Amicus Curiae Brief — Arizonans for Official English v. Arizona

MOTION FILED

JAN 22 1996 No. 95-974

In The

Supreme Court Of Che United States

October Term, 1995

ARIZONANS FOR OFFICIAL ENGLISH

AND ROBERT D. PARK,

Petitioners,

Vv.

STATE OF ARIZONA;

MARIA-KELLEY F. YNIGUEZ; JAIME

GUITIERREZ; AND ARIZONANS

AGAINST CONSTITUTIONAL TAMPERING,

Respondents.

On Petition for a Writ Of Certiorari to the United States

Court of Appeals for The Ninth Circuit

BRIEF AMICUS CURIAE OF U.S. ENGLISH, INC.,

IN SUPPORT OF PETITIONER

Leonard J. Henzke, Jr.

Counsel of Record for

U.S. English, Inc.

Wendy T. Cohen

GINSBURG, FELDMAN AND

BRESS, CHARTERED

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 637-9139

Counsel for Amicus Curiae U.S.

English, Inc.

January 22, 1996

Baimar Legal Publishing Department, Washington, D.C. (202) 682-9800

i

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

IN SUPPORT OF PETITION FOR CERTIORARI

COMES NOW USS. English Inc. (“U.S. English’), by

counsel, pursuant to Supreme Court Rule 37, and moves this

Court for leave to file a brief amicus curiae in support of the

Petition for Certiorari filed by Arizonans for Official English on

December 20, 1995. In support of this motion, U.S. English

states as follows:

1. U.S. English has approximately 600,000 members na-

tionwide, and worked to obtain enactment of Article XXVIII of

the Arizona Constitution (the “Amendment” at issue here.

2. U.S. English filed briefs amicus curiae in the Court of

Appeals in this case.

3. U.S. English is currently promoting cimilar provisions

in numerous other jurisdictions, including H.R. 123 in the

U.S. Congress.

4. A threshold issue in any case involving the First

Amendment is the scope of the court’s power of constitutional

adjudication.

2. Petitioner’s brief discusses briefly the principle of con-

stitutional adjudication that the Arizona constitutional provision

in issue must be given all reasonable constructions in order to

save it from facial invalidation. The amicus brief submitted by

U.S. English discusses this principle in greater detail, especially

as applied to the Constitutional provision here, which was

enacted by referendum.

3. The amicus curiae brief submitted herewith also dis-

cusses in greater detail the authoritative construction of the

Arizona Constitutional Amendment in issue, and the error of the

majority opinion below in ignoring this construction. A copy

of the formal Opinion of the Attorney General is printed with

our brief. We understand that the Arizona Attorney General

ii

does not intend to file a brief respecting the Petition, so it is

particularly important that the Court have available a discussion

and copy of the Opinion of the Attorney General and his formal

position before the Court of Appeals.

3. Barnaby W. Zall, Esq., counsel for Petitioner Arizonans

for Official English, does not consent to this motion.

4. All other parties consent to this motion.

WHEREFORE, it is requested that the Court issue an order

granting U.S. English leave to file the attached amicus curiae

brief in support of the Petition for Certiorari.

Respectfully submitted,

Leonard J. Henzke, Jr.

Counsel of Record

Wendy T. Cohen

Ginsburg, Feldman & Bress,

Chartered

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Telephone No.: (202) 637-9139

Counsel for Amicus

Curiae U.S. English, Inc.

Table of Authorities .... 6... 6 eee eee eee

Argument... ..-- eee eee t errr eres

A. The Opinions Of The Lower Courts Are

In ConflictWith Decisions Of This Court

Proscribing Facial Invalidation .......-

B. The Lower Courts Disregarded This

Court’s Decisions In Refusing To Adopt

The Narrowing Construction Proffered

Sy The Arizona Attorney General .... .

C. As An Alternative To Adopting The

Attorney General’s Opinion, The Lower

Courts Should Have Certified The Case

To The Arizona Supreme Court For An

Authoritative Construction Of The

Comittee . ct wie ce sow eceseceeesecns

Appendix A (Opinion of Arizona Attorney

General No. 189-009) ......-- +e eee

IV

iv

TABLE OF AUTHORITIES

Cases:

Bellotti v. Baird, 428 U.S. 132 (1976) ......

Broadrick v. State of Oklahoma,

Sa Rs 6 5 6 bd oth ako

Brockett v. Spokane, 472 U.S. 491 (1985)... . .

Debartolo Corp. v. Fla. Gulf Coast Building

Construction Trades Council,

SS eae

Ehlert v. United States, 402 U.S.99 (1971) ....

Erznoznik v. City of Jacksonville,

GF Uae aadeecicecce se

Frisby v. Schultz, 487 U.S. 474 (1988)... ....

Harrison v. NAACP, 360 U.S. 167 (1959)... . .

Hooper v. California, 155 U.S. 648 (1985)

Lake Carriers’ Association v. MacMullan,

Gee. Gees 63 bet hme ees

Law Students Research Council v. Wadword,

Gas TAR. Ee eens 6 eS we wes < «

Marsh v. Alabama, 326 U.S. 501 (1946)... . ..

Robles v. Mofford, No. 261837

(Sup. Ct. Pima County), Nov. 14,1989... .

U.S. v. National Treasury Employees Union,

_._. VS.__, 115 $.Ce. 1003 (1995) .....

U.S. v. X-Citement Video, Inc., __ US. _,

SEP ee GOED. 6 Wo case ees oes

Virginia v. American Booksellers Association,

Gey eeepc «eset eetbe eee

Pages

6, 9, 10, 11

v

TABLE OF AUTHORITIES (Con’t.)

Pages

Constitutions and Statutes:

Asiz. Const. ast. XXVM 2... we ee ee ees 1,7,8

Ariz. Const. art.6,§5(6) 2... . 6 eee eee 9

ARS. $12-1861 .. 0... cece eccces 9

Ariz. Supreme Court Rule 27(a) ...----+-- 9

Ariz. Atty. Gen. Op. 189-009... 2... - + ss 4,5,7,8

U.S. Constitution

First Amendment ......--+++++8> 4

Fourteenth Amendment ..........++-> 4

Miscellaneous:

Webster’s Third New International

Dictionary (1976) ...... +--+ ese ee 7,8

BRIEF OF AMICUS CURIAE U. S. ENGLISH, INC.

IN SUPPORT OF PETITIONER

I. STATEMENT OF INTEREST OF AMICUS CURIAE

U.S. English is a national nonprofit organization with over

600,000 members. Its purpose is to promote legislation and

programs to establish English as the official language of gov-

ernments.

U.S. English has a substantial interest in this litigation

because it involves the constitutionality of Article XXVIII of

the Arizona Constitution, entitled “English as the Official Lan-

guage” (the “Amendment”). U.S. English assisted in the initia-

tive which resulted in the Amendment, filed briefs in the Court

of Appeals below, and is currently promoting official English

statutes in Congress and other states.

Any meaningful official English statute must necessarily

employ broad language and rely heavily on administrative in-

terpretations and implementations by attorneys general or other

administrative officials. The lower courts’ refusal to give effect

to the Amendment’s construction by the Arizona Attorney

General, and their facial invalidation of the Amendment, will

make it extraordinarily difficult to fashion similar legislation in

other jurisdictions if the opinion below is allowed to stand.

U.S. English respectfully submits that Judge Reinhardt’s

majority opinion below is in direct conflict with prior decisions

of this Court which held that facial invalidation is not appropri-

ate, where, as here, the challenged provision has a broad range

of plainly legitimate applications. The lower courts should have

adopted the careful opinion of the Arizona Attorney General

which narrows the scope and impact of the Amendment and

cures all constitutional concerns. In the alternative, the lower

courts should have certified the case to the Arizona Supreme

Court for an authoritative construction of the Amendment be-

fore ruling on its constitutionality. We suggest that the Arizona

2

Atttorney General be invited to file a brief before the Petition

for Certiorari is acted upon.

Il. ARGUMENT

A. The Opinions of the Lower Courts Are In Conflict

With Decisions of This Court Proscribing Facial

Invalidation

The opinion below erred in ruling that the entire Amend-

ment was facially invalid. No application of the Amendment

was saved -- even admittedly Constitutional provisions such as

that requiring use of English in court opinions and similar

official documents. In so holding, the majority opinion below

conflicts with numerous Supreme ‘Court opinions, which have

consistently held that in a case such as this one, where the

challenged statute has a broad range of legitimate applications,

the more appropriate remedy is to restrict the scope of the statute

to cure any constitutional infirmities.

Facial invalidation of a statute challenged on constitutional

grounds is “the exception” and “has been employed by the Court

sparingly and only as a last resort.” Broadrick v. State of

Oklahoma, 413 U.S. 601, 613, 615 (1973). Courts must exer-

cise caution and restraint in considering a facial challenge so as

to avoid “unnecessary interference” with a state’s policy

— Erznoznik v. City of Jacksonville, 422 U.S. 205, 216

(1975).

Facial invalidation is only proper where the threat of un-

constitutionality is both real and substantial when compared to

the statute’s legitimate sweep. Broadrick, 413 U.S. at 615.

Only if the “overbreadth of the . . . statute, in relation to its

legitimate reach, is substantial” will it “warrant a declaration of

facial invalidity”. Brockett v. Spokane, 472 U.S. 491, 503 fn.

12 (1985). The Court is reluctant to invalidate a statute in its

entirety when the challenged law has at least some legitimate

application. See Broadrick, 413 U.S. at 616-17. In these cir-

3

cumstances, the more appropriate remedy is partial invalidation.

See Marsh v. Alabama, 326 U.S. 501 (1946) (invalidating state

trespass law, but only insofar as it applied to the distribution of

literature on the streets of a compeny town). See also Brockett,

472 U.S. at 502-3 (listing First Amendment cases where statute

was held invalid only as applied to particular persons or circum-

stances).

Moreover, the Court will not entertain a facial challenge

when a narrower remedy will fully protect the litigants. In U.S.

v. National Treasury Employees Union, _ U.S. __, 115 S.Ct.

1003 (1995), a class of plaintiffs composed of all Executive

Branch employees below GS-16 challenged the constitutional-

ity of a statute that placed a ban on federal employees receiving

honoraria for speeches. /d. at 1010. The lower courts held that

the statute violated the First Amendment and issued an injunc-

tion against enforcement of the statute against any executive

branch employee. /d. at 1011-12. This Court agreed that the

statute was invalid as applied to the plaintiff class; however, the

Court reversed the judgment of the lower court in so far as it

purported to invalidate the statute as applied to the entire execu-

tive branch. /d. at 1018-19. The Court reasoned that “although

the occasional case requires us to entertain a facial challenge in

order to vindicate a party’s right not to be bound by an uncon-

stitutional statute, we neither want nor need to provide relief to

nonparties when a narrower remedy will fully protect the liti-

gants.” (internal citations omitted) /d. at 1018. The Court noted

that the activities and status of non-parties might be quite

different from those of the plaintiff class. /d. at 1019.

The declaratory judgment issued below is manifestly over-

broad under the standards set forth in Broadrick and National

Treasury Employees Union. Facial invalidation is not appropri-

ate, where, as here, the challenged statute has a wide range of

legitimate applications. For example, there is no question that

the Arizona Amendment is constitutional in requiring all official

4

government documents to be prepared in English, and requiring

all court and administrative hearings to be conducted in English

or with English translation.

The fact that the Amendment employs broad language is

not sufficient to strike it down in toto. Indeed, constitutional

provisions -- including the federal First and Fourteenth Amend-

ments -- are necessarily broad and require interpretation by

courts and state officials to define their scope and application.

The courts should not assume that Arizona officials will imple-

ment the Amendment in ways which will conflict with the

federal Constitution or federal law, particularly where, as here,

the State’s Attorney General has issued a lengthy opinion nar-

rowly interpreting the Amendment and repeatedly stating that

the Amendment must be read so as not to conflict with the

federal Constitution, federal laws, or other State Constitutional

provisions. See Opinion of Arizona Attorney General

(“O.A.G.”) 189-099 reprinted as Appendix A, infra, at A-1 , A-3,

A-4, A-7, A-8 thru A-10, A-12.

Facial invalidation is not necessary to protect the litigants

in this case. The present action was instituted by two individual

plaintiffs. At the time the lawsuit was filed, plaintiff Yniguez

was employed by the Risk Management Division of the Arizona

Department of Administration, where she handled malpractice

claims asserted against the State. Yniguez alleged that the

Amendment prevented her from speaking Spanish to Spanish

speaking claimants. Similarly, plaintiff Guitterez, a state sena-

tor, claimed that the Amendment prevented him from speaking

Spanish to his Spanish-speaking constituents. Even assuming

the Amendment prohibited the speech of Yniguez and Guitterez

and others similarly situated, the court could have protected the

party plaintiffs by fashioning a far narrower remedy. Indeed,

the Arizona Attorney General filed an opinion with the district

court interpreting the Amendment to apply only to “offici+l” acts

or government functions. See O.A.G. 189-099, Appendix A,

5

infra, at A-2. Adoption of the Attorney General’s opinion would

have saved the Amendment from total invalidation while fully

protecting the party plaintiffs.

The Court’s decisions narrowly restricting facial invalida-

tion are not simply procedural, but rather constitute a fundamen-

tal principle necessary for the proper balancing of powers in a

representative democracy, including the relationship of judicial

and legislative powers. The majority opinion below egregiously

disrupts that balance, by substituting the views of several judges

regarding the official language of state government, in place of

a state constitutional provision, approved by a majority of

Arizona voters and carefully implemented by an opinion of the

elected State Attorney General. The majority opinion below

affects millions of Arizona citizens and their relation to their

government, and warrants review by this Court.

B. The Lower Courts Disregarded This Court’s De-

cisions in Refusing To Adopt The Narrowing Con-

struction Proffered By The Arizona Attorney

General

Shortly after the Official English Amendment was ap-

proved by Arizona voters, the Arizona Attorney General issued

a lengthy official opinion interpreting its provisions. O.A.G.

189-099, Appendix A, infra. This opinion provided a construc-

tion that “is compatible with the United States Constitution and

federal laws.” Jd. at A-1. It concluded that the Amendment

“requires that official acts of Government be expressed in Eng-

lish”, but does not “prohibit the use of other languages where

they are reasonably required in the day to day operation of

Government.” /d. at A-2. In its briefs in the courts below, the

Arizona Attorney General repeatedly confirmed that O.A.G.

189-009 is “the official position of the State of Arizona on the

2 The lower courts failure to adopt the Attorney General's opinion is

discussed infra, at pp. 5-9.

6

proper interpretation” of the Amendment.’ He reiterated that

the Amendment appi{ies] only to ‘official’ acts” and “official

government functions or actions,” but not to “[rjoutine conver-

sations, instructions and communications with agencies or citi-

zens.* The Attorney General’s opinion is reasonable and

should have been applied by the lower courts to save the

Amendment from facial invalidation.

This Court has repeatedly stated that a statute that is

“readily susceptible” to a narrowing construction is not subject

to facial invalidation. See, e.g., Frisby v. Schultz, 487 U.S. 474,

482 (1988); Erznoznik, 422 U.S. at 216 (1975). In judging the

constitutionality of a state law, the Court has regularly relied

upon interpretations of the challenged statute by state officials

and/or agencies -- some far less authoritative than those of the

Arizona Attorney General here. See, e.g., Frisby, 487 U.S. at

483 (construing picketing ordinance narrowly to save its consti-

tutionality and stating that “This narrow reading is supported by

the representations of counsel for the town at oral argument,

which indicate that the town takes, and will enforce, a limited

view of the ‘picketing’ proscribed by the ordinance”); see also

Broadrick, 413 U.S. at 617-18 (referring to State Personnel

Boards’ interpretation of the statute in question and stating,

“Surely a court cannot be expected to ignore these authoritative

pronouncements in determining the breadth of a statute”); Bel-

loti v. Baird, 428 U.S. 132, 143 (1976) (“the interpretation

placed on the statute by appellants in this Court is of some

importance and merits attention because they are the officials

charged with the enforcement of the statute”); Law Students

Research Council v. Wadword, 401 U.S. 154, 162 (1971) (ac-

cepting the interpretation of state enforcement officials despite

* Br. of State of Arizona, 9th Cir. No. 93-15719, p. 3, fn. 1; see Br. of

State of Arizona on Rehearing en Banc, 9th Cir. No. 93-15719.

. Br. of Attorney General on Rehearing en Banc, adopting Br. on

Rehearing of U.S. English, p. 4.

7

the “language of the Rule [which] lends itself to a construction

that could raise substantial constitutional questions”’).

Prior decisions of this Court make clear that the proffered

narrowing construction need not be the most natural reading of

the statute. In United States v. X-Citement Video, Inc., __ U.S.

__, 115 S.Ct. 464, 472 (1994), the Court rejected a strict gram-

matical construction of statutory language, reasoning that “It is

. . . incumbent upon us to read the statute to eliminate .. .

[constitutional] doubts so long as such a reading is not plainly

contrary to the intent of [the legislature}.”. In support of this

canon of statutory construction, the opinion cited the analysis in

Debartolo Corp. v. Fla. Gulf Coast Building and Construction

Trades Council, 485 U.S. 568, 575 (1988), which quoted

Hooper v. California, 155 U.S. 648, 657 (1895). The latter case

interpreted a California penal statute in a manner which avoided

constitutional problems, stating that “ ‘the elementary rule is that

every reasonable construction must be resorted to, in order to

save a statute from unconstitutionality.’” Debartolo, 485 U.S.

at 575. See also Ehlert v. United States, 402 U.S. 99, 105-106

(1971) (Army General Counsel’s opinion as to meaning of draft

statute accepted to save constitutionality of statute, where opin-

ion was “plausible . . . but not the only possible [construction]”).

In the instant action, the Arizona Attorney General issued

an opinion construing the amendment to apply only to the

“official acts” of government. This construction of the Amend-

ment was reasonable under the standards set forth in X-Citement,

supra. The lower courts did not even contend that this construc-

tion conflicted with the intent of the framers of the Amendment,

or the general understanding of the electorate. The Attorney

General’s opinion is also consistent with the language of the

Amendment. The Amendment (including its title) repeatedly

refers to English as the “official language” of Arizona. Web-

ster’s Third New International Dictionary, p. 1566 (1976) de-

fines “official” to mean “formal” and “authoritative.” Thus, the

8

Attorney General properly ruled that the Amendment did not

apply to informal conversations and writings of government

employees.

The lower courts rejected the Attorney General’s construc-

tion, because Sec. 3(1)(a) of the Amendment, which requires

State political units to “act in English”, does not contain the word

“official”. The X-Citement opinion, however, teaches that

courts should not demand reiteration of words in various parts

of a statute when judging its constitutionality. X-Citement, 115

S.Ct. at 467. Moreover, Sections 1 and 2 of the Amendment

make clear that the Amendment only deals with official or

formal English use. Thus, there was no need to repeat this

limitation in Sections 3 or 4, which involve other details regard-

ing when English is or is not required.

Judge Reinhardt’s majority opinion is also inconsistent

with the X-Citement rationale insofar as it insisted on a rigid

grammatical construction of the Amendment. Section 3(1)(a)

of the Amendment provides that political subdivisions must “act

in English”. The Attorney General properly determined that

“act” in this context means a “decision or determination of a

sovereign, a legislative council, a court of justice,” relying on

Webster's Third International Dictionary, supra, at 20. The

Court of Appeals improperly rejected this interpretation on the

ultra-literal basis that this definition was contained under the

noun “act”, whereas Sec. 3(1)(a) uses “act” as a verb. A

similarly rigid grammatical construction was rejected by this

Court in X-Citement, supra.

In sum, the Arizona Attorney General has provided a

reasonable interpretation of the Amendment, which carves out

its legitimate applications and cures any arguable constitutional

defects. It is immaterial that the Opinion is not the most natural

reading of the Amendment, or the reading that the lower courts

deem to be such. The Opinion demonstrates that the Amend-

ment is “readily susceptible” to a narrowing construction. Even

9

more leeway should be given to state officials in construing their

own basic Constitutional provisions, especially those which are

enacted by citizen referendum and which are particularly in need

of administrative construction. In keeping with precedent es-

tablished by this Court, the lower courts should have adopted

the Attorney General’s opinion to save the Amendment from

facial invalidation and future constitutional attack. Accord-

ingly, the Petition for Certiorari should be granted so this Court

may establish a proper standard for recognizing the authority of

state officials to interpret and implement their own state consti-

tutional provisions.

C. AsAn Alternative To Adopting The Attorney Gen-

eral’s Opinion, The Lower Courts Should Have

Certified The Case To The Arizona Supreme

Court For An Authoritative Construction Of The

Amendment.

The Arizona Supreme Court has jurisdiction to accept

certification pursuant to Ariz. Const. art. 6, § 5(6); A.R.S.

§ 12-1861; and Rule 27(a) of the Rules of the Arizona Supreme

Court. It was a fundamental misuse of federal powers for the

lower courts to fail to utilize these state certification procedures

under the standards established by this Court in Bellotti v. Baird,

428 U.S. 132 (1976).

In Bellotti, pla*..ciffs brought an action in district court

challenging the constitutionality of a Massachusetts statute gov-

erning access to abortions by minors. Specifically, the plaintiffs

argued that the statute unconstitutionally established a “parental

veto” over the performance of abortions on minors, even those

capable of giving informed consent. The state defendants argued

that the statute only established a “preference” for parental

consent and that it did not establish a “parental veto” power.

The lower courts rejected the state’s interpretation and issued a

declaratory judgment against the enforcement of the statute. On

appeal, the Supreme Court vacated the declaratory judgment and

10

held that the lower courts erred in refusing to certify the case to

the Massachusetts Supreme Court. The Court stated:

In deciding this case, we need go no further than the

claim that the District Court should have abstained

pending construction of the statute by the Massachu-

setts courts. As we have held on numerous occasions,

abstention is appropriate where an unconstrued state

Statute is susceptible of a construction by the state

judiciary which might avoid in whole or in part the

necessity for federal constitutional adjudication, or at

least materially change the nature of the problem.

(internal citations omitted).

Bellotti, 428 U.S. at 146-47. See also Virginia v. American

Booksellers Association, 484 U.S. 383 (1988) (certification is

proper where unconstrued state statute is susceptible to multiple

interpretations); Lake Carriers’ Association v. MacMullan, 406

U.S. 498, 510 (1972) (“the paradigm case for abstention arises

when the challenged state statute is susceptible of a ‘construc-

tion by the state courts that would avoid or modify the [federal ]

constitutional question’ ”); Harrison v. NAACP, 360 U.S. 167,

177 (1959) (“we are unable to agree that the terms of these three

Statutes leave no reasonable room for a construction by the

Virginia courts which might avoid in whole or in part the

necessity for federal constitutional adjudication or at least ma-

terially change the nature of the problem,” thus, abstention is

proper).

In the present case the parties have suggested varying

interpretations of the Amendment. The plaintiffs below as-

serted, and the lower courts held, that the Amendment applies

to all state employees in all circumstances in which they are

required to communicate either in writing or verbally. The

Arizona Attorney General, acting on behalf of the State, has

promulgated a narrower interpretation under which the Amend-

ment would apply only to “official” acts of government. At least

one Arizona state court has upheld the Amendment’s constitu-

tionality as applied to court petitions. Robles v. Mofford, No.

261837 (Sup. Ct. Pima County), Nov. 14, 1989.

As discussed supra, at pp. 5-9, the Attorney General's

opinion is reasonable and does not contradict the plain meaning

of the Amendment. Thus, the Amendment is susceptible to

multiple interpretations, at least one of which would save it from

constitutional attack and/or materially alter the constitutional

question before the Court. Further, the Arizona courts have not

had an adequate opportunity to construe most provisions of the

Amendment.

This is the “paradigm” case for certification. We have here

a fundamental state constitutional provision, enacted by a ma-

jority of Arizona voters. It was particularly improper for the

lower courts to facially invalidate the Amendment without first

obtaining an authoritative construction from the Arizona Su-

preme Court. See Bellotti, supra. Accordingly, if this Court

declines to adopt the opinion of the Arizona Attorney General,

at the very least, the Court should certify the case to the Arizona

Supreme Court to construe the Amendment.

Ill. Conclusion

For the foregoing reasons, U.S. English, Inc., as amicus

curiae, respectfully requests that this Court grant the Petition for

Respectfully submitted,

Leonard J. Henzke, Jr.

Counsel of Record

Wendy T. Cohen

Ginsburg, Feldman and Bress

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 637-9097

Counsel for Amicus Curiae U. S.

English, Inc.

A- 1

APPENDIX A

The Honorable Robert B. Osdane

President of the Senate

Re: 189-009 (R88- January 24, 1989)

We have been asked a number of general and specific

questions concerning the constitutionality and effect of Propo-

sition 106 on the delivery of governmental services and on some

governmental activities. We conclude that Proposition 106,

which adds to the Arizona Constitution article XXVIII, entitled

English as the Official Language, is constitutional and will not

greatly change the way government operates presently.

It is our duty to give Proposition 106 a construction that is

compatible with the United States Constitution and federal laws.

See Ariz. Const. art. Il, § 3 (“The Constitution of the United

States is the supreme law of the land.”); State v. Ramos, 133

Ariz. 4, 6, 648 P-2d 119, 121 (1982); Schecter v. Killingsworth,

93 Ariz. 273. 282, 380 P.2d 136, 142 (1963). We must also

interpret this amendment to the Constitution as a whole and in

harmony with the other portions of the Arizona Constitution.

State ex rel. Nelson v. Jordan, 104 Ariz. 193. 196, 450 P.2d 383,

386 (1969); State ex rel. Jones v. Lockhart, 76 Ariz. 390, 398,

265 P.2d 447, 453 (1953). Guided by these principles, we

conclude that the language of Proposition 106 does not prohibit

the use of a language other than English to facilitate the delivery

of governmental services. Additionally, Proposition 106 speci-

fies in subsection 3(2)(b) that the “State may act in a language

other than English . . . to comply with other federal laws.”

Consequently, we do not conclude that Proposition 106

requires a diminution or unreasonable restriction of services or

the placing of barriers to access to governmental processes for

non-English speakers, because such an interpretation is not

required by the text of the amendment itself and could be

A-2

inconsistent with applicable federal law and the Arizona and

United States Constitutions.

Turning now to the language of the Proposition itself, it

Suggests that the purpose of the amendment is to require that

official acts of government be expressed in English as the state’s

official language. It does not prohibit the use of other languages

when they are reasonably required in the day-to-day operation

of government.

Proposition 106 contains four sections. Section 1 states

that “The English language is the official language of the State

of Arizona,” and goes on to provide that “As the official language

of this State, the English language is the language of the ballot,

the public schools and all government functions and actions.”

(Emphasis added.) The remainder of section 1 makes clear that

this status of English as the official language applies to all

branches and levels of government, to all official documents,

and to all officials and employees.

Section 2 provides that “This State and all political subdi-

visions of this State shall take all reasonable steps to preserve,

protect and enhance the role of the English language as the

official language of the State of Arizona.” Neither section 1 nor

section 2 contain any language prohibiting the use of any

language other than English.

Section 3 does, however, contain terms which prohibit

governmental acts in a language other than English. After

providing for certain exceptions, subsection 3(a) states: “This

State and all political subdivisions of this State shall act in

English and in no other language. (Emphasis added.) Subsec-

tion 3(b) prohibits governmental entities from requiring the use

of a language other than English, and 3(c) states that govern-

mental documents must be in English to be valid and enforce-

able. The exceptions to the requirement that governmental

entities act in English are (in accurate paraphrase): (a) to assist

in English-as-a-second-language instruction; (b) to comply with

A- 3

federal laws; (c) to teach a foreign language; (d) to protect public

health or safety; and (e) to protect the rights of criminal defen-

dants or victims of crime.

Section 4 provides for a private cause of action to enforce

the article.

Most of the concerns raised in the opinion request involve

the use of a language other than English in the delivery of

governmental services. Therefore subsection 3{1)(a), which

contains the words “shall act in English and in no other lan-

guage,” is the applicable subsection that will be primarily dis-

cussed. (Emphasis added).

If use of a language other than English is reasonably needed

to provide governmental services fairly and effectively without

adversely impacting an ethnic/linguistic group, the use of that

language by the deliverer of governmental services is required

by federal laws. The federal laws most closely relevant are Titles

VI and VII of the Civil Rights Act of 1964, as interpreted by

their implementing regulations and by the courts.!

Section 601 of Title VI provides:

No person in the United States shall, on the ground of

race, color, or national origin, be excluded from par-

ticipation in, be denied the benefits of, or be subjected

to discrimination under any program or activity re-

ceiving Federal financial assistance.

The Civil Rights Restoration Act of 1987, 42 U.S.C. § 2000d-4a,

defines “program or activity” very broadly as:

' Title VI; 42 U.S.C. § 2000d-7; Title VI: 42 U.S.C. § 2000e to

2000e-17; for a survey of the Title V1 implementting regulations, see Guardi-

ans Association v. Civil Service Commission of the City of New York, 463

U.S. 582, 618-621 (1983). For the discussion of Title VII interpretations, see

infra pp. 7, 9.

A-4

a department, agency or other instrumentality of a

State or of a local government; or the entity of such

State or local government that distributes such assis-

tance and each such department or agency ... to

which the assistance is extended . . . ; or . . . a public

system of higher education agency . . . or other school

system ....

If an entity receives no federal assistance, its duty to provide

services (if fairness and effectiveness so require) in a language

other than English is, as discussed infra at pp. 6-8, nonetheless

not precluded by Proposition 106. We reach this conclusion

because of our interpretation that the English-only requirement

applies only to official acts of government, and not to every act

of every government official or employee. Further, a contrary

conclusion would raise serious questions under the equal pro-

tection clause of the United States and Arizona Constitutions.

If a governmental entity is covered by Title VI and appro-

priate regulations, proof of intentional discrimination (including

discrimination based on ethnicity) is not necessary to prove a

violation of this federal law. Guardians Association v. Civil

Service Commission of the City of New York, 463 U.S. 582

(1983). All that is needed is a showing that the entity applies a

rule, even if fair on its face, which has an adverse impact on an

ethnic minority, and is not justified by a business necessity.

> This result follows from the language and construction of Title VI and

its implementing regulations. At least forty federal agencies have adopted

regulations implementing Title VI and applying the disparate impact stand-

ard. See Guardians, 463 U.S. at 619, and nn.6-7. Funding provided by these

agencies affects a very broad range of governmental services. See also

Alexander v. Choate, 469 U.S. 287 (1985) (state policy having disparate

impact on handicapped persons would be prohibited by regulations imple-

menting section 504 of the Rehabilitation Act of 1973 if “meaningful access”

to benefits not provided; Title VI regulations referred to as providing guid-

ance for standard).

A- 5

Linguistic groups are ethnic groups, and non-English

speakers in Arizona and the United States meet the criteria of

ethnic minorities. If the words in subsection 3(1)(a), “act in

English and in no other language” were to be construed to mean

that needed governmental services could not be delivered in a

language other than English no matter what the needs of fairness

and effectiveness, there would be an adverse impact on non-Eng-

lish speakers. Such a construction would result in a violation of

federal law. Moreover, the practice of delivery of services in a

language other than English (where reasonably needed) would

be an exception provided for by subsection 3(2)(b).*.

Thus, if the words of section 3(1)(a), “This State . . . shall

act in English and in no other language” were to be construed

> See, e.g. Yu Cong Eng. v. Trinidad, 271 U.S. 500 (1926) (Philippine

law prohibiting keeping of account books in any language other than English,

Spanish or a local dialect violates equal protection and due process rights of

Chinese, in spite of defense that law was needed to facilitate tax collection);

Meyer v. Nebraska, 262 U.S. 390 (1923) (prohibition of teaching children in

any language other than English which was directed at persons of German

descent violates due process cluase); Bartels v. lowa, 262 U.S. 404 (1923)

(“Official Engiish” statute directed at persons of German descent violates due

process ).

+ See generally, Note, “‘Official English’: Federal Limits on Efforts to

Curtail Bilingual Services in the States.” 100 Harv. L. Rev. 1345 (1987).

See also Lau v. Nichols, 414 U.S. 563 (1974). In Lau, the Court noted that

“there is not equality of treatment merely by providing students with the same

facilities, textbooks, teachers and curriculum; for students who do not under-

stand English are effectively foreclosed from any meaningful education.”

414 U.S. at 566. For the application of the disparate impact standard (as

opposed to requiring proof of intentional discrimination) to “English-only”

rules in an employment context, see, Gutierrez v. Municipal Court of South-

east Judicial District, 838 F.2d 1031 (9th Cir. 1988); 29 C.F.R. § 1606.7(b)-

(c) (1987); E.£.0.C. Decision 83-7, 31 F.E.P. 1861 (1983). See also Civil

Rights Division of the Arizona Department of Law v. Amphitheater Unified

School District, 140 Ariz. 83, 680 P.2d 517 (App. 1983) (recognizing

disparate impact analysis appropriate to establish a violation of the Anzona

Civil Rights Act, and establishing “business necessity” as the proper standard

of defense).

A- 6

to mean “shall deliver services in English and in no other

language,” the subsection 3(2)(b) exception (compliance with

federal laws), would almost entirely swallow up the rule. Ex-

amining the language of Proposition 106, in context, we do not

believe this was what was intended. Although Proposition 106

does not define “act,” section 1 gives some guidance, providing,

in pertinent part, as follows:

(2) As the official language of this State, the English

language is the language of the ballot, the public schools and

all government functions and actions.

(3)(a) This Article applies to:

(i) the legislative, executive and judicial -

branches of government.

(ii) all political subdivisions, departments, agen-

cies, organizations, and instrumentalities of this

State, including local governments and munici-

palities.

(iii) all statutes, ordinances, rules, orders, pro-

grams and policies.

(iv) all government officials and employees dur-

ing the performance of government business.

(Emphasis added). Because of the broad introductory language

of subsection 1(2), clearly stating that English shall be used for

ballots, public schools, and “all government functions and ac-

tions,” we do not perceive subsection 1(3)(a) (iii) to be an

exclusive list, but rather examples of the types of official acts

that are contemplated to be covered by Proposition 106.5 We

also look to the dictionary for a common meaning of the word

“act.” The most clearly applicable common meaning of “act”

* Enumeration of a list of items in a constituion generally expresses the

intent to exclude items not included in the list. Whitney v. Bolin, 85 Ariz. 44,

47, 330 P.2d 1003, 1005 (1958). However, this principle will not be applied

to contradict the apparent intent of a provision, Forsythe v. Paschall, 34 Ariz.

380, 383, 271 P. 865, 866 (1928).

A-7

used as a noun is “a decision or determination of a sovereign, a

legislative council, or a court of justice.” Webster’s International

Dictionary 20 (3ed., unabridged, 1976).

We therefore construe “act” in this context to mean an

official act of the government.

Such a construction may also be necessary to avoid conflict

with the equal protection clauses of the fourteenth amendment

to the federal constitution and article II, section 13 of the Arizona

Constitution.® Classifications based on ethnicity will be closely

scrutinized, and will violate the equal protection clause unless

the government can justify them by establishing a compelling

interest, Hernandez v. Texas, 347 U.S. 475 (1954); Graham v.

Richardson, 403 U.S. 365 (1971) (alienage). Classifications

based on language are not in themselves considered, for equal

protection purposes, to be invidiously discriminatory classifica-

tions based on ethnicity. Soveral-Perez v. Heckler, 717 F.2d 36

(2d Cir. 1983); Frontera v. Sindell, 522 F.2d 1215 (6th Cir.

1975); Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973).

Where an intent to discriminate on the basis of ethnicity can be

shown as a purpose of the language classification, however, an

intent to discriminate invidiously may be inferred. Gutierrez v.

Municipal Court of Southeast Judicial District, 838 F.2d 1031,

1039 and n.6 (9th Cir. 1988) (approving the reasoning of

Olagues v. Russoniello, 797 F.2d 1511, 1520-21 (9th Cir. 1986)

(en banc), vacated as moot, ___—sU.S.__,, 108 S.Ct. 52, 98 L.

Ed. 2d 17 (1987) (language a proxy for intentional discrimina-

tion on basis of ethnicity where ethnic group thus identified

® Article Il, section 13 provides:

No law shall be enacted granting to any citizen, class of citizens,

=n ' nee Gon ‘cipal privil or oa

which, upon the same terms, shall not equally belong to al

citizens or corporations.

“The equal protection clauses of the 14th Amendment and the state constitu-

tion have for all practical purposes the same effect.” Valley National Bank

of Phoenix v. Glover, 62 Arix. 538, 554, 159 P.2d 292, 299 (1945).

A- 8

carries a history of mistreatment, political exclusion, and his-

torically long-term use of language identified with ethnicity)).

Discrimination based on linguistic characteristics has also been

directly held to constitute intentional ethnic discrimination in an

employment law (Title VII) context. Carino v. University of

Oklahoma Board of Regents, 750 F.2d 815 (10th Cir. 1984);

Berke v. Ohio Department of Public Welfare, 30 F.E.P. 387 (S.D.

Ohio 1978), aff’d, 628 F.2d 980 (6th Cir. 1980) (per curiam).

Intentional discrimination has been inferred where actions

by the majority were seen to give governmental effect to private

biases. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984). Intent

has been inferred as least three times by the United States

Supreme Court where voters approved popular referendum

measures which, although facially fair, had the effect of over-

turning legislative enactments which legitimately served the

needs of minorities. In Reitman v. Mulkey, the California legis-

lature had prohibited racial discrimination in housing. By the

passage of Proposition 63, the voters amended the state consti-

tution to overturn and prevent the reenactment of those laws.

The Court voided the Proposition as violative of the equal

protection clause because it gave effect to private biases in

attempting to take away protection already given to minorities.

387 U.S. 369 (1967). The Court followed the same principle in

voiding “voter approval” and “voter initiative” measures which

purported to reverse anti-discrimination laws enacted by a leg-

islative body. Hunter v. Erickson, 393 U.S. 385 (1969); Wash-

ington v. Seattle School District No. 1, 458 U.S. 385 (1969);

Washington v. Seattle School District No. 1, 458 U.S. (1982).’

We do not interpret Proposition 106 as necessitating elimi-

nation of assistance provided by government in languages other

than English where such assistance is reasonably needed to

” See also Plyler v. Doe, 457 U.S. 202, 219 (1982) (creation of ethnic

“underclass” by excluding minor children of undocumented resident aliens

present within the United States from public school system violates equal

protection clause).

A-9

ensure fair and effective delivery of governmental services to

non-English speakers. If this were required, the Proposition

could be found to give governmental effect to private biases by

taking away protection legitimately offered to those entitled to

them, and thus would be voided as a violation, not only of Title

VI, but also of the federal and state equal protection clauses.*

To avoid possible conflicts with the federal and state con-

stitutions and federal laws, we therefore conclude that Proposi-

tion 106 cannot interfere with the fair and effective delivery of

governmental services in languages other than English, or oth-

erwise affect governmental operations so as to unreasonably

disadvantage non-English speakers.

Consistent with this conclusion, we reiterate that the pro-

vision of Section 3(1)(a). “This state and all political subdivi-

sions of this state shall act in English and in no other language,”

means that official acts of government as government shall be

in English as the State’s official language. It does not mean that

languages other than English cannot be used when reasonable

to facilitate the day-to-day operation of government. With these

general conclusions in mind, we are now able to answer the

specific questions presented to us.

We have been asked if any restrictions on the use of a

language other than English need to be made in any of the

following situations:

a. The interaction of state lottery officials with

non-English speaking persons .. . either as em-

ployees or agents, or as lottery contestants?

A requirement that an employee speak only English on the

job, or a requirement that all employees be able to speak English

would be a violation of Title VII of the Civil Rights Act of 1964

unless those requirements are bona fide occupational qualifica-

tions reasonably necessary to the operation of governmental

. See also cases cited in n.3, supra.

A- 10

business. Guitierrez v. Municipal Court of Southeast Judicial

District, 838 F.2d 1031 (9th Cir. 1988). A state “Official Eng-

lish” law cannot be used to establish a bona fide occupational

qualification. /d. at 1044. The ability to speak English could be

a bona fide occupational qualification for an employee if regular

contact with the English-speaking public is part of the job

requirements, or if an employee would be required, for instance,

to interpret official English documents or transmit directions

delivered in English. If it is not “reasonably necessary” for all

employees of the state lottery to be English proficient in order

to perform certain jobs for the lottery, it would be permissible

for supervisors to communicate with employees who do not

speak English in, or through, another language. Lottery contest-

ants who do not speak English may be communicated with in a

language other than English in the day-to-day delivery of serv-

ices, on the general principles discussed above.

b. The printing of motor vehicle division pamphlets

or oral explanation of licensing procedures to

applicants for driver and vehicle licensing in

languages other than English?

The provision of non-English assistance, whether written

or oral, is permissible, and is required if it is necessary to

reasonably provide fair and effective services. The nature and

extent of the requirement depends on what is both reasonable

and necessary for the purpose. See, e.g, Lau v. Nichols, 414 U.S.

563 (1974). What is required also depends on whether or not

there are any applicable federal regulations. Moreover, the

exemption set out in subsection 3(2)(d) permits use of a language

other than English “to protect public health or safety.”

c. The naming or designation of highways, streets,

bridges, or towns in languages other than English?

The name itself is not an act of government, as we have

interpreted the word “act.” We perceive a distinction between

the use of a word for purposes of identification and the use of

A- ll

language for the purpose of communication of ideas. Further,

we recognize that words from other languages historically have

been and continue to be absorbed into and become a part of the

English language. What Proposition 106 requires is that the

governmental acts which create and perpetuate the name be

articulated in English. It does not prohibit the use of a non-Eng-

lish name as a street name.

d. The handling of customer inquiries or com-

plaints involving state or local government serv-

ices, such as ADOT relocation services, child

support enforcement, or city water billings, in

languages other than English. Is general com-

munication between elected officials and all

other governmental employees with the public at

large permissible in other than . . . English?

All official documents that are governmental acts must be

in English, but translation services and accommodating commu-

nications are permissible, and may be required if reasonably

necessary to the fair and effective delivery of services, or re-

quired by specific federal regulation. Communications between

elected and other governmental employees with the public at

large may be in a language other than English on the same

principles.

In addition, an elected official may h* ~ a federal first

amendment right to communicate with consutuents in the lan-

guage of choice. See Garrison v. State of Louisiana, 379 U.S.

64 (1964) (elected official has first amendment protection for

statements made in the conduct of his office); Reeves v. McConn,

631 F.2d 377 (Sth Cir. 1980) (first amendment right of expres-

sion includes rights to communicate by most effective means).

e. Discussing professional or business licensing

requirements, or accepting license applications,

in languages other than English?

A- 12

Discussions may be in a language other than English, and

interpretation services may be provided, but the official appli-

cation acted upon and the official license issued must be in

English.

f. Providing information on state parks services or

programs in languages other than English?

vision of services in languages other than English are permissi-

ble. Since the state parks provide services to visitors from

around the world, this question represents a good example of

why “shall act” in the Proposition must mean “shall act officially

as the government” and not “shall provide services.” Moreover,

the exemption of subsection 3(2)(d) would permit use of a

language other than English if deemed necessary for health and

safety reasons in the discretion of those responsible for the parks.

g. Providing information on services or programs

offered at common schools or universities in

languages other than English?

Again, providing such services and information is permis-

sible and may be required. In particular, educational institutions

subject to Title VI should refer to the federal regulations appli-

cable to their agency.

h. The practice of the Governor, employees of the

Commerce Department, and other state or local

officials or employees visiting with non-English

speaking foreign government officials or busi-

ness representatives of foreign corporations to

activities on behalf of Arizona?

Such discussions are permissible, as are translations of any

official documents which may result, but the official documents

as they are to be acted upon by governments in Arizona must be

in English.

A- 13

i. [With respect to each of the above questions . . .

would the answers given change if the non-Eng-

lish speaking persons involved are native Ameri-

cans?

Our answers would be not be different because the persons

involved are native Americans.

In summary, we conclude that Proposition 106 requires

official acts of government to be in English. It does not prohibit

the use of languages other than English that are reasonably

necessary to facilitate the day-to-day operation of government.

Proposition 106, therefore, is constitutional, under both the

Arizona and United States Constitutions, and compatible with

applicable federal law.