficiencies asserted by Plaintiffs. D. Circulator Registration Deficiencies: Objection 3. Paid or nonresident circulators are required to register with the Secretary of State prior to circulating initiative petitions. Arizona Revised Statutes § 19-118(B)(1) requires a circulator to include a “residence address.” Arizona Revised Statutes § 19-121.01(A)(1)(h) requires an initiative petition sheet be stricken if “the circulator is not properly registered at the time the petitions were circulated.” Arizona Revised Statutes § 19-102.01(A) provides in part that “[c]onstitutional and Even if the court reviewed the Special Master’s factual finding related to Mr. Boyd under a de novo standard, based on the testimony of Mr. Boyd, the court would affirm the Special Master’s factual findings regarding Mr. Boyd. See Ariz. R. Civ. P. 53(f)(3)(“The court must decide all objections to findings of fact made or recommended by a master under the clearly erroneous standard . . .”). Form V000A Docket Code 901 Page 13 13 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 statutory requirements for statewide initiative measures must be strictly construed and persons using the initiative process must strictly comply with those constitutional and statutory requirements.” See Arrett v. Bower, 237 Ariz. 74, 81 (App. 2015) (citation and internal quotations omitted) (satisfying the “strict compliance” standard “requires nearly perfect compliance with constitutional and statutory” mandates). Here, the court found that strict compliance requires that all signatures would be invalidated as a matter of law if an apartment number, dorm number or hotel room number was not included on a residence address where such number was necessary to ensure that the individual could be contacted or questioned. Cf Lohr v. Bolick, CV-20-0129-AP/EL (May 5, 2020) (Decision Order) (“The purpose of this requirement is to ensure that a circulator can be contacted and questions about the validity of gathered signatures.”). E. Circulator Registration Deficiencies: Objection 4. A circulator registration application required by A.R.S. § 19-118(A) requires the circulator to include the circulator’s “email address.” Although A.R.S. § 19-102.01 mandates strict compliance with any statutory requirement, the court finds no statutory obligation that a circulator maintain the functionality of the listed email address throughout the campaign including during the postsubmission litigation period. The registered circulator must provide a valid email on the date of registration which is used to receive (and remit) a certification of registration once the online registration process is complete. The court found that evidence indicating the registered circulator’s email address was nonfunctional at the time of circulation was insufficient to invalidate a circulator’s registration. However, the court found that evidence supporting a finding that the email address was not valid on the date of registration would support a determination that the circulator was not properly registered. F. Circulator Registration Deficiencies: Objection 5. In certain instances, a circulator submitted duplicative circulator registrations with the Secretary of State. The court found that a subsequent registration does not summarily invalidate the signatures collected prior to the most recent registration. G. Circulator Affidavit Deficiencies: Objection 17. Numerous circulators provided varying addresses on their circulator affidavit. Arizona Revised Statutes § 19-112(D) requires the circulator provide his or her “residence address” in the circulator affidavit. Although A.R.S. § 19-102.01 mandates strict compliance with any statutory requirement, the court finds no statutory obligation that prevents a circulator from changing his residence address. The court found that the use of different addresses on the reverse side of the Docket Code 901 Form V000A Page 14 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 petition sheet does not summarily invalidate all of the signatures collected by a registered circulator who used different addresses on their circulator affidavit. H. Circulator Designation Deficiencies: Objection 22. Arizona Revised Statutes § 19-102 states a “circulator of an initiative petition shall state whether he is a paid circulator or volunteer by checking the appropriate line on the petition form before circulating the petition for signatures.” Subsection E states that “[s]ignatures obtained on initiative petitions in violation of subsection D . . . are void and shall not be counted in determining the legal sufficiency of the petition.” Subsection E also states that the presence of signatures that are invalidated under this subsection on a petition does not invalidate other signatures on the petition that were obtained as prescribed by this section. In certain instances, circulators provided inconsistent information on their petition sheets, sometimes designating “paid” and sometimes selecting “volunteer.” Defendant Committee stipulated that signatures on a petition sheet in which the circulator designated both “paid” and “volunteer” are invalid.14 The issue presented to the court was whether the inconsistent designations by a circulator on different petition sheets invalidates, as a matter of law, all of the circulator’s petition sheets. The court found that the inconsistent designations on different petition sheets does not, as a matter of law, summarily invalidate all petition sheets of the circulator. I. Serial Number Deficiencies: Objection 24. Arizona Revised Statutes §§ 19-111(A) and 19-121.01(A)(1)(c) require that a serial number must appear on the bottom right-hand corner of both sides of a petition sheet. Absence of a legible serial number is a basis to invalidate the petition sheets. The factual scenario presented to the court involved only the absence of the serial number on the currently available image with the Secretary of State. The parties acknowledge that actions of the Secretary of State employees could have resulted in the removal or obstruction of the serial number. Plaintiffs argue that it is of no relevance that the serial number may have existed at some point in the past or at the time of submission to the Secretary of State. The court finds that the petition sheets would be valid if the Special Master found credible evidence demonstrating the serial number was present and legible when the petition sheet was submitted to the Secretary of State. J. Notarization Deficiencies: Objection 38. The circulator of the petition is required to swear before a notary public that “each of the names on the sheet was signed and the names and address were printed by” the signer on the date indicated, and that the circulator believes each signer to be “a qualified elector of a certain county 14 Circulator Designation Deficiencies: Objection 23. Form V000A Docket Code 901 Page 15 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 of the state.” A.R.S. § 19-112(C). Various individuals notarized petition sheets on the same day with implausible geographic distribution.15 Defendant Committee acknowledges that the minority county16 signatures should be invalidated; however, Defendant Committee asserts that the signatures of the majority county should remain valid. The factual scenario presented to the court involved a petition sheet containing a geographic distribution that confirms the notary avowal was untrue or incorrect. “[S]tatutory circulation procedures are designed to reduce the number of erroneous signatures, guard against misrepresentations, and confirm that signatures were obtained according to the law.” Brousseau v. Fitzgerald, 138 Ariz. 453, 456 (1984); see also Leach, 245 Ariz. at 450 ¶ 105 (Gould J., Bolick J., and Lopez J. concurring in part, dissenting in part)(“[O]ur citizens . . . have the right to an initiative process that is transparent and free from fraud.”). The court finds that petitions sheets containing geographic distribution that confirm the notary avowal is untrue or incorrect are invalid as a matter of law.17 K. Fraud: Objection 43. Certain petition sheets include the same handwriting. The Arizona Constitution requires that “every sheet of every . . . petition containing signatures shall be verified by the affidavit of the person who circulated [the] . . . sheet or petition.” See Ariz. Const. art. 4, pt. 1, § 1(9). The Constitution further requires that the circulator must verify by affidavit that each of the names on the sheet was signed in the presence of the affiant and that in the belief of the affiant each signer was a qualified elector of the state. See Ariz. Const. art. 4, pt. 1, § 1(9); see also A.R.S. § 19112(C). Arizona Revised Statutes § 19-112(A) requires, inter alia, that the qualified elector “print his first and last names and write, in the appropriate spaces following the signature, the signer’s residence address, giving street and number, and if he has no street address, a description of his residence location.” A.R.S. § 19-112(A). Defendant Committee does not dispute that the 15 A.R.S. § 41-313(B)(1) requires that notaries perform the notarial acts prescribed in 313(A) only if the signer is in the presence of the notary at the time of notarization. A.R.S. § 41-311(9) defines and “oath” or “affirmation” as a notarial act or part of a notarial act in which a person made a vow in the presence of the notary under penalty of perjury with reference made to a supreme being in the case of an oath. A.R.S. § 41-311(1) defines “acknowledgement” as a notarial act in which a notary certifies that a signer whose identity is proven by satisfactory evidence appeared before the notary and acknowledged that the signer signed the documents. Subsection 12 of A.R.S. § 41-311 defines “venue” as the state and the county where a notarial act occurs. 16 If a petition sheet includes 10 signatures: 6 from Gila County, 2 from Maricopa County, and 2 from Pinal County, Gila County is the majority county and Maricopa and Pinal are minority counties. 17 If the petition sheets containing geographic distribution that confirm the notary avowal is untrue or incorrect only excluded the non-Maricopa County signatures, the net increase of signatures would be 1,872. Form V000A Docket Code 901 Page 16 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 signatures with similar handwriting are invalid. The issue presented to the court was whether the petition sheet that contains a false affidavit is deemed invalid. “Petition sheets bearing false or fraudulent circulator affidavits are void.” Ross v. Bennett, 228 Ariz. 174, 180 ¶ 34 (2011)(citing Brousseau, v. Fitzgerald, 138 Ariz. 453, 456 (1984) )(petitions containing false certifications by circulators are void, and the signatures on such petitions may not be considered in determining the sufficiency of the number of signatures to qualify for placement on the ballot); see also Parker v. City of Tucson, 233 Ariz. 422, 438 ¶ 47 (App. 2013)(“It was apparent from the signature sheets that the elector did not print his or her own address - - a fact the circulator must have known if the affidavit’s statement that each elector filled out the signature sheet “in my presence on the date indicated’ were true. The false affidavits rendered the signature sheets void.”). The stipulation presented to the court acknowledged the signatures at issues included sufficiently similarly handwriting to invalidate the signatures because the evidence demonstrated, in at least one of the entries on the petition sheet, the qualified elector did not print his first and last name and writing in the appropriate spaces following the signature the signer’s residence address. The circulator’s affidavit states that each name on the sheet was signed in the presence of the affiant and A.R.S. § 19-112(A) requires that the qualified elector print his first and last name and write in the appropriate spaces following the signature, the signer’s residence address. Based on the factual findings that the handwriting on at least two entries was indistinguishable, the avowal of the circulator related to that petition sheet was false. A false avowal renders the signature sheet void not merely the signature void.18 Brousseau, 138 Ariz. at 456. L. Registration and Eligibility Challenges: Objection 46. As set forth in the Special Master Report: Category 46 contains two types of signatures allegedly signed by non-registered voters: (A) signers where there is no registered voter by that name in the voter registration database; and (B) signers where there is no registered voter by that name at the stated address on the petition sheet. With respect to Category 46A, Plaintiffs issued public record requests to various County Recorders and obtained a sampling of non-registered voter information from 9 of the 15 counties. Based on the sampling results, the parties . . . stipulated to utilize an 81% invalidity rate in this category of non-registered voters, after all other objections or findings 18 A decision that only the entries with identical handwriting would be deemed invalid would result in a net increase of 1,551 signatures. Form V000A Docket Code 901 Page 17 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 in other Categories (except Category 46B) have been considered. Based on this stipulation, [the Special Master finds] that 30,627 net signatures were implicated by this Category 46A as of August 10, 2020 and of those, 24,808 signatures were determined to be invalid and to be subtracted from the official tally—leaving 5,819 net valid signatures in this Category. With respect to Category 46B, pursuant to a stipulation of the parties and as discussed with the Court, the parties agreed to utilize the available county random sample determinations pursuant to A.R.S § 19-121.02 to establish a sampling percentage to be applied to signers where there is no registered voter by that name at the address listed on the petition sheet. The applicable signatures to be utilized from the random sample were limited to signatures that met both the following criteria: • The signature must have been sampled by the Secretary of State from among the petition signature lines designated as “no registered voter with that name at the stated address” in Category 46B; and • The County Recorder must adjudicate the sampled signature on the basis of registration-related criteria such as voter not registered, voter registered after signing, or mismatched/invalid voter signature. Sampled signatures that do not relate to registration-related issues (such as invalid dates or duplicate signatures) should not be factored into the sampling equation. By August 10, 2020, 6 counties had provided random sample determinations . . . . Based on those reports, the average percentage of invalid voter registrations was 50%. [The Special Master] applied this percentage to the voter signatures in this Category 46B, after all other objections or findings in other categories [had] been considered. Based on the stipulation, [the Special Master found] that 65,797 net signatures remained in Category 46B as of August 10, 2020 and of those, 38,898 signatures were determined to be invalid and to be subtracted from the official tally—leaving 32,899 net valid signatures in this Category. M. Voter signature predates voter’s registration: Objection 47. The parties reached a stipulation on how to address signatures challenged on the basis that the voter signed the petition prior to registering to vote. N. Voter Outside Captioned County: Objection 48. In certain instances, registered voters signed petition sheets that were captioned with a county other than the county in which the signer resides. Defendant Committee does not dispute that the minority county signatures are invalid. In the current system, after removing the minority county Docket Code 901 Form V000A Page 18 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 signatures, petition sheets are directed to the County Recorder in the majority county. After considering Objection 48, the court finds no legal basis to invalidate the signature of an otherwise qualified elector. O. Address Challenges: Objection 57. The court finds that “ditto marks” represent a legitimate method to incorporate an adjacent address line. The use of ditto marks is a common one and has the same effect as writing the particular word or number appearing above the ditto mark. P. Date Challenges: Objection 59. Arizona Revised Statutes § 19-121.02(A)(2) requires a petition signature to be stricken if “[n]o date of signing is provided.” A proper “date” must include a day, month, and year. 19 Although a month and date is likely to constitute substantial compliance, strict compliance is required pursuant to A.R.S. § 19-102.01. Under a strict compliance standard, any signature lines without a day, month, and year are invalid as a matter of law. . Q. Date Challenges: Objection 63. Various petition signers incorporated the dates directly above their signature line by use of “ditto marks.” The “ditto marks” represent a legitimate method to incorporate an adjacent date. R. Date Challenges: Objection 60. Various paid petition circulators collected signatures prior to registering with the Secretary of State. Arizona Revised Statutes § 19-121.01(A)(1)(h) requires that petition signatures be stricken if a paid circulator is not properly registered at the time of circulation. S. Testimony of Individual Circulators. 1. Andrew Anthony Standifird Plaintiffs called Mr. Standifird and confronted him with petition sheet 5566 bearing similar handwriting on multiple entries. As part of the Special Master Report, the parties stipulated that the signatures on Petition Sheet 19 If the signatures with no year corresponding to the entered date and which did not contain ditto marks were deemed valid, the result would be a net increase of 1,362 signatures. Docket Code 901 Form V000A Page 19 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 5566, lines 7 and 8 were deemed invalid. See Special Master Report at 90. The court finds Mr. Standifird’s avowal on petition 5566 was false. A false affidavit renders the signature sheet not merely the signature void. Brousseau, 138 Ariz. at 456. 2. Alec Trow Plaintiffs called Mr. Trow and confronted him with petition sheets 39778 (lines 11-12), 14852 (lines 13-14), and 14859 (lines 2-3), bearing indistinguishable handwriting on multiple entries. In each instance, Mr. Trow testified that he took his oath seriously. Although Mr. Trow testified that he did not knowingly permit the same person to input information in multiple lines on the petition sheet, the court finds that, in at least one entry on each petition sheet, the qualified elector did not personally print their first and last name and writing in the appropriate spaces on the petition sheet. Therefore, the court finds Mr. Trow’s avowal on petitions 29778, 14852, and 14859 was false. A false affidavit renders the signature sheet not merely the signature void. Brousseau, 138 Ariz. at 456. 3. Alexzander Schell Mr. Schell was questioned regarding his residence address. Plaintiffs failed to provide credible evidence to support a motion to designate the signatures on Mr. Schell’s petition sheets invalid. Ross v. Bennett, 228 Ariz. 174, 181 ¶ 37 (2011). 4. Alberto Partida Plaintiffs called Mr. Patrida who testified that he moved from one trailer to a second nearby trailer. Plaintiffs failed to provide credible evidence that Mr. Partida’s petition sheets should be invalidated. Ross, 228 Ariz. at 181 ¶ 37. Docket Code 901 Form V000A Page 20 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 5. 08/14/2020 Andre Jeanisse Plaintiffs called Mr. Jeanisse who appeared telephonically at trial. 20 Based on the factual findings by the Special Master, the court finds Mr. Jeanisse’s avowal on petition sheet 24565 was false. See Special Master Report at 98 & 109. A false affidavit renders the signature sheet not merely the signature void. 6. Jacob Jones Based on Mr. Jones’ testimony the avowals on the following petitions were false: o 4138-4145 o 3879-3881 o 35453 o 42974-42975 A false affidavit renders the signature sheet void. 7. Gilbert Romero Based on the testimony, the court found no basis to order the signatures collected by Mr. Romero invalid. 8. Jacqueline Jolly Based on the testimony, the court found no basis to order the signatures collected by Ms. Jolly invalid. 9. Joshua Morrison Based on Mr. Morrison’s testimony the avowals on the following petitions were false: o 18344 o 18368 o 2397-2427 20 Mr. Jeanisse testified that during trial he accessed the virtual courtroom using a flip phone. Due to the device used, Mr. Jeanisse did not appear on camera and Plaintffs were unable to show him documents. The court found that Mr. Jeanisse’s telephone appearance complied with the requirements of the trial subpoena. Form V000A Docket Code 901 Page 21 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 o 2429-2431 o 2615-2619 o 2677-2678 A false affidavit renders the signature sheet void. 10. Loraline Pierson Based on the testimony, the court found no basis to order the signatures collected by Ms. Pierson invalid. 11. Lisa Ruble Based on Ms. Ruble’s testimony the avowals on the following petitions were false: o 16687 o 16699 A false affidavit renders the signature sheet void. 12. Omar Castanon Rodriguez Based on the testimony, the court found no basis to order the signatures collected by Mr. Castanon Rodriguez invalid. 13. Justin Herrington Based on Mr. Herrington’s testimony the avowals on the following petitions were false: o 10500 o 10502 o 13558-13559 o 13589-13596 o 13618-13619 o 13625-13627 o 13913-13923 o 14575-14580 A false affidavit renders the signature sheet void. Docket Code 901 Form V000A Page 22 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 14. 08/14/2020 Tim Boyd Based on the testimony, the court found no basis to order the signatures collected by Mr. Boyd invalid. 2. DEFENDANT COMMITTEE DID NOT CAUSE CONFUSION OR MATERIALLY MISLEAD ELECTORS BY OMITTING “SEIU-UHW” FROM ITS NAME. The ballot initiative process begins when a political committee submits a statement of organization with the Secretary of State’s office. See A.R.S. §§ 16-906 & 19-111(A). The statement of organization requires a political committee to list a name. See A.R.S. § 16-906(B)(1). If the political committee is sponsored, A.R.S. § 16-906(B)(1)(b) requires that the committee name include the sponsor’s name or commonly known nickname. After the committee files a statement of organization, it may file an application with the Secretary of State for an initiative serial number. See A.R.S. § 19-111(A). Arizona Revised Statutes § 19-111(A) requires that the application include the organization’s name. Initiative committees may not circulate petition sheets in a manner that “defraud[s] potential signatories” or causes “confusion, and unfairness sufficient to invalidate the petition upon which the title rests.” Kromko, 168 Ariz. at 59-60. Plaintiffs claim that the Committee defrauded potential signatories or caused confusion sufficient to invalidate the petitions. By way of background, the court includes the following facts: o Service Employees International Union-Union Healthcare Workers West (“SEIU-UHW”) is a labor union based in California. o On June 3, 2019, Healthcare Rising AZ (SEIU-UHW) registered with the Secretary of State as a political committee. On that registration, Healthcare Rising AZ (SEIU-UHW) listed its sponsoring organization as SEIU-UHW. o On August 2, 2019, SEIU United Healthcare Workers West Political Issues Committee registered with the Secretary of State as a political committee. On that registration, SEIU United Healthcare Workers West Political Issues Committee listed its sponsoring organization as SEIU-UHW. o On August 23, 2019, Arizonans Fed Up with Failing Healthcare (Healthcare Rising AZ) (Defendant Committee) registered with the Secretary of State as a political committee. On that registration, Defendant Committee listed Healthcare Rising AZ (SEIU-UHW) as its sponsoring organization. o The Committee filed an application for the Initiative measure titled the “Stop Surprise Billing and Protect Patients Act” on August 26, 2019, which was assigned serial number I-20-2020. Docket Code 901 Form V000A Page 23 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 o An amended version of the application was filed on October 4, 2019 and assigned serial number I-24-2020. The committee name listed on the application was “Arizonans Fed Up with Failing Healthcare (Healthcare Rising AZ).” o As of June 30, 2020, the Committee had received approximately $6,734,415 in cash and in-kind contributions from political committees and business entities. o Of that $6,734,415, $5,750,000 was contributed by SEIU United Healthcare Workers West Political Issues Committee. o Of that $6,734,415, approximately $708,210 was contributed by SEIU-UHW. o Of that $6,734,415, approximately $276,205 was contributed by Healthcare Rising AZ (SEIU-UHW). The court did not hear sufficient credible evidence to support Plaintiffs’ claim that Defendant Committee defrauded potential signatories, caused confusion, or misled electors by omitting “SEIU-UHW” from its name. See Kromko, 168 Ariz. at 59-60.21 21 The court notes in Leach v. Reagan, 245 Ariz. 430, 434 (2018), a similar but distinguishable issue was reviewed by the Arizona Supreme Court. In Leach, the plaintiffs argued that the initiative committee filed a defective statement of organization by naming CEHA LLC as a sponsor before it existed, failed to name NextGen as a sponsor, and failed to incorporate “NextGen” into the committee’s name. Id. at 434 ¶ 12. The plaintiffs argued that the errors prevented the proper formation of the committee and thus the initiative application was a nullity. Id. The Arizona Supreme Court noted that the record did not support the factual foundations for the plaintiffs’ argument; however, the Arizona Supreme Court found that the trial court properly dismissed the plaintiffs’ defective statement of organization claim on a procedural ground. In its ruling, the trial court found that the plaintiffs’ challenge arising out of A.R.S. §§ 16-901(47) and 16-906(B)(1)(b) did not state a claim cognizable under Title 19. Leach v. Reagan, CV2018009919, at *10 (Ariz. Super. Ct. July 31, 2018). Here, Plaintiffs assert that the Committee and SEIU-UHW misled and defrauded voters by concealing SEIU-UHW’s connection to the Initiative in violation of the standard set forth in Kromko. The court finds that Leach, 245 Ariz. at 434, is not wholly preclusive of Plaintiffs’ challenge that the Committee misled and deceived the public. See Leach, 245 Ariz. at 444 ¶ 71 (Pelander J., concurring) (“I join the majority’s analysis regarding the interplay between Title 16 and Title 19 and its conclusion that [p]laintiffs may not ‘contest the validity of the [i]nitiative based on the statement of organizations alleged non-compliance with § 16-906(B). . . [b]ut I share the dissent’s concerns regarding the need for full, honest disclosure of those who actually spearhead and fund initiative measures, and the danger of misleading or deceiving petition signers (inadvertently or intentionally) when such information is lacking.”) & Leach, 245 Ariz. at 445-451 (Gould J., Bolick J., and Lopez J. concurring in part, dissenting in part). Docket Code 901 Form V000A Page 24 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 3. 08/14/2020 THE TITLE COMPLIES STRICTLY WITH THE TITLE AND TEXT RULE FOUND IN THE ARIZONA CONSTITUTION. The Arizona Constitution requires that “[e]ach sheet containing petitioners’ signatures shall be attached to a full and correct copy of the title and text of the measure so proposed to be initiated . . .” Ariz. Const. art. 4, pt. 1, § 1(9); see also A.R.S. § 19-121(A)(3); A.R.S. § 19-112(B). Plaintiffs assert that the Initiative’s official title fails to put electors on full notice of all proposed changes the Initiative would make to the Arizona Revised Statutes. Arizona Revised Statutes § 19-102.01 requires that all constitutional and statutory requirements for statewide initiative measures must be strictly construed and persons using the initiative process must strictly comply with those constitutional and statutory requirements. According to the Arizona Supreme Court in Leach v. Reagan, a constitutionally compliant initiative title gives “notice of the measure’s subject matter – no more, no less.” 245 Ariz. at 437 ¶ 27; see also Arizona Chamber of Commerce & Indus. v. Kiley, 242 Ariz. 533, 541 ¶ 31 (2017)(“Initiative petitions are governed by the Arizona Constitution, article 4, part 1, § 1, which, as relevant here, requires only that a proposed measure have some title and some text.”). The official title of the Initiative is: An Initiative Measure amending title 20, chapter 1, Arizona revised statutes, by adding article 5; amending sections 20-3111, 20-3112 and 20-3113, Arizona revised statutes; amending title 20, chapter 20, article 2, Arizona revised statutes, by adding section 20-3113.01; amending sections 20-3114 and 20-3115; amending title 23, chapter 2, article 8, Arizona revised statutes, by adding sections 23-363.01; amending title 36, chapter 25, Arizona revised statutes, by adding article 3; relating to health care billing reform, minimum wage for direct care hospital workers and control of hospital-acquired infections. The Initiative bears a clearly identified Title, separate from the text. The Title complies with A.R.S. § 19-112(B)’s font size requirement. Of note, the official Title omits the changes to the Arizona Revised Statutes made by § 2 of the Initiative, which amends title 20, chapter 20, article 2 by changing its title from “Out-of-Network Claim Dispute Resolution” to “Fair Billing Practices.” However, after considering the evidence and testimony, the court finds that the Initiative’s Title Due to the court’s finding in this case that Defendant Committee did not defraud potential signatories, cause confusion, or mislead electors by omitting “SEIU-UHW” from its name, the court did not analyze whether laches bars Plaintiffs from raising a Kromko claim related to the Defendant Committee’s name. Form V000A Docket Code 901 Page 25 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 satisfies the constitutional and statutory “Title” requirements and provides full notice to the electors of the measure’s subject matter. See Leach, 245 Ariz. at 437 ¶ 27; see also Kromko, 168 Ariz. at 58 (“[A] title’s failure to describe every aspect of a proposed measure” does not “always create[] the degree of fraud, confusion, and unfairness sufficient to invalidate the petition.”). The court further finds that the Title of the Initiative is not false, deceptive, or fraudulent. Therefore, the court denies Plaintiffs’ challenge to the Title of the Initiative. 4. THE INITIATIVE’S 100-WORD DESCRIPTION IS MATERIALLY MISLEADING AND CREATES A SIGNIFICANT DANGER OF CONFUSION OR UNFAIRNESS TO THOSE WHO SIGNED PETITIONS TO PLACE THE MEASURE ON THE BALLOT. The 100-word description of the Initiative is: This Act prohibits insurers from discriminating based on preexisting conditions; bans surprise out-of-network bills, redefined as bills above in-network cost sharing requirements; bans balance bills for ambulance care; and amends the surprise bill dispute process. Insurers must reimburse providers, facilities and ambulances at specific rates. Sets new minimum wages for direct care workers at private hospitals by requiring raises of at least five percent for each of four years. Private hospitals must meet national safety standards regarding hospital acquired infections, under Department of Health Services enforcement authority, funded by fees paid by private hospitals. The statutory provision relevant to the court’s analysis of the 100-word description is A.R.S. § 19102(A), which requires an initiative’s sponsors to provide on the petition “a description of no more than one hundred words of the principal provisions22 of the proposed measure or constitutional amendment.” See Molera v. Reagan, 245 Ariz. 291, 295 ¶ 13. The sponsor is not required to draft an impartial description. See Save Our Vote, Opposing C-03-2012 v. Bennett, 231 Ariz. 145, 152 ¶ 28 (2013). Similarly, the sponsor is not required to include every provision of the proposed law. The purpose of the 100-description is to inform prospective signers of the measure’s principal provisions so they may determine whether to endorse it for the ballot. Molera, 245 Ariz. at 297 ¶ 27. The 100-word description must be accurate. The 100-word description cannot be fraudulent. Save Our Vote, 231 Ariz. at 152 ¶ 26. And the 100-description cannot create a significant danger of confusion or unfairness to a reasonable voter. See id; Molera, 245 Ariz. at 297 ¶ 27; see also The term “principal provisions” means the most important, consequential, influential, chief, or thing of primary importance. Molera v. Reagan, 245 Ariz. 291, 297 ¶ 24 Form V000A Docket Code 901 Page 26 22 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Arizona Chapter of the Assoc. Gen. Contractors of Am. v. City of Phoenix, 247 Ariz. 45, 48 ¶ 15 (2019). This is an objective, fact-intensive standard. A. The Initiative’s 100-word description misleads or confuses a reasonable voter by stating it will “prohibit[] insurers from discriminating based on preexisting conditions.” Defendant Committee’s expert, Dr. Jack Hoadley testified that approximately 60% of individuals are insured through their employer’s self-funded health insurance plan. The preexisting condition protections of the proposed Initiative apply only to “health care insurer[s] that offer[] health insurance coverage in the individual market or group market in this state.” See Exhibit 2 at Bates 0002-004-005 at §20-192.02-.04. Therefore, as acknowledged by Dr. Hoadley, the Initiative’s provisions related to preexisting conditions do not apply to a majority of insured individuals in Arizona. See Exhibit 2453 at Bates AFUWFH0334. The 100-word description fails to reveal the limited application of the proposed law. The court finds that the failure to inform the electors that the state law will apply only to insurers in the individual market or group market creates a significant danger of confusion. The Initiative summary at issue contains 93 words. The court acknowledges that merely adding words does not necessarily add clarity. Moreover, the court acknowledges that the 100-word limitation forces drafters to employ discursive techniques to explain complex laws. The court further understands that the 100-word description is used as a tool to persuade individuals to sign petition sheets and ultimately support the initiative.23 See Arizona Chapter of the Assoc. Gen. Contractors of Am. v. City of Phoenix, 247 Ariz. 45, 48 ¶ 15 (2019)(noting that the 100-word description “need not be impartial nor ‘detail every provision.’”)(quoting Molera, 245 Ariz. at 295 ¶ 13 and Save Our Vote, 231 Ariz. 145, 152 ¶ 28). The fact that a 100-word description is artfully drafted in a persuasive manner to appeal to prospective voters is not contrary to A.R.S. § 19102(A). However, the court is required to invalidate a petition if the 100-word description “is fraudulent or creates a significant danger of confusion or unfairness.” Molera, 245 Ariz. at 295 ¶ 13. During trial, Defendant Committee offered the testimony of Dr. Robert Leonard, an expert regarding linguistic concepts and descriptions of natural language use. The court agrees with Dr. Robert Leonard opinion that when forced to be succinct it is common for a writer to use hypernyms. A hypernym is a word or phrase with a general meaning that has essentially the same meaning of a more specific word. A hyponym is a subordinate of a hypernym. The court refers to For example, Defendant Committee’s expert, Lisa Grove, testified that the Committee hired her, in part, to evaluate opinions of the Arizona electorate and to assist the Committee craft the 100word description. Form V000A Docket Code 901 Page 27 23 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Dr. Leonard’s example for illustration. The word “flower” is a hypernym for the words, “daisy,” “rose,” or “tulip.” The words “daisy,” “rose,” and “tulip” are hyponyms of the word “flowers.” Typically, contextual clues assist a reasonable person understand the use of a hypernym in a summary. For example, “insurer” is a hypernym of “health insurer,” “life insurer,” “disability insurer,” and “property and casualty insurer.” Contextual features and co-occurring language in the 100-word description clarifies that the Initiative relates to health insurers. Lexical items such as “preexisting conditions,” “out-of-network bill,” “in-net-work cost sharing,” “ambulance care,” “ambulances,” “direct care workers,” “private hospitals,” “hospital acquired infections” and “Department of Health Services” are all related to the healthcare field and provide context to minimize confusion. Dr. Robert Leonard also testified regarding the contextual feature of the term “preexisting conditions.” Dr. Leonard performed an analysis using the Corpus of Contemporary American English (“COCA”).24 A search of “preexisting” within nine words of “health” resulted in 241 hits compared with a search of “preexisting” within nine words of “life,” which resulted in zero hits. As Dr. Leonard explained, the analysis of the word “preexisting” in COCA provided insight into how the term is actually used in naturally occurring language. This analysis corroborates that a reasonable voter would understand when “insurer” was used in this 100-word description, the word referred to healthcare or health insurance. This analysis is distinctly different from the analysis of whether the reasonable voter would have any reason to understand “insurer” referred only to insurers in the individual market or group market and did not apply to the approximately 60% of individuals insured by their employer’s selffunded health insurance plan. The 93 words selected by the Committee offered no clarifying language or contextual clues regarding this important limitation. For the reasons set forth above, the court finds that the Initiative’s 100-word description misleads or confuses a reasonable voter by stating it will “prohibit[] insurers from discriminating based on preexisting conditions.” The court finds Plaintiffs’ other arguments regarding this portion of the 100-word description unpersuasive. More specifically, the court finds that “discriminating based on preexisting conditions” is commonly understood by the reasonable voter to refer to a variety of interrelated ways in which health insurers treat enrollees or potential enrollees differently based upon their health status, including by refusing to offer or renew coverage for individuals with preexisting 24 The Corpus of Contemporary American English is a widely-used corpus of American English containing more than one billion words in various genres of naturally occurring language. See http://www.english-corpora.org/coca. Form V000A Docket Code 901 Page 28 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 conditions, excluding benefits needed to treat preexisting conditions, or charging higher premium rates based on health status. B. The Initiative’s 100-word description does not mislead or confuse a reasonable voter by stating it will require “insurers” to “reimburse providers, facilities and ambulances at specific rates,” “ban[] surprise out-of-network bills, redefined as bills above in-network cost sharing requirements”, “ban[] balance bills for ambulance care”, and “amend[] the surprise bill dispute process.” As supported by the credible testimony of Dr. Hoadley and Dr. Leonard, the court finds that this portion of the 100-word description includes terms with widely accepted meanings and application. Further, the court finds that this portion of the 100-word description is accurate, includes all principal provisions, and that this portion of the description does not create a significant danger of unfairness or confusion to the reasonable reader. C. The Initiative’s 100-word description misleads or confuses a reasonable voter by stating the Initiative “[s]ets new minimum wages for direct care workers at private hospitals.” The court finds the use of the phrase “[s]ets new minimum wages for direct care workers at private hospitals by requiring raises of at least five percent for each of four years” is materially misleading and creates a significant danger of confusion to the reasonable voter. Minimum wage is a wellunderstood term. As credibly testified to by Jim Rounds, a minimum wage, by definition, is a wage floor. The reasonable voter would likely understand the term “minimum wage” or “minimum wages” to refer to wages fixed by contract or legal authority as the least that may be paid either to employed persons generally or to a particular category of employed persons. See Minimum Wage, Merriam-Webster, https://www.meriam-webster.com/dictionary/transaction (last visited August 13, 2020). Although the 100-word description is not required to be an impartial description, the summary cannot create a significant danger that the reasonable voter will be confused or materially misled. Expert testimony corroborated that the reasonable voter would be confused or misled by the language used in the 100-word description related to minimum wages and direct care workers. See Exhibits 57 & 58. In fact, only 13% of the 400 respondents in the Live Call Survey understood the term “minimum wage” to mean that it referred to the wage a direct care worker was currently making. See Exhibit 58 at Bates 0058-008. Sixty-four percent of respondents believed that the Docket Code 901 Form V000A Page 29 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 phrase “minimum wage” referred to the bottom-floor wage set by federal and state law and 17% assumed it was referring to the entry-level wage the hospital pays.25 See id. The court acknowledges the 100-word summary uses the plural count noun “minimum wages” rather than “minimum wage.” However, based on the credible evidence and testimony, the court finds that adding an “s” to the well-recognized phrase “minimum wage” did not alter a reasonable voter’s common understanding and application of the term.26 During a Live Call and Online Survey conducted by Plaintiffs’ expert, Wes Gullett, individuals were asked, “If you knew that the ‘minimum wage’ was defined as the current wage paid to workers at the time of enactment of the initiative, which for an experienced nurse could be over thirty seven dollars an hour, and therefore the initiative would not be raising the entry-level minimum wage, is that what you understood described in the summary I read earlier?” See id. at Bates 0058-009 In response, 52% of the individuals in the Live Caller Survey responded “No, that is not what I understood originally.”27 Id. Individuals who participated in the Live Call and Online Surveys expressed similar confusion regarding the term “direct care workers.” See Exhibit 57 at Bates 0057-008 and 0057-025. In the Live Caller Survey only 37% of respondents correctly understood that the term applied to individuals who provided other services in a hospital, including janitorial and housekeeping staff, food service workers, and nonmanagerial administrative staff.28 See also Exhibit 58 at Bates 0058012. The Committee’s own expert, Lisa Grove, confirmed that there was no statistical difference in support for a wage increase when asked about “frontline hospital workers” (63%) versus “direct care hospital workers” (62% favor).29 See Exhibit 2455. Individuals who provide services in a In the Online Survey 50% of respondents believed that the phrase “minimum wage” referred to the bottom-floor wage set by federal and state law and 14% assumed it was referring to the entrylevel wage the hospital pays. See Exhibit 57 at Bates 0057-006 and Bates 0057-039. Fourteen percent understood the phrase to mean the wage that each individual private hospital direct care worker is currently making. See id. 26 As Mark Twain opined, “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.” 27 In the Online Survey, 42% of the individuals in the Live Caller Survey responded “No, this is not what I understood originally.” See Exhibit 57 at Bates 0057-040. 28 In the Online Survey, 22% of respondents correctly understood that the term applied to individuals who provided other services in a hospital, including janitorial and housekeeping staff, food service workers, and nonmanagerial administrative staff. See also Exhibit 57 at Bates 0057043. 29 Notably, neither Ms. Grove’s testimony nor her memorandum admitted as Exhibit 2455 included the questions asked to the likely voters. Moreover, Ms. Grove did not enumerate or share the Form V000A Docket Code 901 Page 30 25 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 hospital, including janitorial and housekeeping staff, food service workers, and nonmanagerial administrative staff are critical to a hospital’s operations; however, outside the 100-word description, those individuals are not commonly referred to as “frontline hospital workers” or “direct care workers.” Here, the language of the 100-word description allows for two sharply divergent interpretations with very different and significant ramifications. By providing only one example, reasonable voters could conclude that the Initiative would set uniform, new higher wage floors for frontline workers at private hospitals and that wage floors would increase by at least five percent for each of four years. 30 Alternatively, as presented by Defendant Committee, a reasonable voter could language of the options provided to the likely voters during her tests. Consequently, the court failed to receive sufficient evidence to confirm that Ms. Grove applied reliable principles and methods to the facts of the case. In fact during cross examination, Ms. Grove acknowledged that her statement, “[i]n our research, we find that most Arizona voters understand that doctors are not part of [direct care workers]” was based solely on a qualitative evaluation of 16 likely voters. See Exhibit 2455 (emphasis in original). The court acknowledges that Ms. Grove has specialized knowledge, education, training and experience in conducting polling and that she conducted numerous polls from 2018 to June 2020 to measure likely voters’ support for the Initiative by testing the use of different words and phrases. Ms. Grove opined that the low number of individuals who characterize themselves as “undecided” supports the conclusion that voters understood the Initiative. The respondents in Ms. Grove’s tests were not shown the language of the Initiative. Therefore, at best, the low number of individuals who characterize themselves as “undecided” in the tests conducted by Ms. Grove may support the conclusion that the respondents believed they understood the Initiative. Mr. Gullet’s survey tested the respondents’ perceived understanding of the language of the 100word description and tested that understanding against the language of the Initiative. Mr. Gullet’s survey indicated that respondents willing to sign the petition dropped by 24% and those unwilling to sign the petition rose by 58% after being provided with additional information regarding the terms and phrases used in the 100-word description. Mr. Gullet’s survey was not impervious to criticism. However, his methodology was transparent and his testimony allowed the finder of fact to assess the questions asked of registered voters to determine the weight to give to the respondents’ answers. 30 Plaintiffs argue that the phrase “five percent for each of four years” is misleading because the first compensation increase would incur in December 2020 and the second increase would occur only a few weeks later in 2021. However, as stated in Ariz. Chapter of the Associated General Contractors of America v. City of Phoenix, 247 Ariz. 45, 49 ¶ 18 (2019), courts have “never required an initiative description to explain all potential effects of a measure.” Form V000A Docket Code 901 Page 31 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 also conclude that the Initiative would result in an increased minimum wage for every nonmanagerial worker who is employed to work at or by a covered hospital to provide direct care and services directly supporting patient care, including but not limited to nurses, aides, technicians, janitorial and housekeeping staff, food service workers, and nonmanagerial administrate staff. The court finds that the description lends itself to sharply divergent interpretations with very different and significant ramifications; therefore, the danger of confusion is sufficiently great. As corroborated by the Survey data, the danger of confusion and voters being materially misled undermines any assurance that the voters received adequate notice of what they were signing. Molera, 245 Ariz. at 297 ¶ 31. D. The Initiative’s 100-word description did not mislead or confuse a reasonable voter by stating that under the Initiative “[p]rivate hospitals must meet national safety standards regarding hospital acquired infections.” The court finds that the 100-word description inclusion of the statement “[p]rivate hospitals must meet national safety standards regarding hospital acquired infections” does not present a significant danger of confusion to the reasonable voter. As stated above, the court agrees with Dr. Robert Leonard that when forced to be succinct it is common to use hypernyms. 31 Although the court agrees with Plaintiffs that substituting the word “maintain” for “meet” and including a word such as “certain” before “hospital acquired infections” could provide increased the clarity. However, A.R.S. § 19-102(A) does not prevent the Committee from describing the intended effects of the measure in a way that might appeal to prospective voters. Save Our Vote, 231 Ariz. at 15253. What is impermissible is a description that creates a substantial danger of fraud, confusion, or unfairness sufficient to invalidate the petition sheets.32 E. Conclusion. The court finds that the initiative proponents did not comply with the requirements of A.R.S. § 19102(A) because the description of the Initiative’s principal provisions was, in part, materially misleading and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot. Molera, 245 Ariz. at 293 ¶ 1 (2018). The remedy for failure to satisfy statutory prerequisites is to enjoin the measure from appearing on the ballot. The court clarifies that it does not find that “direct care workers” as used in the 100-word description is a hypernym used to summarize, at least not accurately, the parts of the whole as defined in the Initiative. 32 The court finds the questions used by Mr. Gullett regarding hospital acquired infections were suggestive. Therefore, the court gives no weight to Mr. Gullett’s opinions regarding this portion of the 100-word description. Form V000A Docket Code 901 Page 32 31 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV2020007961 08/14/2020 Based on the reasoning set forth above, IT IS ORDERED entering an injunction prohibiting the Secretary of State from certifying and placing the Initiative on the ballot for the November 2020 general election in the State of Arizona. IT IS FURTHER ORDERED unsealing the July 31, 2020 and August 7, 2020 orders, which identified the access information for the virtual courtrooms. The court determines that there is no just reason for delay and hereby directs, pursuant to Arizona Rules of Civil Procedure 54(b) the entry of final judgment as to the rulings set forth above. Dated: August 14, 2020 Docket Code 901 Form V000A Page 33