the original is at

http://arizonalibertarian.org/news/PurcellVHancock.htm

or maybe

http://www.arizonalibertarian.org/news/PurcellVHancock.htm

01/25/2000

HONORABLE ROBERT D. MYERS

CV 1999-003904

HELEN PURCELL

v.

ERNEST HANCOCK, ET AL.

CLERK OF THE COURT

FORM J000

C. BALCOM
Deputy

FILED: JAN 27 2000

COUNTY ATTORNEY
BY: JILL M KENNEDY

THOMAS V RAWLES

DAVID T HARDY
JOHN A BUTTRICK
HUGH L HALLMAN
MARTY HARPER 004425
004288
004474
012164
003416

Issues

In Count One of their Motion for Summary Judgement, Realigned Plaintiffs, Arizona Libertarian Party (hereinafter "ALP"), Michael Voth, and Ernest Hancock, challenge the validity of Resolution 3b, which was voted upon at the ALP's annual convention in Tucson on April 24, 1999. The resolution purportedly merged Plaintiff ALP and Defendant, Arizona Libertarian Party, Inc. (hereinafter "ALP, Inc."). According to Plaintiff's ALP, Voth, and Hancock, Resolution 3b titled "Merger by Amending the Bylaws" was adopted in violation of the ALP Constitution. Defendants argue that the resolution's adoption was valid under the ALP Constitution and that as a result the State of Arizona should recognize ALP, Inc. as the official leadership of the Arizona Libertarian Party.

In Count Two, Plaintiffs ALP, Voth and Hancock, the Arizona Democratic Party (hereinafter "ADP"), and the Arizona Republican Party (hereinafter "ARP") allege that ARS 16-824 - 16-8281, regulating certain aspects of Arizona's political parties, are permissive rather than mandatory, but if found to be mandatory, they assert that the statutes unconstitutionally burden their First Amendment rights. Defendants assert that the challenged requirements of Title 16 are constitutional. Defendants maintain that Title 16's requirements relate to valid state interests in preventing election-related disorder and confusion.

Count One

The Arizona Libertarian Party is recognized by the Secretary of State as having achieved continuing ballot status pursuant to A.R.S. 16-804. Count One of this lawsuit involves a dispute between Plaintiff ALP and Defendant ALP, Inc. over which of these two intities should be recognized as the official representative of the Arizona Libertarian Party. The ruling on Count One will determine which party is entitled to certain Voter Data provided by the County Recorder, which is now held by the Clerk of the Court pursuant to this Court's Minute Entry dated August 20, 1999.

Detemining whether Resolution 3b was properly adopted depends upon the proper construction of Art. IV 2 of the ALP Constitition, which states: "[t]he Bylaws of the Party may be amended by a majority vote of the registered delegates to any convention of the Party." The number of registered delegates was announced as being 138 at the beginning of the April, 1999 convention. Under Robert's Rules of Order, Newly Revised, the report of the number of delegates at the convention can be appealed, amended, and/or reconsidered. 58 (9th ed. 1990). No challenge waqs made at the convention concerning the number of delegates. Until the voting membership had been established, defined in this case as the registered delegates to the convention, no motion to amend the bylaws could have been in order under any pretext. Id. Since the number of registered delegates was not challenged at the convention, that number can not be challenged in this proceeding. See Robert's Rules of Order 24.

Under Robert's Rules of Order, two voting methods are described in 43 which could reasonably apply to Art. IV 2 of the ALP Constitution. First, the phrase "registered delegates" could be interpreted to mean the "entire membership" of delegates registered for the convention. Second, it could also be construed to mean all of the "registered delegates present" at a particular vote. The latter construction is more of a stretch base on the plain language of the ALP Constitution. Defendants argue that the latter is a reasonable construction, suggesting that the word majority only modifies the word, "vote," and does not modify the phrase "of the registered delegates."

If the phrase "a majority vote of the registered delegates" is construed to mean "a majority vote of the registered delegates present and voting," as Defendants urge, then the convention chair would be required to count those present immediately after any vote, because under Robert's Rules, an abstention has the same effect as a negative vote. The ALP Convention Chair did not take a count of the registered delegates present at the vote.

Defendants argue that no count is required because counting an abstention as a negative vote is in direct conflict with the Libertarian belief that an individual has the right to have no opinion on a particular issue. Defendant's argument has merit, but their interpretation breaks down when it becomes clear that, at least hypothetically, the party's bylaws could be amended by a very small majority vote of, for example, 3 to 2, if all of the other delegates abstained. Surely, it is not reasonable to assume that the drafters of the ALP constitution would have intended that the party's bylaws could be so easily amended.

Robert's Rules of Order do not require that the method for passing particular measures or amendments to bylaws or constitutions must be determined by a majority vote of those present and voting. See 43. Resolution 3b received 65 affirmative votes and only 23 negative votes. Based on the plain language of the ALP Constitution and the rules of construction contained in Robert's Rules of Order, in order to have received a majority vote of the registered delegates the resolution in question would need to have received 70 votes. Resolution 3b was not properly adopted pursuant to Art. IV 2 of the ALP Constitution and is therefore null and void. Any other resolutions passed at the April, 1999 convention which specifically relied upon Resolution 3b are also null and void. Judgement on Count One must be in favor of Plaintiffs ALP, Voth and Hancock.

IT IS ORDERED granting Realigned Plaintiff's motion for Summary Judgement as to Count One.

IT IS FURTHER ORDERED denying Defendants Cross-Motion for Summary Judgement as to Count One.

In determining whether ALP or ALP, Inc. represents the official leadership of the Arizona Libertarian Party, Defendants ask that this Court take into account the fact that the Libertarian National Committee revoked Plaintiff ALP's charter, and on November 30, 1999, chartered Defendant ALP, Inc. as its new Arizona affiliate. Arizona law does not prohibit the existance of two political entities with the same or similar names. Even though Plaintiff ALP is no longer the National Libertarian Party's Arizona affiliate, this does not mean Defendant ALP, Inc. is entitled to recognition as the official Libertarian representative by the State of Arizona.

Having found that Plaintiff ALP did not vote to merge with the Defendant ALP, Inc. at the April 1999 convention, it follows logically that the Plaintiffs continue in their capacity as the official body recognized to act on behalf of the Libertarian Party in Arizona.

IT IS FURTHER ORDERED that the Clerk of the Court shall release to Plaintiffs Arizona Libertarian Party, Michael Voth and Ernest Hancock the Voter Data which was deposited with the Clerk by the County Recorder, pursuant to this Court's August 20, 1999 Minute Entry.

Count Two

Plaintiffs, ALP, ARP, and ADP challenge A.R.S. 16-824 - 16-828 of Arizona'a election laws. Plaintiffs argue that the word "shall" in each of the challenged statutes can be construed as permissive, rather than mandatory, but if found to be mandatory, that the statutes violate their First Amenmdment rights of political association.

Plaintiffs cite Mountain States Telephone and Telegraph Co. v. Corp. Comm'n, 160 Ariz. 350 (1989), in support of their argument tha the challenged statutory framework is permissive. In Mountain States, the Arizona Supreme Court made it clear that the word "shall" is mandatory, but may be construed as permissive in rate circumstances depending on the context and the legislative history of the statute. 160 Ariz. at 360. The Mountain States Court examined the legislative history of the challenged statute at considerable length before reaching a conclusion on the proper construction of the word "shall." The Plaintiffs do not offer any legislative history in their pleadings. The plain language of the challenged statutes does not reveal any "context" for finding that these statutes are simply permissive, nor do Plaintiffs suggest any reason for finding the language permissive other than this Court's duty to avoid ruling on issues of constitutionality unless absolutely necessary. See Aitken v. Industrial Comm'n of Arizon, 183 Ariz. 387, 389 (1995) ("[I]t is well-settled that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary. . . ") citations omitted). Finding that Plaintiff's "permissive" argument is not supported by the rules of statutory construction it must therefore fail.

THIS COURT FINDS that the word "shall" is A.R.S. 16-824 - 16-828 is mandatory.

Having found the challenged Arizona laws mandatory, it is necessary to determine if they burden any right of political association protected by the First and Fourteenth Amendments. Arizona's challenged statutory scheme requires political parties to form certain committees at various levels of government and specifies which officers must be elected to those committees. See Endnote 1. According to the United States Supreme Court, "a political party's 'determination . . . of the structure which best allows it to pursue its political goals, is protected by the Constitution.' Freedom of association also encompasses a political party's decisions about the indentity of, and the process for electing, its leaders." Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 229 109 S.Ct. 1013, 1023 (1989) (citations omitted). It is clear that under this standard, the challenged Arizona statutes implicate First Amendment concerns.

Standard of Review

Since it is necessary to review the constitutionality of these statutes, this Court must determine the proper standard of review. The proper standard of review for an election law challenge is governed by Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364 (1996). "regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting reviews, and a State's ''important regulatory interests'' will usually be enough to justify ''reasonable nondiscriminatory restrictions.''" Timmons, 520 U.S. at 358. This statement of the proper standard of review modified Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 1019 (1989) (holding that if a challenged election law "burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling interest, and is narrowly tailored to serve that interest."

Under Timmons, it is necessary to inquire into the practical effect the statute has on Plaintiffs' First Amendment rights. "[I]it is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." Timmons, 520 U.S. at 358 (citing Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 2063 (1992)). In making the inquiry into the severity of the burden imposed by Arizona's challenged election laws, this Court looks to the U.S. Supreme Court's opinion in Eu v. San Francisco County Democratic Central Comm. for guidance. In Eu, the challenged statutes defined each party's "official governing bodies." 489 U.S. at 216. These bodies were the "state conventions," "state central committee," and "county central committees." Id. Arizona's challenged election laws do not require that the statutorily created bodies constitute the party's official governing bodies. From a practical standpoint, it is very likely each Party will designate those statutorily created bodies as their official governing bodies, but it is not an absolute requirement under Arizona's challenged election laws.

The California laws challenged in Eu were extremely restrictive. "By requiring parties to establish official governing bodies at the county level, California prevents the political parties from governing themselves with the structure they think best." 489 U.S. at 230. The Supreme Court noted that the California Libertarian Party was forced to abandon its region-based organization in favor of the statutorily mandated county-based system. Id. at n.20. This could not happen in Arizona under the challenged statutes. Despite the requirement to set up a county organization, any party in Arizona is free to set up its own internal structure. Even though Arizona's political parties may choose to adopt the statutory committees as their governing bodies, no party is prohibited from establishing governing bodies separate from the State's requirements.

The California laws also specified, and fixed, the composition of these official governing bodies, set terms of office, and even limited, geographically, who could hold certain leadership positions. Eu, 489 U.S. at 229. "By specifying who shall be members of the parties' official governing bodies, California interferes with the parties's choice of leaders." Id. at 230. The Arizona statutes also specify who is eligible for certain positions on the required committees and specifies which leaders shall make up the composition of certain committees. However, the Arizona statutes do allow party bylaws to add members to these committees. See Endnote 1 A.R.S. 16-827.

The challenged Arizona statutes do not regulate the internal party as heavily or restrictively as the California election statutes in Eu. Of course, the comparison to the California statutes reviewed in Eu can not control the findings of this Court because the statutes are dissimilar. In making a determination as to the severity of the burden placed on Plaintiffs' rights, this Court has taken into account all of the pleadings, oral arguments of counsel, and the text of A.R.S. 16-824 - 16-828. Arizona's statutory scheme does burden Plaintiff's rights; however Plaintiffs are relatively free to deviate from the statutory scheme and set up their own governing bodies in any manner or fashion they see fit. Therefore:

THIS COURT FINDS that the burdens placed on Plaintiffs by Arizona's challenged election laws, A.R.S. 16-824 - 16-828, are not severe and that the statutes should be scrutinized under an intermediate standard of review.

Decision

Having found that the burdens imposed by Arizona's statutory scheme do not trigger strict scrutiny, this Court must weigh the burdens imposed by the statute against the interest of the government. Timmons, 520 U.S. 351 (1997). Any important regulatory interest of the State should be enough to uphold the statutes. Id.

Plaintiffs argue that this Court should find that there is no legitimate interest in the challenged Arizona statutes because the Attorney General has not responded to their constitutional challenges. The fact that the Attorney General has not chosen to respond to Plaintiffs' constitutional challenge cannot be interpreted to mean that the State agrees with Plaintiffs' arguments or that the State has no legitimate interests. The State has not articulated a position on this issue. It would (sic) inappropriate for this Court to make assumptions based on the State's silence. Plaintiff's argument that the Attorney General's silence on these issues is given no weight.

In Marchioro v. Chaney, the U.S. Supreme Court noted that the State has a legitimate interest in establishing representatvie committees to represent each political party before the State. 442 U.S. 191, 99 S.Ct. 2243 (1979). The State has a legitimate interest in ensuring a fair and orderly process for selecting candidates for state and national offices. Id. "These laws are part of broader election regulations that recognize the critical role played by political parties in the process of selecting and electing candidates for state and national office." Marchioro, 442 U.S. at 195-196. If the election process is to be fair and honest and in some sort of order, rather than chaos, as a practical matter, there must be substantial regulations of elections. Storer v. Brown, 415 U.S. 724 (1973). However, the question of whether these requlatory interests justify the burdens imposed on the Plaintiffs must be addressed.

Plaintiffs argue that the State's interests do no justify the burdens because there are other ways to certify to the government which leaders are the legitimate representatives of a political party, such as the filing of affidavits. Of course, the filing of conflicting affidavits to the County Recorder resulted in Count One of this suit. "[T]he Constitution does not require the State to choose ineffectual means to achieve its aims. To conclude otherwise might sacrifice the political stability of the system of the State, with profound consequences for the entire citizenry . . ." Storer, 415 U.S. at 736. Indeed, the Storer Court warned that splintered parties and unrestrained factionalism may do siginificant damage to the fabric of government." Id. Unfortunately, this is exactly the case before us.

The challenged statutory scheme permits the State to determine who represents a political party with continuing ballot access for the purposes of receiving State aid. It goes no farther. This case makes it clear that affidavits certifying to the County Recorder who represents the leadership of a party may not provide enough certainty to fulfill the statutory duties of that office.

THIS COURT FINDS that A.R.S. 16-824 - 16-828 do not violate the First Amendment.

IT IS ORDERED denying Realigned Plaintiff's Motion for Summary Judgement as to Count Two.

IT IS FURTHER ORDERED granting Defendant's Cross-Motion for Summary Judgement as to Count Two.

IT IS FURTHER ORDERED that Plaintiff Arizona Libertarian Party shall comply with the requirements of A.R.S. 16-824 - 16-828.

For more on this see ALP vs ALP Inc.

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