Escamilla v. Cuello
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On January 27, 2012, the Yuma County Superior Court disqualified Alejandrina Cabrera under Ariz. Rev. Stat. 38-201(C) from appearing on the ballot as a candidate for the San Luis City Council. Concluding that section 38-201(C)'s language requirement must be read "in the context of the political office at issue," the court found that Cabrera was not sufficiently proficient in English to perform as a city council member for San Luis. The Supreme Court affirmed, holding, in relevant part, that (1) the trial court correctly interpreted section 38-201(C); and (2) the trial court's interpretation of the statute did not unconstitutionally violate Cabrera's right to participate in government.
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SUPREME COURT OF ARIZONA JUAN CARLOS ESCAMILLA, a qualified elector of the City of San Luis, Yuma County, State of Arizona, ) ) ) ) ) Plaintiff/Appellee, ) ) v. ) ) SONIA CUELLO, in her capacity as ) the City Clerk of the City of ) San Luis, Arizona, ) ) Respondent, ) ) and ) ) ALEJANDRINA CABRERA, a candidate ) for elected office, ) ) Defendant/Appellant. ) __________________________________) Arizona Supreme Court No. CV-12-0039-AP/EL Yuma County Superior Court No. CV201101582 O P I N I O N Appeal from the Superior Court in Yuma County The Honorable John Neff Nelson, Judge AFFIRMED ________________________________________________________________ GLENN J. GIMBUT, CITY ATTORNEY By Glenn J. Gimbut, City Attorney San Luis And ELLEN M. VAN RIPER, ATTORNEY AT LAW By Ellen M. Van Riper Phoenix And TOROK LAW OFFICE, PLLC By Gregory T. Torok Attorneys for Juan Carlos Escamilla Yuma LAW OFFICES OF CORNELIUS CANDY CAMARENA, P.C. By C. Candy Camarena Attorney for Sonia Cuello Yuma EDGAR & MINORE, P.C. By John R. Minore Richard J. Edgar Yuma And GARCIA, HENGL, KINSEY & VILLARREAL, P.L.C. Yuma By John S. Garcia Brandon S. Kinsey Ryan C. Hengl Attorneys for Alejandrina Cabrera ________________________________________________________________ B R U T I N E L, Justice ¶1 On January 27, 2012, the Yuma County Superior Court disqualified Alejandrina Cabrera under A.R.S. § 38-201(C) (2001) from appearing on the ballot as a candidate for the San Luis City Council. On February 7, 2012, we affirmed the superior court s judgment, stating that an opinion would follow. This is that opinion. I. FACTS AND PROCEDURAL BACKGROUND ¶2 On December 29, 2011, San Luis Mayor Juan Carlos Escamilla, in his capacity as a qualified elector for the city, brought a special action seeking to disqualify Cabrera as a candidate for city council and naming capacity as the San Luis City Clerk. name should be excluded from the Sonia Cuello in her He alleged that Cabrera s ballot for the March 2012 election because she cannot read, write, and speak the English 2 language as required by § 38-201(C). ¶3 After an evidentiary hearing, precluded her from the ballot. language requirement political office must superior court Concluding that § 38-201(C) s be read issue, at the in the the court context of considered the expert testimony and observed Cabrera testify (including in response to the court s questions) and found that she is not sufficiently proficient in English to perform as a city council member for San Luis. ¶4 Cabrera filed an expedited appeal in this Court pursuant to A.R.S. § 16-351(A) (2006). II. DISCUSSION A. Special Action Jurisdiction ¶5 show In his special action, Escamilla sought an order to cause why the City Clerk should placing Cabrera s name on the ballot. Cabrera s motion to dismiss, ruling not be enjoined from The trial court denied that Escamilla properly brought this case as a special action under Rule 3(b), Ariz. R.P. Spec. Act., and under A.R.S. § 16-351. sufficiently demanded injunctive relief Cabrera argues that the court erred in allowing the case to proceed as a special action because it should have instead been filed as a complaint for injunctive relief. ¶6 We disagree. In Mandraes v. Hungerford, 127 Ariz. 585, 587, 623 3 P.2d 15, 17 (1981), we held that filing a petition for injunctive relief and securing an order to show cause was an appropriate way to challenge a candidate s qualifications for the ballot. petition Escamilla did so here. for special action His doing so through a rather than a complaint for injunctive relief does not affect the validity of his challenge. B. Timeliness of Trial Court Order ¶7 Cabrera asserts that the superior court erred in issuing its order twenty-nine days after Escamilla filed the complaint because A.R.S. § 16-351(A) directs trial courts to hear and render a decision on an election matter within ten days after the action is filed. Cabrera concedes that in Brousseau v. Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984), we interpreted this statutory time limit as directive and not jurisdictional. But she argues that the filing and prosecution of this case unfairly left her little time to appeal and that Escamilla failed to diligently prosecute this case. When a non-jurisdictional deadline is not met, the relevant inquiry is whether a party suffered prejudice because of the delay. See Bee v. Day, 218 Ariz. 505, 507 ¶ 7, 189 P.3d 1078, 1080 (2008). ¶8 Here, the trial court s processing of the case left sufficient time for expedited appellate review before the ballot printing deadline. And Escamilla is not at fault for any delay; 4 he diligently prosecuted his case, which is evidenced by his serving Cabrera immediately and promptly expert appointed and Cabrera tested. due to Because Cabrera s the own tardiness § 16-351(A) in moving to have an Moreover, some delay is filing deadline for her answer decision below. is not jurisdictional and Cabrera has not shown prejudice, we find no error. Given the expedited nature of challenges to candidate qualifications, however, we emphasize that trial courts should render decisions within § 16-351 s ten-day deadline. C. Proficiency Standard ¶9 Arizona law has required English proficiency as qualification for public office since before statehood. a The Territorial Code provided that [n]o person who cannot write and read in the English territorial, county, language shall precinct Territory of Arizona. or be eligible district to office hold any in the See Ariz. Civ. Code 1901, tit. 1, ch. 14, § 199; see also Ariz. Civ. Code 1913, tit. 1, ch. 18, § 158 ( No person language who shall cannot be speak, eligible to write, hold and any read state, the English county, or precinct office in the state of Arizona. ). ¶10 This longstanding requirement is repeated in both our Enabling Act and Constitution. ability to read, write, The Enabling Act states that speak, and understand the English language sufficiently well to conduct the duties of the office 5 without the aid of an interpreter shall be a necessary qualification for all state officers and members of the state legislature. Act of June 20, 1910, ch. 310, § 20, 36 Stat. 557, 570 ( Enabling Act ). this same requirement. ¶11 The Arizona Constitution contains Ariz. Const. art. 20, ¶ 8. The proficiency requirement adopted in the Territorial Code was carried forward in the early versions of the Arizona Code and eventually reenacted with minor changes as § 38-201(C) in the 1956 Code. Section 38-201(C) provides that [a] person who is unable to speak, write and read the English language is not eligible to hold a state, county, city, town or precinct office in the state, whether elective or appointive, and no certificate of election or commission shall issue to a person so disqualified. rendered standard The trial court found that this statute would be meaningless or only if it requiring were minimal interpreted or bare as having no proficiency at speaking, reading, and writing the English language. narrowly construed proficiency statute to require speaking, in the reading, and writing The court sufficient the English language to understand and perform the duties of the office sought. ¶12 Cabrera expanded this argues statute by that the requiring trial some court degree improperly of English fluency in addition to the statutorily required ability to read, 6 write, and meeting speak minutes English. printed Because in English she and read was aloud able council during her testimony to engage in some basic conversation using English words, Cabrera contends she has met the statutory requirement. ¶13 We review a trial court s interpretation of a statute de novo. Ariz. Ballesteros v. Am. Standard Ins. Co. of Wis., 226 345, 347 ¶ 7, 248 P.3d 193, 195 (2011). [D]isqualifications provided by the legislature are construed strictly and there is a presumption in favor of the eligibility of one who had been elected or appointed to public office. Shirley v. Superior Court (Minyard), 109 Ariz. 510, 515, 513 P.2d 939, Harless, 944 55 (1973); Ariz. see 328, also 335, McCarthy 101 v. P.2d State 449, ex 451 rel. (1940) (recognizing same standard). ¶14 We think that the same principles candidates eligibility to run for office. should apply to See, e.g., Bysiewicz v. Dinardo, 6 A.3d 726, 738 (Conn. 2010) (citing cases using above standard for candidate eligibility to run for office); Municipality of Anchorage v. Mjos, 179 P.3d 941, 943 (Alaska 2008) (noting that there is a presumption in favor of candidate eligibility ). This approach respects the right of the people to select officers of their own choosing. McCarthy, 55 Ariz. at 334, 101 P.2d at 451. ¶15 Our reading of § 38-201(C) 7 is informed by the requirements in the Enabling Act and Arizona Constitution of sufficient English proficiency to conduct the office without the aid of an interpreter. duties of the See Gladden Farms, Inc. v. State, 129 Ariz. 516, 518, 633 P.2d 325, 327 (1981) (noting that the Enabling Act is one of Arizona s fundamental laws and preempts conflicting state statutes). eligibility requirements officials, including mandated by Arizona s apply state to a broad officers. Enabling Act range The and The statute s of public qualifications Constitution, on other hand, apply to all state officers and legislators. qualifications include an ability to understand the the Those English language sufficiently well to conduct the duties of the office without the aid of an interpreter. Const. art. 20, § 8. Enabling Act § 20; Ariz. Although § 38-201(C) does not include the quoted language, when the legislature reenacted the Territorial Code s proficiency requirement in the 1913 Arizona Code, the predecessor to § 38-201(C), it implicitly included the requirements of the Enabling Act and Constitution because it could not have statutorily imposed anything less with respect to state officers or legislators. See Gladden Farms, 129 Ariz. at 518, 633 P.2d at 327. ¶16 When read in conjunction with Arizona's Enabling Act and Constitution, § 38-201(C) means that to qualify for a public office, a candidate must possess sufficient proficiency in the 8 English language to conduct the duties of the office. To construe the statute as requiring that a candidate only be able to read, write, comprehension of and the speak English, language, Arizona s fundamental law. would without be requiring incompatible with The most plausible and harmonious reading of the statute is that it requires a sufficient level of proficiency of the English language to conduct the duties of the office without the aid of an interpreter. ¶17 The conclusions testimony that posed to her. Cabrera below supports failed to the trial comprehend the court s questions Her testimony showed minimal English language comprehension and displayed, as the expert observed, a large gap between her level of understanding and that required to serve as a city councilmember. Although she read aloud from various city council meeting documents, Cabrera could not answer elementary questions about what she had read or what had occurred at these meetings. ¶18 Section 38-201(C) does not require any specific level of proficiency other than that required to be able to conduct the duties of the office. In this case, the expert, Dr. Eggington, testified that Cabrera reads at a ninth or tenth grade reading level. If the statute required only proficiency in reading English, this testimony would support a finding of sufficient proficiency. But the 9 statute also requires the ability to speaking speak English, proficiency is and Dr. the Eggington strongest testified marker of that overall proficiency in considering whether a person can speak, read, and write a language. objective testing, Based on his interview of Cabrera and Dr. Eggington determined that minimal survival proficiency in spoken English. she has He explained that she is able to perform certain courtesy requirements and maintain simple face-to-face conversation on familiar topics, but otherwise cannot follow a conversation. His testimony about the large gap between [her] ability in speaking English and what is needed to perform City Councilman duties, as well as the trial court s own observations of Cabrera s difficulties in understanding and communicating in English, support the trial court s findings. ¶19 We functional emphasize ability to that read, § 38-201(C) speak, and requires write only English. a The statute does not authorize a literacy test or an intelligence test and does not require anything other comprehension of English in everyday usage. than functional Here, Cabrera s inability to comprehend English was clear and the trial court properly disqualified her under the statute. D. Expert Testimony ¶20 Cabrera next argues that the trial court erred in admitting Dr. Eggington s opinions because he used unreliable 10 testing methods, attended no city council meetings, did not establish a baseline of English proficiency required to hold the office of hearing councilmember, disability. and Trial did courts not account have broad for Cabrera s discretion in determining whether to admit expert testimony, and we will not overturn a trial judge s ruling on this issue unless there is a clear abuse of discretion. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996). Evidence 702 provides the requirements Arizona Rule of for admitting expert testimony.1 ¶21 Dr. Eggington s curriculum vitae shows his extensive expertise in linguistics. To determine the language skills necessary to hold the office of city councilmember, he reviewed a random sampling of San Luis City Council meeting minutes, agendas, and reports, plus audio recordings of council meetings for a two-year period. He also had Cabrera perform three proficiency tests, two of which are widely used by government agencies to determine language proficiency and a third that has been published Cabrera has in peer-reviewed minimal survival articles. proficiency His and opinion could that not adequately function as a Council member in the Council meetings 1 Cabrera bases her arguments on a version of Rule 702 that was substantively changed effective January 1, 2012. That change, however, has no bearing on the issue presented here. 11 was based on these tests, his interviews of her, and his review of the city council materials. Rule 702 s requirements were met. ¶22 Cabrera also argues that the trial court should have disqualified Dr. Eggington because baseline of English proficiency. he was not hired to he failed to establish a Dr. Eggington testified that establish a baseline but rather to investigate and determine whether Cabrera could function at a city council meeting. He concluded that the gap between Miss Cabrera s measured proficiency and what [he] saw in the material that [he] received [was] . . . so large that [he] believe[d] that she cannot function. statutory requirements He properly focused on the relevant regarding Cabrera s ability to read, and write English to hold a specific office. speak, See § 38- 201(C). ¶23 Dr. Eggington also testified that although a hearing problem could proficiency, affect he did the not ability observe to any acquire evidence of language hearing difficulties when he interviewed Cabrera or during testing. The trial the court did not abuse its discretion in admitting expert s testimony. E. Constitutional Challenge ¶24 Finally, interpretation of Cabrera argues § 38-201(C) that the unconstitutionally 12 trial court s violates her right to participate in government. But there is no general constitutional right to seek or hold public office. The State may require that a citizen meet more strict requirements to hold office than to vote for that office. Ariz. 506, 508, 513 P.2d 935, 937 Triano v. Massion, 109 (1973); see Sugarman v. Dougall, 413 U.S. 634, 647 (1973) (stating that [e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen and that this power goes to the heart of representative government (quoting Boyd v. Thayer, Sugarman)); 143 U.S. 135, 161 (1892)) (alteration in see also Clements v. Fashing, 457 U.S. 957, 963 (1982) ( [T]he existence of barriers to a candidate s access to the ballot does not of itself compel close scrutiny. (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972))). ¶25 P.2d Cabrera relies on Ruiz v. Hull, 191 Ariz. 441, 957 984 (1998), in which this Court held that the Arizona constitutional amendment adopting English as the state official language violated the First and Fourteenth Amendments to the United States Constitution. Id. at 444 ¶ 2, 957 P.2d at 987. But the concern in Ruiz was that public officers would be unable to communicate impeding the with non-English-speaking constituents in the obtaining access government and limiting officials. Id. No similar concern exists here. 13 political constituents, speech to of thus their public Section 38- 201(C) does not prohibit speech in languages other than English, but instead requires public officials to have some functional ability in English, which enhances rather than impedes their ability to communicate with their constituents and the public. Ruiz is inapposite. ¶26 Arizona s organic law manifests a legitimate concern that those who hold elective office be minimally proficient in English in order to conduct the duties of their office without the aid of an interpreter. the public officer will Such a requirement helps ensure that in fact be able to understand and perform the functions of the office, including communications with English-speaking constituents and the public. Section 38- 201(C) reflects that same concern. ¶27 We have already concluded correctly interpreted § 38-201(C). statute is not unconstitutional that the trial court This interpretation of the because there is no constitutional right to seek office and the language requirement reflects a legitimate concern of the Arizona Legislature. We also note that Cabrera is not forever barred from running for office. Should she obtain a sufficient English proficiency to perform as a city councilmember, she could then run for that office. F. Attorney Fees ¶28 Escamilla requests attorney fees pursuant to A.R.S. 14 § 12-349 (2003). In our discretion, we decline to grant them. III. CONCLUSION ¶29 For the reasons set forth above, we affirm the judgment of the superior court. _____________________________________ Robert M. Brutinel, Justice CONCURRING: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ Scott Bales, Vice Chief Justice _____________________________________ A. John Pelander, Justice 15
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