Anchorage Daily News

Thursday, March 4, 1999

ENGLISH: Judge Says Law Unclear, Puts Debut on Hold
By SHEILA TOOMEY, Daily News reporter

DILLINGHAM - The law requiring state and city officials to conduct government business only in English is unclear and appears to threaten free-speech rights, so it will not go into effect today as planned, a judge ruled here Wednesday.

At the request of two groups of challengers, including teachers, a ferry worker and elected officials from several Native villages, Superior Court Judge Fred Torrisi issued a preliminary injunction. The order delays implementation of the law until the legal issues in the two pending lawsuits are hashed out.

"Freedom of speech is a fundamental right which lies at the foundation of our system of government," Torrisi wrote. "If a law restricts speech, it must meet a high standard of justification...a compelling governmental justification."

So far, supporters of the law have not met that burden, the judge ruled.

"It's what we unfortunately expected," said Susan Fischetti, head of Alaskans for a Common Language, which organized the initiative drive along with U.S. English, a Washington, D.C.-based group that has pushed similar initiatives across the country.

"The initiative right has just been put on hold today," Fischetti said.

Both groups will seek court permission to join the suits so they can defend the law themselves and not have to rely on the state, said their attorney, Ken Jacobus of Anchorage.

The law was enacted by initiative at the November election and approved by nearly 70 percent of the voters. Supporters say the people have spoken, and the law should stand as is. Opponents say voters thought it was just symbolic, like voting for a state flower, and didn't realize how disastrous its effects would be, especially in traditional villages where citizens routinely communicate with government in the local language.

In arguing for the law Wednesday, Assistant Attorney General Jan Hart DeYoung said it will not do the damage claimed by the challengers. Although the law requires the use of English, she said, it does not specifically exclude the use of other languages in addition to English.

This was news to Jacobus, who said he will almost certainly oppose that interpretation.

In their arguments, attorneys for the challengers cited the near destruction of Alaska Native languages by early invaders and said the new law was just more of the same.

"My client views this act as an historic wrong in a ong list of historic wrongs," said Doug Pope, who represents the Yup'ik village of Togiak.

"It was not so long ago that Native children were beaten for speaking their own language," said Heather Kendall Miller, of the Native American Rights Fund.

But the issue before Torrisi on Wednesday was limited to whether there were substantial legal questions to be decided, and whether the state would be hurt by delaying the effective date of the law.

One of the big questions to be decided is whether the law applies to Native languages. Supporters have said all along that they wrote it so Native languages would be exempt under a federal law.

The challengers don't agree.

In its suit, the Native rights fund says Henry Alakayak, 70, a member of the Manokotak city council, will no longer be able to speak Yup'ik to people in his village or in neighboring villages about things such as winter snowmachine trails, or translate English meetings for Yup'ik speakers. "Then I would find it necessary to resign," Alakayak said in an affidavit.

Grace Hill, secretary of the Quinhagak City Council and another plaintiff in the suit, is bilingual, but said in a affidavit that she must talk about government business in Yup'ik with constituents who don't speak English.

Another plaintiff, Nancy Sharp, teaches Yup'ik children in Yup'ik and will have to stop or violate the law, the suit says

While he didn't rule on the question, Torrisi seemed to agree Native languages were exempt, although how far that protection extended was unclear, he said.

A number of the challengers in the NARF suit, which is also sponsored by the Alaska Civil Liberties Union, are not Native. In his decision, the judge mentioned a state ferry worker who gives Spanish-speaking passengers information in Spanish, but who now has been told she can no longer speak Spanish even to a co-worker while on duty.

One peculiarity of the law is that there is no penalty for breaking it, except that someone can sue a government agency that fails to enforce it among its workers.

Counting Jacobus, who didn't get to talk in court, eight lawyers flew into town on the morning flight from Anchorage, more than have ever shown up for a single case, the judge said. Pope explained that one of his clients was absent because he got stuck in Anchorage. "All the planes were full of lawyers and press people," Pope said.

Moses Kritz, a Togiak city councilman who did get in, said he was happy with the injunction but disappointed that he didn't get to talk in court.

"When I was growing up I thought there was one language all over the world," Kritz said. "I thought it was Yup'ik all over the world." But when he went to school, the teachers taught only in English and he did poorly. "The teacher walked around with a ruler. He had to hit me all the time. I was ready to drop out when I was seventh grader."

His father and village elders convinced him to go to a Bureau of Indian Affairs school Outside, and he graduated, he said. Now he's the one who keeps the elders informed about village council issues. "Elders rely on me to speak for them. They say, 'You do it.' They tell me they're dumb. I say no, it's only that they speak Yup'ik."

"I'm amazed they're fighting this English-only thing," Kritz said. "How can we as Native people have freedom of expression if the law is English only."