                    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;

                                              4 
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

                                                  7 
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

                                           12 
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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