Attorneys: Fluency lawsuit infringes on candidate's rights

The city of San Luis, Ariz., is exposing itself to a possible countersuit if it presses ahead with its court battle to keep a woman from running for the city council because of her alleged lack of English fluency, her attorneys say.

Attorneys John Minore and John Garcia argue that the city would be breaking the law by using public funds in legal efforts to keep Alejandrina Cabrera off the ballot for the city's March primary election.

Their comments came this week as a sociolinguistics expert was performing a court-ordered test of Cabrera's fluency. San Luis Mayor Juan Carlos Escamilla had filed a special action in December asking the court to determine Cabrera's eligibility, based on her level of command of English.

State law requires public office holders to know English, but Cabrera's attorneys argue that it does not set specific standards of fluency that candidates must meet.

In December, the San Luis City Council authorized filing a special action in court to force Cabrera to demonstrate adequate English skills to serve on the council.

Minore and Garcia contend the lawsuit poses conflicts of interest for Escamilla, the plaintiff in the action, and City Attorney Glenn Gimbut, who is representing him.

Escamilla is listed in the lawsuit not as the mayor but as an elector of the city. Named as a defendant is the San Luis City Clerk's office, which handles filing of candidate nominating petitions for city elections.

“Escamilla says he's made the complaint as an elector, but he is using the city attorney, and suing the city through the city clerk's office,” said Minore. “So Gimbut, as city attorney, is suing his own client.

“It's bad that the city is trying to take away someone's right to run for office, and that the council members are trying to prevent someone from competing against them,” he added. “You can't do that in the United States.”

Gimbut said that having researched case law and consulted case law, he has found legal authority for the council to have approved the legal challenge to Cabrera's candidacy.

“Attorney Andre Hurwitz and Scott Bales gave me their opinion that while there is a public purpose involved, it can be done. I would think their opinion is sufficient, since they are know judges on the Arizona Supreme Court.”

Both sides differ over how well Cabrera performed in fluency tests that sociolinguist William Eggington performed by telephone on Monday and then in person the following day.

Minore said his client's performance was satisfactory but that in any case, “there is no established standard for the level of English fluency you have to have to hold a public office or for an election.

“The problem,” he added, “is there is no precedent in this type of case. If they want to establish a standard equivalent to a school grade level, that would discriminatory, because many people who come from Mexico didn't get through high school, or at times through elementary school.”

Gimbut, in an interview Tuesday, disputed Cabrera's fluency.

“The expert has given me preliminary information that (Cabrera) is speaking English at the level of survival. In other words, she can understand instructions, ask for something in the market or order in a restaurant, but at the required level for a government employee is more that double her abilities. She is not at level of a person who works at the booth in the utilities department.”

Gimbut argued that state law does, in fact, establish the level of English fluency needed to hold office. “It says you have to speak, read and write English in order to occupy a government office. It's in the Enabling Act, which allowed Arizona to become a state.”

He also cited the Article 28 of the Arizona Constitution, which says English is the state's official language.

Eggington has provided the findings of his exam to the Superior Court, which has been asked by the city to determine if Cabrera's name can appear on the ballot.

Minore and Garcia say the case could set a precedent in the state and the nation, but Gimbut said he doubted it will do anything more than determine if Cabrera can stay on the ballot.