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



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







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


under 42 U.S.C. =A7 1983 alleging that State Constitution Article XXVIII--ke=


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


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=


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


Ruiz v. State, but found that litigation no cause to stay the federal


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


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


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


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



Date: Mon, 3 Mar 1997 14:54:15 -0500


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


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.