English Only Update IX

            Supreme Court Punts in
            Arizona Case

            By James Crawford

            March 4, 1997

Yesterday the U.S. Supreme Court declined to decide the constitutionality of Arizona's English Only amendment in effect, dismissing the case after eight years of litigation without ruling on its merits. Article 28 of Arizona's constitution also known as Proposition 106, adopted by voters in 1988 requires all levels of state and local government to "act in English and no other language." Two lower federal courts have overruled the measure as a violation of the First Amendment right to freedom of speech for state employees and elected officials. But yesterday the Supreme Court threw out those decisions on procedural grounds.

The unanimous, 35-page opinion by Justice Ruth Bader Ginsburg, sets new limits for federal court review of state laws an apparent victory for foes of "judicial activism." Clearly, during oral arguments last December, the justices were more intent on sending such a message than on reviewing the constitutional issues raised by Arizonans for Official English v. Arizona (Case No. 95-974).

For now the practical impact will be negligible, according to Arizona's attorney general, Grant Woods. A separate challenge to Aricle 28, Ruíz v. Symington, is under consideration by the Arizona Supreme Court and the measure has already been ruled unconstitutional by a lower state judge. So, until that case is resolved, the English Only amendment will not be enforced, Woods told the Arizona Daily Star. Any decision by the Arizona Supreme Court could, of course, be appealed to the U.S. Supreme Court further delaying a final disposition of the case.

In yesterday's decision Justice Ginsburg cited several flaws in the rulings of the federal district court for Arizona and the Ninth U.S. Circuit Court of Appeals:

    María-Kelly Yñiguez, the Spanish-speaking state employee who brought the case, suffered no injury under the English Only policy and left her job in 1990. Thus the lower courts should have recognized there was no longer any "case or controversy" a requirement in federal litigation and should have dismissed the case as "moot."

    After Governor Rose Mofford decided not to appeal the district court's ruling against Article 28, the Ninth Circuit erred in allowing the political action committee that sponsored Proposition 106 to do so. Ginsburg expressed "grave doubts" about the legal "standing" of the group, Arizonans for Official English.

    A 1989 opinion by Arizona's attorney general minimized the restrictive impact of Article 28, arguing that it would not prohibit employees from using languages other than English "to facilitate the delivery of government services." But this narrow reading, which seemed to contradict the express wording of the English Only amendment, was rejected by the federal courts. Instead, they should have deferred to the Arizona Supreme Court on how to interpret the measure, Ginsburg said.

Theoretically, it might still be possible for other aggrieved employees who still work for the state of Arizona to file another lawsuit in federal court alleging injury under Article 28. But Peter Tiersma of Loyola Law School says that, according to Ginsburg's opinion, federal judges "would have to await an authoritative interpretation from the Arizona court."

The Ruíz v. Symington case, now before the Arizona Supreme Court, includes as plaintiffs several state lawmakers currently in office. These include senators Victor Soltero (D-Tucson) and Joe-Eddie López (D-Phoenix) and Rep. Linda Aguirre (D-Phoenix). This lawsuit, which had been on hold pending a ruling by the U.S. Supreme Court, is expected to proceed expeditiously.

Meanwhile, back in Washington, the political impact of yesterday's decision is difficult to gauge. Last year Congressional opponents of English Only legislation argued against voting on such measures until the Supreme Court had ruled in the Arizona case. The House went ahead and passed H.R. 123, the "English Language Empowerment Act of 1996," by a 259-169 vote. But the Senate failed to act before adjournment and so the bill died.

A new version of H.R. 123 has been reintroduced in the 105th Congress. But thus far it appears to lack influential backers. The lead sponsor, Rep. Randy "Duke" Cunningham (R-Calif.), has a new committee assignment and no longer chairs the subcommittee on Early Childhood, Youth, and Families, which has jurisidiction of the bill. The new chairman, Rep. Frank Riggs (R-Calif.), is said to have little interest in English Only legislation. The same is true of Rep. William Goodling (R-Pa.), chairman of the full Committee on Education and the Workforce, which would have to approve the bill. At this writing no action has been scheduled. As became clear last summer however, all of this could change quickly under pressure from the House Republican leadership.

Sen. Richard Shelby (R-Ala.) reintroduced a Senate version of the bill, S. 323, on February 13. But again a supportive committee chairman, Sen. Ted Stevens (R-Alaska), has moved on to greener pastures (Appropriations). His replacement at the helm of the Governmental Affairs Committee, Sen. Fred Thompson (R-Tenn.) is not known as an Engish Only proponent. More important, Thompson will have his hands full this year running an investigation into campaign finance abuses in the 1996 election.

English Only proponents predictably hailed the Supreme Court ruling as a "victory." U.S. English went so far as to claim that its amicus brief had guided Justice Ginsburg's thinking. The group's president, Mauro Mujica, said he was glad the court agreed with him that "it is inappropriate to tamper with the will of the people after they have exercised their vote within the democratic process."

Will of the people or tyranny of the majority? The Supremes have sidestepped that determination, leaving it up to their Arizona counterparts to decide whether English Only legislation is consistent with the Bill of Rights.

Comments? Email me at: jwcrawford@compuserve.com

Copyright © 1997 by James Crawford. Permission is hereby granted to reproduce this article for free, noncommercial distribution, provided that credit is given and this notice is included. Requests for permission to reproduce in any other form should be forwarded by email.