from the Superior Court in Maricopa County No. CV2015-091483
The Honorable Robert H. Oberbillig, Judge
Offices of Paul Weich, Tempe By Paul M. Weich Counsel for
Coppersmith Brockelman PLC, Phoenix By Roopali H. Desai, D.
Andrew Gaona Counsel for Defendants/Appellees.
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson
Sign Here Petitions, LLC ("Sign Here") appeals from
a judgment dismissing, with prejudice, all claims against
Andrew D. Chavez, Petition Partners, LLC, and AZ Petition
Partners, LLC ("Petition Partners") and the denial
of Sign Here's post-judgment motion. We affirm and hold
when ruling on a motion for summary judgment in a defamation
case: (1) the superior court must act as gatekeeper
protecting the right to free speech from meritless litigation
to avoid a chilling effect on free expression; (2) in that
role, before allowing a defamation claim to proceed to trial,
the superior court must first determine whether a statement
is capable of bearing a defamatory meaning by considering all
of the circumstances surrounding the statement; and (3) in
doing so, the superior court is to evaluate the circumstances
surrounding an allegedly defamatory statement from the point
of view of a reasonable person.
AND PROCEDURAL BACKGROUND
Sign Here and Petition Partners are in the business of
collecting voter signatures on petitions proposing ballot
measures in Arizona. Each also engages in
"suppression" of signature-gathering efforts.
Chavez is a managing member of Petition Partners. Chavez
participates in social media websites, such as Twitter and
Facebook, to promote his businesses. Approximately 1000
people followed Chavez on Twitter in November 2015.
In late 2014, Sign Here conducted a signature drive on behalf
of Citizens for Fair Dealing to place a zoning referendum
measure on the ballot in the City of Phoenix. In December,
2014, the city clerk found the referendum petition
insufficient because it lacked the required 16, 987 valid
signatures to qualify. While Sign Here provided 20, 172
signatures, only 12, 659 of those signatures were valid, a
failure rate of almost 40%. The failure rate was based in
part on Sign Here's use of two convicted felons to gather
signatures. The City disqualified all signatures gathered by
those two circulators because they were ineligible to
circulate petition sheets, invalidating 714 signatures. Sign
Here's managing member, Bonita Burks, stated in 2015 that
Sign Here conducted criminal background checks on potential
circulators, but she acknowledged the disqualified felons
passed their background checks.
It is undisputed that the total amount Sign Here was to be
paid on the Cholla referendum contract with Citizens for Fair
Dealing was approximately $71, 000. Citizens for Fair Dealing
withheld approximately $17, 000 of that amount because of a
dispute with Sign Here related to the terms of, and
performance under, the contract.
Chavez published several statements on his Twitter account
about Sign Here's signature collection effort. In March
2015, Sign Here filed a complaint against Chavez and Petition
Partners, alleging Chavez's Twitter postings defamed Sign
Here. The tweets posted on Chavez's account included the
September 24, 2014: "Rivals ready for referendum on
#Phoenix 19thAve and Cholla Castle renovation project.
Expensive pissing match begins on Thursday Oct. 3rd."
November 14, 2014: "Phx 19thAve/Cholla referendum
failure eminent. If so, it's 38th of 38 municipal
projects across country we worked against to fail this
November 25, 2014 (two tweets): (1) "The first and only
project Sign Here Petitions attempted to qualify on their own
will fail. #Phx 19th Ave Castle Referendum is a
disaster"; and (2) "#PHX 19th/Cholla Referendum
will fail b/c of bad signatures. Company that failed in hot
water for using felons. @petitionpartner wins again."
December 11, 2014: "To date more than 1/3 of sigs
collected by Sign Here Petitions are suspected of being
collected by felons. Bad gets worse on #phx referendum."
January 23, 2015: "Phx 19th Ave/Cholla Referendum
failure official today. $100k spent w/ Sign Here Petitions
who delivered less than 1/2 valid sigs necessary."
Petition Partners moved for summary judgment arguing the six
tweets were incapable of defamatory meaning, any claim
relating to other unidentified statements was time-barred,
the claim of tortious interference was unsupported by a
single fact, and the measure of damages (the $17, 000
withheld by its client) was unrelated to statements or
actions by Petition Partners. The superior court granted the
motion and dismissed the case with prejudice.
Petition Partners filed a Motion for Relief from Judgment per
Arizona Rule of Civil Procedure 60(c), taking issue with two
tweets Chavez posted after the grant of summary judgment:
(1) "ICYMI: Judge dismisses case against us and our
honest tweets about Sign Here Petitions failed signature
drive. Good guys win again"; and
(2) "Chicken dinner!"
The superior court denied the post-judgment motion. This
timely appeal followed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and
Arizona Revised Statutes ...