Yniguez v. State of Ariz.
| Decision Date | 19 July 1991 |
| Docket Number | 90-15581,Nos. 90-15546,s. 90-15546 |
| Citation | 939 F.2d 727 |
| Parties | Maria-Kelly F. YNIGUEZ; Jaime P. Gutierrez, Plaintiffs, v. STATE OF ARIZONA, Defendant-Appellee. Robert D. Parks; Arizonans for Official English, Applicants in intervention-Appellants. Maria-Kelly F. YNIGUEZ; Jaime P. Gutierrez, Plaintiffs-Appellees, v. Rose MOFFORD, individually and as Governor of the State of Arizona; Robert Corbin, individually and as Attorney General of the State of Arizona, Defendants-Appellants. Robert D. Parks; Arizonans for Official English, Applicants in intervention-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert K. Corbin, Atty. Gen., Anthony B. Ching, Sol. Gen., Paula S. Bickett, Asst. Atty. Gen., Phoenix, Ariz., for state appellants.
Robert J. Pohlman, Pohlman & Sanders, Phoenix, Ariz., for plaintiffs-appellees.
Barnaby W. Zall, Williams & Jensen, Washington, D.C., for the appellant, movants & intervenors.
James F. Henderson, Gust, Rosenfeld & Henderson, Phoenix, Ariz., for the appellants, movants, intervenors.
Appeal from the United States District Court for the District of Arizona.
Before TANG, FLETCHER and REINHARDT, Circuit Judges.
This case presents two novel questions concerning post-judgment intervention: first, whether the sponsors of a ballot initiative may intervene after judgment to appeal a decision holding the ballot initiative unconstitutional when the only defendant in the case chooses not to appeal; and second, whether the Attorney General, having argued for and won a dismissal of the suit against him in the district court, may intervene on appeal.
Arizonans for Official English ("AOE") and its spokesman Robert D. Park campaigned for adoption by ballot initiative of an amendment to the Arizona Constitution entitled "English as the Official Language." In the November 1988 general election, the Arizona voters approved the new constitutional provision. That new provision, Article XXVIII of the Arizona Constitution ("Article XXVIII") provides in part:
English shall be the official language of the State of Arizona and all of its political subdivisions, that the Article is applicable to all branches of government and to all government officials and employees during the performance of government business, that the state and its political subdivisions shall take all reasonable steps to preserve, protect and enhance the role of English as the state's official language, that the state and its political subdivisions ... shall act only in English....
Section Four of Article XXVIII states that The Arizona legislature has not enacted any limitations on private lawsuits to enforce Article XXVIII.
Maria-Kelly Yniguez, an employee of the Arizona Department of Administration, ceased speaking Spanish while performing her official state duties immediately upon passage of Article XXVIII. She feared that under Article XXVIII she was vulnerable to discipline by her state employer if she were to continue to speak Spanish on the job. In November 1988 Yniguez sued (in a series of amended complaints) 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. Yniguez sought an injunction against state enforcement of Article XXVIII and a declaration that it violates the first and fourteenth amendments of the United States Constitution.
The state defendants all moved for dismissal, arguing that the eleventh amendment barred Yniguez's suit and that there was no live "case or controversy," U.S. Const. art. III, between Yniguez and any of the defendants. All of the state defendants were represented by the Attorney General's office. The district court then proceeded to issue a series of thoughtful and carefully reasoned rulings, most of which are not now before us.
On February 6, 1990, the district court dismissed all defendants from the suit except the Governor. The court held that the eleventh amendment bars suit against Arizona. The court further held that the Attorney General is an improper party under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), because he has no authority to enforce Article XXVIII against Yniguez. Therefore, the court held that the eleventh amendment also bars Yniguez's suit against the Having dismissed all the defendants except the Governor, the district court proceeded on the same date, February 6, 1990, to rule on the merits of Yniguez's claim. The court held that Article XXVIII is facially unconstitutional under the first amendment. It therefore granted Yniguez declaratory relief, but denied injunctive relief because there was no enforcement action pending. Governor Mofford--who had publicly opposed the adoption of Article XXVIII during the 1988 election--immediately announced her decision not to appeal the district court's opinion and order.
Attorney General. Although the district court found that Eden has authority to enforce Article XXVIII, she had not threatened to do so, and thus the court held that no case or controversy was ripe for adjudication as to her. The district court therefore dismissed Eden from the suit as well. Finally, the district court held that the Governor has the authority to enforce Article XXVIII against Yniguez and had sufficiently threatened to do so for Yniguez to sue her under Ex parte Young.
On February 16, 1990, AOE and its spokesperson Park moved to intervene post-judgment for the purpose of pursuing an appeal of the district court's order. They sought to intervene both as of right and permissively under Fed.R.Civ.P. 24. During arguments before the district court and this court, the attorneys for the Attorney General's office and for AOE and Park averred that AOE had inquired of the Attorney General at an early stage of the lawsuit whether he would vigorously defend the constitutionality of Article XXVIII, and that they had been assured that he would. Yniguez does not contend otherwise. On March 2, 1990, the Attorney General sought to intervene for the purpose of prosecuting the appeal pursuant to 28 U.S.C. Sec. 2403(b).
On April 3, 1990, the district court denied both motions to intervene. 130 F.R.D. 410. Although the court found that AOE's and Park's motion was timely, it denied it on two grounds. First, the court held that the prospective intervenors did not satisfy the Article III requirement of injury-in-fact necessary for there to be a justiciable controversy. In addition, the court denied the motion to intervene as of right on the ground that AOE and Park did not have an adequate interest in the litigation under Fed.R.Civ.P. 24(a)(2). The district court stated that its decision on the merits would not bind the Arizona courts, and therefore that AOE's and Park's ability to enforce Article XXVIII was not impaired by the decision. 1 The district court also denied the Attorney General's motion to intervene under 28 U.S.C. Sec. 2403(b). Section 2403(b) authorizes intervention by a state attorney general in actions "to which [the] State or any agency, officer, or employee thereof is not a party." The district court noted that although the Governor had not appealed, she remained a party. Accordingly, the court concluded that section 2403(b) is not applicable. These timely appeals of the denial of the motions to intervene followed.
We review de novo the denial of a motion to intervene. Waller v. Financial Corp. of America, 828 F.2d 579, 582 (9th Cir.1987). The district court's determination
of timeliness, however, is reviewed only for an abuse of discretion. County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir.1986), cert. denied, 480 U.S. 946, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
AOE and Park contend that they have a right to intervene on appeal under Fed.R.Civ.P. 24(a) ("Intervention of Right"). Rule 24 of the Federal Rules of Civil Procedure confers a right to intervene "[u]pon timely application" when:
the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a)(2). In Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir.1983), we interpreted Rule 24(a) to require the granting of a motion to intervene at the outset of litigation if four criteria are met: (1) timeliness; (2) an interest in the subject matter of the litigation; (3) absent intervention the party's interest may be practically impaired; (4) other parties inadequately represent the intervenor. Id. at 527.
In order for an individual to intervene in ongoing litigation between other parties, he need only meet the Sagebrush Rebellion criteria. However, where no party appeals, the requirement of Article III also qualifies an applicant's right to intervene post-judgment. In Legal Aid Soc'y. of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980), we restated the rule that "post-judgment intervention for purposes of appeal may be appropriate if the intervenors ... meet traditional standing criteria." Id. at 1328 (citations omitted). As the Supreme Court stated in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), "[a]lthough intervenors are considered parties...
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