Escamilla v. cuello/cabrera , 230 Ariz. 202 ( 2012 )

SUPREME COURT OF ARIZONA
JUAN CARLOS ESCAMILLA, a ) Arizona Supreme Court
qualified elector of the City of ) No. CV-12-0039-AP/EL
San Luis, Yuma County, State of )
Arizona, ) Yuma County
) Superior Court
Plaintiff/Appellee, ) No. CV201101582
)
v. )
)
SONIA CUELLO, in her capacity as ) O P I N I O N
the City Clerk of the City of )
San Luis, Arizona, )
)
Respondent, )
)
and )
)
ALEJANDRINA CABRERA, a candidate )
for elected office, )
)
Defendant/Appellant. )
__________________________________)
Appeal from the Superior Court in Yuma County
The Honorable John Neff Nelson, Judge
AFFIRMED
________________________________________________________________
GLENN J. GIMBUT, CITY ATTORNEY San Luis
By Glenn J. Gimbut, City Attorney
And
ELLEN M. VAN RIPER, ATTORNEY AT LAW Phoenix
By Ellen M. Van Riper
And
TOROK LAW OFFICE, PLLC Yuma
By Gregory T. Torok
Attorneys for Juan Carlos Escamilla
LAW OFFICES OF CORNELIUS CANDY CAMARENA, P.C. Yuma
By C. Candy Camarena
Attorney for Sonia Cuello
EDGAR & MINORE, P.C. Yuma
By John R. Minore
Richard J. Edgar
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 Sonia Cuello in her
capacity as the San Luis City Clerk. He alleged that Cabrera’s
name should be excluded from the ballot for the March 2012
election because she cannot read, write, and speak the English
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language as required by § 38-201(C).
¶3 After an evidentiary hearing, the superior court
precluded her from the ballot. Concluding that § 38-201(C)’s
language requirement must be read “in the context of the
political office at issue,” the court considered 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 In his special action, Escamilla sought an order to
show cause why the City Clerk should not be enjoined from
placing Cabrera’s name on the ballot. The trial court denied
Cabrera’s motion to dismiss, ruling that Escamilla properly
brought this case as a special action under Rule 3(b), Ariz.
R.P. Spec. Act., and sufficiently demanded injunctive relief
under A.R.S. § 16-351. 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. We disagree.
¶6 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. Escamilla did so here. His doing so through a
petition for special action 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;
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he diligently prosecuted his case, which is evidenced by his
serving Cabrera immediately and promptly moving to have an
expert appointed and Cabrera tested. Moreover, some delay is
due to Cabrera’s own tardiness in filing her answer below.
Because the § 16-351(A) deadline for decision 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 a
qualification for public office since before statehood. The
Territorial Code provided that “[n]o person who cannot write and
read in the English language shall be eligible to hold any
territorial, county, precinct or district office in the
Territory of Arizona.” See Ariz. Civ. Code 1901, tit. 1, ch.
14, § 199; see also Ariz. Civ. Code 1913, tit. 1, ch. 18, § 158
(“No person who cannot speak, write, and read the English
language shall be eligible to hold any state, county, or
precinct office in the state of Arizona.”).
¶10 This longstanding requirement is repeated in both our
Enabling Act and Constitution. The Enabling Act states “that
ability to read, write, 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”). The Arizona Constitution contains
this same requirement. Ariz. Const. art. 20, ¶ 8.
¶11 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.” The trial court found that this statute would be
“rendered meaningless” if “it were interpreted as having no
standard or only requiring minimal or bare proficiency at
speaking, reading, and writing the English language.” The court
narrowly construed the statute to require “sufficient
proficiency in speaking, reading, and writing the English
language” to understand and perform the duties of the office
sought.
¶12 Cabrera argues that the trial court improperly
expanded this statute by requiring some degree of English
fluency in addition to the statutorily required ability to read,
6
write, and speak English. Because she read aloud council
meeting minutes printed in English and was able 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. Ballesteros v. Am. Standard Ins. Co. of Wis., 226
Ariz. 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, 944 (1973); see also McCarthy v. State ex rel.
Harless, 55 Ariz. 328, 335, 101 P.2d 449, 451 (1940)
(recognizing same standard).
¶14 We think that the same principles should apply to
candidates’ eligibility to run for office. 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) is informed by the
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requirements in the Enabling Act and Arizona Constitution of
sufficient English proficiency to conduct the duties of the
office without the aid of an interpreter. 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). The statute’s
eligibility requirements apply to a broad range of public
officials, including state officers. The qualifications
mandated by Arizona’s Enabling Act and Constitution, on the
other hand, apply to all state officers and legislators. Those
qualifications include an ability to “understand the English
language sufficiently well to conduct the duties of the office
without the aid of an interpreter.” Enabling Act § 20; Ariz.
Const. art. 20, § 8. 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, and speak English, without requiring
comprehension of the language, would be incompatible with
Arizona’s fundamental law. 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 testimony below supports the trial court’s
conclusions that Cabrera failed to comprehend the questions
posed to her. 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 statute also requires the
9
ability to speak English, and Dr. Eggington testified that
“speaking proficiency is the strongest marker of overall
proficiency” in considering whether a person can speak, read,
and write a language. Based on his interview of Cabrera and
objective testing, Dr. Eggington determined that she has
“minimal survival proficiency” in spoken English. 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 emphasize that § 38-201(C) requires only a
functional ability to read, speak, and write English. The
statute does not authorize a literacy test or an intelligence
test and does not require anything other than functional
comprehension of English in everyday usage. 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 councilmember, and did not account for Cabrera’s
hearing disability. Trial courts have broad 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). Arizona Rule of
Evidence 702 provides the requirements 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 in peer-reviewed articles. His opinion that
Cabrera “has minimal survival proficiency” and “could 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 he failed to establish a
baseline of English proficiency. Dr. Eggington testified that
he was not hired to 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.” He properly focused on the relevant
statutory requirements regarding Cabrera’s ability to speak,
read, and write English to hold a specific office. See § 38-
201(C).
¶23 Dr. Eggington also testified that although a hearing
problem could affect the ability to acquire language
proficiency, he did not observe any evidence of hearing
difficulties when he interviewed Cabrera or during testing. The
trial court did not abuse its discretion in admitting the
expert’s testimony.
E. Constitutional Challenge
¶24 Finally, Cabrera argues that the trial court’s
interpretation of § 38-201(C) unconstitutionally violates her
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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. Triano v. Massion, 109
Ariz. 506, 508, 513 P.2d 935, 937 (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, 143 U.S. 135, 161 (1892)) (alteration in
Sugarman)); 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 Cabrera relies on Ruiz v. Hull, 191 Ariz. 441, 957
P.2d 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 with non-English-speaking constituents, thus
impeding the constituents in obtaining access to their
government and limiting the political speech of public
officials. Id. No similar concern exists here. Section 38-
13
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. Such a requirement helps ensure that
the public officer will 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 that the trial court
correctly interpreted § 38-201(C). This interpretation of the
statute is not unconstitutional 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
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