Yñiguez v. Mofford
Arizona's Proposition 106, passed
by the voters on November 8, 1988, was the most restrictive Official English
measure ever enacted at the state level. It added a new Article
XXVIII to the state constitution that imposed, with a few exceptions,
the sweeping policy: "This State and all political subdivisions of
this State shall act in English and in no other language." María-Kelly
F. Yñiguez, an insurance-claims manager employed by Arizona's Risk
Management Division, and Jaime P. Gutiérrez, a state senator from
Tucson, challenged the measure as a violation of the First Amendment of
the U.S. Constitution.
Even though Article XXVIII is explicit
by comparison with other Official English amendments, this case illustrates
the potential for disputes about the legal reach of such measures. Acting
on a broad interpretation, Yñiguez refrained from speaking any language
other than English during working hours, fearing she would violate the
law and risk punishment by continuing to communicate in Spanish, when necessary,
with members of the public. Gutiérrez did not stop addressing his
constituents in Spanish, but questioned whether the practice conflicted
with his oath to obey the state constitution. On the other hand, Arizona's
Attorney General, Bob Corbin, issued an official opinion (I89-009, Jan.
24, 1989) that Article XXVIII "does not prohibit the use of a language
other than English to facilitate the delivery of governmental services."
This seemed to settle the matter, to the satisfaction of most Arizonans
on both sides of the issue.
But a federal court took the plaintiffs'
complaint seriously, regarding their interpretation of Article XXVIII to
be reasonable. On February 6, 1990, U.S. District Judge Paul G. Rosenblatt
struck down the Official English amendment as unconstitutionally "overbroad"
– that is, as prohibiting speech protected under the First Amendment far
beyond the means necessary to achieve a legitimate state purpose. Also,
in a significant procedural ruling, the court removed Corbin and another
state official as defendants in the case. Governor Rose Mofford, a staunch
opponent of Proposition 106, chose not to appeal the decision. But in July
1991, Arizonans for Official English won the right to do so. Judge Rosenblatt's
In order to determine whether Article XXVIII reaches a
substantial amount of constitutionally protected conduct, the court must
first determine what the Article means, which is a matter of substantial
dispute between the parties. The plaintiffs' position is that Article XXVIII
is a blanket prohibition on the use of any language other than English
in the state workplace, whereas the defendants' position is that Article
XXVIII does not reach that broadly because it is merely a directive for
state and local governmental entities to act in English when acting in
their sovereign capacities. For the purposes of the instant action, the
court finds from Article XXVIII's plain language that it is a prohibition
on the use of any language other than English by all officers and employees
of all political subdivisions in Arizona while performing their official
duties, save to the extent that they may be allowed to use a foreign language
by the limited exceptions contained in § 3(2) of Article XXVIII. Given
this interpretation of the Article, an interpretation obviously not
binding on state authorities, the court concludes that there
is a realistic danger of, and a substantial potential for, the unconstitutional
application of Article XXVIII.
The court's determination of Article XXVIII's facial validity
is not dependent upon Yñiguez having a First Amendment right to
speak a language of her choice during the performance of her duties, a
"right" which the defendants assert does not exist. All the court
need find, and all that it does find in this regard, is that Article XXVIII
is so broad as to inhibit the constitutionally protected speech of third
parties. While public employees, as a general proposition, enjoy less First
Amendment protection than private citizens because governmental entities
have a significant interest as employers in regulating the speech of their
employees so as to promote the efficiency of public services, Pickering
v. Bd. of Ed. of H.S. Dist. 205, Ill., 391 U.S. 563, 568 (1968),
a state may not apply stricter First Amendment standards to its legislators
than it may to private citizens, Bond v. Floyd, 385 U.S.
116, 132-22 (1966), nor may a state require that its officers and employees
relinquish rights guaranteed them by the First Amendment as a condition
of public employment. Abood v. Detroit Bd. of Ed., 431 U.S.
209, 234 (1977). The sweeping language of Article XXVIII has such a prohibited
effect, however. When read at its full literal breadth, Article XXVIII
would force Arizona governmental officers and employees whose use of a
non-English language in the performance of their official duties is protected
by the First Amendment, such as state legislators speaking to constituents
in a language other than English, state employees officially commenting
on matters of public concern in a language other than English, and state
judges performing marriage ceremonies in a language other than English,
to either violate their sworn oaths to obey the state constitution, and
thereby subject themselves to potential sanctions and private suits, or
to curtail their free speech rights.
Although the plaintiffs have not argued that Article XXVIII
is unconstitutionally vague, vagueness affects the overbreadth analysis
because, in determining whether Article XXVIII is so overbroad as to deter
others from engaging in otherwise protected expression, the court has to
evaluate the ambiguous as well as the unambiguous scope of the article.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494 n.6 (1982). While the defendants' assertion that the
examples of Article XXVIII's unconstitutional reach proffered by the plaintiffs
are too extreme to demonstrate the Article's facial unconstitutionality
because they represent situations which plainly do not come within the
rational parameters of Article XXVIII may be correct, the defendants' assertion
only emphasizes Article XXVIII's potential for chilling First Amendment
rights. If those affected by Article XXVIII are unclear as to its coverage,
the result will be that they will "`steer far wider of the unlawful
zone' ... than if the boundaries of the forbidden areas were clearly marked."
See Baggett v. Bullitt, 377 U.S. 360, 372, 373 (1964). Yñiguez's
self-imposed decision to refrain from speaking Spanish while performing
her job, a decision vociferously criticized as unfounded by the defendants,
is but a product of her legitimate sensitivity to the perils posed by the
Article's language and her desire to restrict her conduct to that which
is unquestionably safe. A law which reasonably results in such restrictions
is unconstitutionally overbroad.
In determining the facial constitutionality of Article
XXVIII, the court must also consider any authoritative limiting construction
placed on the enactment by Arizona state courts or enforcement agencies,
Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973), because
a state law cannot be facially invalidated as overbroad if it is readily
susceptible to a narrowing construction that would make it constitutional.
As the Supreme Court has noted, the key to the application of this principle
is that the state law must be "readily susceptible" of the limitation
proffered by the state court or agency because a federal court lacks the
power itself to rewrite a state law to conform it to constitutional requirements.
Virginia v. American Booksellers Assn., 484 U.S. 383, 397
(1988). No Arizona state court has as yet construed or interpreted Article
XXVIII. The Arizona Attorney General has, however, construed Article XXVIII
in a narrow fashion in a formal opinion, I89-009, an opinion which the
defendants argue resolves the overbreadth issue in this action. ...
The gist of the Attorney General's interpretation of Article
XXVIII is that the English-only requirement applies solely to official
acts of the state governmental entities and does not prohibit the use of
languages other than English that are reasonably necessary to facilitate
the day-to-day operation of government. The Attorney General's belief that
Article XXVIII is directed only towards sovereign governmental acts centers
upon § 3(1)(a) of Article XXVIII, which provides, with a few limited
exceptions, that the "State and all political subdivisions of this
State shall act in English and in no other language." The Attorney
General's interpretation of what "to act" means, however, in
effect ignores § 1(3)(a)(iv) of Article XXVIII, which states that
the Article applies to "all government officials and employees during
the performance of government business." The various levels of legislative,
executive, and judicial branches of government in Arizona affected by Article
XXVIII perform business in a whole variety of ways that do not rise to
the level of "sovereign" acts, as the Attorney General apparently
uses that term. The manner in which the term "act" is used in
§ 3(2) of the Article, the subsection setting forth the exceptions
to the ban on the use of non-English languages, is illustrative of the
unreasonableness of the Attorney General's limitation on the meaning of
"act." Under the provisions of § 3(2)(c), for example, a
governmental entity within Arizona "may act in a language other than
English" to teach a student a foreign language as part of an educational
curriculum. While the teaching of a foreign language by a public school
teacher comes within the definition of performing government business,
it does not come within the definition of performing a sovereign act. The
Attorney General's restrictive interpretation of Article XXVIII is in effect
a "remarkable job of plastic surgery upon the face of the ordinance,"
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969),
and one which this court cannot accept.
The defendants have not proffered any other limiting construction
of Article XXVIII and the court is unable to discern any construction to
which the Article is fairly subject that would limit its application in
such a way as to render unnecessary or substantially modify the federal
constitutional questions. ...