LINGUIST List 8.313

Mon Mar 3 1997

FYI: US Supreme Court on Official English

Editor for this issue: Anthony Rodrigues Aristar <>


  1. Dennis Baron, Supreme Court Official English Decision

Message 1: Supreme Court Official English Decision

Date: Mon, 3 Mar 1997 13:54:51 -0600
From: Dennis Baron <>
Subject: Supreme Court Official English Decision

- ----
This morning the supreme court issued the following opinion. Here is the
syllabus. The complete opinion is available at





certiorari to the united states court of appeals for the ninth circuit

No. 95-974. Argued December 4, 1996 -- Decided March 3, 1997

Maria Kelly F. Yniguez, an Arizona state employee at the time, sued
the State and its Governor, Attorney General, and Director of the
Department of Administration under 42 U.S.C. A7 1983 alleging that
State Constitution Article XXVIII--key provisions of which declare
English "the official language of the State," require the State to
"act in English and in no other language," and authorize state
residents and businesses "to bring [state court] suit[s] to enforce
th[e] Article"--violated, inter alia, the Free Speech Clause of the
First Amendment. Yniguez used both English and Spanish in her work and
feared that Article XXVIII, if read broadly, would require her to face
discharge or other discipline if she did not refrain from speaking
Spanish while serving the State. She requested injunctive and
declaratory relief, counsel fees, and "all other relief that the Court
deems just and proper." During the early phases of the suit, the State
Attorney General released an Opinion expressing his view that Article
XXVIII is constitutional in that, although it requires the expression
of "official acts" in English, it allows government employees to use
other languages to facilitate the delivery of governmental
services. The Federal District Court heard testimony and, among its
rulings, determined that only the Governor, in her official capacity,
was a proper defendant. The court, at the same time, dismissed the
State because of its Eleventh Amendment immunity, the State Attorney
General because he had no authority to enforce Article XXVIII against
state employees, and the Director because there was no showing that
she had undertaken or threatened any action adverse to Yniguez;
rejected the Attorney General's interpretation of the Article on the
ground that it conflicted with the measure's plain language; declared
the Article fatally overbroad after reading it to impose a sweeping
ban on the use of any language other than English by all of Arizona
officialdom; and declined to allow the Arizona courts the initial
opportunity to determine the scope of Article XXVIII. Following the
Governor's announcement that she would not appeal, the District Court
denied the State Attorney General's request to certify the pivotal
state law question--the Article's correct construction--to the Arizona
Supreme Court. The District Court also denied the State Attorney
General's motion to intervene on behalf of the State, under 28
U.S.C. A7 2403(b), to contest on appeal the court's holding that the
Article is unconstitutional. In addition, the court denied the motion
of newcomers Arizonans for Official English Committee (AOE) and its
Chairman Park, sponsors of the ballot initiative that became Article
XXVIII, to intervene to support the Article's constitutionality. The
day after AOE, Park, and the State Attorney General filed their
notices of appeal, Yniguez resigned from state employment to accept a
job in the private sector. The Ninth Circuit then concluded that AOE
and Park met standing requirements under Article III of the Federal
Constitution and could proceed as party appellants, and that the
Attorney General, having successfully obtained dismissal below, could
not reenter as a party, but could present an argument, pursuant to
A72403(b), regarding the constitutionality of Article XXVIII. 
Thereafter, the State Attorney General informed the Ninth
Circuit of Yniguez's resignation and suggested that, for lack of a
viable plaintiff, the case was moot. The court disagreed, holding that
a plea for nominal damages could be read into the complaint's "all
other relief" clause to save the case. The en banc Ninth Circuit
ultimately affirmed the District Court's ruling that Article XXVIII
was unconstitutional, and announced that Yniguez was entitled to
nominal damages from the State. Finding the Article's "plain language"
dispositive, and noting that the State Attorney General had never
conceded that the Article would be unconstitutional if construed as
Yniguez asserted it should be, the Court of Appeals also rejected the
Attorney General's limiting construction of the Article and declined
to certify the matter to the State Supreme Court. Finally, the Ninth
Circuit acknowledged a state court challenge to Article XXVIII's
constitutionality, Ruiz v. State, but found that litigation no cause
to stay the federal proceedings.

Held: Because the case was moot and should not have been retained for
adjudication on the merits, the Court vacates the Ninth Circuit's
judgment and remands the case with directions that the action be
dismissed by the District Court. This Court expresses no view on the
correct interpretation of Article XXVIII or on the measure's
constitutionality. Pp. 18-35.

(a) Grave doubts exist as to the standing of petitioners AOE and Park
to pursue appellate review under Article III's case or controversy
requirement. Standing to defend on appeal in the place of an original
defendant demands that the litigant possess "a direct stake in the
outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary
argument--that, as initiative proponents, they have a quasi
legislative interest in defending the measure they successfully
sponsored--is dubious because they are not elected state legislators,
authorized by state law t o represent the State's interests, see
Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never
identified initiative proponents as Article III qualified
defenders. Cf. Don't Bankrupt Washington Committee v. Continental
Ill. Na t. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their
assertion of representational or associational standing is also
problematic, absent the concrete injury th at would confer standing
upon AOE members in their own right, see, e.g., Food and Commercial
Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything
in Article XXVIII's state court citizen suit provision that could
support standing for Arizona residents in general, or AOE in
particular, to defend the Article's constitutionality in federal
court. Nevertheless, this Court need not definitively resolve the
standing of AOE and Park to proceed as they did, but assumes such
standing arguendo in order to analyze the question of mootness
occasioned by originating plaintiff Yniguez's departure from state
employment. See, e.g., Burke v. Barnes, 47 9 U.S. 361, 363, 364,
n. Pp. 18-21.

(b) Because Yniguez no longer satisfies the case or controversy
requirement, this case is moot. To qualify as a case fit for federal
court adjudication, an actual controversy must be extant at all
stages of review, not merely at the time the complaint is
filed. E.g., Preiser v. Newkirk, 422 U.S. 395, 401. Although Yniguez
had a viable claim at the outset of this litigation, her resignation
from public sector employment to pursue work in the private sector,
where her speech was not governed by Article XXVIII, mooted the case
stated in her complaint. Cf. Boyle v. Landry, 401 U.S. 77, 78,
80-81. Contrary to the Ninth Circuit's ruling, h er implied plea for
nominal damages, which the Ninth Circuit approved as against the Stat
e of Arizona, could not revive the case, as A71983 actions do not lie
agai nst a State, Will v. Michigan Dept. of State Police, 491
U.S. 58, 71; Arizona was permitted to participate in the appeal only
as an intervenor, through its Attorney General, not as a party subject
to an obligation to pay damages; and the State's cooperation with
Yniguez in waiving Eleventh Amendment immunity did not recreate a live
case or controversy fit for federal court adjudication, cf., e.g.,
United States v. Johnson, 319 U.S. 302, 304. Pp. 21-26.

(c) When a civil case becomes moot pending appellate adjudication, the
established practice in the federal system is to reverse or vacate the
judgment below and remand with a direction to dismiss. United States
v. Munsingwear, Inc., 3 40 U.S. 36, 39. This Court is not disarmed
from that course by the State Attorney General's failure to petition
for certiorari. The Court has an obligation to inquire not only into
its own authority to decide the questions presented, but to consider
also the authority of the lower courts to proceed, even though the
parties are prepared to concede it. E.g., Bender v. Williamsport Area
School Dist., 4 75 U.S. 534, 541. Because the Ninth Circuit refused
to stop the adjudication when it learned of the mooting
event--Yniguez's departure from public employment--its unwarranted en
banc judgment must be set aside. Nor is the District Court's judgment
saved by its entry before the occurrence of the mooting event or by
the Governor's refusal to appeal from it. AOE and Park had an arguable
basis for seeking appellate review; moreover, the State Attorney
General's renewed certification plea and his motion to intervene in
this litigation demonstrate that he was pursuing his A72403 (b)
right to defend Article XXVIII's constitutionality when the mooting
event occurred. His disclosure of that event to the Ninth Circuit
warranted a mootness disposition, which would have stopped his
A72403(b) endeavor and justifi ed vacation of the District Court's
judgment. The extraordinary course of this litigation and the
federalism concern next considered lead to the conclusion that vacatur
down the line is the equitable solution. Pp. 26-30.

(d) Taking into account the novelty of the question of Article
XXVIII's meaning, its potential importance to the conduct of Arizona's
business, the State Attorney General's views on the subject, and the
at least partial agreement with those views by the Article's sponsors,
more respectful consideration should have been given to the Attorney
General's requests to seek, through certification, an authoritative
construction of the Article from the State Supreme Court. When
anticipatory relief is sought in federal court against a state
statute, respect for the place of the States in our federal system
calls for close consideration of the question whether conflict is
avoidable. Federal courts are not well equipped to rule on a state
statute's constitutionality without a controlling interpretation of
the statute's meaning and effect by the state courts. See, e.g., Poe
v. Ullman, 367 U.S. 497, 526 (Harlan, J. , dissenting). Certification
saves time, energy, and resources and helps build a cooperative
judicial federalism. See e.g., Lehman Brothers v. Schein, 416
U.S. 386, 391. Contrary to the Ninth Circuit's suggestion, this
Court's decisions do not require as a condition precedent to
certification a concession by the Attorney General that Article XXVIII
would be unconstitutional if construed as Yniguez contended it should
be. Moreover, that court improperly blended abstention with
certification when it found that "unique circumstances," rather than
simply a novel or unsettled state law question, are necessary before
federal courts may employ certification. The Arizona Supreme Court
has before it, in Ruiz v. State, the question: What does Article
XXVIII mean? Once that court has spoken, adjudication of any remaining
federal constitutional question may be "greatly simplifie[d]." See
Bellot ti v. Baird, 428 U.S. 132, 151. Pp. 30-35.

69 F. 3d 920, vacated and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.

Dennis Baron

Department of English office: 217-333-2392
University of Illinois fax: 217-333-4321
608 South Wright Street home: 217-384-1683
Urbana, Illinois 61801
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