Alaskans for a Common Language v. Kritz

• Decision Date: 02 November 2007
• Docket Number: No. S-10590.,S-10590.
• Citation: 170 P.3d 183
• Parties: ALASKANS FOR A COMMON LANGUAGE, INC., Appellant, v. Moses KRITZ, et al., Appellees. Alaskans for a Common Language, Inc., Appellant, v. Henry Alakayak, et al., Appellees.
• Court: Alaska Supreme Court

170 P.3d 183

ALASKANS FOR A COMMON LANGUAGE, INC., Appellant, v. Moses KRITZ, et al., Appellees.

Alaskans for a Common Language, Inc., Appellant, v. Henry Alakayak, et al., Appellees.

No. S-10590.

Supreme Court of Alaska.

November 2, 2007.

Kevin D. Callahan and Douglas J. Serdahely, Patton Boggs LP, Anchorage, for Appellant Alaskans for a Common Language, Inc.

Douglas Pope, Pope & Katcher, Anchorage, for Kritz Appellees.

Eric D. Johnson, Association of Village Council Presidents, Bethel; Heather Kendall-Miller, Native American Rights Fund, Anchorage; and William E. Caldwell, Alaska Civil Liberties Union, Fairbanks, for Alakayak Appellees.

Jan Hart DeYoung, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee State of Alaska.

Peter M. Tiersma, Loyola Law School, Los Angeles, California and Nikole Nelson, Anchorage, for amicus curiae Linguistic Society of America.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

Alaskans for a Common Language, Inc. appeals from a decision of the superior court that the Official English Initiative, AS 44.12.300-.390, violates speech rights protected by the federal and Alaska Constitutions. We hold that a portion of the statute's principal provision violates constitutionally protected speech. We also hold, however, that this unconstitutional portion of the statute may be severed from the remainder of the principal provision and that the remainder, if given a narrowing construction, is constitutional. We therefore affirm in part, and reverse in part, the judgment of the superior court.

II. FACTS AND PROCEEDINGS

In 1998 Alaskans for a Common Language, Inc. (ACL), an Alaskan non-profit corporation, sponsored a ballot initiative to adopt English as the state's official language and to require its sole use in "all government functions and actions." The Official English Initiative (OEI or the initiative), entitled "Requiring Government to Use English," was described on the ballot as follows:

This bill requires the state to use English in all government functions and actions. State records must be in English. "The state" means the legislature, all state agencies, local governments, school districts, public corporations and the university. Those entities may use non-English languages for international trade, emergencies, teaching languages, court suits, criminal inquiries, for elected officials to talk to constituents or to comply with federal law. Costs of non-English records must be identified. Persons who speak only English may not be denied state jobs or services. The bill does not affect private sector use of non-English languages.[¹]

The OEI was approved by the voters on November 3, 1998 and was subsequently codified at AS 44.12.300-.390 to become effective March 3, 1999. Accordingly, this case requires us to interpret a statute enacted pursuant to the people's power of the initiative.²

Following passage of the initiative, two sets of plaintiffs filed suit against the state to block its implementation. The Kritz plaintiffs consisted of Moses Kritz, Stanley Active, and Frank Logusak, all of whom are lifelong residents of Togiak. Kritz and Active are both public officials, the former proficient in English and Yup'ik and the latter only in Yup'ik. Logusak is a citizen who is fluent in both languages. The Alakayak plaintiffs are a group of Alaska residents from various cities and native villages, many of whom are either bilingual in English and Yup'ik, Inupiaq, or Spanish, or proficient only in their native languages and unable to communicate in English. The lead plaintiff, Henry Alakayak, is a member of the city council for the City of Manokotak who has limited proficiency in English and performs his job exclusively in Yup'ik. Both sets of plaintiffs alleged that implementation of the OEI would adversely affect numerous Alaskans who are themselves bi- or multi-lingual government officials or employees, or citizens who rely on such individuals to communicate with or participate in local and state government.

The cases were consolidated and, in March 1999, Superior Court Judge Fred Torrisi granted the plaintiffs' motion for a preliminary injunction, enjoining implementation of the initiative pending further order of the superior court or of this court. ACL then sought to intervene as a defendant.³ The superior court denied ACL's motion, explaining that its interests would be adequately represented by the state and that it could advance its positions as an amicus curiae.⁴ Noting that some might question whether the state was committed to defending the constitutionality of the initiative in light of unfavorable sentiments expressed by the attorney general's office and then-Governor Tony Knowles,⁵ we ordered the superior court to permit ACL to intervene in the lawsuit.⁶

All parties then moved for summary judgment, agreeing that the matter could be resolved without an evidentiary hearing. In March 2002 Judge Torrisi granted the plaintiffs' motions for summary judgment, finding that the OEI violated the free speech clause of the Alaska Constitution because "it is impossible to restrict the initiative's reach to the speech of government as an employer, and because even viewed in this way it is not justified by a legitimate interest." The court further stated that "[t]he wide reach of the initiative chills the exercise of protected speech, and there is no construction that can cure this problem."

The superior court rejected the argument that the initiative was purely symbolic and that it did not prevent anyone from speaking languages other than English, concluding that ACL failed to demonstrate how the initiative could be reasonably construed to permit government employees to routinely speak a language other than English, except in limited circumstances. Relying upon the Ninth Circuit's statement that "[s]peech in any language is still speech and the decision to speak in another language is a decision involving speech alone,"⁷ the court concluded that the OEI is a restriction on speech that violates the free speech rights of public officials and employees.

With respect to elected officials, the superior court found that the OEI limits their ability to "freely speak" and thus violates article I, section 5 of the Alaska Constitution.⁸ As for non-elected employees and officials, the court explained that any restriction on their free speech rights would have to be justified by a "strong [s]tate interest." While the court recognized the validity of the OEI's goals of "promoting, preserving and strengthening" the use of English as Alaska's common language and of reducing the costs of conducting government business in multiple languages, the court found these interests insufficient to justify the "blanket prohibition on public employees speaking languages other than English."

Concluding that the initiative failed to meet the stringent standard required under Alaska law to justify an infringement upon the speech rights of Alaska citizens, the superior court declined to make any findings regarding whether the OEI was content-based or to address the plaintiffs' equal protection arguments. However, the court noted that an overbreadth analysis would lead to the same conclusion because the initiative swept in too much constitutionally-protected speech to be construed narrowly. Finally the court considered whether the initiative could be saved by severing the unconstitutional provisions and concluded that, while a severed construction "might capture the `spirit of the measure,'" it was not "evident that voters would prefer the measure as altered." Accordingly, the court declared the Official English Initiative void as violative of article I, section 5 of the Alaska Constitution.

ACL appealed. Following oral argument, we asked the parties to submit supplemental briefing on the issue of severability. The state had declined to participate in the original appeal but, at our request, submitted briefing on the issue of severability.

III. STANDARD OF REVIEW

We apply our independent judgment to questions of constitutional law and review de novo the construction of the Alaska and federal Constitutions.⁹ We also apply our independent judgment to questions of statutory interpretation and "adopt[] the rule of law that is most persuasive in light of precedent, reason and policy."¹⁰

We review a grant of summary judgment de novo and will affirm the judgment if there are no contested issues of material fact and if the moving party is entitled to judgment as a matter of law.¹¹ In reviewing the superior court's decision to grant summary judgment, we are "not bound by the reasoning articulated by the lower court, and . . . can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the lower court or the parties."¹² We may consider any issue contained in the record, even if not considered by the superior court, in defense of the judgment.¹³

IV. DISCUSSION

There are now English-only laws in twenty-four states.¹⁴ The content of these laws varies significantly. Some are simply policy statements that English is the state's official language.¹⁵ Others designate English as the language of all official public documents, records or meetings.¹⁶ Still others state that government shall not be required to provide documents, information, or literature in other languages, but permit government employees to communicate in other languages for a wide range of reasons.¹⁷ In stark contrast stand an English-only amendment to the Arizona constitution,¹⁸ a proposed English-only statute in Oklahoma,¹⁹ and the OEI.

These three English-only laws share the same basic structure: a declaration that English is the official language of the state, a requirement that only English be used by the state and its political subdivisions, and enumerated exceptions...