WASHINGTON AND TUCSON, ARIZ. — At the welfare office in Tucson, staffers talk to clients in Spanish, Russian, Vietnamese, and Creole. In the Arizona border city of Nogales, town meetings are conducted in both Spanish and English. On Indian reservations, some state lawmakers speak in ancestral tongues.
This is the human side of a messy free-speech case argued yesterday in the marbled splendor of the US Supreme Court - a case that could eliminate any speech by Arizona state employees other than English and boost proponents of "English only" laws in schools, government agencies, and ballot boxes nationwide.
Yet the oral arguments raised doubts about whether the merits of the case would even be taken up. Justices focused on the procedural details of the dispute.
Many Arizona state employees are uncertain how the state's official English law, passed by a narrow referendum vote in 1988, would actually work. Some joke about "language police" and "vowel cops."
Others vow not to comply if the law goes into effect. In Arizona, language is an issue that stirs deep feelings on both sides of a national debate that pits diversity and gradual assimilation against advocates of promoting common culture via tough language laws. Most are now waiting to see what the nation's high court will do.
What it did yesterday was question whether the plaintiff's lawyer, Barnaby Zall, had a case at all. Mr. Zall complained that since the state of Arizona had not vigorously prosecuted Article 28, his organization, Arizonans for Official English (AOE), which helped put the law to a referendum, had that right. Yet several justices, led by Associate Justice Ruth Bader Ginsberg, seemed to strongly disagree. "Why didn't this case end," in the two lower courts, she asked. Since Arizona officials said no harm would come to its employees, "what controversy was left?"
If the case is decided on its merits, Arizonans for Official English v. Arizona, would have broad consequences. Article 28 represents the most stringent "English only" law in the nation. In most of the 23 states that specify "official English," the law is largely symbolic, similar to the declaration of a state flower or bird. But Article 28 applies to the speech of all state employees - whether a Mexican-American legislator greeting his constituents or a Navajo meter reader trying to explain a water bill to a native American housewife.
Violators of the law can be sued. "State bureaucrats have been loath to enforce these laws, but Arizona's laws allows citizens to go to court if the government won't," says Jim Boulet Jr., director of English First, a national lobby.
Yet the enforcement "teeth" in Article 28 is what makes it so objectionable to Robert Pohlman, the Phoenix attorney who yesterday argued the case against official English before the high court. What Pohlman focused on during his 30 minutes before the high court yesterday was trying to convince the justices that their main line of questions to Mr. Zall was correct and that the AOE did not have standing.
Legal scholars say if the court does debate the merits of the case, it will be the first time the US Supreme Court will apply the First Amendment to a citizen's choice of language - the right to speak or be spoken to in a different tongue.
But the case itself has been weighed down by an unusual number of procedural and technical problems that have many scholars feeling it was a bad case for the high court to take. For example, the former governor of Arizona no longer wishes to be associated with the case, and so AOE has sought to take his place. Nor does the original plaintiff Maria-Kelly Yniguez, who processed medical malpractice claims for Arizona, work for the state any longer.
That raises the problem of whether the case is moot, since the court usually votes on "live" issues.
A longtime court observer says that the fact that the nation's highest legal body would take such an explosive case and then discover later the many technical problems involved, "is what happens when you have 25-year-old law clerks doing the winnowing." The court review some 7,000 cases a year, some of them the hardest in the country. Each of the nine justices has three or four clerks recently graduated from law school to screen them.
The case arose when Ms. Yniguez filed a suit saying that Article 28 was a violation of her First Amendment rights, since she was not allowed to communicate, even informally or at her discretion, with clients who spoke only Spanish. After many bizarre twists and turns, the case ended up with a Ninth Circuit panel in San Francisco, which affirmed that Article 28 was a constitutional violation since it prevented Arizona officials from communicating on political issues with state residents, excluding them from knowledge about state services.
At times, the justices seemed to have trouble following the shifting pathways and actors involved in the case, with several of them losing track of the question amid the jumble of nominal damages, cross appeals, and waived immunities. Justice Antonin Scalia at one point, in a funny repartee with Chief Justice William Rehnquist, said of Zall, "He wants to have a case here, but I don't think it is here."
The Ninth Circuit also carved out a new First Amendment argument to the effect that Article 28 also violated many non-English speakers' rights to be spoken to in a language they could comprehend.
Anti-English-only lawyers confide that the weakest part of their case is the status of Yniguez, a state employee. Trying to argue that a state can't govern behavior of its employees will not be easy.
"Can't the state say 'Don't swear,' or 'Be polite,' or 'Speak English?'" says one otherwise sympathetic lawyer, who adds, "It would have been better to have someone adversely affected, not an employee, bring suit."