# Amicus Curiae Brief — Arizonans for Official English v. Arizona

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1325%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1093

## Text

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an
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1325%3A6. Public record. Not legal advice.