Arizona Libertarian Party v. Schmeral

Decision Date16 August 2001
Docket NumberNo. 1 CA-CV 00-0335.,1 CA-CV 00-0335.
Citation28 P.3d 948,200 Ariz. 486
PartiesThe ARIZONA LIBERTARIAN PARTY; Elizabeth A. Brandenburg-Andreasen; Ernest Hancock; The Arizona Democratic Party; and The Arizona Republican Party, Plaintiffs-Appellees, Cross Appellants, v. Peter SCHMERAL; Katherine Gallant; and The Arizona Libertarian Party, Inc., Defendants-Appellants, Cross Appellees.
CourtArizona Court of Appeals

Brown & Bain, P.A. by John A. Buttrick, Phoenix, Attorneys for Plaintiffs-Appellees, Cross Appellants Arizona Libertarian Party and Brandenburg-Andreasen.

Kimerer & Lavelle, P.L.C. by Thomas V. Rawles, Phoenix, Attorneys for Plaintiff-Appellee, Cross Appellant Hancock.

Goodwin Raup, P.C. by Marty Harper, Phoenix, Attorneys for Plaintiff-Appellee, Cross Appellant Arizona Democratic Party.

Martinez & Curtis, by Joseph F. Abate, Phoenix, and Hallman & Affiliates by Hugh L. Hallman, Tempe, Attorneys for Plaintiff-Appellee, Cross Appellant Arizona Republican Party.

David T. Hardy, Tucson, Attorney for Defendants-Appellants, Cross Appellees.

OPINION

BERCH, Judge.

¶ 1 In this opinion, we address a challenge by the Arizona Libertarian Party and two of its leaders, the Arizona Democratic Party, and the Arizona Republican Party to the constitutionality of statutes governing the selection of some internal party leaders. See Ariz.Rev.Stat. ("A.R.S.") §§ 16-824 to -828 (1996). We affirm the trial court's ruling that these statutes are constitutional, but reverse that portion of the judgment holding that the Libertarian Party did not need to comply with the statutory process.

BACKGROUND

¶ 2 By virtue of votes cast for its candidates in the 1994 election, the Arizona Libertarian Party attained continuing ballot access status. This status entitled the party to receive voluntary contributions from Arizona taxpayers and a free copy of voter registration data, but imposed upon the party the obligation to select party representatives pursuant to a statutory scheme. See A.R.S. §§ 16-807 (1996) (contributions), 16-168 (Supp.2000) (voter data), 16-821 to -828 (1996) (selection of representatives).

¶ 3 One branch of the party, represented here by Appellants, although chafing at the statutory requirements, followed the statutory scheme in electing its party representatives. Another faction, believing the statutes to be unconstitutional, simply disregarded them and selected its leadership at its annual convention, as it had done in the past. This group is represented by Appellees.

¶ 4 As a result of these intra-party elections, the Libertarian Party had two putative chairs of state committees and two chairs of Maricopa County Committees. Both sets of party representatives sought copies of the voter registration and voter history data from the Maricopa County Recorder, who filed this declaratory judgment action to determine which was entitled to receive the information.

¶ 5 The trial court held that Appellees were the representatives entitled to receive the registry on behalf of the party, a result that Appellants contest. The trial court based its ruling on alleged procedural irregularities in the vote at Appellants' state convention. It also affirmed the constitutionality of the statutory scheme for selecting party leadership. Because we concur that the challenged statutes do not impermissibly burden the First Amendment rights of free speech and association and must be followed by those claiming rights as parties with continuing status, we affirm but modify the ruling of the trial court on these points. We address Appellants' challenges to the trial court's rulings regarding the votes at the state convention in a separate memorandum decision. See Fenn v. Fenn, 174 Ariz. 84, 85, 847 P.2d 129, 130 (App.1993); ARCAP 28(g).

ANALYSIS
A. Are the Challenged Statutes Mandatory or Permissive?

¶ 6 Appellees, joined by the intervenor Democratic and Republican Parties,1 challenge the constitutionality of A.R.S. §§ 16-824 to -828, the statutes that set forth the system for selecting party representatives, as unduly burdening the freedoms of speech and association guaranteed by the First Amendment to the United States Constitution. They note, however, that these statutes may not impermissibly infringe these rights if the court construes the statutes as permissive rather than mandatory. We therefore first address whether the statutes Appellees challenge are mandatory, for if the statutes are merely permissive and may be ignored, we may avoid the constitutional issue. Aitken v. Indus. Comm'n, 183 Ariz. 387, 389, 904 P.2d 456, 458 (1995) (admonishing courts to avoid deciding cases on constitutional grounds if possible to do so).

¶ 7 Two of the challenged statutes set forth, in seemingly mandatory terms, the statutory system for selecting chairs of the state and county committees. A.R.S. §§ 16-824(A) (county), 16-825 (state). Section 16-824 requires that the county committee "shall" meet, directs generally when it must do so and that notice of the time and place of such meeting "shall" be given, and requires that the chair of the county committee "shall" be an ex officio member of the state committee. Section 16-825 directs the composition of the state committee. Id. ("The state committee of each party shall consist" of required members.) (emphasis added).2

¶ 8 The pyramid-shaped system for selecting party representatives is founded, however, on section 16-821, which Appellees have not challenged. That statute requires that members of political parties "shall" choose county precinct committeemen and "shall" choose one additional precinct committeeman for each 125 voters registered in the party in the precinct. Although Appellees challenge only A.R.S. §§ 16-824 to -828 and not 16-821, the later-numbered sections apply only after the party has elected precinct committeemen as set forth in section 16-821, and Appellees base two arguments on the language of section 16-821.

¶ 9 First, Appellees note that party members cannot be forced to vote for precinct committeemen. Thus they argue that section 16-821 is not mandatory, despite its seemingly mandatory terms. In addition, they reason, paragraph B of section 16-821 provides a means for appointing precinct committeemen to fill vacant positions, which may occur, among other ways, if a precinct committeeman position is not filled in a primary election. According to Appellees, this statute provides two examples of instances in which "shall" cannot be deemed to be mandatory and instead must be interpreted as permissive. Thus, argue Appellees, the provisions in A.R.S. §§ 16-824 to -828 also should be interpreted as being permissive.

¶ 10 We find this analysis strained. In interpreting statutes, we strive to give words their ordinary, common-sense meaning. Ordinarily, the use of the word "shall" indicates a mandatory directive from the legislature. Ins. Co. of N. Am. v. Santa Cruz Superior Court, 166 Ariz. 82, 85, 800 P.2d 585, 588 (1990); Matter of Guardianship of Cruz, 154 Ariz. 184, 185, 741 P.2d 317, 318 (App.1987). We acknowledge that "shall" may be interpreted as indicating desirability, preference, or permission, rather than mandatory direction, e.g., Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n, 160 Ariz. 350, 360, 773 P.2d 455, 465 (1989); Hampton v. Glendale Union High School Dist., 172 Ariz. 431, 434, 837 P.2d 1166, 1169 (App.1992), if the context and purpose of the legislation indicate that the term should be so construed. See Ariz. Downs v. Ariz. Horsemen's Found., 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981); State v. Sanchez, 119 Ariz. 64, 68, 579 P.2d 568, 572 (App.1978). But we are not persuaded that the context requires such a construction here.

¶ 11 A common-sense and contextualized reading of the statutes before us imposes upon a political party entitled to continued representation the obligation to select its representatives in a certain manner. That party members cannot be forced to vote does not negate the party's obligation to attempt to fill positions through statutorily prescribed means.

¶ 12 The challenged statutes serve an important public purpose. By setting forth the procedures for selecting party leaders, the statutes provide the means by which government officials can determine the identity of the legal representatives of political parties so that the government officials may perform their statutory duties. See A.R.S. § 16-168(C). To deliver precinct registers to "each county or state chairman who is eligible to receive copies of precinct registers," the county recorders must be able to ascertain who those representatives are. Id. The legislature facilitated this determination by providing a statutory method for choosing these party leaders. We conclude that the legislature intended that the parties follow these statutes and that the use of the word "shall" in the statutes at issue indicates that adherence to those statutes be mandatory, not permissive. Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 157-58, 7 P.3d 960, 963-64 (App.2000) (court construes statutes to give effect to legislative intent). Appellees suggest that other methods exist by which parties could identify their representatives. While that may be true, we leave the choice to the legislature, as long as the method selected comports with the constitution, an issue we resolve in the following section.

B. Constitutionality of A.R.S. §§ 16-824 to -828

¶ 13 Appellees argue on cross-appeal that, if determined to mandatorily apply, A.R.S. §§ 16-824 to -828 are unconstitutional. Legislative enactments, however, are presumed to be constitutional. Kotterman v. Killian, 193 Ariz. 273, 284, ¶ 31, 972 P.2d 606, 617, cert. denied, 528 U.S. 921, 120 S.Ct. 283, 145 L.Ed.2d 237, and cert. denied sub nom. Rhodes v. Killian, 528 U.S. 810, 120 S.Ct. 42, 145 L.Ed.2d 38 (1999). The burden of demonstrating unconstitutionality rests on the party challeng...

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