Yñiguez v. Mofford
(excerpts)

730 F.Supp. 309 (D. Ariz. 1990), aff'd. 69 F.3d 920 (9th Cir. 1995), vacated as moot by the U.S. Supreme Court, March 3, 1997


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 ruling follows.

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. ...