OCTOBER TERM, 1996
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. § 1983, alleging
that State Constitution Article XXVIII-key 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] suitEs] to
enforce thEe] 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;
declared the 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 statelaw question-the Article's correct
construction-to the Arizona Supreme Court. The District Court also
denied the State Attorney Gen-
44
eral's motion to intervene on behalf of the State, under 28 U.
S. C. § 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 § 2403(b), regarding the
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.64-80.
(a) Grave doubts exist as to the standing of petitioners AOE and
Park to pursue appellate review under Article Ill'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
45
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. Furthermore, this Court has never identified
initiative proponents as Article-Ill-qualified defenders. Cf.
Don't Bankrnpt 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. 544, 551-553,
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.64-67.
(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 § 1983 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. 67-71.
(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
46
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 § 2403(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 § 2403(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. 71-75.
(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 Yniguez contended 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 constitu-
47
tional question may be "greatly simplifie[d]." See
Bellotti v.
Baird, 428 U. S. 132, 151. Pp. 75-80.
69 F.3d
920, vacated and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court.
Barnaby W Zall argued the cause and filed briefs for
petitioners.
Robert J. Pohlman argued the cause for
respondents.
With him on the brief for respondent Yniguez was
Brian A.
Luscher. Stephen G.
Montoya, Albert M. Flores, and
George Robles Vice III filed a brief for respondents
Arizonans Against Constitutional Tampering et al.
Grant
Woods, Attorney General,
Rebecca White Berch, First
Assistant Attorney General, C.
Tim Delaney, Solicitor
General,
Paula S.
Bickett, Assistant Attorney
General, and
Carter G.
Phillips filed briefs for
respondents State of Arizona et al. *
*Briefs of
amici curiae urging reversal were filed for
the FLA-187 Committee et al. by
Stanley W Sokolowski; for
the Pacific Legal Foundation by
Sharon L. Browne; for U. S.
English, Inc., by
Leonard J. Henzke, Jr.; for
the Washington Legal Foundation et al. by
Richard K. Willard,
Bennett Evan Cooper, Daniel J. Popeo, Richard A.
Samp, and
Don Stenberg; and for Thurston Greene,
pro
se.
Briefs of
amici curiae urging affirmance were filed for
the State of New Mexico by
Tom Udall, Attorney General,
Manuel Tijerina, Deputy Attorney General, and
Gerald T.
E. Gonzalez, Tannis L. Fox, Laura Fashing, Elizabeth A. Glenn,
and
William S.
Keller, Assistant Attorneys General;
for the American Civil Liberties Union et al. by
Edward M. Chen,
Steven R. Shapiro, Marjorie Heins, and
Robert L. Rusky;
for the Hawaii Civil Rights Commission et al. by
John H.
Ishihara, Carl C.
Christensen, and
Eric K.
Yamamoto; for Human Rights Watch by
Allan Blumstein and
Kenneth Roth; for the Linguistic Society of America et al.
by
Peter M. Tiersma; for the Mexican American Legal Defense
and Educational Fund by
E. Richard Larson; for the National
Council of La Raza et al. by
Joseph N. Onek, William D.
Wallace, and
Javier M. Guzman; for the Navajo Nation by
Thomas W Christie; for the Puerto Rican Legal Defense and
Education Fund et al. by
Kenneth Kimerling, Karen K.
Narasaki, and
Richard Albores; and for Representative
Nydia M. Velazquez et al. by
Walter A. Smith, Jr., and
Audrey J. Anderson.
Acting Solicitor General Dellinger, Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, Deputy Assistant
Attorney Gen-
48
JUSTICE GINSBURG delivered the opinion of the Court. Federal
courts lack competence to rule definitively on the meaning of state
legislation, see,
e. g., Reetz v.
Bozanich,
397 U. S. 82, 86-87 (1970), nor may they adjudicate challenges
to state measures absent a showing of actual impact on the
challenger, see,
e. g., Golden v.
Zwickler, 394
U. S. 103, 110 (1969). The Ninth Circuit, in the case at hand,
lost sight of these limitations. The initiating plaintiff,
Maria-Kelly F. Yniguez, sought federal-court resolution of a novel
question: the compatibility with the Federal Constitution of a 1988
amendment to Arizona's Constitution declaring English "the official
language of the State of Arizona"-"the language of ... all
government functions and actions." Ariz. Const., Art. XXVIII, §§
1(1), 1(2). Participants in the federallitigation, proceeding
without benefit of the views of the Arizona Supreme Court,
expressed diverse opinions on the meaning of the amendment.
Yniguez commenced and maintained her suit as an individual, not
as a class representative. A state employee at the time she filed
her complaint, Yniguez voluntarily left the State's employ in 1990
and did not allege she would seek to return to a public post. Her
departure for a position in the private sector made her claim for
prospective relief moot. Nevertheless, the Ninth Circuit held that
a plea for nominal damages could be read into Yniguez's complaint
to save the case, and therefore pressed on to an ultimate decision.
A three-judge panel of the Court of Appeals declared Article XXVIII
unconstitutional in 1994, and a divided en banc court, in 1995,
adhered to the panel's position.
The Ninth Circuit had no warrant to proceed as it did.
The case had lost the essential elements of a justiciable
controversy and should not have been retained for adjudication on
the merits by the Court of Appeals. We therefore
eral Preston, Irving L. Gornstein, and Anthony
J.
Steinmeyer filed a brief for the United States as amicus
curiae.
49
vacate the Ninth Circuit's judgment, and remand the case to that
court with directions that the action be dismissed by the District
Court. We express no view on the correct interpretation of Article
XXVIII or on the measure's constitutionality.
I
A 1988 Arizona ballot initiative established English as the
official language of the State. Passed on November 8, 1988, by a
margin of one percentage point,l the measure became effective on
December 5 as Arizona State Constitution Article XXVIII. Among key
provisions, the Article declares that, with specified exceptions,
the State "shall act in English and in no other language." Ariz.
Const., Art. XXVIII, § 3(1)(a). The enumerated exceptions concern
compliance with federal laws, participation in certain educational
programs, protection of the rights of criminal defendants and crime
victims, and protection of public health or safety.
Id., §
3(2). In a final provision, Article XXVIII grants standing to any
person residing or doing business in the State "to bring suit to
enforce thee] Article" in state court, under such "reasonable
limitations" as "[t]he Legislature may enact."
Id., §4.2
Federal-court litigation challenging the constitutionality of
Article XXVIII commenced two days after the ballot initiative
passed. On November 10, 1988, Maria-Kelly F. Yniguez, then an
insurance claims manager in the Arizona Department of
Administration's Risk Management Division, sued the State of
Arizona in the United States District Court for the District of
Arizona. Yniguez invoked 42 U. S. C.
1 The measure, opposed by the Governor as "sadly misdirected,"
App. 38, drew the affirmative votes of 50.5% of Arizonans casting
ballots in the election, see
Yniguez v.
Arizonans for
Official English, 69 F.3d
920, 924
(CA91995).
2 Article XXVIII, titled "English as the Official Language," is
set out in full in an appendix to this opinion.
50
§ 1983 as the basis for her suit.3 Soon after the lawsuit
commenced, Yniguez added as defendants, in their individual and
official capacities, Arizona Governor Rose Mofford, Arizona
Attorney General Robert K. Corbin, and the Director of Arizona's
Department of Administration, Catherine Eden. Yniguez brought suit
as an individual and never sought designation as a class
representative.
Fluent in English and Spanish, Yniguez was engaged primarily in
handling medical malpractice claims against the State. In her daily
service to the public, she spoke English to persons who spoke only
that language, Spanish to persons who spoke only that language, and
a combination of English and Spanish to persons able to communicate
in both languages. Record, Doc. No. 62, "8, 13 (Statement of
Stipulated Facts, filed Feb. 9, 1989). Yniguez feared that Article
XXVIII's instruction to "act in English," § 3(1)(a), if read
broadly, would govern her job performance "every time she [did]
something." See Record, Doc. No. 62, , 10. She believed she would
lose her job or face other sanctions if she did not immediately
refrain from speaking Spanish while serving the State. See App. 58,
, 19 (Second Amended Complaint). Yniguez asserted that Article
XXVIII violated the First and Fourteenth Amendments to the United
States Constitution and Title VI of the Civil Rights Act of 1964,
78 Stat. 252, 42 U. S. C. § 2000d. She requested injunctive and
declaratory relief, counsel fees, and "all other relief that
the
3 Derived from § 1 of the Civil Rights Act of 1871, Rev. Stat. §
1979, 42 U. S. C. § 1983 provides in relevant part:
"Civil action for deprivation of rights.
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... , subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
51
Court deems just and proper under the circumstances."
App.60.
All defendants named in Yniguez's complaint moved to dismiss all
claims asserted against them.4 The State of Arizona asserted
immunity from suit under the Eleventh Amendment. The individual
defendants asserted the absence of a case or controversy because
"none of [them] ha[d] threatened [Yniguez] concerning her use of
Spanish in the performance of her job duties [or had] ever told her
not to use Spanish [at work]." Record, Doc. No. 30, p. 1. The
defendants further urged that novel state-law questions concerning
the meaning and application of Article XXVIII should be tendered
first to the state courts. See
id., at 2.5
Trial on the merits of Yniguez's complaint, the parties agreed,
would be combined with the hearing on her motion for a preliminary
injunction.6 Before the trial occurred, the State Attorney General,
on January 24, 1989, released an opinion, No. 189-009, construing
Article XXVIII and explaining why he found the measure
constitutional. App. 61-76.
4 Under Arizona law, the State Attorney General represents the
State in federal court. See Ariz. Rev. Stat. Ann. § 41-193(A)(3)
(1992). Throughout these proceedings, the State and all state
officials have been represented by the State Attorney General, or
law department members under his supervision. See §41-192(A).
5 Arizona law permits the State's highest court to "answer
questions of law certified to it by the supreme court of the United
States, a court of appeals of the United States, a United States
district court or a tribal court ... if there are involved in any
proceedings before the certifying court questions of [Arizona law]
which may be determinative of the cause then pending in the
certifying court and as to which it appears to the certifying court
there is no controlling precedent in the decisions of the supreme
court and the intermediate appellate courts of this state." Ariz.
Rev. Stat. Ann. § 12-1861 (1994).
6 The District Court, on December 8, 1988, had denied Yniguez's
application for a temporary restraining order, finding no "imminent
danger of the imposition of sanctions" against her. Record, Doc.
No. 23, p. 1.
52
In Opinion No. 189-009, the Attorney General said it was his
obligation to read Article XXVIII "as a whole," in line "with the
other portions of the Arizona Constitution" and "with the United
States Constitution and federal laws." App. 61. While Article
XXVIII requires the performance of "official acts of government" in
English, it was the Attorney General's view that government
employees remained free to use other languages "to facilitate the
delivery of governmental services."
Id., at 62. Construction
of the word "act," as used in Article XXVIII, to mean more than an
"official ac[t] of government," the Attorney General asserted,
"would raise serious questions" of compatibility with federal and
state equal protection guarantees and federal civil rights
legislation.
Id., at 65-66.7
On February 9, 1989, two weeks after release of the Attorney
General's opinion, the parties filed a statement of stipulated
facts, which reported Governor Mofford's opposition to the ballot
initiative, her intention nevertheless "to comply with Article
XXVIII," and her expectation that "State service employees [would]
comply" with the measure. See Record, Doc. No. 62, "35, 36, 39. The
stipulation confirmed the view of all parties that "[t]he efficient
operation [and administration] of the State is enhanced by
permitting State service employees to communicate with citizens of
the State in languages other than English where the citizens are
not proficient in English."
Id.," 16, 17. In particular, the
parties recognized that "Y niguez'[s] use of a language other
7 Specifically addressing "[t]he handling of customer inquiries
or complaints involving state or local government services," the
Attorney General elaborated:
"All official documents that are governmental acts must be in
English, but translation services and accommodating communications
are permissible, and may be required if reasonably necessary to the
fair and effective delivery of services, or required by specific
federal regulation. Communications between elected and other
governmental employees with the public at large may be in a
language other than English on the same principles." App.74.
53
than English in the course of her performing government business
contributes to the efficient operation ... and ... administration
of the State."
Id.,' 15. The stipulation referred to the
Attorney General's January 24, 1989, opinion,
id., , 46, and
further recounted that since the passage of Article XXVIII, "none
of [Yniguez's] supervisors ha[d] ever told her to change or cease
her prior use of Spanish in the performance of her duties,"
id.,
, 48.8
The District Court heard testimony on two days in February and
April 1989, and disposed of the case in an opinion and judgment
filed February 6, 1990.
Yniguez v.
Mofford, 730 F.
Supp. 309. Prior to that final decision, the court had dismissed
the State of Arizona as a defendant, accepting the State's plea of
Eleventh Amendment immunity. See
id., at 311. Yniguez's
second amended complaint, filed February 23, 1989, accordingly
named as defendants only the Governor, the Attorney General, and
the Director of the Department of Administration. See App. 55.9
The District Court determined first that, among the named
defendants, only the Governor, in her official capacity, was a
proper party. The Attorney General, the District Court found, had
no authority under Arizona law to enforce provisions like Article
XXVIII against state employees. 730 F. Supp., at 311-312. The
Director and the Governor,
8 Supplementing their pleas to dismiss for want of a case or
controversy, the defendants urged that Attorney General Opinion No.
189-009 "puts to rest any claim that [Yniguez] will be penalized by
the State for using Spanish in her work." Record, Doc. No. 51, p.
4, n. 1.
9 The second amended complaint added another plaintiff, Arizona
State Senator Jaime Gutierrez. Senator Gutierrez alleged that
Article XXVIII interfered with his rights to communicate freely
with persons, including residents of his Senate district, who spoke
languages other than English. App. 58-59. The District Court
dismissed Gutierrez's claim on the ground that the defendants, all
executive branch officials, lacked authority to take enforcement
action against elected legislative branch officials.
Yniguez
v.
Mofford, 730 F. Supp. 309, 311 (Ariz. 1990). Gutierrez is
no longer a participant in these proceedings.
54
on the other hand, did have authority to enforce state laws and
rules against state service employees.
Id., at 311. But
nothing in the record, the District Court said, showed that the
Director had undertaken or threatened to undertake any action
adverse to Yniguez.
Id., at 313. That left Governor
Mofford.
The Attorney General "ha[d] formally interpreted Article XXVIII
as not imposing any restrictions on Yniguez's continued use of
Spanish during the course of her official duties,"
id., at
312, and indeed all three named defendantsMofford as well as Corbin
and Eden, see
supra, at 50-"ha[d] stated on the record that
Yniguez may continue to speak Spanish without fear of official
retribution." 730 F. Supp., at 312. Governor Mofford therefore
reiterated that Yniguez faced no actual or threatened injury
attributable to any Arizona executive branch officer, and hence
presented no genuine case or controversy. See
ibid. But the
District Court singled out the stipulations that "Governor Mofford
intends to comply with Article XXVIII," and "expects State service
employees to comply with Article XXVII!." Record, Doc. No. 62, "
35, 36; see 730 F. Supp., at 312. If Yniguez proved right and the
Governor wrong about the breadth of Article XXVIII, the District
Court concluded, then Yniguez would be vulnerable to the Governor's
pledge to enforce compliance with the Article. See
ibid.
Proceeding to the merits, the District Court found Article
XXVIII fatally overbroad. The measure, as the District Court read
it, was not merely a direction that all official acts be in
English, as the Attorney General's opinion maintained; instead,
according to the District Court, Article XXVIII imposed a sweeping
ban on the use of any language other than English by all of Arizona
officialdom, with only limited exceptions.
Id., at 314. The
District Court adverted to the Attorney General's confining
construction, but found it unpersuasive. Opinion No. 189-009, the
District Court observed, is "merely ... advisory," not binding on
any
55
court. 730 F. Supp., at 315. "More importantly," the District
Court concluded, "the Attorney General's interpretation ... is
simply at odds with Article XXVIII's plain language."
Ibid.
The view that Article XXVIII's text left no room for a moderate
and restrained interpretation led the District Court to decline "to
allow the Arizona courts the initial opportunity to determine the
scope of Article XXVII!."
Id., at 316. The District Court
ultimately dismissed all parties save Yniguez and Governor Mofford
in her official capacity, then declared Article XXVIII
unconstitutional as violative of the First and Fourteenth
Amendments, but denied Yniguez's request for an injunction because
"she ha[d] not established an enforcement threat sufficient to
warrant [such] relief."
Id., at 316-317.
Post judgment motions followed, sparked by Governor Mofford's
announcement that she would not pursue an appeal. See App. 98. The
Attorney General renewed his request to certify the pivotal
state-law question-the correct construction of Article XXVIII-to
the Arizona Supreme Court. See Record, Doc. No. 82. He also moved
to intervene on behalf of the State, pursuant to 28 U. S. C. §
2403(b),lO in order to contest on appeal the District Court's
declaration that a provision of Arizona's Constitution violated the
Federal Constitution. Record, Doc. Nos. 92, 93.
10 Title 28 U. S. C. § 2403(b) provides:
"In any action, suit, or proceeding in a court of the United
States to which a State or any agency, officer, or employee thereof
is not a party, wherein the constitutionality of any statute of
that State affecting the public interest is drawn in question, the
court shall certify such fact to the attorney general of the State,
and shall permit the State to intervene for presentation of
evidence, if evidence is otherwise admissible in the case, and for
argument on the question of constitutionality. The State shall,
subject to the applicable provisions of law, have all the rights of
a party and be subject to all liabilities of a party as to court
costs to the extent necessary for a proper presentation of the
facts and law relating to the question of constitutionality."
56
Two newcomers also appeared in the District Court after
judgment: the Arizonans for Official English Committee (AOE) and
Robert D. Park, Chairman of AOE. Invoking Rule 24 of the Federal
Rules of Civil Procedure, AOE and Park moved to intervene as
defendants in order to urge on appeal the constitutionality of
Article XXVIII. App. 94102. AOE, an unincorporated association, was
principal sponsor of the ballot initiative that became Article
XXVIII. AOE and Park alleged in support of their intervention
motion the interest of AOE members in enforcement of Article XXVIII
and Governor Mofford's unwillingness to defend the measure on
appeal. Responding to the AOE/Park motion, Governor Mofford
confirmed that she did not wish to appeal, but would have no
objection to the Attorney General's intervention to pursue an
appeal as the State's representative, or to the pursuit of an
appeal by any other party. See Record, Doc. No. 94.
Yniguez expressed reservations about proceeding further.
"She ha[d] won [her] suit against her employer" and had
"obtained her relief," her counsel noted. Record, Doc. No. 114, p.
18 (Tr. of Proceeding on Motion to Intervene and Motion to Alter or
Amend Judgment, Mar. 26, 1990). If the litigation "goes forward,"
Yniguez's counsel told the District Court, "I guess we do, too,"
but, counsel added, it might be in Yniguez's "best interest ... if
we stopped it right here."
Ibid. The District Court
agreed.
In an opinion filed April 3, 1990, the District Court denied all
three post judgment motions.
Yniguez v.
Mofford, 130
F. R. D. 410. Certification was inappropriate, the District Court
ruled, in light of the court's prior rejection of the Attorney
General's narrow reading of Article XXVIII. See
id., at 412.
As to the Attorney General's intervention application, the District
Court observed that § 2403(b) addresses only actions "'to which the
State or any agency, officer, or employee thereof is not a party.'"
See
id., at 413 (quoting § 2403(b)). Yniguez's action did
not fit the § 2403(b) de-
57
scription, the District Court said, because the State and its
officers were the very defendants-the sole defendantsYniguez's
complaint named. Governor Mofford remained a party throughout the
District Court proceedings. If the State lost the opportunity to
defend the constitutionality of Article XXVIII on appeal, the
District Court reasoned, it was "only because Governor Mofford
determine[d] that the state's sovereign interests would be best
served by foregoing an appeal."
Ibid.
Turning to the AOE/Park intervention motion, the District Court
observed first that the movants had failed to file a pleading
"setting forth the[ir] claim or defense," as required by Rule
24(c).
Ibid. But that deficiency was not critical, the
District Court said.
Ibid. The insurmountable hurdle was
Article III standing. The labor and resources AOE spent to promote
the ballot initiative did not suffice to establish standing to sue
or defend in a federal tribunal, the District Court held.
Id., at 414-415. Nor did Park or any other AOE member
qualify for party status, the District Court ruled, for the
interests of voters who favored the initiative were too general to
meet traditional standing criteria.
Id., at 415.
In addition, the District Court was satisfied that AOE and Park
could not tenably assert practical impairment of their interests
stemming from the precedential force of the decision. As
nonparticipants in the federal litigation, they would face no issue
preclusion. And a lower federal-court judgment is not binding on
state courts, the District Court noted. Thus, AOE and Park would
not be precluded by the federal declaration from pursuing "any
future state court proceeding [based on] Article XXVII!."
Id., at 415-416.
II
The Ninth Circuit viewed the matter of standing to appeal
differently. In an opinion released July 19, 1991,
Yniguez
v.
Arizona, 939 F.2d
727, the Court of Appeals reached these
58
conclusions: AOE and Park met Article III requirements and could
proceed as appellants; Arizona's Attorney General, however, having
successfully moved in the District Court for his dismissal as a
defendant, could not reenter as a party, but would be permitted to
present argument regarding the constitutionality of Article XXVIII.
Id., at 738-740. The Ninth Circuit reported it would retain
jurisdiction over the District Court's decision on the merits,
id., at 740, but did not then address the question whether
Article XXVIII's meaning should be certified for definitive
resolution by the Arizona Supreme Court.
Concerning AOE's standing, the Court of Appeals reasoned that
the Arizona Legislature would have standing to defend the
constitutionality of a state statute; by analogy, the Ninth Circuit
maintained, AOE, as principal sponsor of the ballot initiative,
qualified to defend Article XXVIII on appeal.
Id., at
732-733; see also
id., at 734, n. 5 ("[WJe hold that AOE has
standing in the same way that a legislature might."). AOE Chairman
Park also had standing to appeal, according to the Ninth Circuit,
because Yniguez "could have had a reasonable expectation that Park
(and possibly AOE as well) would bring an enforcement action
against her" under § 4 of Article XXVIII, which authorizes any
person residing in Arizona to sue in state court to enforce the
Article.
Id., at 734, and n. 5.11
11 In a remarkable passage, the Ninth Circuit addressed
Yniguez's argument, opposing intervention by AOE and Park, that the
District Court's judgment was no impediment to any state-court
proceeding AOE and Park might wish to bring, because that judgment
is not a binding precedent on Arizona's judiciary. See 939 F. 2d,
at 735-736. The Court of Appeals questioned the wisdom of the view
expressed "in the academic literature," "by some state courts," and
by "several individual justices" that state courts are "coordinate
and coequal with the lower federal courts on matters of federal
law."
Id., at 736 (footnote omitted). The Ninth Circuit
acknowledged "there may be valid reasons not to bind the state
courts to a decision of a single federal district judge-which is
not even binding on the same judge in a subsequent action."
Id., at 736-737. However, the appellate panel added, those
reasons "are inapplicable to
59
Having allowed AOE and Park to serve as appellants, the Court of
Appeals held Arizona's Attorney General "judicial[ly] estoppe[d]"
from again appearing as a party.
Id., at 738-739; see also
id., at 740 ("[H]aving asked the district court to dismiss
him as a party, [the Attorney General] cannot now become one
again.").12 With Governor Mofford choosing not to seek Court of
Appeals review, the appeal became one to which neither "[the] State
[n]or any agency, officer, or employee thereof [was] a party," the
Ninth Circuit observed, so the State's Attorney General could
appear pursuant to 28 U. S. C. § 2403(b). See 939 F. 2d, at
739.13 But, the Ninth Circuit added, § 2403(b) "confers only
a
limited right," a right pendent to the AOE/Park appeal,
"to make an argument on the question of [Article XXVIII's]
constitutionality."
Id., at 739-740.
Prior to the Ninth Circuit's July 1991 opinion, indeed the very
day after AOE, Park, and the Arizona Attorney General filed their
notices of appeal, a development of prime importance occurred. On
April 10, 1990, Yniguez resigned from state employment in order to
accept another job. Her resig-
decisions of the federal courts of appeals."
Id., at 737.
But cf.
ASARCO Inc. v.
Kadish, 490 U. S. 605, 617 (1989)
("state courts ... possess the authority, absent a provision for
exclusive federal jurisdiction, to render binding judicial
decisions that rest on their own interpretations of federal law");
Lockhart v.
Fretwell, 506 U. S. 364, 375-376
(1993) (THOMAS, J., concurring) (Supremacy Clause does not require
state courts to follow rulings by federal courts of appeals on
questions of federal law).
12 Because the Court of Appeals found AOE and Park to be proper
appellants, that court did not "address the question whether the
Attorney General would have standing to appeal under Article III if
no other party were willing and able to appeal." 939 F. 2d, at 738.
The Court of Appeals assumed, however, that "whenever the
constitutionality of a provision of state law is called into
question, the state government will have a sufficient interest [to
satisfy] Article IlL"
Id., at 733, n. 4. Cf.
Maine v.
Taylor, 477 U.
S. 131, 137 (1986) (intervening State had standing to appeal
from judgment holding state law unconstitutional);
Diamond
v.
Charles, 476
U. S. 54, 62 (1986) ("a State has standing to defend the
constitutionality of its statute").
13 The full text of 28 U. S. C. § 2403(b) is set out
supra, at 55, n. 10.
60
nation apparently became effective on April 25, 1990. Arizona's
Attorney General so informed the Ninth Circuit in September 1991,
"suggest[ing] that this case may lack a viable plaintiff and,
hence, may be moot." Suggestion of Mootness in Nos. 90-15546 and
90-15581 (CA9), Affidavit and Exh. A.
One year later, on September 16, 1992, the Ninth Circuit
rejected the mootness suggestion.
Yniguez v.
Arizona,
975 F.2d
646. The court's ruling adopted in large part Yniguez's
argument opposing a mootness disposition. See App. 194-204
(Appellee Yniguez's Response Regarding Mootness Considerations).
"[T]he plaintiff may no longer be affected by the English only
provision," the Court of Appeals acknowledged. 975 F. 2d, at 647.
Nevertheless, the court continued, "[her] constitutional claims may
entitle her to an award of nominal damages."
Ibid. Her
complaint did "not expressly request nominal damages," the Ninth
Circuit noted, but "it did request 'all other relief that the Court
deems just and proper under the circumstances.'"
Id., at
647, n. 1; see
supra, at 50-51. Thus, the Court of Appeals
reasoned, one could regard the District Court's judgment as
including an "implicit denial" of nominal damages. 975
To permit Yniguez and AOE to clarify their positions, the Ninth
Circuit determined to return the case to the District Court. There,
with the Ninth Circuit's permission, AOE's Chairman Park could file
a notice of appeal from the District Court's judgment, following up
the Circuit's decision 14 months earlier allowing AOE and Park to
intervene.
Id., at 647.14 And next, Yniguez could
cross-appeal to place before
14 In their original notice of appeal, filed April 9, 1990, AOE
and Park targeted the District Court's denial of their motion to
intervene. See App. 150-151. Once granted intervention, their
original notice indicated, they would be positioned to file an
appeal from the judgment declaring Article XXVIII unconstitutional.
See
id., at 150.
61
the Ninth Circuit, explicitly, the issue of nominal damages.
Id., at 647, and n. 2.15
In line with the Ninth Circuit's instructions, the case file was
returned to the District Court on November 5, 1992; AOE and Park
filed their second notice of appeal on December 3, App. 206-208,
and Yniguez cross-appealed on December 15, App. 209.16 The Ninth
Circuit heard argument on the merits on May 3, 1994. After
argument, on June 21, 1994, the Ninth Circuit allowed Arizonans
Against Constitutional Tampering (AACT) and Thomas Espinosa,
Chairman of AACT, to intervene as plaintiffs-appellees. App. 14;
Yniguez v.
Arizona, 42 F.3d
1217, 1223-1224 (1994) (amended Jan. 17, 1995). AACT was the
principal opponent of the ballot initiative that became Article
XXVIII.
Id., at 1224. In permitting this late intervention,
the Court of Appeals noted that "it d[id] not rely on [AACT's]
standing as a party."
Ibid. The standing of the preargument
participants, in the Ninth Circuit's view, sufficed to support a
determination on the merits. See
ibid.
In December 1994, the Ninth Circuit panel that had superintended
the case since 1990 affirmed the judgment declaring Article XXVIII
unconstitutional and remanded the case, directing the District
Court to award Yniguez nominal dam-
15 The Ninth Circuit made two further suggestions in the event
that Yniguez failed to seek nominal damages: A new plaintiff "whose
claim against the operation of the English only provision is not
moot" might intervene; or Yniguez herself might have standing to
remain a suitor if she could show that others had refrained from
challenging the English-only provision in reliance on her suit. See
975 F. 2d, at 647-648. No state employee later intervened to
substitute for Yniguez, nor did Yniguez endeavor to show that
others had not sued because they had relied on her suit.
16 On March 16, 1993, the District Court awarded Yniguez nearly
$100,000 in attorney's fees. Record, Doc. No. 127. Governor Mofford
and the State filed a notice of appeal from that award on April 8,
1993. Record, Doc. No. 128. Because the Ninth Circuit ultimately
affirmed the District Court's judgment on the merits, the appeals
court did not reach the state defendants' appeal from the award
offees. 69 F. 3d, at 924, n. 2, 927.
62
ages.
42 F.3d
1217 (amended Jan. 17, 1995). Despite the Court of Appeals'
July 1991 denial of party status to Arizona, the Ninth Circuit
apparently viewed the State as the defendant responsible for any
damages, for it noted: "The State of Arizona expressly waived its
right to assert the Eleventh Amendment as a defense to the award of
nominal damages."
Id., at 1243. The Ninth Circuit agreed to
rehear the case en banc,
53 F.3d
1084 (1995), and in October 1995, by a 6-to-5 vote, the en banc
court reinstated the panel opinion with minor alterations.
69 F.3d
920.
Adopting the District Court's construction of Article
XXVIII, the en banc court read the provision to prohibit
"'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 XXVII!.'" 69 F. 3d, at 928 (quoting 730 F. Supp.,
at 314).
Because the court found the "plain language" dispositive, 69 F.
3d, at 929, it rejected the State Attorney General's limiting
construction and declined to certify the matter to the Arizona
Supreme Court,
id., at 929-931. As an additional reason for
its refusal to grant the Attorney General's request for
certification, the en banc court stated: "The Attorney General ...
never conceded that [Article XXVIII] would be unconstitutional if
construed as Yniguez asserts it properly should be."
Id., at
931, and n.
14.17 The Ninth Circuit also pointed to a
state-court challenge to the constitutionality of
17The Court of Appeals contrasted
Virginia v.
American
Booksellers Assn., Inc., 484 U. S. 383 (1988), in
which this Court certified to the Virginia Supreme Court questions
concerning the proper interpretation of a state statute. In
American Booksellers, the Ninth Circuit noted, "the State
Attorney General
conceded [the statute] would be
unconstitutional if construed as the plaintiffs contended it should
be." 69 F. 3d, at 930.
63
Article XXVIII,
Ruiz v.
State, No. CV92-19603
(Sup. Ct. Maricopa County, Jan. 24, 1994). In
Ruiz, the
Ninth Circuit observed, the state court of first instance
"dispos[ed] of [the] First Amendment challenge in three paragraphs"
and "d[id] nothing to narrow [the provision]." 69 F. 3d, at
931.18
After construing Article XXVIII as sweeping in scope, the en
banc Court of Appeals condemned the provision as manifestly
overbroad, trenching untenably on speech rights of Arizona
officials and public employees. See
id., at 931-948. For
prevailing in the § 1983 action, the court ultimately announced,
Yniguez was "entitled to nominal damages."
Id., at 949. On
remand, the District Court followed the en banc Court of Appeals'
order and, on November 3, 1995, awarded Yniguez $1 in damages.
App.211.
AOE and Park petitioned this Court for a writ of certiorari to
the Ninth Circuit.19 They raised two questions: (1) Does Article
XXVIII violate the Free Speech Clause of the First
18The
Ruiz case included among its several plaintiffs
four elected officials and five state employees. After defeat in
the court of first instance, the
Ruiz plaintiffs prevailed
in the Arizona Court of Appeals.
Ruiz v.
Symington,
No.1 CA-CV 94-0235,1996 WL 309512 (Ariz. App., June 11, 1996). That
court noted, with evident concern, that "the Ninth Circuit refused
to abstain and certify the question of Article [XXVIII]'s proper
interpretation to the Arizona Supreme Court, although the issue was
pending in our state court system."
Id., at *4. "Comity,"
the Arizona intermediate appellate court observed, "typically
applies when a federal court finds that deference to a state court,
on an issue of state law, is proper."
Ibid. Nevertheless, in
the interest of uniformity and to discourage forum shopping, the
Arizona appeals court decided to defer to the federal litigation,
forgoing independent analysis.
Ibid. The Arizona Supreme
Court granted review in
Ruiz in November 1996, and stayed
proceedings pending our decision in this case. App. to Supplemental
Brief for Petitioners 1.
19 The State did not oppose the petition and, in its Appearance
Form, filed in this Court on January 10, 1996, noted that "if the
Court grants the Petition and reverses the lower court's decision
... Arizona will seek reversal of award of attorney's fees against
the State." See
supra, at 61, n. 16.
64
Amendment by "declaring English the official language of the
State and requiring English to be used to perform official acts"?;
(2) Do public employees have "a Free Speech right to disregard the
[State's] official language" and perform official actions in a
language other than English? This Court granted the petition and
requested the parties to brief as threshold matters (1) the
standing of AOE and Park to proceed in this action as defending
parties, and (2) Yniguez's continuing satisfaction of the
case-or-controversy requirement. 517 U. S. 1102 (1996).
III
Article III, § 2, of the Constitution confines federal courts to
the decision of "Cases" or "Controversies." Standing to sue or
defend is an aspect of the case-or-controversy requirement.
Northeastern Fla. Chapter, Associated Gen. Contractors of
America v.
Jacksonville, 508 U. S. 656, 663-664
(1993) (standing to sue);
Diamond v.
Charles,
476 U. S. 54, 56
(1986) (standing to defend on appeal). To qualify as a party with
standing to litigate, a person must show, first and foremost, "an
invasion of a legally protected interest" that is "concrete and
particularized" and" 'actual or imminent.'"
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560 (1992)
(quoting
Whitmore v.
Arkansas, 495 U. S. 149, 155
(1990)). An interest shared generally with the public at large in
the proper application of the Constitution and laws will not do.
See
Defenders of Wildlife, 504 U. S., at 573-576. Standing
to defend on appeal in the place of an original defendant, no less
than standing to sue, demands that the litigant possess "a direct
stake in the outcome."
Diamond, 476 U. S., at 62 (quoting
Sierra Club v.
Morton, 405 U. S. 727, 740 (1972)
(internal quotation marks omitted)).
The standing Article III requires must be met by persons seeking
appellate review, just as it must be met by persons appearing in
courts of first instance.
Diamond, 476 U. S., at 62. The
decision to seek review "is not to be placed in the
65
hands of 'concerned bystanders,'" persons who would seize it "as
a 'vehicle for the vindication of value interests.'"
Ibid.
(citation omitted). An intervenor cannot step into the shoes of the
original party unless the intervenor independently "fulfills the
requirements of Article IlL"
Id., at 68.
In granting the petition for a writ of certiorari in this case,
we called for briefing on the question whether AOE and Park have
standing, consonant with Article III of the Federal Constitution,
to defend in federal court the constitutionality of Arizona
Constitution Article XXVIII. Petitioners argue primarily that, as
initiative proponents, they have a quasilegislative interest in
defending the constitutionality of the measure they successfully
sponsored. AOE and Park stress the funds and effort they expended
to achieve adoption of Article XXVIII. We have recognized that
state legislators have standing to contest a decision holding a
state statute unconstitutional if state law authorizes legislators
to represent the State's interests. See
Karcher v.
May, 484 U. S.
72, 82 (1987).20 AOE and its members, however, are not elected
representatives, and we are aware of no Arizona law appointing
initiative sponsors as agents of the people of Arizona to defend,
in lieu of public officials, the constitutionality of initiatives
made law of the State. Nor has this Court ever identified
initiative proponents as Article-Ill-qualified defenders of the
measures they advocated. Cf.
Don't Bankrupt Washington
Committee v.
Continental Ill. Nat. Bank &
Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily
dismissing, for lack of standing, appeal by an initiative proponent
from a decision holding the initiative unconstitutional).
AOE also asserts representational or associational standing. An
association has standing to sue or defend in such
20 Cf.
INS v.
Chadha, 462 U. S. 919,930, n.
5,939-940 (1983) (Immigration and Naturalization Service appealed
Court of Appeals ruling to this Court but declined to defend
constitutionality of one-House veto provision; Court held Congress
a proper party to defend measure's validity where both Houses, by
resolution, had authorized intervention in the lawsuit).
66
capacity, however, only if its members would have standing in
their own right. See
Food and Commercial Workers v.
Brown
Group, Inc., 517
U. S. 544, 551-553 (1996);
Hunt v.
Washington State
Apple Advertising Comm'n, 432 U. S. 333, 343
(1977). The requisite concrete injury to AOE members is not
apparent. As nonparties in the District Court, AOE's members were
not bound by the judgment for Yniguez. That judgment had slim
precedential effect, see
supra, at 58-59, n. 11,21 and it
left AOE entirely free to invoke Article XXVIII, § 4, the citizen
suit provision, in state court, where AOE could pursue whatever
relief state law authorized. Nor do we discern anything flowing
from Article XXVIII's citizen suit provision-which authorizes suits
to enforce Article XXVIII in state court-that could support
standing for Arizona residents in general, or AOE in particular, to
defend the Article's constitutionality in federal court.
We thus have grave doubts whether AOE and Park have standing
under Article III to pursue appellate review. Nevertheless, we need
not definitively resolve the issue. Rather, we will follow a path
we have taken before and inquire, as a primary matter, whether
originating plaintiff Yniguez still has a case to pursue. See
Burke v.
Barnes, 479 U. S. 361, 363, 364,
n. (1987) (leaving unresolved question of congressional standing
because Court determined case was moot). For purposes of that
inquiry, we will assume,
arguendo, that AOE and Park had
standing to place this case before an appellate tribunal. See
id., at 366 (STEVENS, J., dissenting) (Court properly
assumed standing, even though that matter raised a serious
question, in order to analyze mootness issue). We may resolve the
question whether
21 As the District Court observed, the
stare decisis
effect of that court's ruling was distinctly limited. The judgment
was "not binding on the Arizona state courts [and did] not
foreclose any rights of [AOE] or Park in any future state-court
proceeding arising out of Article XXVII!."
Yniguez v.
Mofford, 130 F. R. D. 410, 416 (D. Ariz. 1990).
67
there remains a live case or controversy with respect to
Yniguez's claim without first determining whether AOE or Park has
standing to appeal because the former question, like the latter,
goes to the Article III jurisdiction of this Court and the courts
below, not to the merits of the case. Cf.
U. S.
Bancorp
Mortgage Co. v.
Bonner Mall Partnership, 513 U. S. 18, 20-22
(1994).
IV
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."
Preiser v.
Newkirk, 422
U. S. 395, 401 (1975) (quoting
Steffel v.
Thompson, 415
U. S. 452, 459, n. 10 (1974)) (internal quotation marks
omitted). As a state employee subject to Article XXVIII, Yniguez
had a viable claim at the outset of the litigation in late 1988. We
need not consider whether her case lost vitality in January 1989
when the Attorney General released Opinion No. 189-009. That
opinion construed Article XXVIII to require the expression of
"official acts" in English, but to leave government employees free
to use other languages "if reasonably necessary to the fair and
effective delivery of services" to the public. See App. 71, 74;
supra, at 52-53, 54; see also
Marston's Inc. v.
Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P.
2d 244, 248 (1982) ("Attorney General opinions are advisory only
and are not binding on the court .... This does not mean, however,
that citizens may not rely in good faith on Attorney General
opinions until the courts have spoken."). Yniguez left her state
job in April 1990 to take up employment in the private sector,
where her speech was not governed by Article XXVIII. At that point,
it became plain that she lacked a still vital claim for prospective
relief. Cf.
Boyle v.
Landry, 401 U. S. 77, 78, 80-81
(1971) (prospective relief denied where plaintiffs failed to show
challenged measures adversely affected any plaintiff's primary
conduct).
68
The Attorney General suggested mootness,22 but Yniguez resisted,
and the Ninth Circuit adopted her proposed method of saving the
case. See
supra, at 60-61.23 It was not dispositive, the
court said, that Yniguez "may no longer be affected by the English
only provision," 975 F. 2d, at 647, for Yniguez had raised in
response to the mootness suggestion "[t]he possibility that [she]
may seek nominal damages,"
ibid.; see App. 197-200 (Appellee
Yniguez's Response Regarding Mootness Considerations). At that
stage of the litigation, however, Yniguez's plea for nominal
damages was not the possibility the Ninth Circuit imagined.
Yniguez's complaint rested on 42 U. S. C. § 1983. See
supra, at 49-50, and n. 3. Although Governor Mofford in her
official capacity was the sole defendant against whom the
22 Mootness has been described as "'the doctrine of standing set
in a time frame: The requisite personal interest that must exist at
the commencement of the litigation (standing) must continue
throughout its existence (mootness).'''
United States Parole
Comm'n v.
Geraghty, 445 U. S. 388, 397 (1980)
(quoting Monaghan, Constitutional Adjudication: The Who and When,
82 Yale L. J. 1363, 1384 (1973)).
23Yniguez's counsel did not inform the Court of Appeals of
Yniguez's departure from government employment, a departure
effective April 25, 1990, the day before the appeal was docketed.
See App. 7. It was not until September 1991 that the State's
Attorney General notified the Ninth Circuit of the plaintiff's
changed circumstances. See
id., at 187. Yniguez's counsel
offered a laconic explanation for this lapse: First, "legal
research disclosed that this case was not moot"; second, counsel
for the State of Arizona knew of the resignation and "agreed this
appeal should proceed." App. 196, n. 2 (Appellee Yniguez's Response
Regarding Mootness Considerations). The explanation was
unsatisfactory. It is the duty of counsel to bring to the federal
tribunal's attention,
"without delay," facts that may raise
a question of mootness. See
Board of License Comm'rs of
Tiverton v.
Pastore, 469 U. S. 238, 240 (1985)
(per curiam). Nor is a change in circumstances bearing on
the vitality of a case a matter opposing counsel may withhold from
a federal court based on counsels' agreement that the case should
proceed to judgment and not be treated as moot. See
United
States v.
Alaska S. S.
Co., 253 U. S. 113, 116
(1920); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme
Court Practice 721-722 (7th ed. 1993).
69
District Court's February 1990 declaratory judgment ran, see
supra, at 55, the Ninth Circuit held the State answerable
for the nominal damages Yniguez requested on appeal. See 69 F. 3d,
at 948-949 (declaring Yniguez "entitled to nominal damages for
prevailing in an action under 42 U. S. C. § 1983" and noting that
"[t]he State of Arizona expressly waived its right to assert the
Eleventh Amendment as a defense to the award of nominal damages").
We have held, however, that § 1983 actions do not lie against a
State.
Will v.
Michigan Dept. of State Police,
491 U. S. 58, 71
(1989). Thus, the claim for relief the Ninth Circuit found
sufficient to overcome mootness was nonexistent. The barrier was
not, as the Ninth Circuit supposed, Eleventh Amendment immunity,
which the State could waive. The stopper was that § 1983 creates no
remedy against a State.24
Furthermore, under the Ninth Circuit's ruling on intervention,
the State of Arizona was permitted to participate in the appeal,
but not as a party. 939 F. 3d, at 738-740. The Court of Appeals
never revised that ruling. To recapitulate,
24 State officers in their official capacities, like States
themselves, are not amenable to suit for damages under § 1983. See
Will v.
Michigan Dept. of State Police, 491 U. S., at
71, and n. 10. State officers are subject to § 1983 liability for
damages in their personal capacities, however, even when the
conduct in question relates to their official duties.
Hafer
v.
Melo, 502 U.
S. 21, 25-31 (1991). At no point after the nominal damages
solution to mootness surfaced in this case did the Ninth Circuit
identify Governor Mofford as a party whose conduct could be the
predicate for retrospective relief. That is hardly surprising, for
Mofford never participated in any effort to enforce Article XXVIII
against Yniguez. Moreover, she opposed the ballot initiative that
became Article XXVIII, see
supra, at 49, n. 1, associated
herself with the Attorney General's restrained interpretation of
the provision, see
supra, at 52-53, and was unwilling to
appeal from the District Court's judgment declaring the Article
unconstitutional, see
supra, at 56. In this Court, Yniguez
raised the possibility of Governor Mofford's individual liability
under the doctrine of
Ex parte Young, 209 U. S. 123 (1908). See
Brief for Respondent Yniguez 21-22. That doctrine, however, permits
only prospective relief, not retrospective monetary awards. See
Edelman v.
Jordan, 415 U. S. 651, 664
(1974).
70
in July 1991, two months prior to the Attorney General's
suggestion of mootness, the Court of Appeals rejected the Attorney
General's plea for party status, as representative of the State.
Ibid. The Ninth Circuit accorded the Attorney General the
"right [under 28 U. S. C. § 2403(b)] to argue the constitutionality
of Article XXVIII ... contingent upon AOE and Park's bringing the
appeal."
Id., at 740; see
supra, at 59. But see
Maine v.
Taylor, 477 U. S. 131, 136-137
(1986) (State's § 2403(b) right to urge on appeal the
constitutionality of its laws is not contingent on participation of
other appellants). AOE and Park, however, were the sole
participants recognized by the Ninth Circuit as
defendants-appellants. The Attorney General "ha[d] asked the
district court to dismiss him as a party," the Court of Appeals
noted, hence he "cannot now become one again." 939 F. 2d, at 740.
While we do not rule on the propriety of the Ninth Circuit's
exclusion of the State as a party, we note this lapse in that
court's accounting for its decision: The Ninth Circuit did not
explain how it arrived at the conclusion that an intervenor the
court had designated a nonparty could be subject, nevertheless, to
an obligation to pay damages.
True, Yniguez and the Attorney General took the steps the Ninth
Circuit prescribed: Yniguez filed a cross-appeal notice, see
supra, at 61; the Attorney General waived the State's right
to assert the Eleventh Amendment as a defense to an award of
nominal damages, see 69 F. 3d, at 948-949. But the earlier,
emphatic Court of Appeals ruling remained in place: The State's
intervention, although proper under § 2403(b), the Ninth Circuit
maintained, gave Arizona no status as a party in the lawsuit. See
939 F. 2d, at 738-740.25
25 Section 2403(b) by its terms subjects an intervenor "to all
liabilities of a party as to
court costs" required "for a
proper presentation of the facts and law relating to the question
of constitutionality." 28 U. S. C. § 2403(b) (emphasis added). It
does not subject an intervenor to liability for damages available
against a party defendant.
71
In advancing cooperation between Yniguez and the Attorney
General regarding the request for and agreement to pay nominal
damages, the Ninth Circuit did not home in on the federal courts'
lack of authority to act in friendly or feigned proceedings. Cf.
United States v.
Johnson, 319 U. S. 302, 304 (1943)
(per curiam) (absent "a genuine adversary issue between ...
parties," federal court "may not safely proceed to judgment"). It
should have been clear to the Court of Appeals that a claim for
nominal damages, extracted late in the day from Yniguez's general
prayer for relief and asserted solely to avoid otherwise certain
mootness, bore close inspection. Cf.
Fox v.
Board of
Trustees of State Univ. of N.
Y., 42
F.3d 135, 141-142 (CA2 1994) (rejecting claim for nominal
damages proffered to save case from mootness years after litigation
began where defendants could have asserted qualified immunity had
plaintiffs' complaint specifically requested monetary relief). On
such inspection, the Ninth Circuit might have perceived that
Yniguez's plea for nominal damages could not genuinely revive the
case.26
When a civil case becomes moot pending appellate adjudication,
"[t]he 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
(1950). Vacatur "clears the path for future relitigation" by
eliminating a judgment the loser was stopped from opposing on
direct review.
Id., at 40. Vacatur is in order when mootness
occurs through happenstance-circumstances not attributable to the
parties-or,
26 Endeavoring to meet the live case requirement, petitioners
AOE and Park posited in this Court several "controversies remaining
between the parties." Reply Brief for Petitioners 18-19. Tellingly,
none of the asserted controversies involved Yniguez, sole plaintiff
and prevailing party in the District Court. See
ibid.
(describing AOE and Park as adverse to intervenor Arizonans Against
Constitution Tampering (AACT), see
supra, at 61, AACT as
adverse to the State, AOE and Park as adverse to the State).
72
relevant here, the "unilateral action of the party who prevailed
in the lower court."
U. S.
Bancorp Mortgage Co., 513
U. S., at 23; cf.
id., at 29 ("mootness by reason of
settlement [ordinarily] does not justify vacatur of a judgment
under review").
As just explained, Yniguez's changed circumstances-her
resignation from public sector employment to pursue work in the
private sector-mooted the case stated in her complaint.27 We turn
next to the effect of that development on the judgments below.
Yniguez urges that vacatur ought not occur here. She maintains that
the State acquiesced in the Ninth Circuit's judgment and that, in
any event, the District Court judgment should not be upset because
it was entered before the mooting event occurred and was not
properly appealed. See Brief for Respondent Yniguez 23-25.
Concerning the Ninth Circuit's judgment, Yniguez argues that the
State's Attorney General effectively acquiesced in that court's
dispositions when he did not petition for this Court's review. See
id., at 24-25; Brief for United States as
Amicus
Curiae 10-11, and n. 4 (citing
Diamond v.
Charles, 476 U.
S. 54 (1986)).28 We do not agree that this Court is disarmed in
the manner suggested.
27 It bears repetition that Yniguez did not sue on behalf of a
class. See
supra, at 50; cf.
Preiser v.
Newkirk, 422
U. S. 395, 404 (1975) (Marshall, J., concurring) (mootness
determination unavoidable where plaintiffrespondent's case lost
vitality and action was not filed on behalf of a class);
Sosna v.
Iowa, 419 U. S. 393, 397-403
(1975) (recognizing class action exception to mootness
doctrine).
28 Designated a respondent in this Court, the State was not
required or specifically invited to file a brief answering the
AOE/Park petition. In his appearance form, filed January 10, 1996,
Arizona's Attorney General made this much plain: The State-aligned
with petitioners AOE and Park in that Arizona defended Article
XXVIII's constitutionality-did not oppose certiorari; in the event
Yniguez did not prevail here, Arizona would seek to recoup the
attorney's fees the District Court had ordered the State to pay
her. See
supra, at 61, n. 16.
73
We have taken up the case for consideration on the petition for
certiorari filed by AOE and Park. Even if we were to rule
definitively that AOE and Park lack standing, we would have an
obligation essentially to search the pleadings on core matters of
federal-court adjudicatory authority-to inquire not only into this
Court's authority to decide the questions petitioners present, but
to consider, also, the authority of the lower courts to proceed. As
explained in
Bender v.
Williamsport Area School
Dist., 475 U. S.
534 (1986):
"[E]very federal appellate court has a special obligation to
'satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review,' even though the parties
are prepared to concede it. Mitchell v. Maurer,
293 U. S. 237,
244 (1934). See Juidice v. Vail, 430 U. S. 327, 331-332
(1977) (standing). 'And if the record discloses that the lower
court was without jurisdiction this court will notice the defect,
although the parties make no contention concerning it. [When the
lower federal court] lack[s] jurisdiction, we have jurisdiction on
appeal, not of the merits but merely for the purpose of correcting
the error of the lower court in entertaining the suit.' United
States v. Corrick, 298 U. S. 435, 440 (1936) (footnotes
omitted)." Id., at 541 (brackets in original).
See also
Iron Arrow Honor Soc. v.
Heckler,
464 U. S. 67,
72-73 (1983)
(per curiam) (vacating judgment below where
Court of Appeals had ruled on the merits although case had become
moot). In short, we have authority to "make such disposition of the
whole case as justice may require."
U. S.
Bancorp
Mortgage Co., 513 U. S., at 21 (citation and internal quotation
marks omitted). Because the Ninth Circuit refused to stop the
adjudication when Yniguez's departure from public employment came
to its attention, we set aside the unwarranted en banc Court of
Appeals judgment.
74
As to the District Court's judgment, Yniguez stresses that the
date of the mooting event-her resignation from state employment
effective April 25, 1990-was some 2lh months after the February 6,
1990, decision she seeks to preserve. Governor Mofford was the sole
defendant bound by the District Court judgment, and Mofford
declined to appeal. Therefore, Yniguez contends, the District
Court's judgment should remain untouched.
But AOE and Park had an arguable basis for seeking appellate
review, and the Attorney General promptly made known his
independent interest in defending Article XXVIII against the total
demolition declared by the District Court. First, the Attorney
General repeated his plea for certification of Article XXVIII to
the Arizona Supreme Court. See Record, Doc. No. 82. And if that
plea failed, he asked, in his motion to intervene, "to be joined as
a defendant so that he may participate in all post-judgment
proceedings." Record, Doc. No. 93, p. 2. Although denied party
status, the Attorney General had, at a minimum, a right secured by
Congress, a right to present argument on appeal "on the question of
constitutionality." See 28 U. S. C. § 2403(b). He was in the
process of pursuing that right when the mooting event occurred.
We have already recounted the course of proceedings thereafter.
First, Yniguez did not tell the Court of Appeals that she had left
the State's employ. See
supra, at 68, n. 23. When that fact
was disclosed to the court by the Attorney General, a dismissal for
mootness was suggested, and rejected. A mootness disposition at
that point was in order, we have just explained. Such a dismissal
would have stopped in midstream the Attorney General's endeavor,
premised on § 2403(b), to defend the State's law against a
declaration of unconstitutionality, and so would have warranted a
path-clearing vacatur decree.
The State urges that its current plea for vacatur is compelling
in view of the extraordinary course of this litigation.
75
See Brief for Respondents State of Arizona et al. 34 ("It would
certainly be a strange doctrine that would permit a plaintiff to
obtain a favorable judgment, take voluntary action [that] moot[s]
the dispute, and then retain the [benefit of the] judgment."). We
agree. The "exceptional circumstances" that abound in this case,
see
U. S.
Bancorp M ortgage Co., 513 U. S., at 29,
and the federalism concern we next consider, lead us to conclude
that vacatur down the line is the equitable solution.
v
In litigation generally, and in constitutional litigation most
prominently, courts in the United States characteristically pause
to ask: Is this conflict really necessary? 29 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 that core question. See,
e. g., Poe v.
Ullman, 367 U.
S. 497, 526 (1961) (Harlan, J., dissenting) ("[N]ormally this
Court ought not to consider the Constitutionality of a state
statute in the absence of a controlling interpretation of its
meaning and effect by the state courts.");
Rescue Army v.
Municipal Court of Los Angeles, 331 U. S. 549, 573-574
(1947); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev.
543, 580-585 (1985).
Arizona's Attorney General, in addition to releasing his own
opinion on the meaning of Article XXVIII, see
supra, at 52,
asked both the District Court and the Court of Appeals to pause
before proceeding to judgment; specifically, he asked both federal
courts to seek, through the State's certification process, an
authoritative construction of the new measure from the Arizona
Supreme Court. See
supra, at 51, and n. 5, 55, 62-63, and
nn. 17, 18.
Certification today covers territory once dominated by a
deferral device called
"Pullman abstention," after the
gen-
29 The phrasing is borrowed from Traynor, Is This Conflict
Really Necessary?, 37 Texas L. Rev. 657 (1959).
76
erative case,
Railroad Comm'n of Tex. v.
Pullman Co.,
312 U. S. 496 (1941). Designed to avoid federal-court error in
deciding state-law questions antecedent to federal constitutional
issues, the
Pullman mechanism remitted parties to the state
courts for adjudication of the unsettled state-law issues. If
settlement of the state-law question did not prove dispositive of
the case, the parties could return to the federal court for
decision of the federal issues. Attractive in theory because it
placed state-law questions in courts equipped to rule
authoritatively on them,
Pullman abstention proved
protracted and expensive in practice, for it entailed a full round
of litigation in the state court system before any resumption of
proceedings in federal court. See generally 17 A C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure §§ 4242,
4243 (2d ed. 1988 and Supp. 1996).
Certification procedure, in contrast, allows a federal court
faced with a novel state-law question to put the question directly
to the State's highest court, reducing the delay, cutting the cost,
and increasing the assurance of gaining an authoritative response.
See Note, Federal Courts-Certification Before Facial Invalidation:
A Return to Federalism, 12 W. New Eng. L. Rev. 217 (1990). Most
States have adopted certification procedures. See generally 17 A
Wright, Miller, & Cooper,
supra, § 4248. Arizona's
statute, set out
supra, at 51, n. 5, permits the State's
highest court to consider questions certified to it by federal
district courts, as well as courts of appeals and this Court.
Both lower federal courts in this case refused to invite the aid
of the Arizona Supreme Court because they found the language of
Article XXVIII "plain," and the Attorney General's limiting
construction unpersuasive. See 730 F. Supp., at 315-316; 69 F. 3d,
at 928-931.30 Furthermore, the Ninth
30 But cf.
Huggins v.
Isenbarger, 798 F.2d
203, 207-210
(CA71986) (Easterbrook, J., concurring)
(reasoned opinion of State Attorney General should be accorded
respectful consideration; federal courts should hesitate
77
Circuit suggested as a proper price for certification a
concession by the Attorney General that Article XXVIII "would be
unconstitutional if construed as [plaintiff Yniguez] contended it
should be."
Id., at 930; see
id., at 931, and n. 14.
Finally, the Ninth Circuit acknowledged the pendency of a case
similar to Yniguez's in the Arizona court system, but found that
litigation no cause for a stay of the federal-court proceedings.
See
id., at 931;
supra, at 62-63, and n. 18
(describing the
Ruiz litigation).
A more cautious approach was in order. Through certification of
novel or unsettled questions of state law for authoritative answers
by a State's highest court, a federal court may save "time, energy,
and resources and hel[p] build a cooperative judicial federalism."
Lehman Brothers v.
Schein, 416 U. S. 386, 391
(1974); see also
Bellotti v.
Baird, 428 U. S. 132, 148 (1976)
(to warrant district court certification, "[i]t is sufficient that
the statute is susceptible of ... an interpretation [that] would
avoid or substantially modify the federal constitutional challenge
to the statute"). It is true, as the Ninth Circuit observed, 69 F.
3d, at 930, that in our decision certifying questions in
Virginia v.
American Booksellers Assn., Inc.,
484 U. S. 383
(1988), we noted the State's concession that the statute there
challenged would be unconstitutional if construed as plaintiffs
contended it should be,
id., at 393-396. But neither in that
case nor in any other did we declare such a concession a condition
precedent to certification.
The District Court and the Court of Appeals ruled out
certification primarily because they believed Article XXVIII was
not fairly subject to a limiting construction. See 730 F. Supp., at
316 (citing
Houston v.
Hill, 482 U. S. 451, 467
(1987)); 69 F. 3d, at 930. The assurance with which the lower
courts reached that judgment is all the more puzzling
to conclude that "[a State's] Executive Branch does not
understand state law").
78
in view of the position the initiative sponsors advanced before
this Court on the meaning of Article XXVIII.
At oral argument on December 4, 1996, counsel for petitioners
AOE and Park informed the Court that, in petitioners' view, the
Attorney General's reading of the Article was "the correct
interpretation." Tr. of Oral Arg. 6; see
id., at 5 (in
response to the Court's inquiry, counsel for petitioners stated:
"[W]e agree with the Attorney General's opinion as to [the]
construction of Article XXVIII on [constitutional] grounds."). The
Ninth Circuit found AOE's "explanations as to the initiative's
scope ... confused and selfcontradictory," 69 F. 3d, at 928, n. 12,
and we agree that AOE wavered in its statements of position, see,
e. g., Brief for Petitioners 15 (AOE may "protect its
political and statutory rights against the State and government
employees"), 32-39 (Article XXVIII regulates Yniguez's "language on
the job"), 44 ("AOE might ... sue the State for limiting Art.
XXVIII"). Nevertheless, the Court of Appeals understood that the
ballot initiative proponents themselves at least "partially
endorsed the Attorney General's reading." 69 F. 3d, at 928, n. 12.
Given the novelty of the question and its potential importance to
the conduct of Arizona's business, plus the views of the Attorney
General and those of Article XXVIII's sponsors, the certification
requests merited more respectful consideration than they received
in the proceedings below.
Federal courts, when confronting a challenge to the
constitutionality of a federal statute, follow a "cardinal
principle":
They "will first ascertain whether a construction ... is fairly
possible" that will contain the statute within constitutional
bounds. See
Ashwander v.
TV A, 297 U. S. 288, 348 (1936)
(Brandeis, J., concurring);
Ellis v.
Railway Clerks,
466 U. S. 435,444
(1984);
Califano v.
Yamasaki, 442 U. S. 682, 692-693
(1979); Rescue Army, 331 U. S., at 568-569. State courts,
when interpreting state statutes, are similarly equipped to apply
that cardinal principle. See
Knoell v.
Cerkvenik-
79
Anderson Travel, Inc., 185 Ariz. 546, 548, 917 P. 2d 689,
691 (1996) (citing
Ashwander).
Warnings against premature adjudication of constitutional
questions bear heightened attention when a federal court is asked
to invalidate a State's law, for the federal tribunal risks
friction-generating error when it endeavors to construe a novel
state Act not yet reviewed by the State's highest court. See
Rescue Army, 331 U. S., at 573-574. "Speculation by a
federal court about the meaning of a state statute in the absence
of prior state court adjudication is particularly gratuitous when
... the state courts stand willing to address questions of state
law on certification from a federal court."
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 510 (1985)
(O'CONNOR, J., concurring).
Blending abstention with certification, the Ninth Circuit found
"no unique circumstances in this case militating in favor of
certification." 69 F. 3d, at 931. Novel, unsettled questions of
state law, however, not "unique circumstances," are necessary
before federal courts may avail themselves of state certification
procedures.31 Those procedures do not entail the delays, expense,
and procedural complexity that generally attend abstention
decisions. See
supra, at 76. Taking advantage of
certification made available by a State may "greatly simplif[y]" an
ultimate adjudication in federal court. See
Bellotti, 428 U.
S., at 151.
The course of Yniguez's case was complex. The complexity might
have been avoided had the District Court, more than eight years
ago, accepted the certification suggestion made by Arizona's
Attorney General. The Arizona Supreme Court was not asked by the
District Court or the Court of Appeals to say what Article XXVIII
means. But the State's highest court has that very question before
it in
31 Arizona itself requires no "unique circumstances." It permits
certification to the State's highest court of matters "which may be
determinative of the cause," and as to which "no controlling
precedent" is apparent to the certifying court. Ariz. Rev. Stat.
Ann. § 12-1861 (1994).
80
Ruiz v.
Symington, see
supra, at 62-63, and
n. 18, the case the Ninth Circuit considered no cause for
federal-court hesitation. In
Ruiz, which has been stayed
pending our decision in this case, see
supra, at 63, n. 18,
the Arizona Supreme Court may now rule definitively on the proper
construction of Article XXVIII. Once that court has spoken,
adjudication of any remaining federal constitutional question may
indeed become greatly simplified.
***
For the reasons stated, the judgment of the Court of Appeals is
vacated, and the case is remanded to that court with directions
that the action be dismissed by the District Court.
It is so ordered.
APPENDIX TO OPINION OF THE COURT ARTICLE XXVIII. ENGLISH AS THE
OFFICIAL LANGUAGE
§ 1. English as the official language; applicability
Section 1. (1) The English language is the official language of
the State of Arizona.
(2) As the official language of this State, the English language
is the language of the ballot, the public schools and all
government functions and actions.
(3)(a) This Article applies to:
(i) the legislative, executive and judicial branches of
government[,]
(ii) all political subdivisions, departments, agencies,
organizations, and instrumentalities of this State, including local
governments and municipalities,
(iii) all statutes, ordinances, rules, orders, programs and
policies[,]
(iv) all government officials and employees during the
performance of government business.
81
(b) As used in this Article, the phrase "This State and all
political subdivisions of this State" shall include every entity,
person, action or item described in this Section, as appropriate to
the circumstances.
§ 2. Requiring this state to preserve, protect and enhance
English
Section 2. This State and all political subdivisions of this
State shall take all reasonable steps to preserve, protect and
enhance the role of the English language as the official language
of the State of Arizona.
§ 3. Prohibiting this state from using or requiring the use of
languages other than English; exceptions
Section 3. (1) Except as provided in Subsection (2):
(a) This State and all political subdivisions of this State
shall act in English and in no other language.
(b) No entity to which this Article applies shall make or
enforce a law, order, decree or policy which requires the use of a
language other than English.
(c) No governmental document shall be valid, effective or
enforceable unless it is in the English language.
(2) This State and all political subdivisions of this State may
act in a language other than English under any of the following
circumstances:
(a) to assist students who are not proficient in the English
language, to the extent necessary to comply with federal law, by
giving educational instruction in a language other than English to
provide as rapid as possible a transition to English.
(b) to comply with other federal laws.
(c) to teach a student a foreign language as a part of a
required or voluntary educational curriculum.
(d) to protect public health or safety.
(e) to protect the rights of criminal defendants or victims of
crime.
82
§ 4. Enforcement; standing
Section 4. A person who resides in or does business in this
State shall have standing to bring suit to enforce this Article in
a court of record of the State. The Legislature may enact
reasonable limitations on the time and manner of bringing suit
under this subsection.
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