Grant v. Meyer

PER CURIAM. This appeal by plaintiffs-appellants involves a challenge to the constitutionality, under the First and Fourteenth Amendments, of Section 1-40-110 C.R.S. (1980), which prohibits payment of initiative petition circulators and provides criminal sanctions for violation of the statute. We consolidated consideration of a motion by plaintiffs for an injunction pending appeal with the merits, accelerated the appeal, heard argument on the merits, and have considered the briefs of the parties on the merits and the motion. The court concludes that the judgment of the district court upholding the statute should be, and it is affirmed, and the motion for an injunction is denied. Judge Holloway dissents. The dissenting opinion is attached following the majority opinion. Judges Barrett and Doyle have adopted the opinion of the United States District Court for the District of Colorado filed July 3, 1984 in the captioned cause as the majority opinion of the Court. A copy of the order setting forth the opinion of United States District Judge John P. Moore is attached hereto and is incorporated herein by reference. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 84-JM-1207 PAUL K. GRANT, et al„ Plaintiffs, vs. NATALIE MEYER, in her official capacity as Colorado Secretary of State, et al., Defendants. ORDER THIS MATTER is before me on a complaint seeking injunctive and declaratory relief. At issue is whether a statute of the state of Colorado prohibiting payment of persons circulating petitions proposing a constitutional amendment violates the plaintiffs’ rights to free speech. Jurisdiction is asserted upon 28 U.S.C. §§ 1331 and 1343(a)(3). The plaintiffs in this case are interested in the adoption of an amendment to the constitution of the state of Colorado that would remove motor carriers from the jurisdiction of the state Public Utilities Commission. In accordance with provisions of the state law, they have qualified the issue for submission to the registered electors of Colorado; however, before the question can be placed upon the November ballot, the proponents must obtain signatures of 46,737 registered electors upon petitions supporting the measure. They now claim that their ability to achieve this goal would be enhanced if they could employ persons to circulate these petitions, yet they are faced with Colo.Rev.Stat. § 1-40-110, which prohibits and makes criminal the payment of any consideration for the circulation of petitions. Plaintiffs further claim that part of the process of obtaining the signature of electors is the communication to those persons of the merits of the issue. They indi [1212] cate it is often necessary to educate and argue with potential petition signers to convince them the issue is one which should be considered by the general electorate. Thus, they believe the communication inherent in the petitioning process is political expression, hence protected speech. Upon this predicate, plaintiffs argue that Colo. Rev.Stat. § 1-40-110 inhibits their protected right because it prevents them from hiring persons to help in the dissemination of their beliefs. In support of their argument, they rely principally upon Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Hardie v. Fong Eu, 18 Cal.3d 371, 134 Cal.Rptr. 201, 556 P.2d 301 (1976); and two unpublished United States District Court opinions from the District of Oregon and the District of Columbia. I find these cases either inapposite or unpersuasive. Evidence taken in support of the complaint indicates the plaintiffs’ accord that money is a basic motivating factor in obtaining the service of persons to carry public petitions. Each of those plaintiffs who testified indicated that payment for their own time spent in circulating petitions would be welcome, and payment of others to take their places on the hustings would free them for other endeavors. Indeed, one testified that payment of circulators would permit him to spend more lucrative time in pursuit of his profession. At the same time, the evidence did not indicate that plaintiffs were prevented in any way from espousing their cause simply because they could not obtain paid petition circulators. At best, the evidence indicates plaintiffs’ purposes would be enhanced if the corps of volunteers could be augmented by a cadre of paid workers. Thus, a threshold question is raised. Does the statute in question constitute a restraint upon the plaintiffs’ right to free speech? Remembering that the right asserted here is the right to articulate a political belief to others in face-to-face confrontations over a petition for an initiated constitutional amendment, one must first ask whether the statute imposes a burden on that right. In some of the cases relied upon by plaintiffs, it is apparently assumed that the burden exists. Yet, I question whether the individual right of any of the plaintiffs is affected by this statute. In order to cross the first threshold, one must find that plaintiffs’ rights to political elocution have been restricted because they cannot pay someone else to speak. As I understand the contention, it is not that plaintiffs desire to pay for the dissemination of their political position, as one would do in political advertising, but that they desire to pay someone else to speak upon a subject which plaintiffs support. Thus viewed, the question arises as to whose rights of speech are involved. Can plaintiffs claim their rights to free speech have been invaded because someone else cannot be paid to speak? Does the statute in question suppress communication? Is this situation akin to the restriction of campaign contributions upheld by the court in Buckley v. Valeo, supra? In Buckley, the court contrasted the first amendment ramifications of limitations on political contributions to those on political expenditures. The court noted in present society the expenditure of money is a necessary ingredient in effective political speech; therefore, any restriction on expenditures resulting in a suppression of political speech was in conflict with the first amendment. Hence, the effort to restrict the amount one could spend on a political campaign had to result in an unconstitutional restriction on protected communication. In contrast, the court found a limitation on contributions to political campaigns was not constitutionally abhorrent. Because any contribution is nothing more than a generalized expression of support for a candidate or a view, the court concluded a contribution was not the same as a communication of political thought; hence contributions could be restricted. Here we must remember, the advocates of the plaintiffs’ proposed constitutional amendment are not restricted in the personal communication of their belief in the [1213] proposition in any way but arguably by Colo.Rev.Stat. § 1-40-110. Indeed, their ability to spend money on every other form of thought-dissemination is totally unfettered. While they have testified they would prefer to be able to spend money to hire circulators rather than to buy advertising, the test of constitutionality does not lie in their preferences. One must ask whether their personal rights of speech are transgressed by a restriction which only limits their ability to pay someone else to speak. Within the limited framework of this case, I believe the answer is no. In light of the unlimited possibilities plaintiffs have to publicize their belief in their proposed measure, I am persuaded the statute in question is not a burden on their first amendment right. It seems to me, the limitation imposed by Colo.Rev. Stat. § 1-40-110 restricts only a generalized support for a political thought, much like the contribution of money was regarded in Buckley, supra. Thus, when the statute is placed in this perspective, it does not appear constitutionally onerous. Yet, assuming for the sake of argument that this statute in some way could affect the plaintiffs’ personal rights to political speech, have they shown the existence of such an effect? I conclude they have not. The evidence submitted by the plaintiffs consisted principally in their assertion the payment of petition circulators would facilitate the circulation of petitions. As previously indicated, they did not establish any adverse effect upon their ability to communicate arising out of the statute. By contrast, the defendants have proved some provocative historical data from Colorado. This data shows advocates of initiated measures in this state have as much success in getting ballot position for their measures as do citizens in states in which petition circulators can be paid. (See defendants’ ex. E.) Statistical data from the District of Columbia and the 23 states whose laws permit the initiative process indicate that since the process was adopted in Colorado in 1910, this state ranks fourth in the total number of initiatives placed upon the ballot. This is so despite the fact that 20 other states and the District of Columbia permit the payment of petition circulators. The evidence also establishes that Colorado’s requirements for placing initiated measures upon the ballot are about the least restrictive of any state. These facts tell me the prohibition against payment of circulators is in reality no inhibition. Finally, in light of this data, we must consider whether the state interest to be achieved by the statute is sufficiently compelling to withstand a first amendment attack. The defendants’ evidence indicates the- initiative process got its start in the west as a “grassroots” means of protecting citizens from overpowering special interest groups whose financial strength was used to manipulate state legislators. Through initiated legislation, citizens were able to enact measures for the benefit of the populace as a whole. Indeed, this form of government has assumed an almost sacrosanct position in the role of individual rights in many states.1 Therefore, Colorado asserts a compelling interest in protecting the integrity of the process and in insuring any initiated measure has a sufficiently broad base of support to assure its validity for public consideration.2 While plaintiffs’ thrust at the question of state interest is aimed at the potential for illegal acts upon the part of paid circula-tors, that does not seem to be of significant concern to defendants. Indeed, the state has not suggested paid circulators would be persuaded to violate the law simply because they were paid. Its articulated concern is that people may be persuaded to sign petitions for reasons other than the political validity of the cause espoused. [1214] In line with that concern, plaintiff Grant has supplied some substance. He indicated during the course of his testimony how difficult it was to obtain petition signatures. In his experience, he was often unable to get people to listen long enough for him to communicate the benefits of the proposed constitutional amendment. Yet, on one occasion, he found that people were more willing to sign his petition because it was his birthday than they were to sign because they believed in the importance of his cause. He also indicated that in his experience in the state of Florida, a place where circulators can be paid, he encountered circulators of a petition he supported who padded the petitions with names taken from the telephone book. While he stated those petitions were not submitted when the padding was discovered, I would nonetheless assume the circulators were motivated to this endeavor by the money they received for each signature obtained. This testimony leads directly to the state’s purpose of protecting the integrity of the process. The evidence has established under Colorado law, all petition signatures have presumed validity, and no effort is made, as in most states, to independently verify the validity of signatures except upon the filing of written objections. Thus, in order to retain the facility with which initiated measures are qualified for the ballot and to protect the validity of petitions, Colorado does have an interest in eliminating a temptation to pad petitions which transcends the remedy of making such padding a criminal offense. As I presently view the situation, the elimination of the temptation to pad is an exchange for the presumption of validity which attaches to petitions. Any change in one would have to have an effect upon the other. Thus, I do not believe the existence of a criminal sanction against subscribing false signatures to a petition is an equivalent and less onerous response to the padding of petitions than the device of eliminating the temptation to do so. While it is of perhaps less significance, it cannot be gainsaid that the testimony of Mr. Grant lends credence to the state’s contention paid circulators, who are really sales persons paid on the basis of results, would be persuaded to use techniques of salesmanship which are not inherently illegal just to enhance their own compensation. Indeed, if persons were persuaded to sign Mr. Grant’s petition simply because it was his birthday, it takes only a minor stretch of the imagination to conjure possibilities of circulators obtaining signatures because of any other persuasive tactic resulting from the fertile mind of an expert salesman. In short, I take seriously the state’s argument it has an interest in protecting the integrity of the initiative process. I look upon the other expressed state interest in like manner. The state’s evidence of the history and limitations of the initiative process lends ample credence to its assertion that there is a significant need to insure any measure has a substantial base of support before it is submitted to the electorate. The state’s expert pointed out the process of initiative is more rigid in practice than the process of qualifying a candidate for the ballot by petition. That is, an initiated measure is drafted, submitted to state officers for review, comment, and selection of a ballot title, and then presented to the public. Thereafter, the measure cannot be changed in any way. Thus, the electorate is put to the difficult test of whether the measure in its submitted form should be cast into the stone of the constitution or laws of the state. The difficulty arises from the fact that unlike the legislative process existing in the General Assembly, where the process of debate can readily point out mistakes in draftsmanship or concept and where those mistakes can be easily changed, the legislative process of initiative is rigid, and no alterations can be accomplished. Thus, the state has an interest in seeing that any measure has significant support to insure only the better reasoned and drafted measures are given the chance of adoption. See Citizens Against Legalized Gambling v. District of Columbia [1215] Board of Elections and Ethics, 501 F.Supp. 786 (D.C.1980). The rigidity of the initiative process makes it a significantly different process from that employed in placing individual candidates on the ballot for consideration by the electorate. For that reason, I wish to be clearly understood that my conclusion in this case is restricted to the process of petition circulation of initiated measures. Whether the same state interests exist, or whether the same first amendment considerations apply to the payment of circula-tors of petitions for candidates, is a matter I have not considered, yet it is one which must not be confused with the matter before me now. One final consideration should be made. Plaintiffs have relied in part upon Urevich v. Woodard, 667 P.2d 760 (Colo.1983). That case is clearly inapposite, but it does point out another distinction which must be drawn. Even though Urevich pertains to the same statute before me in this case, its result is predicated upon the right of initiative found in the Colorado constitution, and not the first amendment. As previously noted, Colorado regards the right of initiative as the “most important right reserved to [the electors] by the constitution.” Colorado Project-Common Cause v. Anderson, 495 P.2d at 221. Thus, whether Colo. Rev.Stat. § 1-40-110 would meet the test of Colo. Const., art. II, § 1, were it to be considered in a state court is a matter upon which I do not speculate. On the basis of the foregoing, which shall constitute my findings and conclusions in this matter, it clearly appears to me plaintiffs have failed to demonstrate their entitlement to relief. Accordingly, it is ORDERED judgment enter in favor of defendants and against plaintiffs. Defendants shall be awarded their costs upon the filing of a proper bill of costs within ten days of the entry of judgment. DATED at Denver, Colorado, this 3rd day of July, 1984. BY THE COURT: /s/ John P. Moore John P. Moore, Judge United States District Court (Signature page of order in Grant v. Meyer, No. 84-JM-1207.) Footnotes [1] For a more detailed exposition of the right of initiative in Colorado, see Colorado Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220. [2] Plaintiffs have asserted the compelling interest of the state is in preventing fraud in the process, but that is not the state’s position at all.