Yniguez v. Arizonans for Official English
| Decision Date | 05 October 1995 |
| Docket Number | 93-15719,93-15061,Nos. 92-17087,s. 92-17087 |
| Citation | 69 F.3d 920 |
| Parties | 66 Empl. Prac. Dec. P 43,726, 64 USLW 2219, 95 Cal. Daily Op. Serv. 7821, 95 Daily Journal D.A.R. 13,447 Maria-Kelley F. YNIGUEZ; Jaime P. Gutierrez, Plaintiffs-Appellees, and Arizonans Against Constitutional Tampering, Intervenors-Plaintiffs-Appellees, and State of Arizona; Rose Mofford; Robert Corbin, et al., Defendants-Appellees, v. ARIZONANS FOR OFFICIAL ENGLISH; Robert D. Parks, Intervenors-Defendants-Appellants. Maria-Kelley F. YNIGUEZ, Plaintiff-Appellant, v. STATE OF ARIZONA; Rose Mofford; Robert Corbin, et al., Defendants-Appellees, and Arizonans For Official English; Robert D. Parks, Intervenors-Defendants-Appellants. Maria-Kelley F. YNIGUEZ, Plaintiff-Appellee, v. STATE OF ARIZONA; Rose Mofford; Robert Corbin, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert J. Pohlman (Catherine Bergin Yalung, on the brief), Ryley, Carlock & Applewhite, Phoenix, Arizona, for plaintiff-appellee-cross-appellant.
Stephen G. Montoya (George Vice III, on the brief), Bryan Cave, Phoenix, Arizona, for intervenors-plaintiffs-appellees.
Grant Woods, Arizona Attorney General (Rebecca White Berch, Arizona Solicitor General, on the brief), Phoenix, Arizona, for defendants-appellees.
Barnaby W. Zall, Williams & Jensen, Washington, DC (James F. Henderson, Scult, Lazarus, French, et. al., Phoenix, Arizona, on the brief), for intervenors-defendants-appellants.
Appeals from the United States District Court for the District of Arizona.
Before: WALLACE, Chief Judge, HUG, PREGERSON, REINHARDT, HALL, WIGGINS, BRUNETTI, KOZINSKI, FERNANDEZ, KLEINFELD, and HAWKINS, Circuit Judges.
Opinion by Judge REINHARDT; Concurrence by Judge BRUNETTI; Special Concurrence by Judge REINHARDT; Dissent by Judge FERNANDEZ; Concurrence to Dissent by Chief Judge WALLACE; Dissent by Judge KOZINSKI.
These consolidated appeals require us to consider an important area of constitutional law, rarely reexamined since a series of cases in the 1920s in which the Supreme Court struck down laws restricting the use of non-English languages. See Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923); Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059 (1926); Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646 (1927). Here, once again, the state has chosen to use its regulatory powers to try to require the exclusive use of the English language.
Specifically at issue in this case is the constitutionality of Article XXVIII of the Arizona Constitution. Article XXVIII provides, inter alia, that English is the official language of the state of Arizona, and that the state and its political subdivisions--including all government officials and employees performing government business--must "act" only in English. Arizonans for Official English and its spokesman Robert D. Parks 1 appeal the district court's declaratory judgment that Article XXVIII is facially overbroad in violation of the First Amendment. Maria-Kelly Yniguez, a former Arizona state employee who brought the present action, appeals the district court's denial of nominal damages.
This case raises troubling questions regarding the constitutional status of language rights and, conversely, the state's power to restrict such rights. There are valid concerns on both sides. In our diverse and pluralistic society, the importance of establishing common bonds and a common language between citizens is clear. See Guadalupe Organization, Inc. v. Tempe Elementary School Dist., 587 F.2d 1022, 1027 (9th Cir.1978). Equally important, however, is the American tradition of tolerance, a tradition that recognizes a critical difference between encouraging the use of English and repressing the use of other languages. Arizona's rejection of that tradition has severe consequences not only for its public officials and employees, but for the many thousands of Arizonans who would be precluded from receiving essential information from their state and local governments if the drastic prohibition contained in the provision were to be implemented. In deciding this case, therefore, we are guided by what the Supreme Court wrote in Meyer:
The protection of the Constitution extends to all, to those who speak other languages as well as those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution--a desirable end cannot be promoted by prohibited means.
262 U.S. at 401, 43 S.Ct. at 627.
We conclude that Article XXVIII constitutes a prohibited means of promoting the English language and affirm the district court's ruling that it violates the First Amendment. 2
A three-judge panel of this court issued an opinion reaching this same conclusion last year. Yniguez v. Arizonans for Official English, 42 F.3d 1217 (9th Cir.1994). We then decided to reconsider the question en banc. 53 F.3d 1084 (9th Cir.1995). Having done so, we conclude that our opinion was correct. Because the opinion was withdrawn when we went en banc, we re-publish it now, with only a few changes that discuss the applicability of intervening Supreme Court cases or expand on points that warrant further explanation. In almost all respects, however, our en banc opinion is identical to the opinion issued by the three-judge panel. 3
In October 1987, Arizonans for Official English initiated a petition drive to amend Arizona's constitution to prohibit the government's use of languages other than English. The drive culminated in the 1988 passage by ballot initiative of Article XXVIII of the Arizona Constitution, entitled "English as the Official Language." The measure passed by a margin of one percentage point, drawing the affirmative votes of 50.5% of Arizonans casting ballots in the election. Under Article XXVIII, English is "the official language of the State of Arizona": "the language of ... all government functions and actions." Secs. 1(1) & 1(2) (see appendix). The provision declares that the --defined as including "all government officials and employees during the performance of government business"--"shall act in English and no other language." Secs. 1(3)(a)(iv) & 3(1)(a).
At the time of the passage of the article, Yniguez, a Latina, was employed by the Arizona Department of Administration, where she handled medical malpractice claims asserted against the state. She was bilingual--fluent and literate in both Spanish and English. 4 Prior to the article's passage, Yniguez communicated in Spanish with monolingual Spanish-speaking claimants, and in a combination of English and Spanish with bilingual claimants.
State employees who fail to obey the Arizona Constitution are subject to employment sanctions. For this reason, immediately upon passage of Article XXVIII, Yniguez ceased speaking Spanish on the job. She feared that because of Article XXVIII her use of Spanish made her vulnerable to discipline.
In November 1988, Yniguez filed an action against the State of Arizona, Governor Rose Mofford, Arizona Attorney General Robert Corbin, and Director of the Arizona Department of Administration Catherine Eden, in federal district court. 5 She sought an injunction against state enforcement of Article XXVIII and a declaration that the provision violated the First and Fourteenth Amendments of the Constitution, as well as federal civil rights laws.
Yniguez's complaint was subsequently amended to include Jaime Gutierrez, a Hispanic state senator from Arizona, as a plaintiff. Gutierrez stated that, prior to the passage of Article XXVIII, he spoke Spanish when communicating with his Spanish-speaking constituents and that he continued to do so even after the article's passage. He claimed, however, that he feared that in doing so he was liable to be sued pursuant to Article XXVIII's enforcement provision.
The state defendants all moved for dismissal, asserting various jurisdictional bars to the action. While these motions were pending, the plaintiffs conducted discovery and compiled the defendants' admissions to interrogatories into a Statement of Stipulated Facts, filed with the district court in February 1989. Also filed with the court was the Arizona Attorney General's opinion regarding the interpretation of Article XXVIII, which explained that, "to avoid possible conflicts with the federal ... constitution[ ]," the Attorney General had concluded that the Article only covered the "official acts" of the Arizona government. Finally, the court heard testimony from Yniguez, Senator Gutierrez, and Jane Hill, a linguistic anthropologist, about the adverse impact of Article XXVIII on their speech rights, and the speech rights of the Hispanic population of Arizona.
The district court issued its judgment and opinion on February 6, 1990. Yniguez v. Mofford, 730 F.Supp. 309 (D.Ariz.1990). First, the district court resolved the defendants' jurisdictional objections. The court reiterated a previous ruling that the Eleventh Amendment protects the State of Arizona from suit, and then ruled that Gutierrez's claims were barred as to all of the defendants. Id. at 311. It reasoned that because state executive branch officials lack authority to prosecute members of the legislative branch, none of the defendants had enforcement power against Gutierrez sufficient to satisfy the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In addition, the court held that Ex parte Young barred Yniguez's claim against the Attorney General because he had no specific...
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