Arizona Libertarian Party, Inc. v. Board of Supervisors

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
ARIZONA LIBERTARIAN PARTY, INC., ) 2 CA-CV 2002-0174
GEORGE SQUYRES, JOHN SIEGEL, ) DEPARTMENT A
LYLE SCHNITZLER, and STEPHEN )
NEKOLEK, ) OPINION
)
Plaintiffs/Appellees, )
)
v. )
)
BOARD OF SUPERVISORS OF COCHISE )
COUNTY and BOARD OF SUPERVISORS )
OF COCONINO COUNTY, )
)
Defendants/Appellants. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CV200200287
Honorable Stephen M. Desens, Judge
REVERSED AND REMANDED
David T. Hardy Tucson
Attorney for Plaintiffs/Appellants
Chris M. Roll, Cochise County Attorney
By John A. MacKinnon Bisbee
Attorneys for Defendant/Appellee
Board of Supervisors of Cochise County
Terence C. Hance, Coconino County Attorney
By Jean E. Wilcox
Flagstaff
Attorneys for Defendant/Appellee
Board of Supervisors of Coconino County
H O W A R D, Judge.
¶1 Appellant Arizona Libertarian Party, Inc.,1 (ALP) is entitled “to representation as
a political party on the official ballot for state officers.” A.R.S. § 16-804(A). But ALP is not
entitled to continued representation on ballots for election of county officers in either Cochise or
Coconino county. ALP requested that appellees the Cochise County Board of Supervisors and the
Coconino County Board of Supervisors (the counties) list certain members of ALP as candidates
for precinct committeemen on the 2002 primary election ballot.2 The counties refused. ALP then
filed this special action, requesting that the counties be required to list its candidates. The superior
court accepted jurisdiction but entered judgment denying relief. This appeal followed. Because
ALP is entitled to continued representation on the ballot for state officers, and because the
governing statutes require political parties with continued state representation to elect their precinct
committeemen in the state primary election, we reverse the judgment and remand the case.
¶2 When a judgment entered in a special action proceeding initiated in superior court
is appealed to this court, we first determine whether the superior court accepted jurisdiction and
decided the merits of the claim; if so, we then review the superior court’s decision on those merits
to determine whether it abused its discretion in granting or denying relief. Files v. Bernal, 200
Ariz. 64, ¶2, 22 P.3d 57, ¶2 (App. 2001). But, when “the superior court’s ruling hinged on pure
issues of law, we review its legal conclusions de novo.” Norgord v. State ex rel. Berning, 201
Ariz. 228, ¶4, 33 P.3d 1166, ¶4 (App. 2001).
1
Individual Libertarian Party members George Squyres, Stephen Nekolek, John Siegel, and
Lyle Schnitzler were also plaintiffs below and are appellants here.
2
We use the gender-specific terminology of the statutes.
2
¶3 Both sides agree that the claims as to the 2002 election are moot, but ALP requests
that we decide this matter because the issue is of statewide interest; is likely to recur in future
elections; and, due to the short time frame allowed for applying for ballot listing, could evade
appellate review. We agree and, in our discretion, decide the legal issue presented. See State v.
Roscoe, 184 Ariz. 484, 502, 910 P.2d 635, 653 (1996). Although both sides frame the issue
slightly differently, the basic issue before us is whether the legislature, in enacting A.R.S. § 16-
821, intended that parties such as ALP, which are entitled to continued state representation but not
continued county representation in the counties, have their candidates for county precinct
committeemen listed on the primary ballot.3
¶4 “Our primary goal in interpreting statutes is to discern and give effect to legislative
intent.” Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶8, 19 P.3d 1241, ¶8 (App. 2001).
“We first consider the language of the statute and, if it is unclear, turn to other factors, including
‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and
purpose.’” Norgord, 201 Ariz. 228, ¶7, 33 P.3d 1166, ¶7, quoting Hobson, 199 Ariz. 525, ¶8,
19 P.3d 1241, ¶8.
¶5 Section 16-821(A) provides for the election of precinct committeemen for parties
entitled to continued representation:
At the primary election the members of a political party
entitled to representation pursuant to § 16-804 residing in each
precinct shall choose one of their number as a county precinct
committeeman, and the members shall choose one additional
3
At oral argument, both sides agreed that ALP is entitled to county continued representation
in Maricopa and Pima Counties only. The counties also acknowledged that Yuma and Mohave
Counties, in which ALP does not have continued status, regularly list ALP precinct committeemen
candidates on their primary ballots.
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precinct committeeman for each one hundred twenty-five voters
. . . . The whole number of precinct committeemen of a political
party shall constitute the county committee of the party.
Section 16-804, which specifies when a party is entitled to continued representation, states in part:
A. A political organization that at the last preceding
general election cast for governor or presidential electors or for
county attorney or for mayor, whichever applies, not less than five
per cent of the total votes cast for governor or presidential electors,
in the state or in such county, city or town, is entitled to
representation as a political party on the official ballot for state
officers or for officers of such county or local subdivision.
B. In lieu of subsection A, a political organization is
entitled to continued representation as a political party on the
official ballot for state, county, city or town officers if, on
November 1 of the year immediately preceding the year in which
the general election for state or county officers and for city or town
officers one hundred fifty-five days immediately preceding the
primary election in such jurisdiction, such party has registered
electors in the party equal to at least two-thirds of one per cent of
the total registered electors in such jurisdiction.
¶6 Both sides agree that § 16-804 creates three levels of representation: state, county,
and local or municipal. But see Van Arsdell v. Shumway, 165 Ariz. 289, 293, 798 P.2d 1298,
1302 (1990) (recognizing “county, district and precinct” and “state” as the “two levels” of
government offices in Arizona). Section 16-821 does not differentiate between parties entitled to
continued state representation and parties entitled to continued county or local representation
under § 16-804. ALP notes that it is “entitled to representation pursuant to § 16-804” and asserts
that, under the plain language of § 16-821, therefore, it is entitled and required to elect its precinct
committeemen pursuant to that statute. As the counties point out, however, parties entitled to
representation in a single municipality would also be “entitled to representation under § 16-804.”
Therefore, looking only at the plain language of the statute, such a party would be allowed to use
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the procedure in § 16-821 for electing precinct committeemen statewide. Neither side seriously
contends the legislature intended that parties entitled to continued local representation be allowed
to elect its precinct committeemen statewide through § 16-821, but such an interpretation reveals
an inherent ambiguity within the statute. We therefore turn to the context, subject matter,
historical background, effects, consequences, spirit, and purpose of § 16-821 to determine its
meaning. See Norgord.
¶7 Examining the context of the statute, both sides attempt to clarify the ambiguity by
analyzing whether a precinct committeeman holds a state or county office for purposes of § 16-
804(A). The counties claim that a precinct committeeman holds a county office and that,
therefore, only political parties entitled to continued representation on the county ballot should
have candidates for precinct committeemen listed on the ballot. ALP, on the other hand, counters
that a precinct committeeman holds a state office and that, therefore, political parties entitled to
continued state representation should be listed on the ballot.
¶8 Both sides point out, however, that a precinct committeeman is neither a state nor
a county officer in the usual sense. A precinct committeeman serves the interests of his or her
political party and is not a public officer at all. See A.R.S. § 16-822(C). Accordingly, the office
of precinct committeeman does not fit within the category of “state officer” or “county officer”
under § 16-804, and this analysis fails to resolve the issue presented here. We must therefore
further examine the context and purpose of § 16-821. See Norgord.
¶9 ALP argues that, construing the Arizona election system as a whole, the intent of
the legislature was that the precinct committeemen of a party entitled to continued state
representation be elected pursuant to a statewide system. It asserts that, because the precinct
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committeemen elect the state committee members, who then act on behalf of its members on
statewide issues, it should be allowed to utilize the statewide system in each county.
¶10 As ALP notes, the party state committee is formed from the party county
committees:
The state committee of each party shall consist, in addition
to the chairman of the several county committees, of one member
of the county committee for every three members of the county
committee elected pursuant to § 16-821. The state committeemen
shall be chosen at the first meeting of the county committee from
the committee’s elected membership.
A.R.S. § 16-825. It makes sense that a political party entitled to continued state representation
for the election of state officers would be allowed to have a state committee drawn from the entire
state. This statute requires that the party have one member of the state committee for every three
county committee members “elected pursuant to § 16-821.” Thus, the legislature has created a
structure for the state committee that requires that county committee members be elected pursuant
to § 16-821. The county committee is composed of precinct committeemen. § 16-821(A).
Therefore, the precinct committeemen must be elected pursuant to § 16-821 in order for this
system to function cohesively. Section 16-825 then provides a strong indication that the legislature
intended that the precinct committeemen of a party entitled to continued state representation be
elected pursuant to § 16-821.
¶11 At oral argument, the counties argued that § 16-825 restricts the membership of
ALP’s state committee to precinct committeemen from counties in which ALP has continuing
status, namely Maricopa and Pima. Such an interpretation, however, conflicts with A.R.S. § 16-
824(A), which states that “[t]he chairman of the county committee shall be ex officio a member
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of the state committee.” The counties’ interpretation also conflicts with the very notion of a state
committee, in that ALP members in thirteen counties would have no representation.
¶12 Section 16-823, A.R.S., further supports ALP’s claim that a party entitled to
continued state representation is entitled to elect its precinct committeemen in each county pursuant
to § 16-821. Section 16-823 provides that a political party entitled to representation on the state
level is allowed to form a legislative district committee, which must be composed of precinct
committeemen elected pursuant to § 16-821. Section 16-823(A) states as follows: “A political
party entitled, pursuant to § 16-801 or 16-804, to representation on the ballot may establish a
district party committee for any legislative district as prescribed by law.” Section 16-801, A.R.S.,
provides that a new party may become eligible for representation on primary and general ballots
for state offices by filing a petition with the secretary of state. Section 16-804 provides for
continuing status for statewide, county, and local ballots. Notably absent from § 16-823 is any
mention of A.R.S. § 16-802, which provides a procedure for a new party to be entitled to
representation on county and local ballots. Consequently, the legislature apparently intended that
parties entitled to appear on the ballot for state offices have the ability to form legislative district
committees.
¶13 Section 16-823(B) then states that “[a] district party committee established pursuant
to subsection A of this section shall consist of the precinct committeemen residing in the district
and elected pursuant to § 16-821.” This section establishes two requirements for the precinct
committeemen who will be organized into a legislative district committee: they must reside in the
district and they must be elected pursuant to § 16-821.
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¶14 A legislative district may include portions of more than one county, and ALP may
be entitled to continued county representation in less than all of those counties. For example,
current legislative district 30 encompasses part of Pima County, in which ALP is entitled to
continued county representation, and part of Cochise County, in which ALP is not entitled to
continued county representation. If ALP wishes to form a district committee, it is required to use
the process of § 16-823 to form a district committee, but, under the counties’ interpretation, many
of its precinct committeemen who reside in the district, thereby fulfilling the residence
requirement, would be unable to participate unless it is allowed to use the election process of § 16-
821 throughout the state. 4 An ALP precinct committeeman on the Pima County side of the line
would be a member of the district committee, but an ALP precinct committeeman on the Cochise
County side of the line could not participate because the committeeman was not elected pursuant
to § 16-821. This cannot be the legislative intent. By limiting those precinct committeemen
eligible for membership on the district committee to those elected pursuant to § 16-821, the
legislature displayed an intent to allow parties entitled to representation on the state level to elect
precinct committeemen statewide pursuant to § 16-821.
¶15 At oral argument, the counties admitted that, if ALP cannot elect its precinct
committeemen pursuant to § 16-821 statewide, § 16-823 creates an unworkable system. They
contended, however, that because § 16-823 uses the permissive term in stating that a party “may”
form a legislative district committee, the legislature intended that parties who are not entitled to
4
If the counties are correct that ALP may only elect its precinct committeemen pursuant
to § 16-821 in Maricopa and Pima Counties, then it would be required to appoint its precinct
committeemen and other officers in other counties pursuant to some other method, such as caucus
or convention. See, e.g., Arizona Libertarian Party v. Schmerl, 200 Ariz. 486, ¶3, 28 P.3d 948,
¶3 (App. 2001) (noting one faction of ALP selected officers at annual convention).
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continued county representation in all counties included in the district not be allowed to form a
district committee. Had that been the legislative intent, however, we believe the legislature would
have spoken much more clearly on the subject and not depended on the use of the word “may” to
carry such a substantive and covert meaning.
¶16 The counties further contend the legislative history demonstrates the legislature
intended that only parties entitled to continued county representation are entitled to have their
candidates for precinct committeemen appear on the primary ballot. Prior to 1984, § 16-821
stated in pertinent part:
At the primary election the members of a political party
residing in each precinct in which any number of votes were cast at
the last preceding general election for the nominee of such party for
governor, or for presidential electors for the nominee of such party
for president, in presidential election years, shall choose one of
their number as a county precinct committeeman . . . .
1979 Ariz. Sess. Laws, ch. 209, § 3. The counties submit that, by adding the requirement that
a party be entitled to continued representation under § 16-804 and deleting the provision allowing
the election of a precinct committeeman in any precinct in which any votes were cast, the
legislature expressed its desire that the party have a more significant presence at the county level
before its candidates for precinct committeeman be listed on the ballot. But the legislature instead
could have intended to harmonize the system of continued representation under § 16-804, and the
present statute contains no indication that continued state representation is insufficient to support
placing a party’s candidates for precinct committeeman on the ballot.
¶17 At oral argument, the counties argued, for the first time, that legislative intent may
be gleaned from § 16-804(D), which states: “Each county recorder shall determine the political
parties qualified for the county ballot pursuant to this section.” The counties contend that the
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legislature could not have intended a county recorder to determine the status of a party at the state
level. We will not consider arguments raised for the first time at oral argument. Dillon v. Zeneca
Corp., 202 Ariz. 167, n.6, 42 P.3d 598, n.6 (App. 2002). Moreover, the counties conceded that
a county recorder or elections officer may well have duties with regard to state legislative races
and others that cross county lines. See, e.g., A.R.S. § 16-351. Furthermore, determining the
parties entitled to continued state representation is not difficult. Apparently, at least two counties
in which ALP is not entitled to continued county representation currently are able to do so.
Finally, although this may be some indication of legislative intent, it is insufficient to
counterbalance the import of § 16-823 and § 16-825.
¶18 Our conclusion is also consistent with Arizona Libertarian Party v. Schmerl, 200
Ariz. 483, ¶11, 28 P.3d 948, ¶11 (App. 2001), in which the court stated that “[a] common-sense
and contextualized reading of the statutes before us [A.R.S. §§ 16-821 and 16-824 through 16-828]
imposes upon a political party entitled to continued representation the obligation to select its
representatives in a certain manner.” The Schmerl court included ALP as “a party entitled to
continued representation” pursuant to § 16-804. See id. at ¶2. And although the Schmerl court
was not faced with the precise question posed in this case, the opinion demonstrates that, as a
whole, the statutes in question here “obligat[e]” a party entitled to representation on the ballot for
state officers to elect its precinct committeemen “in a certain manner,” namely that prescribed in
§ 16-821. It also demonstrates the difficulties that can arise from a bifurcated system.
¶19 The counties point out that this result places an additional burden on them. But
ALP counters that because the counties are already required to place ALP’s candidates for state
offices on the ballot, placing its candidates for precinct committeemen on the ballot is a minimal
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burden. Because we have determined that the legislature intended the counties to bear whatever
burden is imposed, we suggest that the counties seek legislative relief to correct any undue burden
the legislature may have imposed.
¶20 We thus hold that, because ALP is entitled to continued state representation, it is
entitled to and is required to elect its precinct committeemen in the counties through the process
specified in § 16-821. Our holding reaches only parties entitled to representation on the state
level. We accordingly reverse the judgment of the trial court and remand the case for further
proceedings.
_______________________________________
JOSEPH W. HOWARD, Judge
CONCURRING:
_______________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge
_______________________________________
M. JAN FLÓREZ, Judge
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