Amicus Curiae Brief — Arizonans for Official English v. Arizona

No. 95-974

IN THE

Supreme Court Of Che United States

October Term, 1995

Arizonans for Official English and Robert D. Park,

Petitioners,

v.

State of Arizona; Maria-Kelley F. Yniguez;

Jaime Gutierrez; and Arizonans Against

Constitutional Tampering,

Respondents.

On Writ Of Certiorari to the

United States Court of Appeals for The Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE IN SUPPORT OF

VACATING OR REVERSING JUDGMENT

ENTERED BELOW

Leonard J. Henzke, Jr.

- Counsel of Record

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.

May 23, 1996

————————————————————————————————

Balmar Legal Publishing Department, Washington, DC (202) 682-9800

' . ‘:

‘ Se se ee eee ee es oe. Ree cer eae

i

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF VACATING OR

REVERSING THE JUDGMENT BELOW

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

vacating or reversing the judgment below. In support of this

motion, U.S. English states as follows:

a U.S. English has approximately 600,000 members

nationwide, and worked to obtain enactment of Article XXVIII

of the Arizona Constitution (the “Arizona Amendment’) at

issue here.

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

Court of Appeals in this case, and also filed a brief amicus

curiae in support of the Petition for Certiorari which was

granted by this Court on March 25, 1996.

3. U.S. English is currently promoting legislation

similar to the Arizona Amendment in numerous other

jurisdictions, including H.R. 123 in the U. S. Congress, and this

case will have an important affect on such legislation. See J. A.

153-155.

4. This Court has asked the parties to brief the issue

of whether this case is moot as to plaintiff-respondents

Yniguez and Guiterrez.

5. We understand that Petitioners’ brief will not focus

on the issue of whether this case is moot. The amicus brief

submitted by U.S. English discusses the issue of mootness in

detail, in light of the State of Arizona’s official position that the

Arizona Amendment only applies to “official acts,” and in light

of the fact that neither plaintiff-respondent Yniguez or

Gutierrez is currently employed by the State of Arizona.

6. Another threshold issue in any case before this

Court is the scope of the Court’s power of constitutional

adjudication.

ii

7. The Petition discussed briefly the principle of

constitutional adjudication that the Arizona constitutional

provision in issue must be given all reasonable constructions in

order to save it from facial invalidation. The amicus curiae

brief submitted by U.S. English discusses this principle in

greater detail, especially as applied to the Constitutional

provision here, which was enacted by initiative.

8. The amicus curiae brief submitted herewith also

discusses in greater detail the authoritative construction of the

Arizona Amendment in issue, and the error of the lower in

ignoring this construction. A copy of the formal Opinion of the

Attorney General is printed in the Joint Appendix.

9. Barnaby W. Zall, Esq., counsel for Petitioner

Arizonans for Official English, does not consent to this motion.

10. _—_ 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 Petitioner.

Respectfully submitted,

Leonard J. Henzke, Jr.

Ginsburg, Feldman & Bress,

Chartered

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Telephone No.: (202) 637-9139

Counsel of Record for Amicus

Curiae U.S. English, Inc.

iii

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF VACATING OR

REVERSING THE JUDGMENT BELOW ....................

i IID cccccxchisereretstenenesansesienemndssetammenansnsin v

STATEMENT OF INTEREST OF AMICUS CURIAE........... l

I. The Judgment Must Be Vacated Because

The Case Has Become Moot. ......................000cce0c000 7

A. This Case Is Moot Because Neither

Yniguez Nor Gutierrez Is Currently

Employed By The State Of Arizona................ 7

B. Alternatively, No Case Or Controversy

Exists, Because The Attorney General's

Opinion Makes Clear That The Arizona

Amendment Does Not Apply To Plain-

Fe CD cceinrsinceiniagtieninimnntratnitimnendatnnsnonsenees 8

C. Plaintiffs’ Claim For Nominal Dam-

ages Does Not Prevent Dismissal Of

ED nD TIED, wiinnsineneisionapasnieatietilegpatmsneines 12

D. Intervenors Arizonans Against Consti-

tutional Tampering Cannot Save This

Case From Moctmesss. ..........0...0..cssscescssceseses 13

iv

Il. Petitioners Arizonans For Official English

And Robert D. Park Have Standing To Seek

Ill. Assuming This Court Has Jurisdiction, The

Judgment Below Should Be Reversed

Because Approval of the Attorney General's

Opinion, Not Facial Invalidation, is the

en 17

TEIN ccscasszescscrsseascassssensnssnsnesescesnscnennasnmentasapneneeenets 22

eee

Vv

TABLE OF AUTHORITES

Cases Page(s)

Alexander v. City of Minneapolis, 928 F.2d 278 (8th

Geis CIE ritieencecateisediterthapiiueusimnilecstipitenniiccntinimnemnbnmmmesene! 9

Arlington County Republican Committee v. Arlington

County, Virginia, 983 F.2d 587 (4th Cir. 1993) .................. 9

Bellotti v. Baird, 428 U.S. 132 (1976) ..........ccccccccceceeceeeeeneeees 19

Broadrick v. State of Oklahoma, 413 U.S. 601

ee ressendtnnaininiiidiinnsiciomnbatannianigneianinnipinnrenenmennen 17, 18, 19

Brockett v. Spokane, 472 U.S. 491 (1985) ..........cccccccceceeeeeeeee 17

Burke v. Barnes, 479 U.S. 361 (1987) .........ccccccccccccccceeeeeeeeees 15

Debartolo Corp. v. Fla. Gulf Coast Building and

Construction Trades Council, 485 U.S. 568 (1988).......... 20

Delaware Women’s Health Organization, 441 F.

ee 9

Diamond v. Charles, 476 U.S 54 (1986) ...........0.cccccccceeeeeeeees 13

Duffy v. Quattrocchi, 576 F. Supp. 336 (D.R.L, 1983) ........... 12

Ehlert v. United States, 402 U.S. 99 (1971) ..........ccccccccceeeeees 20

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ..17, 19

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) 00000... eccccceeeeeee 8

Field v. Brown, 610 F.2d 981 (D.C. Cir. 1979)... 9

PUREE a CER, Bares Cy Ce CD cccrtcerencsiesntntrsnnvserestensemecess 7

Fox v. Board of Trustees, 148 F.R. D. 474 (N. D.N. Y.

Si siniictniahciainaidasiaaniitinhanamntiiseaiinainahininaaanidenieninibemmmminenimnenne 12

Frisby v. Schultz, 487 U.S. 474 (1988)..............ccccccccceseeeeeeeee 19

Geraci v. Trenchtlinger, 487 F.2d 590 (2d Cir. 1973) ............ 12

Gladstone, Realtors v. Village of Bellwood, 441 U.S.

Soar TITTET i cinininioigeninnersnniinicenemebeapststantiant diieeaiiniteidiaaaaaingioatasiel 13

Graham v. Butterworth, 5 F.3d 496 (11th Cir. 1993)........ 8, 11

vi

Cases Page(s)

Hooper v. California, 155 U.S. 648 (1895)...........c.cceeeees 20

Karcher v. May, 484 U.S. 72 (1987) .........c.ccsseeeeeeeeeeeees 15, 16

Kerrigan v. Boucher, 450 F. 2d 487 (2d Cir. 1971) ................ 12

Law Students Research Council v. Wadword, 401 U.S.

Se eee ee ee Oe eee 19

Memphis Light, Gas & Water Div. v. Croft, 436 U.S. |

RS Cee ee ee CC a 12

Northeastern Florida Chapter of the Associated

General Contractors of America v. City of

Jacksonville Florida, 508 U.S. 656, 113 S.Ct. 2297,

IIIT ccncttiedinititapanenneparntageepennenesinntitioiions 15

Poe v. Uliman, 367 U.S. 497 (1961)........c....00cce000+- 5,8, 12,14

Powell v. McCormack, 395 U.S. 486 (1969) ..00..........ccccccceeeee 7

Prieser v. Newkirk, 422 U.S. 395 (1975).........cccccccceececeeeeeeeeees 7

U.S. v. Munswinger, 340 U.S. 36 (1950) ............ccc0000 7, 12, 13

U.S. v. National Treasury Employees Union, __ U.S.

eK EEE ee 17, 18

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

C8 fe BS areas 19, 20, 21

Virginia v. American Booksellers Assn., 484 U.S. 383

sericea iii ada 10

Vii

Page(s)

Statutes

SET it TIT IIITE cniinesiideenieitiniectinnstanndatinininniintdninetiaiaiaie 16

EEE, © DUPPIID i cicestuiadsnenaterninictinnaitionteninamecinpeiiedians 16

ee 16

Miscellaneous

Ariz. Atty. Gen. Op. 189-009 2000... cccceeeeeeeees 2, 3, 10, 20, 21

Webster's Third New International Dictionary,

ih, Geen Oiellinaitensirnoneciniteiininaiinetiiteinidinitinngiibonis sjeiiiesannes 20, 21

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

governments.

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

Language” (the “Amendment’”). U.S. English assisted in the

initiative which resulted in the Amendment, filed briefs in the

Court of Appeals below, filed a brief in support of the Petition

for Certiorari, and is currently promoting official English stat-

utes in Congress and other states.

Any meaningful official English statute must necessarily

employ broad language and rely heavily on administrative

interpretations 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 Amend-

ment, will make it extraordinarily difficult to fashion similar

legislation in other jurisdictions if the opinion below is al-

lowed to stand.

U.S. English respectfully submits that this case is moot

and the judgment below should be vacated. Assuming, how-

ever, that the Court reaches the merits of this case, U.S. Eng-

lish 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 appropriate,

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.

2

FACTS

In October of 1987, Arizonans for Official English

(“AOE”) initiated a petition drive which culminated in the

1988 passage by ballot initiative of Article XXVIII of the

Arizona Constitution, entitled “English as the Official Lan-

guage” (the “Amendment”). J. A. 158.

At the time the Amendment was adopted by the voters of

Arizona, Plaintiff-Respondent Yniguez was employed by the

Arizona Department of Administration, where she handled

medical malpractice claims asserted against the state. /d. at

159. Yniguez communicated in Spanish with mono-lingual

Spanish-speaking claimants, and used a combination of Eng-

lish and Spanish with bilingual claimants. Jd. at 47. Yniquez

also drafted various settlement documents, some in English

and/or Spanish. /d. at 48. After the passage of the Anzona

Amendment, however, Yniguez ceased speaking Spanish on

the job for fear that her use of Spanish made her vulnerable to

disciplinary measures. /d. at 159.

In November of 1988, Yniguez filed this lawsuit against

the state of Arizona and various state officials. Jd. Yniguez’

complaint was later amended to add Plaintiff-Respondent Gu-

tierrez, a state senator who desired to speak Spanish to his

Hispanic constituents. Jd. at 56-57.

Approximately two months after Yniguez initiated this

action, the Arizona Attorney General issued a lengthy opinion

defining the scope of the Arizona Amendment. See Arizona

Attorney General Opinion I89-009, reprinted in the Joint Ap-

pendix at J.A. 61-76. The Attorney General’s opinion made

clear that the Amendment’s English mandate only applied to

“official acts” of the Arizona government, including all

“official documents.” J. A. 62, 65, 68, 71-72. The Opinion

also stated that “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;” that

“translation services and accommodating communications are

3

permissible, and may be required if reasonably necessary to

the fair and effective delivery of services”; and that generally

non-English languages may be used to facilitate “the fair and

effective delivery of governmental services” or “when reason-

able to facilitate the day-to-day operation of government.” Jd.

at 63-64, 71, 72, 73, 74. (emphasis added). In addition, the

Opinion concluded that “Communications between elected

and other governmental employees with the public at large

may be in a language other than English,” and that the “State

imay act in a language other than English . . . to comply with

[the United States Constitution and] other federal laws.” /d.

at 62, 74.

During proceedings in the lower courts, the Attorney

General’s office filed briefs and presented oral argument in

which this Opinion was set forth as the official position of the

State of Arizona.’ The district court, however, rejected the

Attorney General’s opinion and entered a broad declaratory

judgment facially invalidating the entire Arizona Amendment.

No application of the Amendment was saved.

The State decided not to appeal the district court’s deci-

sion. Therefore, AOE, as the official sponsor of the Arizona

Amendment, sought leave of court to intervene for purposes

of pursuing an appeal of the district court’s order. J. A. 94.

Leave to intervene was granted, and an appeal was filed. /d.

at 185, 206.

Sometime in 1990 Yniguez voluntarily left state em-

ployment. /d. at 187. At about the same time, Plaintiff Gu-

tierrez also left State office. The State filed a suggestion of

' In his briefs in the lower courts, the Attorney General repeatedly

confirmed that his Opinion is “the official position of the State of Arizona

on the proper interpretation” of the Amendment (e.g., Br. of State of An-

zona, 9th Cir. No. 93-15719, p. 3, fn. 1), and that the Amendment

“app[lies}] only to ‘official’ acts and “official government functions of

actions”, but not to “[rjoutine conversations, instructions and communica-

tions with agencies or citizens” (id. at 5, 6, 7).

4

mootness, but the Ninth Circuit held that the case was not

moot because Yniguez had a right to appeal the trial court’s

failure to award nominal damages, even though Yniguez did

not specifically request nominal damages in her complaint or

at trial. Jd. at 205. Taking her cue from the Ninth Circuit,

Yniguez then filed a cross-appeal requesting nominal dam-

ages. Id. at 209.”

On November 7, 1995, the district court awarded

Yniguez $1.00 in nominal damages. /Jd. at 211. Neither

Plaintiffs-Respondents nor Petitioners appealed this award. Id.

at 5.

The Ninth Circuit, in a divided en banc opinion, affirmed

the district court’s sweeping declaratory judgment on October

5, 1995. J.A. 210.

SUMMARY OF ARGUMENT

Petitioners are sponsors of an initiative Amendment of

the Arizona Constitution which was adopted by the voters of

Arizona. Plaintiffs-Respondents are two former State em-

ployees whose rights to speak or write Spanish while working

were allegedly infringed by the Amendment. Shortly after

Plaintiffs filed suit to declare the Amendment unconstitu-

tional, the defenc © Attorney General published a lengthy

opinion stating tha. ne Amendment did not prevent State em-

ployees such as Plaintiffs from speaking or writing in non-

English languages to facilitate provision of governmental

services, and that the Amendment only required that the offi-

cial version of official acts such as laws, court opinions,

deeds, and the like be written in English. During proceedings

below, the State Attorney General repeatedly confirmed this

Opinion as the official position of the State. While the case

proceeded, Plaintiffs voluntarily left State employment. The

district court awarded $1.00 nominal damages to the two

* The request for nominal damages seems to have been contrived at the

appellate stage of this liugation in an effort to save the case from mootess.

5

Plaintiffs, and they did not appeal this award. In addition, the

lower courts issued a broad declaratory judgement which fa-

cially invalidated the Amendment, preventing its application

in any circumstance.

1. Plaintiffs’ suit for declaratory relief is moot, re-

quiring vacating of the judgements below. Even in a First

Amendment overbreadth case, the courts require that an actual

case or controversy exist between the parties. E.g., Poe v.

Uliman, 367 U.S. 497 (1961). Here, both Plaintiffs voluntar-

ily left State employment during the lower court proceedings,

and the case was never certified as a class action. Accord-

ingly, they have no legally cognizable interest in the declara-

tory relief issued below.

Alternatively, where, as here, State officials agree that

legislation is inapplicable to claimants, the Court has repeat-

edly held that the case is moot. Moreover, Plaintiffs have

never disputed that Arizona may constitutionally require stat-

utes, court opinions, deeds and other similar “official acts” to

be written in English, consistent with the Attorney General’s

Opinion. )

Plaintiffs cannot circumvent mootness by relying on

their claim for damages. The Attorney General promptly

ruled- that the Amendment did not apply to Plaintiffs’ duties;

thus, Plaintiffs suffered no injury. Indeed, Plaintiffs did not

claim any damages in their original complaint. Only after

mootness was suggested on appeal did Plaintiffs add a dam-

ages claim to their complaint. The District Court, however,

awarded only one dollar nominal damages, and Plaintiffs did

not appeal that award. Where damages are purely incidental

to the main declaratory claim, and are insubstantial or nomi-

nal, they will not preserve the court's jurisdiction.

Likewise, the presence of intervenor-plaintiff Anzonans

Against Constitutional Tampering (“ACT”) does not create a

case or controversy where none otherwise exists. ACT has no

standing to continue this case absent plaintiffs-respondents

6

Yniguez and Gutierrez. ACT does not represent any class of

state employees, and has not alleged any specific actual or

threatened injury to its members. Absent some showing of

specific injury, ACT cannot seek an advisory opinion as to the

scope of the Arizona Amendment.

2. Assuming this Court determines that this case is not

moot, Petitioners, who were granted leave to intervene as

authors and principal supporters of the Amendment, have

standing to obtain review of the sweeping declaratory judg-

ment. Where, as here, executive officials fail or refuse to seek

review to defend the constitutionality of legislation, this Court

has allowed standing to legislators, or representatives of the

legislature. In the instant case, the court of appeals properly

held that Petitioners occupy a position analogous to legisla-

tors, because they authored the ballot initiative and success-

fully guided its enactment. Initiatives and referenda will often

only be defended by their authors; the peoples’ will should

not be thwarted by leaving defenses of such measures solely

in the hands of State officials.

3. Assuming the Court reaches the merits of this ac-

tion, the Court should uphold the constitutionality of the An-

zona Amendment on the basis that the Attorney General’s

Opinion was controlling and correct. The Court has repeat-

edly held that legislation should not be facially invalidated

where state officials have interpreted and applied it in a con-

stitutional manner. That principle is particularly forceful in

the case at bar, in which Plaintiffs do not dispute that the At-

torney General's opinion interprets the Amendment consistent

with the First Amendment. The lower courts mistakenly

failed to preserve the plainly constitutional applications of the

A,nendment, and improperly invalidated all possible applica-

tions. The judgments of the lower courts should be reversed,

and this Court should hold that the Amendment, as interpreted

by the Attorney General, is constitutional.

7

ARGUMENT

I. The Judgment Must Be Vacated Because The Case

Has Become Moot.

The district court did not have jurisdiction to reach the

merits of this lawsuit because no live case or controversy ex-

ists among the parties. Accordingly, the judgment below

must be vacated and the case must be remanded with direc-

tions to dismiss. See U.S. v. Munswinger, 340 U.S. 36, 39

(1950) (“The established practice of the Court in dealing with

a civil case from a court in the federal system which has be-

come moot while on its way here or pending our decision on

the merits is to reverse or vacate the judgment below and re-

mand with a direction to dismiss”).

Article III limits the jurisdiction of the federal courts to

“cases and controversies.” Flast v. Cohen, 392 U.S. 83, 94

(1968). The case or controversy requirement must be met at

every stage of the litigation. Prieser v. Newkirk, 422 US.

395, 401-02 (1975). If subsequent events moot the question

sought to be adjudicated, the case must be dismissed. /d. at

95. Acase is moot where the controversy between the parties

is “no longer live” or the parties lack a legally cognizable in-

terest in the outcome. Powell v. McCormack, 395 U.S. 486,

496 (1969).

As set forth below, this case is moot for two independent

reasons.

A. This Case Is Moot Because Neither Yniguez

Nor Gutierrez Is Currently Employed By

The State Of Arizona.

Yniguez and Gutierrez, the original plaintiffs in this ac-

tion, are no longer employed by the state of Arizona, and did

not seek class certification. Thus, Plaintiffs have no legally

cognizable interest in the declaratory judgment issued below,

and this case is moot. The declaratory judgment must be va-

cated and the case must be remanded with directions to dis-

miss. Weinstein v. Bradford, 423 U.S. 147 (1975); Feit v.

Ward, 886 F.2d 848, 856-858 (7th Cir. 1989).

B. Alternatively, No Case Or Controversy Ex-

ists, Because The Attorney General’s Opin-

ion Makes Clear That The Arizona Amend-

ment Does Not Apply To Plaintiffs’ Con-

duct.

In the present case, all parties are in agreement that the

Arizona Amendment, as interpreted by the Attorney General,

would not apply to Plaintiffs’ day-to-day employment duties.

This Court’s decisions hold that in such circumstances no Ar-

ticle III case or controversy exists sufficient to continue the

jurisdiction of the Court.

The case or controversy limitation on federal court juris-

diction often arises in cases where the plaintiff challenges the

constitutionality of a state law. The federal courts routinely

deny jurisdiction when a plaintiff challenges a state law that

the state authorities agree is inapplicable to plaintiff's con-

duct.

In Poe v. Ullman, 367 U.S. 497, plaintiffs challenged, as

violative of the First and Fourteenth Amendments, a Con-

necticut statute which imposed criminal penalties for the use

of any contraceptive drug or device. The Court, in a per cu-

riam opinion, held that the case presented no justiciable con-

troversy because there was no real threat of enforcement

against the plaintiffs. The Court reasoned that “if a state

prosecutor expressly agrees not to prosecute, a suit against

him for declaratory and injunctive relief is not such an adver-

Sary case as will be reviewed in the United States Supreme

Court.” Id. at 507-508.

The lower courts have frequently applied the holding of

Poe to other First Amendment cases where the plaintiffs could

not demonstrate a justiciable controversy between plaintiffs

and the state defendants. For example, in Graham v. Butter-

worth, 5 F.3d 496 (11th Cir. 1993), plaintiff, a candidate for

9

judicial office, challenged the constitutionality of a state elec-

tion law on the ground, inter alia, that “The statute . . . is

overbroad and has a chilling effect on political speech.” /d. at

498. The court held that at the time plaintiff filed the lawsuit,

he had standing to challenge the law because he was threat-

ened with prosecution. /d. The court, however, determined

that the case was moot because after the lawsuit was filed, the

plaintiff's intended conduct was within the ambit of the stat-

ute, and notified plaintiff that his campaign conduct was not

prohibited. Jd. The court, therefore, held that no case or con-

troversy existed between the parties and dismissed the case on

the basis of mootness.

A similar result was reached in Arlington County Repub-

lican Committee v. Arlington County, Virginia, 983 F.2d 587

(4th Cir. 1993). In that case, political parties and candidates

brought a First Amendment challenge to a zoning ordinance

which imposed restrictions on the placement of signs in the

County. The court held that there was no justiciable contro-

versy between the parties because the County’s historical in-

that it would not enforce the ordinance as written. Jd. at 596.

See also Alexander v. City of Minneapolis, 928 F.2d 278 (8th

Cir. 1990) (plaintiff lacked standing to challenge constitution-

ality of zoning ordinance on First Amendment grounds, where

city attorney determined that the ordinance did not apply to

plaintiff and those similarly situated); Field v. Brown, 610

F.2d 981, 991 (D.C. Cir. 1979) (no justiciable controversy

existed where assistant attorney general wrote letter stating

that he would not enforce the challenged statute); Delaware

Women's Health Organization, 44| F. Supp. 497, 501 (D.Del.

1977) (no case or controversy existed where attorney general

10

affirmatively stated that he would not enforce the Delaware

abortion statute as applied to physicians).’

The present case, like the cases discussed, supra, fails to

present a justiciable controversy. The Arizona Amendment

ves passed by ballot initiative in 1988. J. A. 158. When the

Arizona Amendment was adopted by the voters of Arizona,

Plaintiff Yniguez was employed by the Arizona Department

of Administration, where she handled medical malpractice

claims asserted against the state. Jd. at 159. Yniguez com-

municated with mono-lingual Spanish-speaking claimants in

Spanish, and used a combination of English and Spanish with

bilingual claimants. /d. at 47. Yniquez also drafted various

settlement documents, some in English and/or Spanish. /d. at

48. After the passage of the Arizona Amendment, however,

Yniguez ceased speaking Spanish on the job for fear that her

use of Spanish made her vulnerable to disciplinary measures.

Id. at 159. Plaintiff Gutierrez was a state legislator who spoke

Spanish to some of his constituents. Neither Plaintiff has

ever, in fact, suffered any disciplinary or other adverse action

as a result of the passage of the Amendment.

Shortly after Yniguez filed this action, the Arizona At-

torney General issued an opinion (the “Opinion”) interpreting

the Arizona Amendment. The Opinion of the Attorney Gen-

eral, repeatedly confirmed in this lawsuit as the formal posi-

* The Court's opinion in Virginia v. American Booksellers Assn., 484

U.S. 383 (1988) also supports our position that Plaintiffs must show injury

in fact to themselves, and that no such showing has been made here.

There, several booksellers and their association were granted standing to

make a First Amendment challenge because (1) they showed that the stat-

ests, and (2) the Attorney General's construction of the statute did not

clearly exempt the booksellers’ sales. By contrast, in the instant case

Plainuffs have left state employment and cannot possibly be injured by the

Amendment. Moreover, the Attorney General's formal written opinion,

and briefs filed in the lower courts, clearly exempt Plainuffs’ acuons from

the scope of the Amendment.

Pt

1]

tion of the State of Arizona, makes clear that the Amendment

was not intended to apply, and would not be enforced against,

Yniguez or Gutierrez, or others similarly situated.

The Opinion provides that the English mandate only ap-

plies to “official acts” of the State Arizona government; that

item off oan Snatch onal whet noe or enal.

is permissible, and is required if it is necessary to reasonably

pride fair and effective services;” that “translation services

may be required, if reasonably necessary to the fair and effec-

tive delivery of services”; and that generally non-English

languages may be used to facilitate “the fair and effective de-

livery of governmental services” or “when reasonable to fa-

cilitate the day-to-day operation of government. J. A. 62-65,

68, 71-74. (emphasis added). In addition, the Opinion con-

cluded that “Communications between elected and other gov-

ernmental employees with the public at large may be in a lan-

guage other than English, and that the “State may act in a lan-

guage other than English . . . to comply with [the United

States Constitution and] other federal laws.” Id. at 62, 65, 68,

71-72.

any arguable “case or controversy” between the parties. Even

assuming there was a reasonable threat of enforcement against

Yniguez and Gutierrez to confer standing at the outset of this

litigation, the Attorney General’s Opinion mooted the ques-

tion presented to the court. See Graham, supra. Further, the

parties are in agreement that the State of Arizona may consti-

tutionally require that state statutes, legal opinions, govern-

ment contracts, deeds, and similar “official” documents be

printed in the English language. Under the cases discussed

above, the fact that other unspecified private parties may at

some future time bring suit and ask for a broader interpreta-

tion of the Amendment does not now give the courts jurisdic-

12

Thus, the federal courts lack jurisdiction over this case

because no case or controversy exists between the parties.

See Poe, 367 at 505 (the Supreme Court will not “entertain

cases which disclose a want of a truly adversary contest”).

Any opinion on the merits of the issue presented would be

advisory only. The judgment of the lower courts must be va-

cated and the case must be remanded with directions to dis-

miss. See Munswinger, supra. :

C. Plaintiffs’ Claim For Nominal Damages

Does Not Prevent Dismissal Of This Case As

Moot.

Plaintiffs claim for nominal damages cannot revive this

otherwise moot case. Memphis Light, Gas & Water Div. v.

Croft, 436 U.S. 1,9 (1978). “The basic proposition which

plaintiff[s] . . . seek to establish is the constitutionality of the

._.. [Arizona Amendment]. Not having found a justifiable

controversy permitting a declaration, the claim for nominal

damages, which is clearly incidental to the relief sought, cannot

properly be the basis upon which a court should find a case or

controversy where none in fact exists.” Kerrigan v. Boucher,

450 F. 2d 487, 489-490 (2d Cir. 1971); see Geraci v.

Trenchtlinger, 487 F.2d 590, 592 (2d Cir. 1973); Duffy v.

Quattrocchi, 576 F. Supp. 336, 342 (D.R.L, 1983).

made until after the declar.uory judgment was issued below and

fact, the Ninth Circuit held that the case was not moot and

permitted plaintiffs to file a cross-appeal seeking nominal

dismissed as moot at that ume. See Fox v. Board of Trustees,

148 F. R. D. 474, 478 (N. D. N. Y. 1993) (complaint which

seeks “other just and proper relief” is not sufficient to save a

case from mootness).°

* On remand the District Court awarded her $1.00. None of the parties

appeal this award.

ee Eo ee

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13

Thus, in accordance with Munswinger, supra, the de-

claratory judgment entered below must be vacated and the

case must be remanded with directions to dismiss.

The presence of Arizonans Against Constitutional Tam-

pering (“ACT”) as an intervenor-plaintiff does not save this

case from mootness.

As discussed supra, this case is moot as to plaintiffs-

respondents Yniguez and Gutierrez. In order to continue this

case in its own right, intervenor-plaintiff ACT must independ-

ently satisfy the requirements of Article [I]. See Diamond v.

Charles, 476 U.S 54, 69 (1986) (intervenor cannot continue a

case absent original parties unless the intervenor satisfies Ar-

ticle II). ACT must demonstrate “that [it] personally suffered

some actual or threatened injury” as a result of the challenged

conduct of the opposing party. /d. at 61, quoting Gladstone,

Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1975).

ACT cannot satisfy the requirements of Article [I]. ACT

has not alleged that any enforcement action was taken or

threatened against any of its members. /. CT does not repre-

sent a class of state employees. In any event, the Attorney

General’s opinion, filed well before ACT intervened in this

prohibit employees from using other languages in the day to

day provision of government services, and that the Amend-

ment only requires employees to use English in matters re-

lated to “official acts” of the state government. See discus-

sion, supra at pp. 10-12.

ACT's only interest in this litigation is based on its status

as the opponent of the ballot initiative that resulted in the pas-

sage of the Arizona Amendment. This does not confer

standing upon ACT to seek an advisory opinion as to the

scope of the Arizona Amendment. ACT must demonstrate an

14

actual or threatened injury to itself or its members before it

can invoke the jurisdiction of this Court. The mere passage of

the Arizona Amendment does not amount to such an injury

absent enforcement action against ACT or its members. See

Poe, supra.

It is clear that ACT does not have standing to continue

this case absent the original party-plaintiffs. Accordingly, the

presence of ACT as an intervenor-plaintiff cannot breathe life

into this otherwise moot case.

Il. Petitioners Arizonans For Official English And Rob-

ert D. Park Have Standing To Seek Review in This

Court.

As the official sponsors of the ballot initiative which re-

sulted in the enactment of Arizona Constitution Article

XXVIII (the “Arizona Amendment”), Petitioners Arizonans

for Official English (“AOE”) and Robert D. Park (“Park”)

suffered Article [II injury in fact as a result of the overbroad

declaratory judgment issued below. The State of Arizona and

its Officials failed to file an appeal of this declaratory judg-

ment, and did not file a-petition for certiorari. As sponsors of

the initiative, AOE and Park stand in the position of state leg-

islators, who have Article III standing when executive offi-

cials fail to defend the constitutionality of a law. AOE and

Park thus have Article III standing to obtain review of the ad-

verse declaratory judgment in this Court.”

This Court has recognized the standing* of legislators to

intervene and defend the validity of a state or federal law,

* In contrast, ACT, the opponent of the ballot initiative that resulted in

the passage of the Arizona Amendment, has not sustained Article III in-

jury in fact. As explained above, p. 13, no actual or threatened enforce-

ment of the Amendment has been initiated against ACT or it: members.

* In order to establish standing, a party must demonstrate three things:

(1) injury in fact; (2) a causal relationship between the injury and the

challenged action; and (3) a likelihood that the injury will be redressed by

15

where the executive branch of the government declines to do

so. In Karcher v. May, 484 U.S. 72 (1987), a teacher, alon

with several students and parents, challenged the constitution-

ality of a New Jersey law which permitted students to observe

a moment of silence before the start of each school day. The

plaintiffs alleged that the statute violated the Establishment

Clause of the First Amendment. When it became apparent

that the narned defendants would not defend the statute, two

members of the state legislature, Karcher and Orechio, sought

and received permission to intervene in their official capaci-

ties to defend the lawsuit.

After the district court and the court of appeals held that

the statute violated the First Amendment, Karcher and Ore-

chio sought review in this Court. By this time, however, Kar-

cher and Orechio had lost their legislative posts. For this rea-

son, the Court dismissed the case for want of jurisdiction.’

The Court’s opinion, however, recognized the standing of the

New Jersey legislature to defend the constitutionality of a

New Jersey statute challenged in federal court. See Id. at 484

(J. White concurrence) (“It bears pointing out that we have

now acknowledged that the New Jersey Legislature and its

authorized representative have the authority to defend the

constitutionality of a statute attacked in federal court”). See

also Burke v. Barnes, 479 U.S. 361, 363 n.1 (1987) (“We can

assume, arguendo, that a House of Congress suffers a judi-

cially cognizable injury when the votes it has cast to pass an

otherwise live statute have been nullified by action on the part

of the Executive Branch’’).

a favorable decision of the court. Northeastern Florida Chapter of the

Associated General Contractors of America v. City of Jacksonville Flor-

ida, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586, 595 (1993).

’ The Court held that “the authority to pursue the lawsuit on behalf of

the legislature belongs to those who succeeded Karcher and Orechio in

office.” Id. at 477. The case was dismissed because Karcher and Ore-

chio’s successors withdrew the appeal and there was thus no case or con.

troversy.

16

AOE and Park, as the official sponsors of the ballot ini-

tiative which resulted in the passage of the Arizona Amend-

ment, occupy a position which is substantially identical to a

state legislator or a representative of a legislature. See J.A.

157. They introduced the ballot initiative and campaigned for

its enactment in much the same way a legislator introduces a

new bill and lobbies for its support. If the author of an initia-

tive measure had no standing to defend its constitutionality,

the will of the people would often be thwarted by hostile or

indifferent state officials.

AOE and Park are not simply “concerned bystanders”

who have no direct interest in the outcome of this case. Peti-

tioners invested considerable time and effort into the passage

of the Arizona Amendment and they have a strong interest in

its vitality. Indeed, Arizona law bestows specific rights and

duties upon the sponsor of a ballot initiative which recognizes

the sponsor’s superior interest in the initiative as compared to

the voters at large. See Ariz.Rev.Stat. § 19-111 (sponsor of

ballot initiative must file an application with the secretary of

state); § 19-122 (if an application for a ballot initiative is re-

jected, the secretary of state must provide the sponsor with a

written statement of the reasons for the rejection); § 19-124

(the sponsor of a ballot initiative may submit an argument to

the secretary of state in support of the initiative).

Thus, just as the New Jersey Legislature satisfied the

standing requirements in Karcher, supra, Petitioners AOE

and Park Meet those requirements in the present case. The

invalidation of the Arizona Amendment by the lower courts

caused AOE and Park an injury in fact. This injury can be

redressed by this Court if the judgment below is vacated, or

reversed on the basis that the Attorney General's Opinion

controls.

17

III. Assusning This Court Has Jurisdiction, The Judg-

ment Below Should Be Reversed Because Approval of

the Attorney General’s Opinion, Not Facial Invalida-

tion, is the Proper Remedy.

The opinion below erred in ruling that the entire Arizona

Amendment was facially invalid. No application of the

Amendment was saved -- even admittedly Constitutional pro-

visions 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 opin-

ions, which have consistently held that in a case such as this

one, where the challenged statute has a broad range of legiti-

mate 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 constitu-

tional 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 exercise caution and restraint in considering a facial

challenge so as to avoid “unnecessary interference” with a

state’s policy choices. 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 legiti-

mate application. See Broadrick, 413 U.S. at 616-17.

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 Ex-

18

ecutive Branch employees below GS-16 challenged the con-

stitutionality of a statute that placed a ban on federal employ-

ees receiving honoraria for speeches. Jd. at 1010. The lower

courts held that the statute violated the First Amendment and

issued an injunction 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 ap-

plied to the entire executive branch. Id. 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 unconstitutional statute, we nei-

ther want nor need to provide relief to nonparties when a nar-

rower remedy will fully protect the litigants”) (internal cita-

tions omitted.) Jd. at 1018. The Court noted that the activi-

ties and status of non-parties might be quite different from

those of the plaintiff class. Jd. at 1019.

The declaratory judgment issued below is manifestly

overbroad under the standards set forth in Broadrick and Na-

tional Treasury Employees Union. Facial invalidation is not

appropriate, 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 re-

quiring all official government documents to be prepared in

English, and requiring all court and administrative hearings to

be conducted in English or with English translation.

Even assuming the Amendment prohibited the speech of

Yniguez and Gutierrez and others similarly situated, the court

could have protected the Plaintiffs by fashioning a far nar-

rower remedy. Indeed, the Arizona Attorney General issued a

formal opinion interpreting the Amendment to apply only to

“official” acts or government functions, not to Plaintiffs’ day-

to-day duties. Adoption of the Attorney General’s opinion

would have saved the Amendment from total invalidation

while fully protecting the Plaintiffs.

19

This Court has repeatedly stated that a statute that is

“readily susceptib ” tO a narrowing construction is not sub-

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

474, 482 (1988); Erznoznik, 422 U.S. at 216 (1975). In judg-

ing 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 constitutionality 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”); Bellotti 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 be-

cause they are the officials charged with the enforcement of

the statute”); Law Students Research Council v. Wadword,

401 U.S. 154, 162 (1971) (accepting the interpretation of state

enforcement officials despite the “language of the Rule

[which] lends itself to a construction that could raise substan-

tial constitutional questions”).

Prior decisions of this Court make clear that the prof-

fered 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 grammatical construction of statutory language, rea-

soning that “It is . . . incumbent upon us to read the statute to

eliminate ... [constitutional] doubts so long as such a read-

ing 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

20

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 con-

struction 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 ac-

cepted to save constitutionality of statute, where opinion was

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

In the instant action, the Arizona Attorney General is-

sued an opinion construing the amendment to apply only to

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

Amendment was reasonable under the standards set forth in

X-Citement, supra. The lower courts did not even contend

that this construction conflicted with the intent of the framers

of the Amendment, or the general understanding of the elec-

torate. 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. Webster's Third New International Dictionary, p.

1566 (1976) defines “official” to mean “formal” and

“authoritative.” Thus, the 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 con-

struction, because Sec. 3(1)(a) of the Amendment, which re-

quires 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 | and 2 of

the Amendment make clear that the Amendment only deals

with official or formal English use. Thus, there was no need

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21

to repeat this limitation in Sections 3 or 4, which involve

other details regarding 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,” rely-

ing 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 un-

der 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 rea-

sonable 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

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 par-

ticularly in need of administrative construction. The lower

courts’ action in effect improperly interpreted the Amendment

on the basis of interpretations of the various opponents of the

initiative -- a clearly improper mode of construction. In keep-

ing with well established precedent this Court should approve

the Attorney General’s opinion to save the Amendment from

facial invalidation.

The Court’s decisions narrowly restricting facial invali-

dation are not simply procedural, but rather constitute a fun-

damental principle necessary for the proper balancing of pow-

22

ers in a representative democracy, including the relationship

of judicial and legislative powers. The majority opinion be-

low 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 im-

plemented by an opinion of the elected State Attorney Gen-

eral. The majority opinion below represents an improper ap-

plication of this Court’s standards regarding facial invalida-

tion, and therefore, must be reversed.

CONCLUSION

For the foregoing reasons, Amicus Curiae U.S. English

respectfully submits that this case is moot, and the judgment

below should be vacated. In the event the Court reaches the

merits of this case, U.S. English respectfully submits that the

judgment below should be reversed and the opinion of the

Arizona Attorney General should be adopted to cure any ar-

guable constitutional defects in the Amendment.

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) 637-9139

Counsel for Amicus Curiae U.S.

English, Inc.

May 23, 1996