Opposition Brief — Delgado v. Smith

Supreme Court, WS.

R FILED

NG war 22 1969

seat nas JOSEPH F. SPANIOL, JR,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

PEDRO DELGADO, ELIA GREGORIO, MAR-

CELO LLANES and MARTA R. TORRES,

Petitioners,

VS.

JIM SMITH, in his official capacity as Secretary of

State of the-State of Florida, DAVID LEAHY, in his

official capacity as the Supervisor of Elections of Dade

County, Florida and as a representative of a defendant

class of all County Supervisors of Elections in the State

of Florida, FLORIDA ENGLISH CAMPAIGN,

U.S.ENGLISH LEGISLATIVE TASK FORCE, INC.,

and U.S.ENGLISH FOUNDATION, INC.,

Respondents.

OPPOSITION TO PETITION FOR WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

BARNABY W. ZALL

Law Offices of Barnaby Zall

818 Connecticut Ave., N.W. #201

Washington, D.C. 20006-2702

Telephone: (202) 857-5360

Counsel of Record

Counsel for Non-governmental

Respondents

‘Re

NO. 88-1327

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

PEDRO DELGADO, ELIA GREGORIO, MAR-

CELO LLANES and MARTA R. TORRES,

Petitioners,

VS.

JIM SMITH, in his official capacity as Secretary of

State of the State of Florida, DAVID LEAHY, in his

official capacity as the Supervisor of Elections of Dade

County, Florida and as a representative of a defendant

class of all County Supervisors of Elections in the State

of Florida, FLORIDA ENGLISH CAMPAIGN,

U.S.ENGLISH LEGISLATIVE TASK FORCE, INC.,

and U.S.ENGLISH FOUNDATION, INC.,

Respondents.

OPPOSITION TO PETITION FOR WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Non-governmental respondents hereby respectfully

pray that this Court summarily affirm the decision of

the courts below, deny the petition for writ of cer-

tiorari, or, if a writ of certiorari is granted at all, issue

the writ on Question 3 listed above.

QUESTIONS PRESENTED

Being dissatisfied with the Questions Presented by

petitioners in this case, non-governmental respondents

hereby say that the questions in this case are:

1. Whether the Tenth and Eleventh Circuits cor-

rectly concluded that the Voting Rights Act does not

require petitions circulated by private citizens to be

printed in Spanish and English since (a) the circulation

and signing of initiative petitions does not constitute

“voting” within the meaning of the Act and (b) the act

of circulating initiative petitions by private citizens does

not constitute state action simply because the form of

such petitions is regulated by the State?

2. Where (a) neither the statute nor the case law

provides any right to a three-judge panel to review

claims brought by private individuals that petitions cir-

culated by private citizens must be printed in Spanish

and English and (b) the request for a three-judge panel

was not raised before the Court of Appeals, did the

lower courts err in fully adjudicating and denying such

claims on an expedited basis without invoking a three-

judge panel?

3. Whether the attempt by the U.S. Department of

Justice to require that petitions circulated by private

citizens be printed in Spanish and English goes so far

beyond the Voting Rights Act that it infringes on the

First Amendment rights of the citizen circulators?

TABLE OF CONTENTS

py) Bak we Nosh. 8 2g 6: Sr i

ia os se oe eee ]

SR ALU ROMEEUE GOW CPIM NECAAE 2g ce es 2

REASONS FOR DENYING THE WRIT ..... 2

I. THE COURT LACKS JURISDICTION TO HEAR

ee Eh oe ks ke 6 oo de ek 2

A. The November 1988 Election on this Initiative

Renders This Matter Moot. ............. 2

B. Petitioners’ Three-judge Panel Claim Was Not

Adequately Pursued Below. .............3

Il. THE DECISION BELOW DOES NOT CON-

FLICT WITH ANY OTHER DECISION ....... 4

Ill. THE POSITION OF THE JUSTICE DEPART-

MENT UNCONSTITUTIONALLY INFRINGES

ON RESPONDENTS’ RIGHTS. .......... 7

NE or a ages gee 8

TABLE OF AUTHORITIES

CASES

Adickes v. Kress & Co., 398 U.S. 144 (1970) ........ 5

Allen v. State Board of Elections, 393 U.S. 544 (1968). .5

Batterton v. Francis, 432 U.S. 416 (1977) 2... ew ee. 6

Blum v. Bacon, 457 U.S. 132 (1982) ........264-- 7

Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988) ..... 4

Delgado vy. Smith, No. 88-1880-CIV-JWK (S.D.Fla.

1988) ww wn cc ee ee ee 4

Gerena-Valentin v. Koch, 523 F.Supp. 176 (S.D.N.Y.

1) PE

Hillsborough County, Florida v. Automated Medical

Laboratories, 471 U.S. 707 (1985) ........... 6

In re Advisory Opinion to the Attomey General: English -

The Official Language of Florida, 520 So.2d 11

(Fla. 1988) .. 2 6. ss 0 ss ee hee 1,3

Jackson v. Metropolitan Edison Co., 419 U.S. 345

(1974)... cc cue 0 0 0 ae

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) .... 5

McLucas v. De Champion, 421 U.S. 21 (1975)... ... 4

Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988) ..... 4,6

Southem Pacific Terminal Co. v. Interstate Commerce

Comm'n, 219 US. 6611912) 4.0. eee

Washington v. Yakima Indian Nation, 439 U.S. 463

(1979) 0 ww he a ee es 7

Weinstein v. Bradford, 423 U.S. 147 (1975)... .... 3

Zaldivar v. City of Los Angeles, 59) F.Supp. 852

(C.D. Cal. 1984), rev’d on other grounds, 780 F.2d

823 (th Cur. 1906) . 6s op ee eee 4

STATUTES AND REGULATIONS

28 U.S.C.A. § 1254(1) (1966) .....0020222222.. l

42 U.S.C.A. § 1971-1973bb (1981 & Supp. 1988) .. . . .passim

28 C.F.R. §§ 55.2(c), 55.14(c), 55.19(a). (1988) ..... 6

OTHER

Letter from Thomas M. Boyd, Assistant Attorney

General, to Hon. Benjamin A. Gilman, Feb. 14,

1989. 7

S-Rep. No. 417, 97th Cong., 2d Sess. (1982), reprinted

in 1982 U.S. Code, Cong. & Admin. News 177

in

JURISDICTION

The jurisdiction of this Court was invoked under 28

U.S.C.A. § 1254(1). Respondents’ counsel received the

petition on February 14, 1989; permission was granted,

after motion, for an extension of time to respond until

March 27, 1989.

Petitioners’ invocation of jurisdiction was qualified

by a claim that neither of the lower courts had jurisdic-

tion. Petition for Writ of Certiorari (hereinafter Pet.)

at 1-2. For reasons more fully explained in the Reasons

for Denying the Writ below, this Court lacks jurisdic-

tion to hear this case. Briefly, (1) petitioners failed to

raise their three-judge panel claim at the Court of Ap-

peals, and (2) petitioners complain only about the Offi-

cial Language initiative enacted last November, render-

ing this controversy moot.

In addition, Respondents note that the trial of this

matter indicated a serious question of whether

petitioners have standing to bring this action. Although

petitioners claimed that they were harmed by not

having sufficient advance notice of the circulation of

the English-language petitions which were the subject

of this proceeding, Pet. at 6, trial testimony

demonstrated conclusively that petitioners and many

others similarly situated had notice of the initiative and

its contents many months before the initiative was

qualified for the ballot. See, eg., In re: Advisory

Opinion to the Attorney General: English - The Official

Language of Florida, 520 So.2d 11 (Fla. 1988)(fifteen

organizations filed amicus briefs in opposition to

proposed initiative). In fact, petitioners’ expert witness

testified that his efforts to organize opposition to the

initiative were unsuccessful solely due to apparent

apathy in the community; this lack of opposition was

5

confirmed when the initiative received 84 percent of

the vote in the November 1988 election.

STATEMENT OF CONTEXT

Seventeen states have enacted laws designating

English as their official languages.’ This petition is one

of three concurrent attempts by opponents of successful

official language initiatives to obtain from this Court

what the voters refused them: disapproval of the desig-

nation of English as the official language of a jurisdic-

tion. See, Montero v. Meyer, No. 88-6376; In re Delgado,

No. 88-1329. Several of the issues in this petition have

been dealt with in the other two petitions; to avoid

repetition, those responses will only be summarized

herein.

REASONS FOR DENYING THE WRIT

I. THE COURT LACKS JURISDICTION TO

HEAR THIS MATTER

A. The November 1988 Election on this

Initiative Renders This Matter Moot.

The initiative challenged by petitioners was ap-

proved by Florida’s voters in the November 1988

1 Arizona (1988), Arkansas (1987), California (1986), Colorado

(1988), Florida (1988), Georgia (1986), Hawaii (1978), Illinois

(1969), Indiana (1985), Kentucky (1984), Mississippi (1987),

Nebraska (1920), North Carolina (1987), North Dakota (1987),

South Carolina (1987), Tennessee (1984), and Virginia (1986).

2 The argument summarized here is made more fully in the

Opposition to the Petition for Writ of Certiorari in Montero v.

Meyer, No. 88-6376 (hereinafter Montero Opp.), P. 5

general election. This Court could exercise jurisdiction

only if the controversy is “capable of repetition, yet

evading review.” Southern Pacific Terminal Co. v. Inter-

state Commerce Comm’n, 219 U.S. 498, 515 (1911).

Petitioners challenged only this initiative. They did

not certify this as a class action. In the absence of a

class action, petitioners must show:

1. The challenged action was too short to be fully

litigated; and

2. There is a reasonable expectation that the com-

piaining party would be subjected to the same action

again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

Neither of these showings can be made: petitioners

had plenty of time to challenge the initiative (as others

did in Jn re Advisory Opinion, supra), and since the in-

itiative passed, it will not come before petitioners again.

B. Petitioners’ Three-judge Panel Claim,

Was Not Adequately Pursued Below.>

This Court lacks jurisdiction to hear petitioners’

three-judge panel claim because petitioners failed to

pursue their claim before’ the Court of Appeals.

Petitioners raised this issue in a footnote in their brief

to the Court of Appeals, but did not ask that court to

rule on the three-judge panel issue. Petition for Writ

of Mandamus, No. 88-1329 (hereinafter Mandamus

Pet.) at 7.

3 The argument summarized here is made more fully in the

Opposition to the Petition for Writ of Mandamus in /n re

Delgado, No. 88-1329 (hereinafter Mandamus Opp.).

Since petitioners failed to ask for relief from the

Court of Appeals, they cannot ask for relief from this

Court. McLucas v. De Champion, 421 U.S. 21, 30

(1975)(“[W]e have held that, when a single district

judge fails to call for the convention of a three-judge

court and goes on to dispose of the casg, an appeal lies

only to the court of appeals.”)

Il. THE DECISION BELOW DOES NOT

CON FLICT WITH ANY OTHER

DECISION“

There is no conflict between the decision below

and decisions of this Court and of other courts of ap-

peal. As to courts which have looked specifically at

petitioners’ claims under the Voting Rights Act, the

Eleventh Circuit noted: “the overly broad interpreta-

tion of the Act urged by appellants has been rejected by

every court squarely to face the issue.” Appendix to

Petition for Writ of Certiorari (hereinafter App.), at

A7. See, Delgado v. Smith, No. 88-1880-CIV-JWK

(S.D.Fla. 1988), reprinted at App. at A35, affirmed by

Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988),

reprinted at App. at Al; Montero v. Meyer, 861 F.2d 603

(10th Cir. 1988); Zaldivar vy. City of Los Angeles, 590

F.Supp. 852 (C.D. Cal. 1984), rev'd on other grounds,

4 The argument summarized here is made more fully in the

Montero Opp., Pp. 6-8, 9-13.

780 F.2d 823 (9th Cir. 1986);> Gerena-Valentin v. Koch,

523 F.Supp. 176 (S.D.N.Y. 1981).

Nor do petitioners’ more imaginative claims fare

any better. As to petitioners’ concepts of “state ac-

tion,” the lower court decisions do not conflict with this

Court’s decisions. See, e.g., Lugar v. Edmonson Oil Co.,

457 U.S. 922, 937 (1982)(two-part test: state-created

right and state actor). Here, the right of initiative is not

a State-created right, but one reserved by the people in

their constitution. Nor are non-governmental respon-

dents (who circulated the petitions) state actors, since

initiatives are not public functions “traditionally the ex-

clusive prerogative of the state,” Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 353 (1974); nor was circula-

tion of the petition “state compulsion” of a state-en-

forced custom, Adickes v. Kress & Co., 398 U.S. 144

(1970); nor can the actions of citizens circulating peti-

tions be fairly treated as those of the state itself, Jack-

son, supra; nor is there “joint action” in initiatives,

Lugar, supra, 457 U.S. at 941, since the state is barred

from actions reserved to the people.

As to petitioners’ claims that the lower court ig-

nored Allen v. State Board of Elections, 393 U.S. 544

(1968), respondents note that Allen dealt specifically

with odious attempts to dilute the impact of black

voting by circumventing § 5 of the Voting Rights Act.

S.Rep. No. 417, 97th Cong., 2d Sess. 6, reprinted in 1982

5 Petitioners cite the Ninth Circuit’s decision in Za/divar for the

proposition that the Ninth Circuit rejected the Voting Rights

Act analysis by the District Court in that case. Pet. at 15, n.15.

Petitioners ignore the Ninth Circuit’s statement that “we do

not review the court’s decision on the Voting Rights issue for

legal error. We hold only that plaintiffs’ argument is plainly not

frivolous under the first prong of Rule 11.” 780 F.2d at 834.

U.S. Code, Cong. & Admin. News 177, 183. This case

comes under §§ 4(f)(4) and 203 of the Act.

Finally, as to petitioners’ claims that the lower

courts failed to defer to the Attorney General’s inter-

pretive guidelines, respondents note that both the lower

courts examined those guidelines carefully and abided

by them. The guidelines explicitly state that decisions

as to what materials are covered by the relevant por-

tions of the Act were delegated to the affected jurisdic-

tions. 28 C.F.R. §§ 55.2(c), 55.14(c), 55.19(a). The

courts in this case and in Montero examined several

jurisdictions’ actions and determined that initiative peti-

tions were not intended to be covered. App. at A9-11;

Montero, 861 F.2d at 608-9, 609 n.4. In addition,

petitioners fail to understand this Court’s distinction

between mandatory regulations and _ interpretive

guidelines. Hillsborough County, Florida y. Automated

Medical Laboratories, 471 U.S. 707, 718 (1985)(agencies

“will make their intentions clear if they intend for their

regulations to be exclusive”); Batterton v. Francis, 432

U.S. 416, 425 n.9 (1977).

III. THE POSITION OF THE JUSTICE

DEPARTMENT UNCONSTITUTIONALLY

INFRINGES ON RESPONDENTS’

RIGHTS.

If the Court determines that a writ of certiorari

should issue, non-governmental respondents respectful-

ly suggest that an appropriate area of review would be

the unconstitutional effect of the position of the United

States Department of Justice.

Now that two different circuits have rejected the

view that the Department of Justice guidelines require

citizens to print their initiative petitions in multiple lan-

guages, the Department of Justice should stop pressing

a contrary view. Nevertheless, as recently as February

14, 1989, the Department of Justice sent its amicus

brief to members of Congress to explain its views on

the matter. Letter from Thomas M. Boyd, Assistant

Attorney General to Hon. Benjamin A. Gilman, Feb.

14, 1989.

This Court may wish to affirm summarily the lower

court decisions in this regard, or to issue a writ of cer-

6 Ordinarily respondents would file a cross-petition for certiorari

on this constitutional issue. $.Ct.R. 19.5. Respondents,

however, do not seek to alter in any way the judgment below.

Washington v. Yakima Indian Nation, 439 U.S. 463, 476 n. 20

(1979). Respondents’ request is the mirror image of Blum v.

Bacon, 457 U.S. 132, 137 n.5 (1982), in that here respondents

wish to support on constitutional grounds a decision below

made partially on statutory grounds. The relief requested

under this claim would not go further than that provided

below, since the Eleventh Circuit explicitly rejected the

Department of Justice’s interpretation of its own guidelines as

beyond the statute. App. at A11.

tiorari to affirm the lower court decisions on this point.

If the Court determines to review any aspect of this

case, respondents would urge that the Court also ex-

amine this issue.

CONCLUSION

Respondents respectfully request this Court to af-

firm summarily the lower courts’ decisions, to review

only the issue of whether the Department of Justice in-

terpretive guidelines are unconstitutional or beyond the

scope of the Act, or to deny the petition entirely.

RESPECTFULLY SUBMITTED,

BARNABY W. ZALL

Law Offices of Barnaby Zall

Suite 201 ;

818 Connecticut Ave., N.W.

Washington, D.C. 20006-2702

Telephone: (202) 857-5360

Counsel of Record

Counsel for Non-governmental

Respondents