Amicus Curiae Brief — Arizonans for Official English v. Arizona

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lo) AUG 27 1998

No. 98-167 OFFICE OF THE CLERK

SHSRSMe=Ssoes, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ARIZONANS FOR OFFICIAL ENGLISH, et al.,

Petitioners,

Vv.

STATE OF ARIZONA, ef al.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Arizona

BRIEF OF WASHINGTON LEGAL FOUNDATION,

THE CLAREMONT INSTITUTE FOR THE STUDY OF

STATESMANSHIP AND POLITICAL PHILOSOPHY,

THE ALLIED EDUCATIONAL FOUNDATION, 12

MEMBERS OF CONGRESS, AND THE STATES OF

NEBRASKA AND ALABAMA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Daniel J. Popeo Bennett Evan Cooper

Richard A. Samp (Counsel of Record)

Washington Legal Foundation Steptoe & Johnson LLP

2009 Massachusetts Ave., NW Two Renaissance Square

Washington, DC 20036 40 North Central Ave., 24th Floor

(202) 588-0302 Phoenix, AZ 85004

(602) 257-5200

Date: August 27, 1998

ADDITIONAL AMICI CURIAE AND COUNSEL LISTED INSIDE FRONT COVER

ADDITIONAL AMICI CURIAE

(continued from front cover)

UNITED STATES REPRESENTATIVES:

CHARLES T. CANADY, BOB BARR,

DOUGLAS BEREUTER, KEN CALVERT,

CHRIS CANNON, JOHN T. DOOLITTLE,

BOB GOODLATTE, ASA HUTCHINSON,

BOB INGLIS, PETER KING,

MATT SALMON, and BOB STUMP

ADDITIONAL COUNSEL

(continued from front cover)

Don Stenberg Bill Pryor

Nebraska Attorney General Alabama Attorney General

Department of Justice 11 South Union Street

2115 State Capitol Montgomery, AL 36130

Lincoln, NE 68509 (334) 242-7300

(402) 471-2862

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................ ii

INTEREST OF THE AMICI CURIAE .......... 1

SUMMARY OF ARGUMENT .............. 4

AMM 89, So ok ewe ic 5

I. The Issues Presented by the Petition Are Matters

of Great National Importance Deserving Review

EIA a re FADS 6 gawk wen baaes 5

II. The Issues Are Ready for Review by This

MN te oe a ink ws oa Ae a en 10

in ee ee AAO So i ck ee as 10

B. The Case Is Procedurally Appropriate for

ME eS oo ae Kak ww 11

I eo a ase ya ea 6 od a's 3 16

TABLE OF AUTHORITIES

Page

Cases:

Arnold v. Arizona Dep’t of Health Servs.

VTS POG SEA CASE: AOBD oo oso e Soccnrind oo Ge 12

Arizonans for Official English v. State of Arizona,

BEF Ges We TIT ieee sd. 6 cA ER a. Passim

ASARCO Inc. v. Kadish,

Re MD oa. sos ale acd ones 14

Bryant v. Yellen,

ole |: Se, he 16

Carmona v. Sheffield,

ep ee We ee Oe, 1973)... nck os ous 9

Clinton v. City of New York,

eRe ee PW I, ko Std bored 16

Diamond v. Charles,

Weis OO (A906) oe os. ree we 14, 15

Frontera v. Sindell,

Jae © .20 1215 (6th Cir. 1975)... en 9

Garcia v. Gloor,

618 F.2d 264 (Sth Cir. 1980),

cert. denied, 449 U.S. 1113 (1981) .......... 9

Garcia v. Spun Steak Co..,

998 F.2d 1480 (9th Cir.), reh’g

denied, 13 F.3d 296 (9th Cir. 1993),

cert. denied, 114 S. Ct. 2726 (1994)........ 9, 10

Guadalupe Organization, Inc. v. Tempe

Elementary School District No. 3,

oor © ae bOee CmGe: 1978): 2 ees ok ok. 9

Gutierrez v. Municipal Court,

838 F.2d 1031 (9th Cir. 1988),

reh’g denied, 861 F.2d 1187 (9th Cir.

1988), vacated, 490 U.S. 1016 (1989)........ 10

iv

Hernandez v. New York,

Fe Si IER fy glee oe vv wig # a eee 9

Jurado v. Eleven-Fifty Corp.,

813 F.2d 1406 (9th Cir. 1987) ............ 10

Kadish v. Arizona State Land Dep’t,

747 P.2d 1183 (Ariz. 1987),

aff'd, ASARCO Inc. v. Kadish,

4G US eee ke ce PEP. AAS 12

Meyer v. Nebraska,

Gn Va ES ce st caw eb ee tec 10

Mistretta v. United States,

eS Oe Oe. Se, 11

Pemberthy v. Beyer,

19 F.3d 857 (3d Cir.),

cert. denied, 115 S. Ct. 439 (1994) .......... 9

Raines v. Byrd,

LIS: GE Bone, woes CAST) iw Pek 16

Ramirez v. Plough, Inc.,

12 Cal. Rptr. 2d 423 (Ct. App. 1992),

rev'd, Go F.26 267 (Ce. 1998) eS 9

Sandoval v. Hagan,

1998 WL 295891 (M.D. Ala. June 3, 1998) ... 4,9

Sierra Club v. Morton,

Ge Si. Fae Cee. Oe OCA Oe tS 14

Soberal-Perez v. Heckler,

717 F.2d 36 (2d Cir. 1983),

cert. denied, 466 U.S. 929 (1984) ....5....... 9

Stanley Industries v. W.M. Barr & Co.,

784 F. Supp. 1570 (S.D. Fla. 1992) .......... 9

Toure v. United States,

24 F.36 444 CAE Ce. We es SE PSS eS 9

United States v. Ramos Colon,

415 F. Supp. 459 (D.P.R. 1976) ............ G

Page

Yniguez v. Arizonans for Official English,

69 F.3d 920 (9th Cir. 1995), vacated,

Arizonans for Official English v. State of Arizona,

117 S. Ct. 1055 (1997) ......... 2, 3, 12, 14, 15

Constitutions, Statutes, and Regulations:

16 CPR. § OSs i es PE, 9

40 C.F.R. § 156.206(e) (1993) .............. 9

S.J. Res. 13, 100th Cong., Ist Sess. (1987) ...... 7

S. 175, 104th Cong., Ist Sess.

(omrggoee Wee. 4G, 1998) ws ke ee es 7

S. 356, 10th Cong., 1st Sess.

(imtroduced Feb. 6, 1995); .. 2s. 2 eB 7

H.J. Res. 109, 104th Cong., Ist Sess.

COURROUIINE INE 2s BO ok i ees 7

H.R. 123, 104th Cong., Ist Sess.

eo ee 7

H.R. 739, 104th Cong., ist Sess.

(imtroduced Jam: 31, 1995). ..... 6. hr es 7

H.R. 1005, 104th Cong., ist Sess.

(introduced Feb. 22, 1995) ............... 7

vi

The English Language Amendment:

Hearing on S.J. Res. 167 Before

the Subcomm. on the Constitution

of the Senate Comm. on the Judiciary,

98th Cong., 2d Sess. (1984) .......6..4... 7

Making English the Official Language

of the United States: Hearing Before

the Senate Governmental Affairs Comm.,

104th Cong., Ist Sess. (Dec. 7, 1995) ........ 7

Ala. Const: amend, S09 i695... Ob eR CTA 3

Ariz. Comet. a8 c3W vets Be. aie 0G at es 12

Ariz. Const. art. XXVIII ........ 6, 12, 13, 15, 16

Ariz. Rev. Stat. § 12-341.01(C) ............ 13

Aris. R. Civ, BP. Site). .:. died .8 ibaa 13

- Ned. Const. at.-5, 273: i...28s 4 nies oot 3

ISDS NOt. BOW BET, coe sv ca one ieee 6

Miscellaneous:

Frank M. Lowrey, IV, Comment,

Through the Looking Glass: Linguistic

Separatism and National Unity,

4 ERO Eads See CE ace cle crocs eee es 8

vii

Terrence Meyerhoff, Note and Comment,

Multiculturalism and Language Rights

in Canada: Problems and Prospects for

Equality and Unity, 9 Am. U.J.

SO Sa ae a CRP Se ee ee ee eee a 8

Kevin Sneesby, Comment, National Separation:

Canada in Context -- A Legal Perspective,

53 La. L. Rev. 1357, 1358-59 (1993) ........ 8 ‘

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 98-167

ARIZONANS FOR OFFICIAL ENGLISH, et ai.,

Petitioners,

Vv.

STATE OF ARIZONA, et al.,

Respondents.

On Petition for a Writ of Certiorari

~ to the Supreme Court of Arizona

BRIEF OF WASHINGTON LEGAL FOUNDATION,

ET AL., AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

2

interest, and has a particular interest in opposing intrusions

by the federal government into decisions about the opera-

tions of state governments, where those decisions are

properly reserved to the states’ citizens. In that regard,

WLF has participated as a party or amicus curiae in

numerous cases before this Court, as well as other courts

across the country. WLF filed a brief before the Arizona

Supreme Court below; before the U.S. Court of Appeals

for the Ninth Circuit, sitting en banc, in Yniguez v.

Arizonans for Official English, 69 F.3d 920 (9th Cir.

1995), which also concerned the constitutionality of

Arizona’s Official English amendment; and before this

Court on the petition for writ of certiorari and on the

merits in Arizonans for Official English v. State of Arizona,

117 S. Ct. 1055 (1997) (hereinafter "Yniguez").

The Claremont Institute for the Study of Statesmanship

and Political Philosophy is a nonprofit educational and

research institution founded in 1979 and based in Clare-

mont, California. The Claremont Institute seeks a return

of America’s founding principles to their rightful preemi-

nence in our public life. It agrees with our Founding

Fathers that the citizenry’s adherence to America’s central

principles, coupled with an enlightened public discourse, is

essential to successful republican government. The Clare-

mont Institute believes that both are threatened by the frag-

mentation inherent in multiculturalism and multilingualism,

and that Official English provisions help preserve the

language of our political and legal traditions as the common

tongue of all Americans, regardless of their heritage. The

Claremont Institute joined with WLF in its brief before the

Arizona Supreme Court below and its brief on the merits

before this Court in the Yniguez case.

3

The Allied Educational Foundation (AEF) is a_non-

profit charitable and educational foundation based in Engle-

wood, New Jersey. Founded in 1964, AEF is dedicated to

promoting education in diverse areas of study such as

history, law, and public policy, and has appeared in amicus

curiae before this Court in a number of cases of interest to

the business community. AEF joined with WLF in its brief

before the Arizona Supreme Court below.

United States Representatives Charles T. Canady, Bob

Barr, Douglas Bereuter, Ken Calvert, Chris Cannon, John

T. Doolittle, Bob Goodlatte, Asa Hutchinson, Bob Inglis,

Peter King, Matt Salmon, and Bob Stump are Members of

Congress who oppose the ruling of the Arizona Supreme

Court below and who believe that it should be reversed.

These Members are concerned by the decision’s potential

implications with respect to any future legislation on

“Official English" by the states and by Congress,

particularly in light of its resurrection of the Ninth Circuit’s

en banc opinion in the Yniguez case. They are also

concerned by the implications for government operations

generally of the holding that public employees have a

presumptive right under the First Amendment to determine

how and whether to comply with official directives

concerning "expressive" job functions.

Rep. Charles T. Canady is chairman of the Subcom-

mittee on the Constitution of the House Judiciary Com-

mittee.

The States of Alabama and Nebraska, like the State of

Arizona, have provisions in their state constitutions declar-

ing English to be the official language of the state. Ala.

Const. amend. 509 (1990); Neb. Const. art. I, § 27. The

States of Alabama and Nebraska are concerned about the

4

implications of the decision below for the validity of their

own state constitutional provisions and any legislation or

regulations adopted pursuant to them. Following Amend-

ment 509, the Alabama Department of Public Safety

adopted a policy requiring that driver’s license exami-

nations be administered solely in English. That policy was

recently invalidated by a federal district court in an opinion

which cited the Arizona Supreme Court’s decision below.

Sandoval v. Hagan, 1998 WL 295891, at *38, 73, 76

(M.D. Ala. June 3, 1998).

Amici believe that government policy, particularly in

a diverse society such as ours, should promote the use of

a common language. Amici further believe that it is desir-

able and constitutionally permissible for voters to determine

that their government must act in that common language in

most circumstances as a means of increasing government

efficiency and furthering civic and social unity.

All parties have consented to the participation of the

amici. Consent letters from counsel have been lodged with

the Clerk of the Court.

SUMMARY OF ARGUMENT

This case presents the Court wiin an important oppor-

tunity to decide an issue of great and enduring national

importance: whether the government may direct its

employees to perform the government’s official business

exclusively in the English language. This Court recognized

the suitability of this issue for review when it granted

certiorari in the Yniguez case to review the six-to-five vote

of a Ninth Circuit en banc panel striking down the Official

English provision of the Arizona state constitution. The

Court was unable to reach the merits of the decision in Yni-

5

guez because of mootness issues that required it to vacate

the lower federal court decisions. The Arizona Supreme

Court decision below, which is based solely on federal

constitutional grounds, expressly follows the vacated Ninth

Circuit decision, and raises the same purported First

Amendment rights of public employees essentially to com-

mit insubordination while on the job. This Court’s defin-

itive guidance on the application of its prior decisions

continues to be needed in this controversial area. Because

this case does not present the same mootness and standing

issues that prevented the Court from reaching the merits

before, it presents a suitable case for granting review.

The constitutional issues presented in this case are

important far beyond the borders of Arizona: Official

English provisions have been adopted by constitutional

amendment or statute in many states, and bills to enact

such legislation on the federal level have been before Con-

gress. A decision by the Court in this case will not only

eliminate uncertainty as to Official English provisions, but

also will provide important direction to lower courts as to

a variety of legal issues involving government policy on

language. The Court should again take this opportunity to

address the extent to which the U.S. Constitution constrains

government action to preserve English as the nation’s

common and official language.

ARGUMENT

I. The Issues Presented by the Petition Are Matters of

Great National Importance Deserving Review by

this Court.

This Court should grant a writ of certiorari and review

the decision below of the Arizona Supreme Court because

6

the case squarely presents an issue of great national signif-

icance: may the people direct their government to conduct

its official business only in the people’s common language?

Regardless of one’s position on the merits of that question,

it is an issue that has been closely scrutinized, hotly

debated, and frequently raised, and one that deserves this

Court’s review at this time and in this case. This Court

recognized the importance of the issue when it granted

certiorari to review the constitutionality of the very same

Arizona constitutional amendment in the Yniguez case.

While the Court declined to address the merits in the

Yniguez case after finding the case moot, the issue has not

gone away. Rather, now more than ever it cries out for

review. Relying solely on the First and Fourteenth

Amendments to the U.S. Constitution, the Arizona Su-

preme Court held Article XXVIII of the Arizona Consti-

tution to be invalid. Althdugh this Court vacated the Ninth

Circuit’s and district court’s rulings in the Yniguez case,

the Arizona Supreme Court expressly relied on the Ninth

Circuit’s opinion. Pet. App. 7a n.1. Article XXVIII was

adopted by a vote of the people of Arizona in 1988, and

federal constitutional principles are still being invoked to

thwart that decision of Arizona voters. This Court should

grant review once again to redress that wrong.

The Arizona Official English constitutional provision

at issue in this case is not a unique political phenomenon,

and definitive resolution of the central issues may eliminate

uncertainty as to constitutional constraints and obviate fur-

ther costly litigation. Several states have adopted similar

constitutional provisions; many more have adopted legisla-

tion to the same effect; and Official English bills and ballot

propositions have been advanced in many others. See Pet.

26 n.8 (collecting citations). Contrary to the misapprehen-

7

sion of the Arizona Supreme Court, the Arizona provision

is in no sense unique. Indeed, it has been the model for

subsequent constitutional and legislative enactments,” and

its detailed provisions will provide guidance to state

legislatures and Congress in the enactment of statutes and

regulations implementing what the Arizona Supreme Court

deemed "merely symbolic" Official English provisions.

Pet. App. 28a.

In addition, Congress has considered Official English

constitutional amendments on at least three occasions in

recent years.’ Indeed, Congress has held hearings on

several bills that would declare English the dfficial

language of the United States and require all fnctions of

the federal government to be performed exclusively in

English in most or all circumstances.* Many of these legi-

slative actions have been prompted by national and state

organizations committed to affirming the role of English as

the common language of the United States, including U.S.

? E.g., 1995 N.H. Laws 157.

> Bills have been introduced in Congress in 1981, 1984, and 1988

to amend to the Constitution to make English the official language of

the United States. See The English Language Amendment: Hearing on

S.J. Res. 167 Before the Subcomm. on the Constitution of the Senate

Comm. on the Judiciary, 98th Cong., 2d Sess. (1984); S.J. Res. 13,

100th Cong., Ist Sess. (1987).

* See Making English the Official Language of the United States:

Hearing Before the Senate Governmental Affairs Comm., 104th Cong.,

ist Sess. (Dec. 7, 1995); S. 356, 10th Cong., Ist Sess. (introduced

Feb. 6, 1995); H.J. Res. 109, 104th Cong., Ist Sess. (introduced Sept.

29, 1995); S. 175, 104th Cong., Ist Sess. (introduced Jan. 10, 1995);

H.R. 1005, 104th Cong., Ist Sess. (introduced Feb. 22, 1995); H.R.

739, 104th Cong., Ist Sess. (introduced Jan. 31, 1995); H.R. 123,

104th Cong., Ist Sess. (introduced Jan. 10, 1995).

English, English Language Advocates, and petitioner Ari-

zonans for Official English (AOE).

Nor is the Official English issue one of fleeting

political significance. The end of the Cold War has seen

the reemergence of cultural and linguistic units as powerful

political forces around the world. The interaction between

language and government, particularly the designation of

certain languages as the official language of government,

has become a fundamental regime question threatening the

political integrity and stability of several nations, including

the former Soviet Union and Canada.’ The ongoing strug-

gle to preserve the Canadian federation in light of linguistic

differences will continue to fuel concerns about the possi-

bility of similar strains in American society, which in turn

will drive legal efforts regarding the official status of the

English language.

This case poses most directly the question whether the

government may require its employees to conduct official

State business in a particular language. That issue, how-

ever, is closely related to several other issues of national

importance and great concern, and a ruling by the Court in

this case no doubt will provide guidance in related areas.

Such related issues include whether there is a right to

receive government services in languages other than

° See, e.g., Frank M. Lowrey, IV, Comment, Through the

Looking Glass: Linguistic Separatism and National Unity, 41 Emory

L.J. 223 (1992); Terrence Meyerhoff. Note and Comment,

Multiculturalism and Language Rights in Canada: Problems and

Prospects for Equality and Unity, 9 Am. U.J. Int’] L. & Pol’y 913

(1994); Kevin Sneesby, Comment, National Separation: Canada in

Context -- A Legal Perspective, 53 La. L. Rev. 1357, 1358-59 (1993).

9

English;° whether private employers may require their

employees to speak English during business hours;’

whether the state may require private businesses to com-

municate certain messages (such as consumer product

safety warnings) in languages other than English;* and

whether linguistic skills may properly be considered in jury

selection.” While different legal standards apply in many

of these other contexts, as a practical matter there will no

doubt be a substantial spillover effect from a decision by

this Court in this case.

This Court’s guidance on such issues is indispensable.

The Arizona Supreme Court’s ruling, like the Ninth Cir-

® See Guadalupe Org., Inc. v. Tempe Elementary Sch. Dist. No.

3, 587 F.2d 1022 (9th Cir. 1978); Carmona v. Sheffield, 475 F.2d 738

(9th Cir. 1973); Toure v. United States, 24 F.3d 444 (2d Cir. 1994);

Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), cert. denied,

466 U.S. 929 (1984); Frontera v. Sindell, 522 F.2d 1215 (6th Cir.

1975); Sandoval v. Hagan, 1998 WL 295891 (M.D. Ala. June 3,

1998).

7 See Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993),

cert. denied, 114 S. Ct. 2726 (1994); Garcia v. Gloor, 618 F.2d 264

(Sth Cir. 1980), cert. denied, 449 U.S. 1113 (1981).

* See Stanley Indus. v. W.M. Barr & Co., 784 F. Supp. 1570

(S.D. Fla. 1992); Ramirez v. Plough, Inc., 12 Cal. Rptr. 2d 423 (Ct.

App. 1992), rev'd, 863 P.2d 167 (Cal. 1993); 40 C.F.R. § 156.206(e)

(1993) (EPA regulation requiring Spanish-language warning statements

in certain circumstances); 16 C.F.R. § 307.5 (1994) (FTC regulation

requiring tobacco warnings to be in predominant language of

non-English periodicals).

* See Hernandez v. New York, 500 U.S. 352 (1991); Pemberthy

v. Beyer, 19 F.3d 857 (3d Cir.), cert. denied, 115 S. Ct. 439 (1994);

United States v. Ramos Colon, 415 F. Supp. 459 (D.P.R. 1976).

10

cuit’s 6-5 en banc decision on which it relied, turns in

great measure on the interpretation and -application of

decisions by this Court, including not only its seminal

decision on language rights in Meyer v. Nebraska, 262

U.S. 390 (1923), but also several recent decisions bearing

on the First Amendment rights of public employees. Only

this Court can give definitive instruction on the meaning

and import of its prior decisions.

II. The Issue Is Ready for Review by This Court.

A. The Issues Are Ripe.

This case and the issue it presents are ripe for review

by this Court. Not only the Arizona Supreme Court but

also the Ninth Circuit among the Courts of Appeals has

rendered a decision on the Arizona Official English

provision, and it would be both unnecessary and unpro-

ductive for this Court to pass on this opportunity to hear

this issue in order to allow the issue to percolate among the

circuits and the state courts. Moreover, the Ninth Circuit

has considered English-language-only rules for public

employees in other cases as well.’° Where the issue was of

such pressing concern, this Court has accepted review

without requiring consideration by multiple circuits or even

10 See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir.

1987); Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir. 1988),

vacated, 490 U.S. 1016 (1989); id., 861 F.2d 1187, 1194 (9th Cir.

1988) (Kozinski, J., dissenting from denial of rehearing en banc); Spun

Steak, 998 F.2d 1480; id., 13 F.3d 296 (Reinhardt, J., dissenting from

denial of rehearing en banc).

11

one circuit.'' That the issues have been sufficiently raised

and explored is confirmed not only by these decisions, but

also by the extensive legal commentary and scholarship on

Official English proposals that have been published over

many years, and well as numerous analyses about related

issues of language policy. See Brief of the Washington

Legal Foundation, et al., on Petition for Writ of Certiorari

in Yniguez at 14-13 & nn.14-18, No. 95-974 (filed Jan. 22,

1996) (collecting citations).

B. This Case Is Procedurally Appropriate for

Review.

This case is procedurally appropriate for review by this

Court. The dispute is not fact-bound and requiring of

further findings by the lower courts. ‘he Arizona Supreme

Court construed the Arizona constitutional provision on its

face rather than as applied to the specific facts of respon-

dents. This Court has a suitable opportunity to decide

issues of great national importance; it should avail itself of

that opportunity and grant the petition.

Moreover, this case does not present the issue of moot-

ness that prevented the Court from reaching the merits in

Yniguez, nor the concerns about petitioners’ standing that

the Court raised but did not resolve in its opinion in that

case. Yniguez, 117 S. Ct. at 1067-75. As to mootness,

unlike Maria-Kelley F. Yniguez, the plaintiffs below were

and remain four elected officials, five state employees, and

one public school teacher. Pet. App. lla. As a result,

"| See, e.g., Mistretta v. United States, 488 U.S. 361, 362 (1989)

(granting certiorari before judgment in the Eighth Circuit in order to

consider constitutional issues).

12

they continue to be aie to the provisions of Article

XXVIII.

Similarly, this case does not raise the same concerns

about petitioners’ standing that Yniguez did. With respect

to the Official English provision, the people of Arizona

vested in themselves not only a share of the legislative

power through the initiative process, Ariz. Const. art. IV,

pt. 1, but also a share of the executive power of enforce-

ment. Section 4 of Article XXVIII, entitled "Enforcement;

Standing," provides that "[a] person who resides in or does

business in this State shall have standing to bring suit to

enforce this Article in a court of record of the State." Jd. ;

see Yniguez, 117 S. Ct. at 1068 ("Article XXVIII’s citizen

suit provision . . . authorizes suits to enforce Article

XXVIII in state court"). Arizona courts have recognized

that where a statute provides for citizen enforcement,

"[c]itizens of the state may act for the benefit of the state

as a whole" under the "private attorney general" doctrine.

Kadish v. Arizona State Land Dep’t, 747 P.2d 1183, 1197

(Ariz. 1987), aff'd, ASARCO Inc. v. Kadish, 490 U.S. 605

(1989); see Arnold v. Arizona Dep’t of Health Servs. , 775

P.2d 521, 537 (Ariz. 1989) (applying doctrine).

The Ninth Circuit recognized that compelling logic

behind vesting such enforcement authority in private

attorneys general as well as in constituted officers of

government. "[A]s appears to be true in this case, the

government may be less than enthusiastic about the en-

forcement of a measure adopted by ballot initiative."

Yniguez v. State of Arizona, 939 F.2d 727, 733 (9th Cir.

1991). The same concern about public officials’ indif-

ference that drives the initiative process also drives the

concern for alternative means of enforcement: "While the

people may not always be able to count on their elected

13

representatives to support fully and fairly a provision

enacted by ballot initiative, they can invariably depend on

its sponsors to do so." Jd.

Thus, petitioners have standing to enforce the Official

English amendment in Arizona state courts, out of which

this petition arises. The decision cf the Arizona Supreme

Court below, which struck down the Official English

amendment in its entirety under the federal constitution,

nullified the state constitutional right of petitioners to seek

enforcement of the Official English amendment in the state

courts. This case is wholly unlike Yniguez, where peti-

tioners challenged the federal district court and Ninth

Circuit rulings that invalidated Article XXVIII. This Court

expressed concern about petitioners’ standing in that case

because, “[aJs nonparties in the District Court, AOE’s

members were not bound by the judgment for Yniguez,"

and the federal district court "judgment had slim prece-

dential effect, . . . [leaving] AOE entirely free to invoke

Article XXVIII, § 4, the citizen suit provision, in state

court, where AOE could pursue whatever relief state law

authorized." 117 S. Ct. at 1068; see also id. at 1064 n.11

(concerning whether the lower federal courts’ decisions

were "binding precedent on Arizona’s judiciary"). By

contrast, petitioners were parties to all stages of the

proceedings below, and the Arizona Supreme Court’s appli-

cation of federal constitutional principles is fully binding on

any further attempts at enforcement in state court. Indeed,

any attempt by petitioners to enforce Article XXVIII in

state court would expose them to liability for sanctions in

light of the Arizona Supreme Court’s decision. See Ariz.

Rev. Stat. § 12-341.01(C); Ariz. R. Civ. P. 11(a).

This Court has recognized in similar circumstances that

parties in petitioners’ position have stancing to seek review

14

by this Court of an adverse state court ruling based on

federal law. ASARCO Inc. v. Kadish, 490 U.S. 605

(1989). The Court noted that even if the parties in

ASARCO would not have had standing under federal

requirements to bring the action in the federal courts in the

first instance, "[a]t this juncture, petitioners allege a

specific injury stemming from the state-court decree, a

decree which rests on principles of federal law." Id. at

617. The Court agreed with the petitioners in ASARCO

that, "as a result of the state-court judgment, the case has

taken on such definite shape that they are under a defined

and specific legal obligation, one which causes them direct

injury." Jd. at-618. Here, as in ASARCO, "[t]he state

proceedings ended in a declaratory judgment adverse to

petitioners, an adjudication of legal rights which constitutes

a kind of injury cognizable in this Court on review from

the state courts." /d.

As the result of the Arizona Supreme Court’s ruling,

petitioners "are faced with ‘actual or threatened injury’ that

is sufficiently ‘distinct and palpable’ to support their

standing to invoke the authority of a federal court." Id.

The Ninth Circuit recognized in the Yniguez case that AOE

and its members are more than mere "‘concerned

bystanders,’ who will use [the appeal] simply as a ‘vehicle

for the vindication of value interests.’" Diamond v.

Charles, 476 U.S. 54, 62 (1986) (quoting Sierra Club v.

Morton, 405 U.S. 727, 740 (1972)); see Yniguez, 939 F.2d

15

at 732.2 AOE and Robert Park were the principal spon-

sors of the ballot initiative on Article XXVIII, and they

have intervened or sought to intervene in all but one of the

ten proceedings that have ever been held on Article

XXVIII. Indeed, the Ninth Circuit noted that AOE and

Park did not intervene in the sole exception ~ the district

court proceeding in Yniguez - "only because they had been

expressly assured by the Attorney General that he would

vigorously represent their interests." Yniguez, 939 F.2d at

734.

Thus, the Ninth Circuit recognized, as matter of fact,

that petitioners here not only had a right to enforce Article

XXVIII, but also had expressed "their intention to see

Article XXVIII enforced against Yniguez." /d. As a

consequence, there was a "more than speculative threat that

Park was about to bring an action to enforce Article

XXVIII" when the federal declaratory judgment action was

filed nearly a decade ago. Jd. at 734. This Court as

found standing in similar circumstances where the peti-

2 Article XXVII’s express grant of standing to petitioners to

enforce the constitutional provision in state court makes their standing

distinct from that of the physician in Diamond whose “personal and

professional interests” disposed him in favor of the abortion restrictions

at issue. 476 U.S. at 66. The Court noted that the "Illinois Legi-

slature, of course, has the power to create new interests, the invasion

of which may confer standing. In such a case, the requirements of Art.

Iil may be met.” Jd. at 65 n.17; see also id. at 77 (O’Connor, J.,

concurring) ("Dr. Diamond simply has no claim or defense in this

sense; he asserts no actual, present interest that would permit him fo

sue or be sued by appellees, or the State of Illinois, or anyone else, in

an action sharing common questions of law or fact with those at issue

in this litigation.") (emphasis added). Here, petitioners do have the

right to sue to enforce Article XXVIII, a right nullified by the state

court decision below.

16

tioners’ interest was based on a likelihood of their future

actions rather than a "certainty," because the probability of

their future conduct gave them “a sufficient stake in the

outcome of the controversy to afford them standing to

appeal." Bryant v. Yellen, 447 U.S. 352, 367-68 (1980).

Thus, petitioners here have shown “a ‘personal stake’ in

having an actual injury redressed rather than an ‘institu-

tional injury’ that is ‘abstract and widely dispersed.’"

Clinton v. City of New York, 118 S. Ct. 2091, 2099 (1998)

(quoting Raines v. Byrd, 117 S. Ct. 2312, 2322 (1997)).

Unless this Court grants certiorari to review the decision

below, it is difficult to discern how any party will ever be

able to obtain review of the state court’s invalidation of

Article XXVIII on the basis of federai law.

CONCLUSION

For the foregoing reasons, this Court should grant a

writ of certiorari to the Supreme Court of Arizona and

review the decision of that court.

Respectfully submitted,

Bennett Evan Cooper

Counsel of Record

Steptoe & Johnson LLP

Two Renaissance Square

40 North Central Avenue

24th Floor

Phoenix, Arizona 85004

(602) 257-5200

Date: August 27, 1998

17

Daniel J. Popeo

Richard A. Samp

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Don Stenberg

Nebraska Attorney General

Department of Justice

2115 State Capitol

Lincoln, NE 68509

(402) 471-2862

Bill Pryor

Alabama Attorney General

11 South Union Street

Montgomery, AL 36130

(334) 242-7300

Counsel for amici curiae