M. Lynne Murphy 104lyn[AT SYMBOL GOES HERE]muse.arts.wits.ac.za
Department of Linguistics phone: +27(11)716-2340
University of the Witwatersrand fax: +27(11)716-4199
Johannesburg 2050
SOUTH AFRICA
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Date: Mon, 3 Mar 1997 13:54:51 -0600
From: Dennis Baron debaron[AT SYMBOL GOES HERE]UIUC.EDU
Subject: Supreme Court Official English Decision
This morning the supreme court issued the following opinion. Here is the
syllabus. The complete opinion is available at
http://supct.law.cornell.edu/supct/html/95-974.ZO.html
Dennis
______
SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONANS FOR OFFICIAL ENGLISH et al. v. ARIZONA et al.
certiorari to the united states court of appeals for the ninth circuit
No. 95-974. Argued December 4, 1996 -- Decided March 3, 1997
Maria Kelly F. Yniguez, an Arizona state employee at the time, sued the
State and its Governor, Attorney General, and Director of the Department of
Administration
under 42 U.S.C. =A7 1983 alleging that State Constitution Article XXVIII--ke=
y
provisions of which declare English "the official language of the State,"
require the State
to "act in English and in no other language," and authorize state residents
and businesses "to bring [state court] suit[s] to enforce th[e]
Article"--violated, inter alia,
the Free Speech Clause of the First Amendment. Yniguez used both English
and Spanish in her work and feared that Article XXVIII, if read broadly,
would require
her to face discharge or other discipline if she did not refrain from
speaking Spanish while serving the State. She requested injunctive and
declaratory relief, counsel
fees, and "all other relief that the Court deems just and proper." During
the early phases of the suit, the State Attorney General released an
Opinion expressing his
view that Article XXVIII is constitutional in that, although it requires
the expression of "official acts" in English, it allows government
employees to use other
languages to facilitate the delivery of governmental services. The Federal
District Court heard testimony and, among its rulings, determined that only
the Governor, in
her official capacity, was a proper defendant. The court, at the same time,
dismissed the State because of its Eleventh Amendment immunity, the State
Attorney
General because he had no authority to enforce Article XXVIII against state
employees, and the Director because there was no showing that she had
undertaken or
threatened any action adverse to Yniguez; rejected the Attorney General's
interpretation of the Article on the ground that it conflicted with the
measure's plain
language; declaredthe Article fatally overbroad after reading it to impose
a sweeping ban on the use of any language other than English by all of
Arizona officialdom;
and declined to allow the Arizona courts the initial opportunity to
determine the scope of Article XXVIII. Following the Governor's
announcement that she would not
appeal, the District Court denied the State Attorney General's request to
certify the pivotal state law question--the Article's correct
construction--to the Arizona
Supreme Court. The District Court also denied the State Attorney General's
motion to intervene on behalf of the State, under 28 U.S.C. =A7 2403(b), to
contest on
appeal the court's holding that the Article is unconstitutional. In
addition, the court denied the motion of newcomers Arizonans for Official
English Committee (AOE)
and its Chairman Park, sponsors of the ballot initiative that became
Article XXVIII, to intervene to support the Article's constitutionality.
The day after AOE, Park,
and the State Attorney General filed their notices of appeal, Yniguez
resigned from state employment to accept a job in the private sector. The
Ninth Circuit then
concluded that AOE and Park met standing requirements under Article III of
the Federal Constitution and could proceed as party appellants, and that
the Attorney
General, having successfully obtained dismissal below, could not reenter as
a party, but could present an argument, pursuant to =A72403(b), regarding th=
e
constitutionality of Article XXVIII. Thereafter, the State Attorney General
informed the Ninth Circuit of Yniguez's resignation and suggested that, for
lack of a viable
plaintiff, the case was moot. The court disagreed, holding that a plea for
nominal damages could be read into the complaint's "all other relief"
clause to save the case.
The en banc Ninth Circuit ultimately affirmed the District Court's ruling
that Article XXVIII was unconstitutional, and announced that Yniguez was
entitled to
nominal damages from the State. Finding the Article's "plain language"
dispositive, and noting that the State Attorney General had never conceded
that the Article
would be unconstitutional if construed as Yniguez asserted it should be,
the Court of Appeals also rejected the Attorney General's limiting
construction of the Article
and declined to certify the matter to the State Supreme Court. Finally, the
Ninth Circuit acknowledged a state court challenge to Article XXVIII's
constitutionality,
Ruiz v. State, but found that litigation no cause to stay the federal
proceedings.
Held: Because the case was moot and should not have been retained for
adjudication on the merits, the Court vacates the Ninth Circuit's judgment
and remands the
case with directions that the action be dismissed by the District Court.
This Court expresses no view on the correct interpretation of Article
XXVIII or on the
measure's constitutionality. Pp. 18-35.
(a) Grave doubts exist as to the standing of petitioners AOE and Park to
pursue appellate review under Article III's case or controversy
requirement. Standing to
defend on appeal in the place of an original defendant demands that the
litigant possess "a direct stake in the outcome." Diamond v. Charles, 476
U.S. 54, 62.
Petitioners' primary argument--that, as initiative proponents, they have a
quasi legislative interest in defending the measure they successfully
sponsored--is dubious
because they are not elected state legislators, authorized by state law to
represent the State's interests, see Karcher v. May, 484 U.S. 72, 82.
=46urthermore, this Court
has never identified initiative proponents as Article III qualified
defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat.
Bank & Trust Co. of
Chicago, 460 U.S. 1077. Their assertion of representational or
associational standing is also problematic, absent the concrete injury that
would confer standing upon
AOE members in their own right, see, e.g., Food and Commercial Workers v.
Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article
XXVIII's
state court citizen suit provision that could support standing for Arizona
residents in general, or AOE in particular, to defend the Article's
constitutionality in federal
court. Nevertheless, this Court need not definitively resolve the standing
of AOE and Park to proceed as they did, but assumes such standing arguendo
in order to
analyze the question of mootness occasioned by originating plaintiff
Yniguez's departure from state employment. See, e.g., Burke v. Barnes, 479
U.S. 361, 363,
364, n. Pp. 18-21.
(b) Because Yniguez no longer satisfies the case or controversy
requirement, this case is moot. To qualify as a case fit for federal court
adjudication, an actual
controversy must be extant at all stages of review, not merely at the time
the complaint is filed. E.g., Preiser v. Newkirk, 422 U.S. 395, 401.
Although Yniguez had
a viable claim at the outset of this litigation, her resignation from
public sector employment to pursue work in the private sector, where her
speech was not governed
by Article XXVIII, mooted the case stated in her complaint. Cf. Boyle v.
Landry, 401 U.S. 77, 78, 80-81. Contrary to the Ninth Circuit's ruling, her
implied plea
for nominal damages, which the Ninth Circuit approved as against the State
of Arizona, could not revive the case, as =A71983 actions do not lie against
a State, Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71; Arizona was permitted to
participate in the appeal only as an intervenor, through its Attorney
General, not as a party
subject to an obligation to pay damages; and the State's cooperation with
Yniguez in waiving Eleventh Amendment immunity did not recreate a live case
or
controversy fit for federal court adjudication, cf., e.g., United States v.
Johnson, 319 U.S. 302, 304. Pp. 21-26.
(c) When a civil case becomes moot pending appellate adjudication, the
established practice in the federal system is to reverse or vacate the
judgment below and
remand with a direction to dismiss. United States v. Munsingwear, Inc., 340
U.S. 36, 39. This Court is not disarmed from that course by the State
Attorney
General's failure to petition for certiorari. The Court has an obligation
to inquire not only into its own authority to decide the questions
presented, but to consider also
the authority of the lower courts to proceed, even though the parties are
prepared to concede it. E.g., Bender v. Williamsport Area School Dist., 475
U.S. 534, 541.
Because the Ninth Circuit refused to stop the adjudication when it learned
of the mooting event--Yniguez's departure from public employment--its
unwarranted en
banc judgment must be set aside. Nor is the District Court's judgment saved
by its entry before the occurrence of the mooting event or by the
Governor's refusal to
appeal from it. AOE and Park had an arguable basis for seeking appellate
review; moreover, the State Attorney General's renewed certification plea
and his motion to
intervene in this litigation demonstrate that he was pursuing his =A72403(b)
right to defend Article XXVIII's constitutionality when the mooting event
occurred. His
disclosure of that event to the Ninth Circuit warranted a mootness
disposition, which would have stopped his =A72403(b) endeavor and justified
vacation of the District
Court's judgment. The extraordinary course of this litigation and the
federalism concern next considered lead to the conclusion that vacatur down
the line is the
equitable solution. Pp. 26-30.
(d) Taking into account the novelty of the question of Article XXVIII's
meaning, its potential importance to the conduct of Arizona's business, the
State Attorney
General's views on the subject, and the at least partial agreement with
those views by the Article's sponsors, more respectful consideration should
have been given to
the Attorney General's requests to seek, through certification, an
authoritative construction of the Article from the State Supreme Court.
When anticipatory relief is
sought in federal court against a state statute, respect for the place of
the States in our federal system calls for close consideration of the
question whether conflict is
avoidable. Federal courts are not well equipped to rule on a state
statute's constitutionality without a controlling interpretation of the
statute's meaning and effect by
the state courts. See, e.g., Poe v. Ullman, 367 U.S. 497, 526 (Harlan, J.,
dissenting). Certification saves time, energy, and resources and helps
build a cooperative
judicial federalism. See e.g., Lehman Brothers v. Schein, 416 U.S. 386,
391. Contrary to the Ninth Circuit's suggestion, this Court's decisions do
not require as a
condition precedent to certification a concession by the Attorney General
that Article XXVIII would be unconstitutional if construed as
Yniguezcontended it should
be. Moreover, that court improperly blended abstention with certification
when it found that "unique circumstances," rather than simply a novel or
unsettled state law
question, are necessary before federal courts may employ certification. The
Arizona Supreme Court has before it, in Ruiz v. State, the question: What
does Article
XXVIII mean? Once that court has spoken, adjudication of any remaining
federal constitutional question may be "greatly simplifie[d]." See Bellotti
v. Baird, 428
U.S. 132, 151. Pp. 30-35.
69 F. 3d 920, vacated and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court.
Dennis Baron debaron[AT SYMBOL GOES HERE]uiuc.edu
Department of English office: 217-333-2392
University of Illinois fax: 217-333-4321
608 South Wright Street home: 217-384-1683
Urbana, Illinois 61801 http://www.english.uiuc.edu/baron
=20
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Date: Mon, 3 Mar 1997 14:54:15 -0500
From: "M. Lynne Murphy" 104LYN[AT SYMBOL GOES HERE]MUSE.ARTS.WITS.AC.ZA
Subject: Re: -ies Ending
just thought of another example. woolworth's (which is not a 5-and-
dime here, but a very upmarket supermarket) is affectionately
referred to as "woolies", but again, i think the -s isn't part of
the diminutive, but the possessive marker (so, i should've spelt it
"woolie's").
and to put even more ie's and s's in, people who go to wits
university are "witsies"--diminutive s + diminutive/personal ie +
plural s.
incidentally, the 'w' is pronounced like a 'v', so there's no
mistaking my students for 'witty'. however, whenever someone here
resigns, we say they're "at their wits end", of course.
witless,
lynne
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