Clerk of the Superior Court

*** Filed ***

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2020-007964 07/31/2020

CLERK OF THE COURT

HONORABLE CHRISTOPHER COURY L. Stogsdill
Deputy

JAIME A MOLERA, et al. DOMINIC E DRAYE

BRETT W JOHNSON

v.

KATIE HOBBS, et al. KARA MARIE KARLSON

ROOPALI HARDIN DESAI

DAVID ANDREW GAONA
DOCKET-CIVIL-CCC
ROOPALI HARDIN DESAI
DAVID ANDREW GAONA
COURT ADMIN-CIVIL-ARB DESK
DOCKET-CIVIL-CCC
JUDGE COURY

VERDICT

The Court has reviewed and considered all filings in the case, together with all legal
authorities, evidence admitted at trial, and arguments. After taking this matter under
advisement, the Court now issues its verdict.

FACTS AND PROCEDURAL HISTORY

Defendant Invest in Education (“IIE”) has proposed to place on the 2020 General
Election Ballot the Invest in Education Act, I-31-2020 (the “Initiative”). Plaintiffs argue
that it is legally improper for the Initiative to appear on the ballot for the 2020 General
Election for two reasons: (i) because the 100-word description of principal provisions of
the Initiative was fraudulent or substantially confusing to reasonable Arizona voters, and
therefore did not comply with A.R.S. § 19-102(A); and (2) because compensation paid to
petition circulators did not comply with A.R.S. § 19-118.01.
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GENERAL.

THE COURT FINDS as follows:

1. Count I of Plaintiffs’ Complaint seeks declaratory relief. Arizona’s Declaratory

Judgment Act is codified at A.R.S. § 12-1831, et seq. An actual and justiciable
controversy exists, and such judgment or decree will terminate the uncertainty
and controversy giving rise to this proceeding. A.R.S. § 12-1836.

2. Count II of Plaintiffs’ Complaint seeks injunctive relief. Injunctive relief is

properly entered where the party applying for the injunction is entitled to the
relief demanded and that such relief requires the restraint of a prejudicial act, or
when it appears that a party is about to act in violation of rights of the applicant
so as to render the judgment ineffectual, or when the applicant is entitled to an
injunction under the principles of equity. A.R.S. § 12-1801

3. Count III of Plaintiffs’ Complaint seeks a writ of mandamus. A.R.S. § 12-2021

establishes that this Court may issue writs of mandamus, and specifically
provides: “A writ of mandamus may be issued by the supreme or superior court
to any person, inferior tribunal, corporation or board, though the governor or
other state officer is a member thereof, on the verified complaint of the party
beneficially interested, to compel, when there is not a plain, adequate and speedy
remedy at law, performance of an act which the law specially imposes as a duty
resulting from an office, trust or station, or to compel the admission of a party to
the use and enjoyment of a right or office to which he is entitled and from which
he is unlawfully precluded by such inferior tribunal, corporation, board or
person.” Relief previously obtained through a writ of mandamus must now be
obtained in a Special Action. Rule 1(a), Arizona Special Action Rules of
Procedure. A special action is appropriately taken where, as here, no equally
“plain, speedy and adequate remedy by appeal exists.” Id.; Andrews v. Willrich,
200 Ariz. 533, 535 (App. 2002).

4. This Court has jurisdiction and venue is proper.

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5. Plaintiffs have standing. Under Arizona law, “[a]ny person may contest the
validity of an initiative . . . [and] may seek to enjoin the secretary of state or
other officer from certifying or printing the official ballot for the election that
will include the proposed initiative or referendum and to enjoin the certification
or printing of the ballot.” A.R.S. § 19-122.

A. THE INITIATIVE’S 100-WORD SUMMARY.

A.R.S. § 19-102(A) requires proponents of an initiative to insert on the petition sheets

“. . . a description of no more than one hundred words of the principal provisions of the
proposed measure . . . .” The Arizona Supreme Court, when interpreting and applying this
statute in 2018, instructed as follows:

The description need not be impartial. See Save Our Vote, Opposing C-03-
2012 v. Bennett, 231 Ariz. 145, 152 ¶ 28, 291 P.3d 342, 349 (2013). Nor must
the description detail every provision, as the statutorily required disclaimer
acknowledges. [A.R.S.] § 19-102(A). However, the description will require
us to invalidate the petition if “it is fraudulent or creates a significant danger
of confusion or unfairness.” Save Our Vote, 231 Ariz. at 152 ¶ 26, 291 P.3d
at 349 (citation omitted).

Molera v. Reagan, 245 Ariz. 291, 295 ¶13 (2018). Consequently, for Plaintiffs to prevail,
the Court must conclude that the 100-word description of the Initiative’s principal
provisions is either fraudulent or creates a significant danger of confusion or unfairness for
a reasonable Arizona voter. When doing so, the Court must “consider the meaning a
reasonable person would ascribe” to the 100-word description in context. Ariz. Chapter of
the Associated Gen. Contractors of America v. City of Phoenix, 247 Ariz. 45, 48 (2019).
The legal standard enumerated in Molera is an objective, fact-intensive standard. Although
the legal standard focuses on whether a description would create a significant danger of
confusion or unfairness to a reasonable Arizona voter, it does not require proof that a
description would create a significant danger of confusion or unfairness to all reasonable
Arizona voters.

THE COURT FINDS as follows:

6. The 100-word description of the Initiative states:

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The Invest in Education Act provides additional funding for public

education by establishing a 3.5% surcharge on taxable income
above $250,000 annually for single persons or married persons
filing separately, and on taxable income above $500,000 annually
for married persons filing jointly or head of household filers;
dedicates additional revenue to (a) hire and increase salaries for
teachers, classroom support personnel and student support services
personnel, (b) mentoring and retention programs for new classroom
teachers, (c) career training and post-secondary preparation
programs, (d) Arizona Teachers Academy; amends the Arizona
Teachers Academy statute; requires annual accounting of
additional revenue.

7. The following five provisions (collectively, the “Omitted Provisions”) of the

Initiative were not included in the 100-word description:

a. The percentages of revenues to be distributed to the enumerated groups

pursuant to the Initiative (the “Distribution”);

b. The amount of the increase in the marginal rate of taxation created by the
“surcharge” on those who are subject to the “surcharge” (the “Marginal
Surcharge Increase”);

c. The fact that the “surcharge” would apply to business income that was
passed along to single and joint tax filers whose taxable income exceed
the threshold (the “Business Income Treatment”);

d. The fact that the Initiative curtails the authority of the Legislature by
preventing it from supplanting the revenues raised by the “surcharge” (the
“No Supplant Clause”);1 and

1
Proposed A.R.S. § 15-1284(E) [Exh. 1 at 01-006].

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e. The fact that the Initiative attempts to circumvent the local revenue
spending limits of Article IX, § 21 of the Arizona Constitution (the “Local
Revenue Clause”).2

8. The Arizona Supreme Court has defined a “principal provision” to mean “‘most
important, consequential or influential,’ ‘chief,’ and ‘a matter or thing of primary
importance.’” Molera, 245 Ariz. at 297 ¶ 24 (quoting Sklar v. Town of Fountain
Hills, 220 Ariz. at 453). The Arizona Supreme Court further elaborated that the
“purpose of the petition description is to inform prospective signers of the
measure’s principal provisions so they may determine whether to endorse it for
the ballot.” Id. at 297 ¶ 27. The Arizona Supreme Court went on to explain in
Molera how enforcement of the 100-word description protects Arizona voters:
“Our failure to determine whether the description omits a principal provision
before the measure appears on the ballot would reward sloppy or even deceptive
drafting, and would render the statutory transparency requirement meaningless
because it would allow a measure to proceed even if voters signing the petition
were not made aware of principal provisions.” Id. at 298 ¶ 27.

9. Each of the Omitted Provisions is a principal provision.

a. The Distribution of the funds generated by the Initiative is a principal

provision. How the money was going to be disbursed – and to whom it
would be paid – are consequential matters of importance. The 100-word
description, however, omits the fact that 50% of the funds were to be paid
to “teachers, classroom support personnel and student support services
personnel.” To some reasonable voters, devoting 50% of the money
generated by the Initiative directly to teacher salaries may have sounded
too rich; to other reasonable voters, devoting 50% of the money raised
directly to teacher salaries may have sounded too modest.3 The failure to

2
Proposed A.R.S. 15-1285(1) [Exh. 1 at 01-007].
3
The Court notes that, when recruiting other circulators for the Initiative, Colby Jensen (a
professional circulator brought to Arizona from Oregon to gather signatures for the Initiative and other
ballot measures), advertised on Craigslist: “Arizona’s teachers earn less than they do in 45 other states.
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disclose the Distribution in the 100-word description constitutes the

omission of a principal provision.

b. The Marginal Surcharge Increase is a principal provision of the Initiative.

The Arizona Supreme Court directly addressed this in Molera when it
noted: “The petition’s description of the magnitude of the tax increase
on wealthy taxpayers ‘creates a significant danger of confusion.’ (citation
omitted) The petition description stated that the measure would increase
taxes on wealthy Arizonans by 3.46% and 4.46%, which on its face seems
modest. However, the affected tax rates would actually increase by
seventy-six and ninety-eight percent, respectively. This difference is so
significant that it could materially affect whether a person would sign the
petition, as it is one thing to increase someone’s taxes between three and
four percent and another to nearly double them.” 245 Ariz. at 298 ¶ 29.
IIE, however, disregarded Molera and tried again to couch this significant
marginal tax increase in terms of “modest” percentages (“a 3.5%
surcharge on taxable income”). Here, as in Molera, the 100-word
description does not inform signers that the “surcharge” would increase
the marginal tax rate on those subject to the “surcharge” by 77.7%. The
failure to disclose the Marginal Surcharge Increase constitutes an
omission of a principal provision.4

c. The Business Income Treatment is a principal provision of the Initiative.

Under applicable tax law, income generated by businesses – sole
proprietorships, limited liability companies, S-corporations, and
partnerships – that is not paid at the business level “passes-through” to
individuals and is captured as taxable income of the business owners.

They need our help!” [Exh. 7] That a non-resident was advertising the need to increase salaries for teachers
evidences the materiality of the Distribution.
4
The Court notes that Defendant IIE’s expert, Dr. Jon. Krosnick, when directly questioned by the
Court, admitted that failing to include a marginal tax rate above a threshold was one factor making a
statement confusing to people. Dr. Krosnick’s testimony was focused on a survey of registered Arizona
voters. It is a distinction without a difference that the confusion about which Dr. Krosnick testified involved
Arizona voters completing a survey about a ballot measure, as opposed to signing a petition to support a
ballot measure.

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This “pass-through” business income is taxed at the individual level. The

100-word description does not alert signers that this “pass-through”
“business” income would be subject to the “surcharge” if it was part of
an individual or married couple’s taxable income exceeding the
applicable threshold. For this Initiative – one creating a “surcharge” –
the income subject to the “surcharge” is a principal provision.5

d. The “No Supplant Clause6” is a principal provision of the Initiative.

Although Arizona’s Voter Protection Act would protect monies raised
from the “surcharge” from being swept by the Arizona Legislature to
other areas of government, IIE drafted the Initiative to ensure that the
Legislature could not reduce, or supplant, other money for public
education because of the funds raised pursuant to the “surcharge.” The
No Supplant Clause, therefore, limits the power and authority of the
Arizona Legislature. Curtailing the discretion, authority, and operations
of the Legislature as it relates to funding public education – a function of
the Legislature pursuant to Article IV, § 9 of the Arizona Constitution –
is a principal provision. The failure to refer to the No Supplant Clause in
the 100-word description constitutes an omission of a principal provision.

e. The Local Revenue Clause is a principal provision of the Initiative.

Article IX, § 21 of the Arizona Constitution establishes aggregate
expenditure limits for school districts. These limits, based on cost-of-
living adjustments and student population changes, apply to “receipts of
any kind whatsoever received by or for the account of a school district.”
Arizona Constitution, Art. IX, Sec. 21(4)(c).7 Again, the Initiative’s
mandate to raise and spend funds, notwithstanding the Article IX, § 21
5
Although the factual testimony of Plaintiff’s expert, Jim Rounds, was considered, the Court did
not need to, and therefore did not, consider the expert opinions of Mr. Rounds when making this decision.
Defendant IIE’s Rule 702 motion to strike, therefore, is denied as moot.
6
Under the Initiative, the Legislature “may not supplant, replace or cause a reduction in other
funding sources.” Proposed A.R.S. § 15-1284(E) [Exh. 1 at 01-006]
7
The Initiative’s proponents submitted the Initiative to Legislative Council, and were informed of
the possible unconstitutionality of the terms inconsistent with Art. IX, Sec. 21. [Exh. 2]
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limits, is principal provisions. The complete failure to mention Article

IX, § 21 limits, or local revenues, in the 100-word description constitutes
an omission of a principal provision.

10. Each of the Omitted Provisions, standing alone, fails to comply with A.R.S. §
19-102(A).

11. The failure to include each Omitted Provision, standing alone, in the 100-word
description created a significant danger of confusion or unfairness to a
reasonable Arizona voter. Omitting the Distribution created a substantial danger
of confusion to a reasonable Arizona voter who may believe that more or less
than 50% of the funds raised would be used to increase teacher salaries (for
example, that substantially all money raised by this Initiative would fund
increased teacher salaries). Omitting any reference to the Marginal Surcharge
Increase created a substantial danger of confusion to reasonable Arizona voter
about how profoundly taxes are being increased for those paying the
“surcharge.” Omitting any reference to Business Income Treatment created the
substantial danger that a reasonable Arizona voter failed to appreciate that
business “pass-through” income would be subject to this new tax. Omitting any
reference to the No Supplant Clause created the substantial danger of confusion
for a reasonable Arizona voter, who would not be put on notice that the Initiative
limited Legislative discretion and authority when funding education. And,
omitting any reference to the Local Revenue Clause created the substantial
danger of confusion for a reasonable Arizona voter, who might not appreciate
the limits imposed by the Local Revenue Clause in the Arizona Constitution,
and/or appreciate that the Initiative was an attempt to change and/or circumvent
Constitutional spending limits.

12. Failing to include all the Omitted Provisions, in the aggregate, creates a
significant danger of confusion or unfairness to a reasonable Arizona voter.

13. The 100-word description is misleading by its omission of principal provisions.

14. In addition to omissions, the use of the term “surcharge” in the 100-word
description created a substantial likelihood of confusion for a reasonable
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Arizona voter. In 2018, IIE was afforded a luxury few litigants receive: an
Arizona Supreme Court decision discussing how to phrase the proposed tax
increase. Molera, 245 Ariz. at 298, ¶ 29. Instead of using the phrasing that had
been blessed by the Arizona Supreme Court, IIE chose to use different language,
as was its right. Rather than calling this a tax increase, IIE used the phrase
“surcharge” – an undefined term that has been used in only two other tax laws
in Arizona. Under Arizona law, “[w]here the description lends itself to two
sharply divergent interpretations with very different and significant
ramifications, the danger of confusion is sufficiently great that it undermines any
assurance that the voters received adequate notice of what they were signing.”
Id. at ¶ 31. Although the use of the term “3.5% surcharge on taxable income”
may be perfectly understood by some Arizona voters to be permanently adding
3.5 percentage points to the taxation rate – an increase 77.7% in the tax rate on
taxable income above the threshhold – others reasonable Arizona voters may
understand a “surcharge” to mean a temporary tax, or to mean a modest 3.5%
increase of the existing tax rate. The use of the term “surcharge” creates a
substantial likelihood of confusion for a reasonable Arizona voter.

15. In an attempt to salvage the 100-word description, Defendant IIE argues that
people signing the petition for the Initiative simply could have read the actual
language of the full text. This argument is unpersuasive for two reasons:

a. The Arizona Supreme Court has rejected this argument expressly in

Molera, noting: “To hold that such a confusing description is permissible
because the truth may be discovered in the many pages of the initiative,
or that the proponents actually intended something different from what
the words they chose to use indicate, is to eviscerate the description
requirement and its important purposes of transparency, fairness and
disclosure.” 245 Ariz. at 299 ¶ 32.

b. If a reasonable Arizona voter was inclined to read all 9 pages of the

Initiative, review of the proposed Initiative likely would begin on page 1,
with the “Findings and declaration of purpose” section. 8 Reviewing this

8
This section provides as follows:
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section magnifies the significant risk of confusion resulting from the

failure to mention the Omitted Provisions in the 100-word description –
most notably with respect to the omission of the Distribution and No
Supplant Clause of the Initiative. Review of the “Findings and
declaration of purpose” section at the beginning of the Initiative gives the
distinct impression that money is being raised for teachers – who are
mentioned in each of the three numbered paragraphs. Nothing in the
“Findings and declaration of purpose” section offers any indication to a
reasonable Arizona voter that no more than 50% of the revenues being
raised would be used for classroom teacher9 salaries, nor is there any
indication of a change to the structure of Legislative authority and
discretion as it relates to school funding.

16. The 100-word description fails to comply with A.R.S. § 19-102(A). Plaintiff’s
objection to the Initiative’s 100-word description has been proven.

B. COMPENSATION OF PETITION CIRCULATORS.

A.R.S. § 19-118.01(A) provides in pertinent part: “A person shall not pay or receive
money or any other thing of value based on the number of signatures collected on a
statewide initiative or referendum petition.” (Emphasis added.) This statute is not
ambiguous. The Court affirms its prior ruling that the plain language of the statute will be
applied in this case.

“The People of the State of Arizona find and declare as follows: (1) All Arizona
students deserve a certified, qualified teacher in their classrooms and to learn in
the safest possible environment, (2) Years of underfunding by the Arizona
Legislature have led to crisis-level teacher shortages and woefully inadequate
support services. (3) Additional permanent funding is needed to develop, recruit
and retain qualified teachers, hire counselors, close the achievement gap, improve
career and vocational education for Arizona students, prepare Arizona students for
good jobs and careers and meet Arizona employers’ need for a skilled workforce.”
9
Given the definition of “teacher” in the Initiative, it is highly likely that less than 50% of the
money raised by this proposed “surcharge” would end up in the salaries of actual classroom teachers as
they are commonly understood in the common vernacular.
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THE COURT FINDS as follows:

17. Hourly baseline salaries for petition circulators do not violate A.R.S. § 19-
118.01(A). Paying a circulator by the hour or by the day is consistent with this
standard. Similarly, it is legitimate to increase, in advance, the compensation
paid to a petition circulator. Like any other employer, if an employee (a petition
circulator) previously has performed job responsibilities well and in accordance
with company policy, an employer is within its right to exercise discretion and
increase future hourly compensation. Plaintiffs have failed to prove that pay
raises were automatic and not discretionary. Likewise, it is absolutely
appropriate to decrease the compensation (or terminate employment) for
employees who have failed to perform their job responsibilities. Nothing about
these standard employment decisions offends A.R.S. § 19-118.01(A).

18. Plaintiffs have not proven that the “spin the wheel” program conducted at the
“signature turn-in” events held every Monday in June 2020 violated A.R.S. §
19-118.01(A). There was no correlation to actual number of signatures turned
in and a circulator’s ability to “spin the wheel.” This program appeared to be
used to enhance morale among petition circulators, and Plaintiffs have not
proven that it was used to compensate for signatures. Similarly, Plaintiffs have
not proven that retention and recruitment / referral bonuses were in any way
correlated to the number of signatures obtained by a circulator.

19. Plaintiffs have proven that several bonus programs utilized by Petition Partners
violated A.R.S. § 19-118.01(A) because, under these bonus programs, petition
circulators were compensated, in part, based on the number of signatures
collected. IIE’s agent, Petition Partners, advertised to circulators that eligibility
for these bonuses hinged on the number of “sets” – signatures for multiple
initiative petitions – that the circulator obtained. Although Petition Partners
provided testimony that actual performance was not considered, this testimony
is not particularly credible, given the contradictory testimony of the owner of
Petition Partners, Andrew Chavez, and his focus on the importance of
productivity.

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20. Petition circulators for the Initiative had the opportunity to earn something of
value, above and beyond their hourly salary, based in part on the number of
signatures gathered, by participating in the following programs that violate
A.R.S. § 19-118.01(A) (the “Offending Programs”):10

i. “Dual for the dollars” / “clash for the cash”: This bonus program was
a “competition where two circulators dual head to head and see who
can collect more signatures during the week.” The circulators
competed for a cash prize. [Exh. 10 at 10-010 through 10-013]

ii. Productivity bonuses. [Exh. 10 at 10-019 through 10-021]

iii. The “2020 …. show me the MONEY” giveaway program. [Exh. 28]

iv. Weekend warriors. [Exh. 29; Exh. 10 at 10-007]

21. Pursuant to A.R.S. § 19-118.01(A), “[s]ignatures that are obtained by a paid

circulator who violates this section are void and shall not be counted in
determining the legal sufficiency of the petition.”

22. Plaintiffs argue that all signatures obtained by Petition Partners are void unless
IIE can prove that paid circulators were not involved in bonus programs. The
Court disagrees. The Legislature enacted A.R.S. § 19-118.01(A) to invalidate
only the signatures of a “paid circulator”11 and not all signatures of the person

10
The Court’s determination that violations occurred are made using the applicable civil burden of
proof. The elevated burden of proof for criminal cases – beyond a reasonable doubt – has not been applied
in this case when making findings relating to compliance with A.R.S. § 19-118.01.
11
A “paid circulator” means “a natural person who receives monetary or other
compensation for obtaining signatures on a statewide initiative or referendum petition or for
circulating statewide initiative or referendum petitions for signatures.” A.R.S. § 19-118(A).

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paying the circulator.12 The plain language of the statute will be applied.
Plaintiffs’ burden is to prove which circulators were improperly paid.

23. All signatures are presumptively valid. Kromko v. Superior Court, 168 Ariz. 51,
58 (1991). Plaintiffs have the burden to prove which signatures are invalid
because paid circulators had their compensation linked to the number of
signatures obtained. This is not the burden of the Defendants.

24. Plaintiffs have overcome the presumption of validity with respect to all paid
circulators who received bonus money from participating in the Offending
Programs. Because paycheck stubs do not identify whether bonuses paid by
Petition Partners resulted from Offending Programs, or other programs which
paid acceptable bonuses to circulators, the Court is left to consider Petition
Partners’ “Payroll Prep Sheets.”

25. Petition Partners compensated circulators weekly. Consequently, because

Plaintiffs have overcome the presumption of validity, all signatures gathered by
a circulator during the week the circulator received an improper bonus are
presumptively void. However, if no improper bonus was paid during the
following week(s) to that circulator, the taint of the prior improper payment is
purged and the signatures gathered in the following week(s) are presumptively
valid.13

12
If the desire exists to invalidate all signatures gathered by a person or company paying improper
bonuses, such as those paid in the Offending Programs, legislation is required. The plain language of A.R.S.
§ 19-118.01 does not compel or permit such widespread invalidation, as written.
13
Arizona election law provides little guidance about the actual standard to be used. Because of
the plain language of the statutes, and because the Legislature did not say that “all” signatures ever obtained
by a circulator receiving an improper benefit for signatures (or by agents of a person who pays improper
bonuses) were void, the Court is applying the long-standing “fruit of the poisonous tree” jurisprudence,
commonly used with respect to the Exclusionary Rule in criminal cases. All signatures (i.e. “fruit”)
obtained by a circulator during a week in which the circulator received an improper bonus payment (the
“poisonous tree”) are void. However, signatures gathered by the circulator during the next pay period in
which no improper bonus was paid (i.e. evidence attenuated in time so as to purge the taint of the primary
illegality) are presumptively valid once again. See generally, Wong Sun v. United States, 371 U.S. 471
(1963).
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26. Defendant IIE’s argues that payment for “sets” does not amount to compensation
for signatures. This argument is not credible. “Sets” means a set of signatures
for multiple ballot proposals. Whether compensation is paid for signatures on
one ballot measure or multiple ballot measures, payment and receipt of anything
of value to compensate a paid circulator based on signatures gathered violates
A.R.S. § 19-118.01.

27. As stated, the best evidence of bonuses paid from Offending Programs comes
from a detailed review of Exhibit 67 – the “Payroll Prep Sheets.” After
reviewing Exhibit 67, Plaintiffs have proven that the weekly compensation of
146 circulators included improper payments for signatures through an Offending
Program. This is broken down as follows:

Week Number of circulators receiving improper

bonuses during the week in question

February 19 0

February 26 0

March 4 1

March 11 7

March 18 2

March 25 1

April 1 1

April 8 1

April 15 1

April 22 0

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April 29 0

May 6 1

May 13 1

May 20 1

May 27 2

June 2 9

June 10 10

June 17 8

June 24 54

June 29-30 23

July 8 21

July 15 2

146 instances where an employee’s weekly pay

TOTAL included an improper bonus pursuant to
A.R.S. § 19-118.01

28. Defendant IIE has failed to credibly rebut Plaintiffs’ evidence that the weekly
compensation of Petition Partners’ employees does not violate A.R.S. § 19-
118.01 during these 146 instances.

29. Plaintiffs have requested that the Court temporarily enjoin the Initiative from
being placed on the ballot so that they can discover exactly how many signatures
were obtained by the circulators during weeks in which improper bonuses from
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Offending Programs were paid. The record is devoid of evidence identifying

how many signatures were gathered during each of the 146 instances identified
by the Court. Plaintiffs make a persuasive policy argument that failing to issue
an injunction will encourage companies like Petition Partners from keeping
adequate records in the future.

30. The Court, however, declines to issue a temporary injunction to permit

Plaintiffs’ requested discovery – not because Plaintiffs have not demonstrated
the payment of improper bonuses, but instead because Plaintiffs have failed to
demonstrate evidence supporting the issuance of a temporary injunction. Under
Arizona law, a temporary injunction can be issued when a party demonstrates,
among other things, a strong likelihood of success on the merits. Plaintiffs have
failed to make a sufficient showing in this regard in that they have not
demonstrated that injunctive relief is likely to result in the invalidation of a
sufficient number of signatures to make a difference with respect to Plaintiff’s
second objection.

31. Based on the evidence presented at trial, the most productive circulators would
obtain a maximum of 12 sets of signatures per hour. Although some circulators
worked more than 40 hours per week, many circulators worked less than 40
hours per week. If each circulator worked full time (a 40 hour week), and
obtained the maximum number of signatures every hour (12 per hour), a full-
time circulator working with maximum productivity would be expected to obtain
approximately 480 signatures in a week. Using these maximum weekly
productivity figures, the 146 weeks during which circulators received an
improper bonus pursuant to A.R.S. § 19-118.01 from an Offending Program
would have yielded 70,080 void signatures. (40 hours per week x 12 signatures
per hour = 480 signatures per week x 146 circulator-weeks of void signatures =
70,080 void signatures). The Court believes that these approximations likely
would invalidate more signatures than would be invalidated had Plaintiffs
introduced actual records in evidence.

32. To appear on the General Election ballot, the proponents of the Initiative needed
to obtain 237,645 signatures. After review, the Secretary of State approved
377,456 signatures in support of the Initiative. Assuming arguendo that not one
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of the signatures approved by the Secretary of State was obtained during the 146
weeks that a circulator was paid an improper bonus, the disqualification of
approximately 70,080 signatures still would leave the Initiative with over
300,000 valid signatures – which is well in excess of the legal requirement.
Consequently, a temporary injunction is unlikely to change the result with
respect to Plaintiffs’ second objection. Therefore, because Plaintiffs have failed
to demonstrate a reasonable likelihood of successfully invalidating a sufficient
number of signatures pursuant to A.R.S. § 19-118.01, Plaintiffs’ request for a
temporary injunction is denied.

33. In sum, Plaintiffs have failed to prove their second claim of illegality – namely,
that there were an insufficient number of valid signatures filed in support of the
Initiative.

C. CONCLUSIONS AND ORDERS.

Two observations are evident at the conclusion of this trial. First, the voluminous
briefing and spirited trial presentations manifest that the issue of public school funding has
two sides, each firmly dedicated to its own vision of how education should be funded.
Second, teachers – and their salaries – appear to be getting caught in the middle of this
proverbial tug-of-war.

Defendant Invest in Education elected to lean into the public sentiment from 2018
and drafted this Initiative for Arizona voters, ostensibly advocating for an increase in
teacher salaries. This Initiative, however, was about much more than merely raising
teacher salaries. IIE chose to couple funding for a teacher salary increase with other
material terms – creating other funding for schools, imposing limits on the Arizona
Legislature, and attempting to circumvent spending limits in the Arizona Constitution. The
Court does not doubt that IIE had noble intentions, and the Court notes that IIE, as the
proponent of the Initiative, was well within its rights to fashion the Initiative as it wished.

Where Defendant Invest in Education legally failed was in its obligation to provide
transparency to Arizona’s voters. IIE’s 100-word description failed to identify all of the
principal things this broad Initiative actually would do. Because of this lack of
transparency, several questions remain, including:

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 Would a sufficient number of signatures have been obtained had the

description identified the measure for what it was – a new and permanent
tax?

 Would a sufficient number of signatures have been obtained if the description

revealed that no more than 50% of the revenues raised would be used to
increase teacher salaries?

 Would a sufficient number of signatures have been obtained if the description

mentioned that, at a certain level, pass-through income from several types of
businesses would have been subject to the tax?

 Would a sufficient number of signatures have been obtained if the description

identified that the marginal tax rate increased by 77.7% on individuals and
married couples who were subject to the tax?

 Would a sufficient number of signatures have been obtained if the description

mentioned that the Initiative prohibited the Legislature from ever supplanting
the funds,14 even if the funds collected pursuant to the tax could not be spent
under the Arizona Constitution?

The answers to these questions are unknown because IIE omitted principal provisions of
the Initiative from its 100-word description.

The unfortunate victims in this case are Arizona’s teachers and students. The Court
commends Arizona’s teachers for their hard-work, dedication and care for Arizona’s
students, who are the future of our state. Defendant Invest in Education, quite simply, let
Arizona’s teachers down for the second time since 2018. Although IIE was free to make
the Initiative as broad as it wanted – and the Court casts no aspersions on the intentions

14
This question is particularly germane for a ballot measure being circulated in 2020. Indeed, given
the current pandemic and public health emergency, reasonable Arizona voters may be particularly sensitive
to the benefits of the Legislature having flexibility and authority to apply funds to address the exigent needs
of Arizona’s citizens. In the current environment, reasonable Arizona voters may be less likely to sign a
petition for a ballot measure with a No Supplant Clause.
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underlying the proposed legislation – IIE nonetheless was required to be transparent when
obtaining signatures. Instead of identifying all principal provisions in the Initiative’s
description, Defendant Invest in Education circulated an opaque “trojan horse” of a 100-
word description, concealing principal provisions of the Initiative. No matter how well-
intentioned IIE’s Initiative was, its non-transparent description violates Arizona law.
Consequently, this self-inflicted shortcoming will prevent voters from considering this
Initiative – a result that understandably will disappoint15 and trouble teachers,
administrators, some education advocates, and many Arizona voters.

Good cause appearing,

IT IS ORDERED finding in favor of Plaintiffs and against Defendant Invest in

Education as to Count I. The Court hereby declares that Plaintiffs are entitled to declaratory
relief because the Initiative Petition is legally insufficient. The 100-word description does
not accurately describe the Initiative’s principal provisions without the substantial risk of
confusion for a reasonable Arizona voter. Therefore, the Initiative shall not be certified for
placement of the statewide General Election ballot for the November 2020 General
Election.

IT IS FURTHER ORDERED finding in favor of Plaintiffs and against Defendants

as to Count II. Injunctive relief is warranted pursuant to A.R.S. § 19-122(C). Plaintiffs
have proven that they are entitled to injunctive relief for multiple reasons. Restraint of the
prejudicial act of certifying the Initiative for the general election ballot is needed. Delaying
injunctive relief to allow such certification to occur would violate the rights of Plaintiffs,
cause irreparable injury, and render future judgment ineffectual. Furthermore, principles
of equity compel the issuance of an injunction to protect the initiative process and to

15
The disappointing aspect of this case is that IIE ignored the lessons provided by the Arizona
Supreme Court in Molera in 2018. When a teacher specifically instructs a student exactly how to complete
a math problem, and when the student disregards the instruction and does the math problem incorrectly on
a future test, should the student receive a passing grade? The simple answer is no. However, it is not unfair
for a feeling of disappointment to arise based on the student’s performance because the student disregarded
the teacher’s specific instruction. IIE can be described much like the student in this example. Two years
ago, the Arizona Supreme Court in Molera identified exactly how IIE could accomplish precisely what IIE
seeks to accomplish. (IIE was a party in Molera.) Despite this extremely rare occurrence in Arizona
jurisprudence, IIE disregarded this instruction and elected to craft the Initiative its own way, using
terminology from states such as Massachusetts and Maine that Arizona, by and large, does not use. Like
an honest teacher, the Court cannot “look the other way,” pretend that IIE has done what is required, and
allow IIE to pass.
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prevent the legally-insufficient Initiative from appearing on the general election ballot. The
balance of equities and considerations of public policy strongly support the issuance of
injunctive relief. Consequently, a permanent injunction is issued enjoining and prohibiting
the Arizona Secretary of State from certifying and placing the Initiative on the November
2020 General Election ballot.

IT IS FURTHER ORDERED finding in favor of Plaintiffs and against the Arizona

Secretary of State in her official capacity only as to Count III. The Court issues mandamus
relief directing the Secretary of State to fully and effectively discharge her non-
discretionary duty to reject the Initiative as legally insufficient.

IT IS FURTHER ORDERED, in the exercise of the Court’s discretion, that all

parties shall bear their own attorneys’ fees, costs and expenses in connection with this
matter.

IT IS FURTHER ORDERED that, because no further matters remain pending in

this case, this Order shall constitute a final Judgment pursuant to Rule 6, Arizona Special
Action Rules of Procedure, and Rule 54(c), Arizona Rules of Civil Procedure.

The parties are notified that Arizona law requires a notice of appeal to be filed
within five calendar days after the superior court’s decision. See Bohart v. Hanna,
213 Ariz. 480, 143 P.3d 1021 (2006). An appeal that is belatedly prosecuted, such as
one filed on the last day of the statutory deadline, may be dismissed on the grounds
of laches even if timely filed. See McClung v. Bennett, 225 Ariz. 154, 235 P.3d 1037
(2010). Special procedural rules govern expedited appeals in election law cases. Ariz.
R. Civ. App. P.10.

DATED: July 31, 2020

____________________________
Christopher A. Coury
Superior Court Judge

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