Arizona Daily Star

Wednesday, April 29, 1998

State Justices Strike Down English Only
By HOWARD FISCHER, Capitol Media Services

PHOENIX - Arizona's English-only amendment is illegal because it violates federal constitutional rights, the state Supreme Court ruled yesterday.

In a unanimous decision, the high court said the constitutional amendment approved by voters in 1988 harms the ability of non-English-speaking people to obtain access to their government. The justices also concluded that the amendment limits the political speech of elected officials and public employees.

The court stressed that it was not suggesting that government agencies are required to communicate with residents in languages other than English. The justices said the only requirements there are those imposed by federal law, such as mandates for voting materials to be provided in native languages.

Retired Justice James Moeller, who wrote the court's 41-page ruling, also said the ruling doesn't bar encouraging the use of English as a common language. ``But such efforts must not run afoul of constitutional requirements and individual liberties,'' he wrote.

Moeller was on the panel when justices heard arguments in the case last year.

Yesterday's ruling sets the stage for the issue to go before the U.S. Supreme Court.

Last year, the nation's top court sidestepped a separate challenge to the state's English-only constitutional provision. They pointed out that Maria-Kelly F. Yniguez, the plaintiff who brought that federal lawsuit, no longer was on the state payroll.

The state Supreme Court had held up its review of the latest case while the federal claim was pending. This claim was brought by several current state legislators and employees.

The amendment, which 50.5 percent of Arizona voters approved, declares English the state's official language and requires the state and local governments to ``take all reasonable steps to preserve, protect and enhance the role of the English language as the official language.''

It also requires governments to ``act in English and in no other language'' and makes all government documents void unless in English.

Exceptions were provided to teach students who are not proficient in English, to comply with other federal laws, to protect public health and safety, and to protect the rights of defendants and victims in criminal cases.

In his ruling, Moeller said it is long settled that English is the common language of the country, as evidenced by everything from the requirement for immigrants to learn English to become legal residents to the fact that English is the language for political and initiative petitions.

``However, the American tradition of tolerance recognizes a critical difference between encouraging the use of English and repressing the use of other languages,'' Moeller wrote.

He said the state amendment would have ``severe consequences'' not only for public officials and employees, ``but also for the many thousands of persons who would be precluded from receiving essential information from government employees and elected officials in Arizona's governments.''

For example, he wrote, it would deprive people with little or no ability in English from accessing information about government ``when multilingual access may be available and may be necessary to ensure fair and effective delivery of governmental services to non-English-speaking persons.''

Bob Park, the Prescott resident who spearheaded the ballot drive for Arizonans for Official English, said the next step is the U.S. Supreme Court.

Park, now the chairman of a group called English Language Advocates, contended that the justices never addressed his central argument: Government has the right to its own message - and the way it is delivered. That, he said, includes the language of its delivery.

Instead, Park said, the court opted to look at the issue from the perspective of the First Amendment rights of elected officials and government workers.

Moeller noted that proponents of the amendment conceded that, if implemented as written, it would violate the First Amendment rights of non-English-speaking people.

In an effort to save the amendment, proponents instead asked the high court to narrowly interpret the amendment. That's exactly what then-Attorney General Bob Corbin did in 1989 when he issued an official opinion that the amendment passed constitutional muster.

Corbin's opinion said the wording could be read only to prohibit the use of languages other than English in ``official acts of government.'' That, he concluded, meant things like court rulings and legislative acts.

The problem with Corbin's opinion, Moeller wrote, is that it ignores the express language of the amendment. More to the point, he said, it is at odds with the authors of the amendment - even though they now argue that Corbin was right.

``The drafters perceived and obviously intended that the application of the amendment would be widespread,'' the court concluded, which is why they inserted some limited exceptions to it.

Moeller also pointed out that Arizonans for Official English, in arguments presented to voters in an official publicity pamphlet, said the amendment was intended to ``require the government to function in English.''

Yesterday's ruling technically was unanimous, but Justice Frederick Martone cautioned that it might have been improvident to actually rule in this case: None of the plaintiffs faced actual or threatened injury, since Arizonans for Official English urged a narrow interpretation of the amendment.