ARIZONANS FOR OFFICIAL ENGLISH v. ARIZONA
Maria Kelly F. Yniguez, an Arizona state employee, sued the state and various state officials alleging provisions of the state constitution, which declare English "the official language of the State," and allow state residents and businesses to bring suit to enforce the article, violate the Free Speech Clause of the First Amendment. Yniguez used both English and Spanish in her work and feared that the article would require her to face discharge or other discipline if she did not refrain from speaking Spanish while serving the state. The District Court dismissed the case against the state because of its Eleventh Amendment immunity, but held the article on English unconstitutional. The Court of Appeals accepted the case after Yniguez resigned and ultimately affirmed the District Court's ruling that the article violated the Free Speech Clause and announced that Yniguez was entitled to damages from the state.
Was a challenge to a state's efforts to make English its official language a justiciable controversy after the state employee who mounted the challenge left her government job?
No. In a unanimous decision, announced by Justice Ruth Bader Ginsburg, the Court held that the dispute was moot due to the previous resignation of Yniguez. The Court did not rule on the constitutionality of the article.
Argument of Barnaby W. Zall
Chief Justice Rehnquist: We'll hear argument now in Number 95-974, Arizonans for Official English and Robert D. Park v. Arizona.
Mr. Zall, and let me request of you, Mr. Zall, and also of your colleague that the Court is very interested in hearing a full discussion of the issues relating to standing, mootness, and jurisdiction, so we hope you'll devote a substantial part of your arguments to that.
Mr. Zall: Yes, Your Honor.
Mr. Chief Justice, and may it please the Court:
This First Amendment facial overbreadth case involves a Government employee who wanted to write her official documents in a language her supervisor did not understand.
Even if her choice of language on the job was speech, which is was not, it was the Government's speech, not hers.
Under Capital Square, Government runs no risk of a First Amendment violation when it restrains its own speech.
Official English statutes, which are simply restraints on the Government's own speech, do not violate the First Amendment.
It's a political choice.
One point was not treated sufficiently in the briefs.
Last term in County Commissioners v. Umbehr, a Government contractors case, the Court said that the Government's interest in speech depends on the speaker's proximity to Government.
The closer to Government, the greater the Government's interest.
Umbehr described a speech spectrum ranging from private citizens, in whose speech the Government has little interest, to Government employees, whose closeness to Government means that the Government is very interested in their speech.
Government contractors fell somewhere in between Government employees, who had the closest relationship to Government, and other speakers with less close relationships, and though not said in Umbehr, since Government is actually closest to itself, Government speech, the Government speech cases would be... would place very high on the Umbehr speech spectrum, beyond--
Unknown Speaker: Mr. Zall, this particular Government, at least the Attorney General, long before this case was decided by the district court said that the constitutional provision in Arizona did not prohibit the use of a language other than English where necessary to assure the fairness and effectiveness of the delivery or services to members of the public.
Why didn't that end this controversy?
The then plaintiff, the sole plaintiff in effect got all the relief that she sought, which was the assurance that she wouldn't be fired if she used a language other than English where necessary to assure the fair delivery of her service.
Mr. Zall: --Your Honor, we agree with the Attorney General's opinion as to its construction of Article XXVIII on the First Amendment grounds.
We also agree that the Attorney General appropriately considered equal protection matters.
Our concern is that the Attorney General's opinion relied on a case which, subsequent to the opinion, this court vacated on mootness, and that was an equal protection issue.
Unknown Speaker: Did the Attorney General withdraw that opinion as the official interpretation of the State's executive?
Mr. Zall: It did not, Your Honor.
Unknown Speaker: So that's the law as far as the executive's... as far as official Government in Arizona is concerned, so my question is, why didn't this case end?
Wasn't it moot at that point?
Mr. Zall: Your Honor, I believe the plaintiffs in the case said that the next Attorney General could issue another opinion and the Attorney General's opinion was not binding on the courts, therefore they felt that they still had a viable case, and the district court disagreed with the Attorney General's interpretation and decided not to abide by it, as did the Ninth Circuit.
Unknown Speaker: Well, is... it's not a question of what the district court independently might think the law was.
The question was, was the plaintiff at any risk of losing her job when the official interpretation, the State's interpretation, was that what she was doing was all right?
Mr. Zall: I think the answer to that question is she was at no risk of losing her job, Your Honor.
Unknown Speaker: Well, didn't... what controversy was left, then, if she was at no risk of losing her job?
Mr. Zall: I believe, Your Honor, that although that was... that's the correct interpretation, she did not agree with that and asked the court on a slightly different ground, which is that she was not... excuse me.
The district court handed down a decision on a slightly different ground, which is that although she was not at risk from losing her job, it decided this was a facial overbreadth case and felt somehow there were some risk to other Government employees who were not before the court.
Unknown Speaker: What basis would there have been for that?
I mean, the Attorney General's statement of State law was not a statement which was peculiar to her.
Mr. Zall: I think that's correct, Your Honor.
Unknown Speaker: So the district court was wrong, wasn't it?
Mr. Zall: I believe the district court was wrong, Your Honor.
This never should have been a facial overbreadth--
Unknown Speaker: So at that point the case was certainly moot, even if we make the assumption that there was a case or controversy at some point.
And it probably became moot when Ms. Yniguez left her State employment, I would have thought, at the very least.
Mr. Zall: --Your Honor, the central point of mootness is whether this Court's decision can affect the legal rights of the parties before it.
Unknown Speaker: Well, who do you represent, exactly, here?
Is it that organization that helped put it on the ballot--
Mr. Zall: Yes, Your Honor.
Unknown Speaker: --and a Mr. Park?
Mr. Zall: Yes, Your Honor.
Unknown Speaker: And how is it that they have standing in this case at this juncture?
Mr. Zall: Petitioners have standing because the lower court decisions affected their legal rights.
They have legal rights created by the State.
Unknown Speaker: What kind of rights does your organization have, AOC, or whatever it is?
Mr. Zall: AOE--
Unknown Speaker: You assume that it's some kind of legislative standing for them?
What is it you're arguing for that would give them standing?
Mr. Zall: --In footnote 17 of Diamond v. Charles the Court noted that a State may create interest the invasion of which would give standing in Federal court.
That's exactly what we have here.
The State created an interest in petition--
Unknown Speaker: I would have thought Diamond v. Charles would require us to say that the organization does not have legislative standing.
Mr. Zall: --Your Honor, Diamond v. Charles as I read it is predicated on the ability to create and enact a legally enforceable code, citing Snapp.
Unknown Speaker: But how does that give the organization here standing, Arizonans for Official English?
Mr. Zall: Well, that goes back to the standing question for organizations, Your Honor.
There are two ways that we have standing.
One is the invasion of our ability to go into State court.
Unknown Speaker: Well, once the thing is adopted by the voters, I don't see what standing that organization has to litigate in Federal court.
Along that same line, how is your organization any different from any citizen in the State of Arizona?
Mr. Zall: Your Honor, the statute... the citizens' suit provision in Article XXVIII, section 4 permits any person or organization doing business in Arizona to enforce Article XXVIII in State court.
That would not, in and of itself, give standing.
Unknown Speaker: Well, why wouldn't that just be a State law cause of action?
Mr. Zall: It is a State--
Unknown Speaker: I mean, how do you get to Federal court?
Mr. Zall: --Because the Federal court decision eliminated that State court right.
It would be the equivalent of our having any other State interest, State granted interest which the Federal court's action then eviscerated.
We would have the right to come to Federal court and say, we fought hard for that right.
Unknown Speaker: Well, that part of your answer then seems to me that you're agreeing that you're no different than any other citizen of the State of Arizona.
Mr. Zall: I think that's not correct, Your Honor.
I think because we are the proponents and we expect... it was our court purpose to get that right under--
Unknown Speaker: Well, but you were just the mechanism for putting something on the ballot.
Unlike a legislature, the voters didn't give any authority to you.
They voted for a measure.
Mr. Zall: --That's true, Your Honor, but the question--
Unknown Speaker: Would a Senator who sponsors a bill have standing to challenge a court's evisceration of the bill after it's been adopted as a statute--
Mr. Zall: --The Senator--
Unknown Speaker: --on the ground that he's... you know, it's my bill.
It was my idea.
Mr. Zall: --No, Your Honor, the Senator alone probably not, but the legislative body itself would under Chadha, and I think that that's a situation where--
Unknown Speaker: Is that clear that where the courts misinterpret a statute the Congress that passed the statute has standing to challenge the court's interpretation of it?
Mr. Zall: --Not quite at that point, Your Honor.
What Chadha says is, where the executive branch and the challenger both agree that the provision is unconstitutional, Congress was the appropriate body to defend the statute.
Unknown Speaker: Well, but Congress is a standing branch of the Government with ongoing duties and responsibilities, and it was vitally interested in the one-House veto from the standpoint of its institutional capacity.
All your organization did was put something on the ballot.
Mr. Zall: Your Honor, the same situation applies in Arizona, where the Arizona constitution, Article IV, provides that the voters themselves have the right to an initiative, and this is a matter in which this would affect the voters' right of initiative.
Unknown Speaker: Mr.--
--Is your claim... I'm sorry.
I had one.
Are you claiming that the Arizona provision therefore creates Article III standing for any Arizona citizen in a Federal court?
Mr. Zall: No, Your Honor.
I'm suggesting that in certain limited circumstances the invasion of the right would give someone standing to complain about it, and the difference is--
Unknown Speaker: But what is the invasion of the right which would be in any way different from an invasion which any citizen simply as a citizen could claim?
Mr. Zall: --Your Honor, the invasion of the right is the elimination of the right.
That goes to the injury question, the prudential question.
Unknown Speaker: Well, in... then I think what you're saying is that any citizen could have Article... would have Article III standing.
Mr. Zall: I don't believe so, Your Honor, because the individual interest... t he individual injury to each citizen is so small relative to everyone else that there is no differentiation, but to the initiative proponent, just as in this Court's decision in the Term Limits case, where the State was present, just as the State is present here, the initiative proponents were able to come forward and make their best case.
Unknown Speaker: Because the State was present making the argument on the merits, but here we don't have that.
I think the State is telling us this case is moot, right?
Mr. Zall: Your Honor, that's the State's position, but lower... in the lower courts they were quite clear on their position on the merits.
It's only when they came to this Court that they brought up once again this issue.
Unknown Speaker: Yes, but this Court is bound by a case or controversy requirement, and the State is acknowledging that that no longer exists.
You did say one thing, Mr. Zall, that puzzled me, and perhaps I misunderstood you.
You said that you were now disabled because the Federal court had eliminated your right, but it was not my understanding that a district court or a court of appeals is a higher authority on a question of Federal constitutional law than, say, the supreme court of Arizona.
Mr. Zall: Your Honor, I'm sure that's true as to the interpretation of State law, but not necessarily the application of Federal law to State law, but leaving that aside--
Unknown Speaker: Do you think... is the... are the Arizona State courts bound by what the Ninth Circuit thinks Federal constitutional law is?
Mr. Zall: --I think the courts are split on that, Your Honor.
I know the Arizona position is that they are not bound, but there are cases--
Unknown Speaker: So that's... since that is the position of the State courts in your State, then nothing has been eliminated by anything that a district court or the court of appeals said.
Mr. Zall: --Well, Your Honor, as to us, and this goes to our own unique situation and why we're different from everyone else--
Unknown Speaker: Unless the plaintiffs can sue in Federal court.
I mean, I assume what you're worried about is that any State employee who doesn't want to abide by this provision would simply bring a 1983 action in State court... in Federal court, and the Federal district court at least would be bound by the determination of the court of appeals here and would apply the opinion that you don't agree with.
Mr. Zall: --That's our concern, Your Honor under--
Unknown Speaker: If we were to find that your organization does not have standing here, I guess... and for that reason dismiss the case, I guess the consequence would be that the court of appeals judgment would stand, because you just came in at this last stage, right?
Mr. Zall: --No, Your Honor.
We attempted to intervene.
Unknown Speaker: You attempted to intervene, but you were not a party in the court of appeals.
Mr. Zall: We were a party in the court of appeals Your Honor.
In the 939 Fed. 2d opinion, Yniguez won.
We were permitted--
Unknown Speaker: But there were other parties on your side of the case in the court of appeals.
Mr. Zall: --Well, because of a fairly bizarre application of 2403(b), we were the only group that the court designated as a party.
Unknown Speaker: You were not a party in the district court.
The district court denied your motion to... your post judgment motion to intervene, is that right?
Mr. Zall: That's correct.
Unknown Speaker: And you didn't seek to enter the litigation before the judgment in the district court.
Mr. Zall: That's correct.
Unknown Speaker: And was the reason that you didn't because you thought that the State was going to defend the provisions?
Mr. Zall: Yes, Your Honor.
That's what the Ninth Circuit found also, and we did receive those assurances.
Unknown Speaker: What about after the Attorney General took a position with which I gather you disagreed about the narrowness of the provision?
Mr. Zall: Your Honor, in the district court the State's position was completely... was the same as ours.
They argued the constitutionality.
They argued one additional factor, which was the Eleventh Amendment, and ultimately the court, the district court accepted their Eleventh Amendment argument but rejected their constitutional argument.
Unknown Speaker: Get back to the point I'm concerned about.
If you don't have standing here, the decision, at least of the district court, remains in effect, isn't that right, because you... your standing has nothing to do with the district court judgment.
Mr. Zall: Unless this Court vacates it, or--
Unknown Speaker: Why would we vacate?
They were proper parties.
If we take the ground that you're not a proper party here, nor were in the court of appeals, the district court judgment would still stand.
Mr. Zall: --Your Honor, if--
Unknown Speaker: I assume.
Mr. Zall: --I'm sorry.
If... since the State attempted to intervene in the district court level under 2403(b) and was reversed, I believe that the appeal, at least of that order, is still properly before this Court, and I think that--
Unknown Speaker: I thought the Governor was a party in the district court, wasn't he?
Mr. Zall: --The Governor was, Your Honor.
Unknown Speaker: And the Governor thought the constitutional provision was invalid, I understand, Governor Mofford.
Mr. Zall: --She did, Your Honor.
Unknown Speaker: And the Attorney General said it's not enforceable in the circumstances that Yniguez said it was, so it seems to me that there's no controversy before the Court if you have no standing.
Mr. Zall: Your Honor, if we have no standing, and the argument is that the district court's opinion stands, then you will have in essence private constitutional review.
Unknown Speaker: Well, under our Bankcorp decision it seems to me that even though we were to conclude you have no standing, that does not mean we would simply dismiss the petition for certiorari if we find that there was a defect further below, that there was... either controversy either had become moot, or there was no case or controversy in the first place.
This Court would then have the authority to vacate the opinions below, I believe.
Mr. Zall: I believe that's also the position of the States in its briefs, Your Honor.
Unknown Speaker: Why would we vacate the opinion below?
That is to say, I can see if you were the only party before the Ninth Circuit and you don't have standing, then we'd vacate that, I guess.
There was no controversy because they weren't parties.
But in the district court, prior to Ms. Yniguez leaving her job, the district court reached its decision and then the other party to the case, the Governor, decided not to appeal, so there was no appeal, and therefore the district court decision stays in place.
I suppose there is a question, though, which I had already asked you, about whether there was even--
--a controversy at the district court.
--because the Governor took the same position as Ms. Yniguez.
Whether there was ever a controversy.
Mr. Zall: Your Honor, I think there's also a question--
Unknown Speaker: So could you go back... I mean, I'm quite interested in your response to Justice O'Connor's question.
Mr. Zall: --As to whether there was ever a controversy in the district court, Your Honor?
Unknown Speaker: Yes, because that would seem to be determinative, wouldn't it, about whether or not we vacated, assuming you lose all the other points, the district court decision or just vacated the court of appeals decision, so I think your response would be important on that.
And of course if you left that in place you could review the matter in some other case.
I mean, you're not deprived of constitutional review.
Was there ever a point when the Governor was adverse to the plaintiff in this case, and there was one statement that the Governor said that she would comply with the constitutional amendment, and she expected every other State official to do the same.
Now, was there ever any adversary contest in the district court, or did we have a friendly lawsuit throughout?
Was there ever any point where the Governor took the position before the district court, I am defending the constitutionality of this State constitutional provision?
Mr. Zall: I believe that was the position of the State throughout the district court--
Unknown Speaker: State meaning government, because it's hard to tell who is the State in this case.
Mr. Zall: --I'm sorry.
The State was a party until December 21, 1988, when it was dismissed on Eleventh Amendment grounds, and then the complaint was refiled without the State.
Unknown Speaker: But would... and then the Governor, as the chief executive officer of the State, did she ever take a position in opposition to the plaintiff--
Mr. Zall: I believe--
Unknown Speaker: --in the litigation?
Mr. Zall: --Yes.
I believe the answer is yes.
In the litigation the Governor's position, as articulated by the Attorney General, who was representing all the parties in that--
Unknown Speaker: Including the Governor.
Mr. Zall: --Including the Governor.
Unknown Speaker: Well, but--
Mr. Zall: But before--
Unknown Speaker: --I had thought that they had conflicting positions.
I had thought that the Governor indicated that she agreed with the district court that it's unconstitutional, but that the Attorney General said that it would not be enforced against Yniguez, but even if we take those two combined, it seems to me that there's no controversy.
Mr. Zall: --Your Honor--
Unknown Speaker: There's no... at least there's no threat.
There's no threat to the employee.
Mr. Zall: --The Attorney General's position was, both prior to the opinion in the litigation, that there was no threat to the employee, and at the point of the opinion said, in essence, there's no--
Unknown Speaker: So at that point where was the controversy?
Mr. Zall: --Since this is a First Amendment case, Your Honor, what's concerning me is that the Court is very solicitous towards concerns of chilling First Amendment speech, and because the--
Unknown Speaker: You're chilled if there's a threat.
You're not chilled if there's no threat.
I mean, that's... don't you need a threat to be chilled?
Mr. Zall: --I think Your Honor's question is whether you would need a realistic threat to be chilled.
I think a perceived threat which chills speech might be--
Unknown Speaker: You have an unrealistic threat--
Mr. Zall: --Well--
Unknown Speaker: --that chills you?
Wouldn't an unrealistic threat produce an unrealistic chill?
Mr. Zall: --I think it would, Your Honor.
Unknown Speaker: May I ask another question about the status of the case?
I take it the defendants never filed an answer, or did they?
Mr. Zall: Defendants did file an answer, Your Honor.
Unknown Speaker: Including the defendant Catherine Eden?
Mr. Zall: I'm sorry, Your Honor, I think I misspoke.
I believe the defendants did not file an answer in the--
Unknown Speaker: Was--
Mr. Zall: --They filed a motion to dismiss.
Unknown Speaker: --One of the defendants was Catherine Eden, the director of the Department and so forth and so on.
Was her position ever made known formally of record?
Mr. Zall: Other than the Attorney General's representation, her own personal position, Your Honor?
I don't think so.
Unknown Speaker: Can you tell me, is the director of this employee's Department bound by the Attorney General's interpretation of the act?
Mr. Zall: Although the Attorney General's opinion is not binding on the courts--
Unknown Speaker: Is it binding on this agency?
Mr. Zall: --The director of the Department of Administration?
I don't know the answer to that, Your Honor.
Unknown Speaker: Not much use being an Attorney General, I would guess, if your opinions on the law are not binding on the other executive officers.
You might as well not have one.
Mr. Zall: Well, Your Honor, I believe the Attorney General's opinion power as under ARS 41-193 (A) is in the statute, but the courts have decided that they're not binding on--
Unknown Speaker: Oh, they're not binding on the courts, I've no doubt about... let me ask about damages.
Did the district court award nominal damages?
Mr. Zall: --Yes, Your Honor, following the Ninth Circuit en banc opinion.
Unknown Speaker: Following the Ninth Circuit en banc opinion--
Mr. Zall: Yes.
Unknown Speaker: --but not originally?
Mr. Zall: Correct, Your Honor.
Unknown Speaker: And the Ninth Circuit used as the basis for its jurisdiction once Yniguez was no longer employed and the case would otherwise be moot the fact that... what?
Although the district court had not... although she... had she asked for nominal damages?
Mr. Zall: Not specifically, but she had asked for all other relief.
Unknown Speaker: All other relief.
Mr. Zall: Which is what the Ninth Circuit--
Unknown Speaker: And the Ninth Circuit en banc sent it back saying that you could have awarded nominal damages, even though the court had not awarded nominal damages.
Mr. Zall: --That's correct, Your Honor.
It also said that Ms. Yniguez--
Unknown Speaker: But since it hadn't awarded nominal damages, why wasn't the case moot once she left employment?
Mr. Zall: --The Ninth Circuit felt that she had--
Unknown Speaker: It could--
Mr. Zall: --the right to ask for nominal damages, and that was enough.
Unknown Speaker: --Well, that's... so retroactively the Ninth Circuit said go back and get nominal damages and that will retroactively keep the case alive.
Is that what the Ninth Circuit did?
Mr. Zall: I think what they're asking is that she could ask for it.
It was the request and the expectation rather than the--
Unknown Speaker: But the case was over below.
She had gotten her relief.
The relief did not include nominal damages.
The only relief it got was injunction against enforcing this against her in the future.
Then she leaves the State employ.
There's nothing left to the case, right?
Mr. Zall: --Actually, there was no injunction issued, either.
Unknown Speaker: Well... just a declaratory judgment.
Mr. Zall: Just a declaratory judgment.
Unknown Speaker: So that she would know that she wouldn't be threatened, or chilled, unrealistically or realistically, whatever.
Mr. Zall: The court felt that--
Unknown Speaker: And the Ninth Circuit said, however, although there's nothing here that... once you've left employment there's really nothing at issue any more, there could be something at issue if the district court had granted you nominal damages, and we will remand to the district court to have the district court, if it wishes, grant you nominal damages, whereupon, retroactively, our jurisdiction on the appeal will be valid.
Is that what the district court of appeals did?
You can object to the question as leading.
Chief Justice, I'm leading him where he doesn't want to go.
--he wants to have the case here, but I don't see how it's here.
That's characteristic of all leading questions.
Mr. Zall: --I think, given the context, my proper answer should be yes, but I think my answer's actually no, Your Honor, because I think what it was suggesting was that in the peculiar circumstances before the court at the time there were still legal rights between the parties before the court, which it had made parties, which could be determined by the court on the facts in front of it.
Unknown Speaker: Yes, but there was no legal right to damages, was there?
I mean, the Ninth Circuit... apart from everything else that Justice Scalia recited, the Ninth Circuit was also wrong in suggesting that she would have a right to nominal damages, wasn't it?
Mr. Zall: I think under the Eleventh Amendment that's correct, Your Honor.
Unknown Speaker: May I ask you what... in your judgment what we should do with the case?
Mr. Zall: If--
Unknown Speaker: You must have a position.
Mr. Zall: --Yes, Your Honor.
Unknown Speaker: You represent a client before us.
And I'm curious to know what your position, independent of all the questions that have been asked of you--
--Perhaps we could have it printed in a casebook on jurisdiction.
Mr. Zall: Obviously, our preference is to have the Court decide the merits, since we believe that the rights of petitioners and respondents would be determined at that point, but if the Court finds that this case was moot, either from the start there was no subject matter jurisdiction, then clearly we would ask the Court to vacate all the way down.
If there are no other questions, I'd like to reserve--
Unknown Speaker: Very well, Mr. Zall.
Mr. Pohlman, we'll hear from you.
Argument of Robert H. Pohlman
Mr. Pohlman: Mr. Chief Justice, and may it please the Court:
When the State of Arizona determined in its exercise of it sovereign judgment that it would not join in the petition for certiorari in this case and that it would not appeal the final judgment in Ms. Yniguez' favor for nominal damages in the district court, this case became one without an Article III case for controversy and should have concluded.
We would ask that this Court dismiss the petition because the petitioners lack standing to maintain this action in this Court.
Unknown Speaker: I certainly agree with that, but why didn't it suddenly become nonexistent as soon as the district court entered a judgment that didn't include nominal damages and the petitioner later, and before the appeal, resigned from her State employment?
Why didn't it become moot then?
Mr. Pohlman: It wasn't moot for a number of reasons, Justice Scalia, one of which is that there was a final unappealed judgment in favor of the... Ms. Yniguez against Governor Mofford, so that judgment was binding and final long before she left State employment.
Unknown Speaker: Well, why was there a case or controversy in the district court, please?
Mr. Pohlman: In the district court there was a case or controversy initially because, as a factual matter, the district court found that Ms. Yniguez had suffered an injury in fact in that she... her First Amendment rights had been chilled.
Unknown Speaker: Well, the Government... the Governor agreed that the proposition was invalid.
Mr. Pohlman: The Governor agreed after the judgment, Your Honor, Justice O'Connor, that it was invalid.
Unknown Speaker: Well, there was never... there was never an answer on the merits, was there?
There was just a motion to dismiss by Arizona.
Mr. Pohlman: There... I don't recall, Justice O'Connor, whether there was an answer.
Unknown Speaker: Isn't that right?
Isn't that all there was?
Mr. Pohlman: I don't recall if there was or not.
I tend to believe there was an answer because the case went on for so long below, and actually went to trial.
Unknown Speaker: But at any point in the litigation did either the Governor or the Attorney General indicate that your client would be disciplined for using Spanish?
Mr. Pohlman: There was... Justice Kennedy, there was no specific indication.
However, there was a finding that Governor Mofford intended to enforce the article, that she expected Government employees to enforce the article and to comply with the article, and that therefore Ms. Yniguez had a chilling effect on her First Amendment rights that was caused by Governor Mofford, and that's found in the appendix to the petition for certiorari at pages 102 and 103.
Unknown Speaker: What was the basis for that finding?
Mr. Pohlman: It was Governor Mofford's outspoken indication that she intended to enforce Article XXVIII, and that she expected Government employees to comply.
Unknown Speaker: But in view of the Attorney General's opinion, enforcement of it does not seem to have a realistic prospect of any effect on Ms. Yniguez.
Mr. Pohlman: First, Mr. Chief Justice, Ms. Yniguez did not have the benefit of that particular Attorney General's opinion until some 3-1/2 months after this litigation was commenced, so for that 3-1/2 month period of time, her rights were obviously chilled.
Unknown Speaker: Well, but if they were chilled for 3-1/2 months and then all of a sudden unchilled, the lawsuit doesn't go ahead on the basis of what was the case earlier, does it?
Mr. Pohlman: It doesn't, Mr. Chief Justice.
However, in the case of the Attorney General's opinion below, that opinion was found to be nonbinding.
The district court judge recognized that the... a different Attorney General may well have a different opinion.
Unknown Speaker: Nonbinding on whom?
Mr. Pohlman: The... it was not binding on any court.
Unknown Speaker: Ah.
Mr. Pohlman: It was binding--
Unknown Speaker: But the court wasn't... but the claim wasn't that the court was going to prosecute her.
The claim was that someone representing the State, the Governor, the Attorney General, or her supervisor was going to bring some action against her, and the opinion, I presume, was binding on those people, possibly with the exception of the Governor, but it was binding on the others, wasn't it?
Mr. Pohlman: --My understanding, Justice Souter, is that it would be binding on those lower administrative employees, including Catherine Eden, who was one of the defendants who was--
Unknown Speaker: So that leaves the Governor, and isn't it also the case that prior to the district court judgment, in any even prior certainly to the expiration of the appeal period, the Governor herself had gone on record in her own right as saying that she thought it was proper to use English if necessary to discharge one's duties in a reasonable way.
Isn't that correct?
Mr. Pohlman: --In the record, Justice Souter, the Governor always said that she would enforce the article until such time as the judgment was entered by the district court.
At that time, she indicated she did not intend to appeal, but she also thought it was--
Unknown Speaker: No, but didn't she at some point, and I'm not positive of what this moment was, didn't she also indicate, quite apart from her general position that the amendment should be enforced, that she believed it was proper for a State employee to use some non-English language if that was reasonable in the discharge of the employee's duties?
Didn't she say that?
Mr. Pohlman: --That's not my understanding, Justice Souter.
That language was included in the Attorney General's opinion, which was in January, of course, after the lawsuit had been initiated, and--
Unknown Speaker: But well before judgment was reached in the district court.
Mr. Pohlman: --Yes, Your Honor, before judgment was reached and before trial, and at the trial the district court judge determined that, notwithstanding that Attorney General's opinion, given what Governor Mofford had said in public, and given the immediacy of the chilling effect on Ms. Yniguez' rights, that there was, in fact, an injury in fact to her, notwithstanding that opinion, and that is why he entered the declaratory relief--
Unknown Speaker: Is your view that there should be no vacation of any decision, not the Ninth Circuit's, and if that is your view, how can, at least with respect to the Ninth Circuit when the plaintiff was no longer in the State's employ and before the Ninth Circuit reached its judgment, how can you defend keeping that judgment on the books?
Mr. Pohlman: --Justice Ginsburg, I think what we do is, we look at the Bonner Mall Partnership case, and we find that vacatur is an equitable doctrine.
If we look at the equities as to what occurred first in the district court, there was no appeal by the Governor.
It was a final unappealed judgment long before Ms. Yniguez left Government service.
Therefore, that judgment, in our view, cannot be vacated under Bonner Mall Partnership.
But if you look at the equities with respect to the Ninth Circuit, at the time that that judgment was entered, Mr. Zall's group and the Attorney General sought to intervene for purposes of taking an appeal of the judgment at that time.
Ms. Yniguez had no reason at that juncture to appeal her claim for nominal damages because the district court said we will not allow this judgment to be appealed.
No one has an interest to appeal it.
It is going to stop right here.
And so all that was on appeal--
Unknown Speaker: Well, how can a district court prevent someone from appealing?
I can see how the court of appeals could say there is no interest, but what did the district... did the district court enter some sort of an order that they couldn't appeal?
Mr. Pohlman: --No, Your Honor.
What the district court did was to deny the motions of Mr. Zall's group, Arizonans for Official English, and the Attorney General, to intervene for the purpose of taking an appeal.
Unknown Speaker: What you're saying is no one who was then in the lawsuit was interested in appealing.
We had the plaintiff and the Governor, and that's it, right?
Mr. Pohlman: Exactly.
Unknown Speaker: And it was only after final judgment was entered with respect to those two parties that additional people asked to come in, one AOE and the other the Attorney General.
Mr. Pohlman: That's correct, Your Honor.
Unknown Speaker: And the district court said no, I deny your motion, your post judgment motion to intervene.
Mr. Pohlman: That is exactly--
Unknown Speaker: And the first thing that the court of appeals did was to reverse that denial as to AOE, right?
Mr. Pohlman: --That is correct.
Unknown Speaker: And then what the district... what the court of appeals did concerning the Attorney General I'm not altogether clear.
Was the Attorney General, in your view, a party in the case at the appellate level?
Mr. Pohlman: I... yes and no, and the reason I answer it that way, Justice Ginsburg, is because they were permitted to intervene under... and I would share Mr. Zall's view that it's kind of a bizarre application of 28 U.S.C. 2403(b), but the Attorney General is permitted to intervene for the purpose of arguing the constitutionality of the amendment.
That statute provides that the Attorney General may do so or the State may do so and has all the rights and obligations of a party, but they're not exactly a party, although they have all rights and obligations, including the right to petition for certiorari to this Court.
Unknown Speaker: But the State's position, as I understand it, is that the case became moot when the plaintiff left the State's employ, and that happened before the Ninth Circuit's judgment.
Mr. Pohlman: Justice Ginsburg, that's the State's position of the day, although their position has never been consistent throughout this litigation.
Unknown Speaker: Whose has?
Yes, that's for sure.
Mr. Pohlman, I don't understand why you said it was okay for your client not to appeal the denial of nominal damages.
Mr. Pohlman: Justice--
Unknown Speaker: She was the plaintiff.
The Governor was the defendant.
The district court denied her nominal damages against the Governor.
Now, to be sure, the Governor then said, I don't want to appeal, but why couldn't your client have said, but I do?
I have been denied nominal damages.
I think I was entitled to them, and I want an appeal.
Mr. Pohlman: --Justice Scalia, she could have appealed at that juncture.
Unknown Speaker: Well, I thought Yniguez never even asked for nominal damages in the district court.
Mr. Pohlman: We did not ask for--
Unknown Speaker: For such other relief.
Mr. Pohlman: --We did not ask for nominal damages in the district court at the initial phase.
We asked for all... anything that might be just and equitable in premises in a traditional addendum clause.
In the Ninth Circuit, that is--
Unknown Speaker: Well, actually, you put in zero zero on dollar amounts, did you not?
Mr. Pohlman: --With respect to damages?
Unknown Speaker: Yes.
Mr. Pohlman: I don't recall that being in the judgment.
Unknown Speaker: Even if such other relief as may seem just and proper... are they still using that language in Arizona complaints +/?
that's good enough to keep... to leave the question open for the district court, but when the district court at the end of the case does not grant nominal damages, then it seems to me you've got a much different question.
For the Ninth Circuit to send the thing back and say you could have asked for nominal damages seems extraordinary.
Mr. Pohlman: Mr. Chief Justice, they are still using that language in Arizona, and what occurred, really, is the Ninth Circuit said, because we had requested at the time that if it goes back, and if there ever is an appeal from the judgment on the merits, which there had not been previously, there had only been an appeal that... a procedural question of whether or not Mr. Zall and his group and the Attorney General could intervene, because up to that point in time Ms. Yniguez had a declaratory judgment in her favor.
She had no reason, as long as the actual judgment was not in jeopardy, to go and ask the district court to spend the time to get $1 in nominal damages.
Unknown Speaker: When she did ultimately cross-appeal... she did ultimately cross-appeal after the Ninth Circuit reversed the district court's intervention order, correct?
Mr. Pohlman: That's correct.
Unknown Speaker: Now, what was the basis for her cross-appeal.
What was she asking on the cross-appeal?
Mr. Pohlman: She was asking for a judgment of nominal damages in her favor based upon the rights that she had... had been found to have been violated in the district--
Unknown Speaker: On the cross-appeal, but since she had made that claim only on cross-appeal, if AOE's appeal was improper because it's an improper party, then her cross-appeal fails because her cross-appeal was only derivative of the main appeal, isn't that correct?
Mr. Pohlman: --We don't believe so, Justice Kennedy, and the reason is this.
The State at that point in time was still in the case as an intervenor under 2403(b).
In fact, the State actively opposed the nominal damages cross-appeal, filed its own appeal with respect to procedural aspects of the case, and later, after the Ninth Circuit remanded for the purpose of award of nominal damages, or at least entered its decision, the State expressly waived its right, or its immunity under the Eleventh Amendment.
Unknown Speaker: When did the nominal damages cross-appeal occur?
I'm not clear on that.
When did that occur?
Mr. Pohlman: Within 30 days of the first appeal on the merits, by either of the--
Unknown Speaker: Could we go back just one step?
We have... was this a 1983 action in the district courts--
Mr. Pohlman: --Yes--
Unknown Speaker: --Section 1983?
Mr. Pohlman: --Yes, Justice O'Connor.
Unknown Speaker: And have we not held in cases like Will v. Michigan that States and State officials like the Governor are not persons under 1983?
Mr. Pohlman: For purposes of damages?
Unknown Speaker: Yes.
Mr. Pohlman: I think--
Unknown Speaker: So how could the district court ever, under a 1983 suit, assess even nominal damages against the State?
Mr. Pohlman: --It's my understanding that under the Ex parte Young doctrine there can be an award of nominal damages, and I don't have the case before me.
I would be happy to submit a letter brief, Justice O'Connor, if that would assist the Court, but in any event what occurred was the nominal damages were awarded in the face of an express waiver of immunity by the State of Arizona.
Unknown Speaker: Where do we find that express waiver in the record?
Mr. Pohlman: That would be on page 32 of our appendix in Ms. Yniguez' brief, which is the letter from the Attorney General, at that point in time Grant Woods.
Unknown Speaker: In your brief on the merits here?
Mr. Pohlman: Yes.
Our appendix in the brief on the merits, Justice O'Connor.
And it's for that reason that we believe that we properly have damages awarded for $1 and proper damages were awarded.
The judgment in fact was entered in November of last year, and that can be found at page 211 of the joint appendix.
Unknown Speaker: Mr. Pohlman, I take it you are recognizing that the Attorney General was a proper party adverse to you in the court of appeals.
I gather that from footnote 10 on page 23 of your brief.
You seem to say there that while you have consistently argued that AOE has no standing, that doesn't require vacating the Ninth Circuit's opinion because the State has standing.
Mr. Pohlman: That's quite accurate.
Unknown Speaker: Now, if that's so, the State's position here is that the case is moot, at least when the plaintiff left the employ of the State of Arizona.
When mootness occurs in between the district court and the court of appeals, isn't Munsingwear the rule that we follow?
The State is an appellant.
It says, we have no responsibility for the plaintiff leaving the employ.
We didn't get a chance to get appellate review, so the district court decision has to be vacated.
If the State is legitimately a party, as you seem to concede on appeal, doesn't that follow?
Mr. Pohlman: Justice Ginsburg, that would follow normally under Munsingwear if, in fact, there had been no judgment for nominal damages, that had not been appealed and had actually been expressly waived, that judgment by the State, and they had opposed that all the way through the Ninth Circuit and then decided after that judgment was entered to eschew a judicial review of that.
Unknown Speaker: So you're hanging everything on that $1 of nominal damages.
Mr. Pohlman: No, Justice Ginsburg, I would not say that.
I would say that that is one of the aspects of this case upon which we hang our hat for purposes of case or controversy.
Unknown Speaker: Well, what else is there?
Let's leave out the $1 nominal damages.
We have a case that's a perfectly good final judgment.
We have an appellant that you concede is a proper appellant, the State.
The case becomes moot through no... nothing that the appellant has done between the district court and the court of appeals.
Isn't our normal practice in that situation to vacate the district court's decision?
Mr. Pohlman: Absent the nominal damages under normal circumstance, Justice Ginsburg, I think that would be the case.
However, here we have a First Amendment overbreadth case, and to add to some of the procedural dilemma below at the time the suggestion of mootness was made by the Solicitor General who replaced the original Solicitor General in the case, we had at that time pending an appeal by State Senator Jaime Gutierrez, whose appeal unfortunately got lost in the docketing system of the Ninth Circuit, and it was agreed--
It was agreed between the parties, and we can find this in the joint appendix, but it was agreed between the parties at that point in time, that being the State and Ms. Yniguez and AOE, that if the matter were to be remanded for consideration on the merits, then the appeal of Senator Gutierrez would also be joined with it.
That never occurred for reasons which are--
Unknown Speaker: And what was his standing?
Mr. Pohlman: --Senator Gutierrez was a State legislator at the time.
Unknown Speaker: He had the same standing as the petitioner does here, in other words.
Mr. Pohlman: I would say he had much greater standing in the sense that--
Unknown Speaker: He voted for this measure?
Mr. Pohlman: --Senator Gutierrez would not have voted for this, Justice Stevens.
He's bilingual and a State legislature who often communicated with his constituents--
Unknown Speaker: In other words, he voted against it.
Mr. Pohlman: --I would expect he voted against it.
Unknown Speaker: So what... again, what is his standing?
Mr. Pohlman: A State legislator whose conduct was threatened by Article XXVIII in that he routinely, as many State legislatures... legislators do, communicated with his constituents during the performance of Government business in languages other than English.
Unknown Speaker: Your position, Mr. Pohlman, is that AOE has no standing here, I take it.
Mr. Pohlman: Yes.
Unknown Speaker: And where does that leave people who vote and perhaps organize to get a referendum passed.
Typically the Arizona constitutional convention, one of the reasons for referendum was that you couldn't get something through the legislature because of special interests, so let the people do it.
The referendum passes, and the Governor and the Attorney General hypothetically say, you know, we don't like this thing, we're not going to defend it.
Who then defends the action?
Mr. Pohlman: Once it gets to that point in time, Mr. Chief Justice, I don't think anyone defends the action.
I think it is the obligation of the State to defend that action and indeed, they did in this case.
Unknown Speaker: What if they don't, though?
I mean, they say we don't like the bill.
We're just going to let it go.
Mr. Pohlman: In that event I would suggest to Mr. Chief Justice that the voters who passed the initiative would probably change the administration when they next went to the polls.
Unknown Speaker: But there's no way for anybody to come in and defend the initiative if the Governor and the Attorney General won't do it.
Mr. Pohlman: In our view, that would be the case.
Unknown Speaker: Well, there is a citizens suit provision, and the citizens can sue in State court to enforce something that's been validly passed under the very terms of the provision that was passed, is that not so?
Mr. Pohlman: There is, indeed, an enforcement provision in the--
Unknown Speaker: Anybody who claims to be adversely affected.
Mr. Pohlman: --Anyone who desires, I believe, Your Honor, to enforce the provisions.
Unknown Speaker: So there is a citizens suit provision.
Somebody can come into court and raise it.
Mr. Pohlman: Your Honor, I'm not so sure that a citizens suit provision in an initiative like this would give any citizen of the State of Arizona then carte blanche under Article III to challenge a declaration by the--
Unknown Speaker: I guess we don't worry about Article III in State court actions.
Mr. Pohlman: --You're right, in State court they could challenge it, and that challenge would still be viable today.
Unknown Speaker: Exactly.
Well, but where the question is based on the Chief Justice's inquiry, followed by Justice O'Connor, is we're assuming the State officials do not enforce the act, and Justice O'Connor points out that the initiative does have a citizens suit provision allowing a citizen to enforce the act.
Mr. Pohlman: That's accurate, Justice Kennedy.
Unknown Speaker: But the citizens suit provision may come up against a barrier if there's previously been an action in the Federal court where the Governor and the Attorney General are enjoined from enforcing it, which went by default, so the Attorney General and the Governor would then have a perfectly good defense to the citizens suit provision of res judicata as a result of the Federal action.
Mr. Pohlman: Mr. Chief Justice, I think that may be true with respect to the Attorney General and the Governor.
My understanding of the enforcement provision is it was directed at administrative employees or anyone that... a citizen or person doing business in the State--
Unknown Speaker: And I guess there was no injunction here.
A declaratory judgment, right?
Mr. Pohlman: --It was simply a declaratory judgment.
There was no injunction, injunctive relief granted, Justice--
Unknown Speaker: Mr. Pohlman, may I go back to Justice Ginsburg's question going to the issue of whether we should vacate the district court judgment?
Would this be a position that you would espouse, that at the conclusion of the district court action, neither of the parties before the district court appealed.
It is quite true that there was then an intervention, and ultimately in the Ninth Circuit the State came in.
The Attorney General came in under the statute for the purposes of defending the constitutionality of the State act.
But the Attorney General at that point was in there only on a kind of conditional basis.
He was only in there saying, if we're going to have an appeal, then I'm here under the statute representing, in effect, the State to uphold the constitutionality of the act if I can, but I'm not an independent appealing party, and the State and the Governor are not independent appealing parties.
Given that interpretation, would it, even on our normal equitable vacatur rules, be appropriate not to vacate the district court judgment, because the parties who could have appealed in fact did not.
The parties who presumably would suffer from leaving the judgment on the books did not, in fact, appeal.
Would that be a... would you espouse that argument for opposing vacating the district court order?
Mr. Pohlman: --I would espouse that argument to oppose vacating the district court order, exactly.
Justice, Souter, I believe that the Attorney General, though, had a slightly different position insofar as the Ninth Circuit is concerned.
The Attorney General actively sought to reinsert himself as a party for the purposes of pursuing the appeal with or without AOE when they were in the district court.
Unknown Speaker: But that was... wasn't that after the appeal period had run?
Mr. Pohlman: No, Your Honor, it was not.
They appealed within the time frame that was necessary in order to... had they been granted leave to intervene.
Unknown Speaker: Oh, so--
--That was the position that you took in this footnote that I read.
You recognized the standing of the Attorney General as a proper party.
Mr. Pohlman: Exactly.
Unknown Speaker: Well, if that's the case, then, then the Attorney General was not in only on the limited basis that my suggestion gave him, so I suppose if you accept his standing as a party at that point, and you take the position that he should have been allowed in, period, then I guess the argument for vacating is a valid argument.
Mr. Pohlman: Justice Souter, we would disagree with that for some of the reasons that have been said before, but in fact, and this goes back again to the ruling by the Ninth Circuit with regard to 2403(b), in fact you're entitled to intervene as the State, not as a party, but with all the rights and obligations of a party at that point in time, and the district court recognized there is no right to intervene at that point, or at least felt that way.
The Ninth Circuit gave them a right which is not contemplated by the statute, which was a defendant standing under 2403(b), and I... and for purposes of your question I'm not so sure that was legally correct, but that was the understanding the State had, that they were in there with defendants--
Unknown Speaker: Mm-hmm.
Mr. Pohlman: --And that was the position... they never appealed that particular ruling, and that was the way that--
Unknown Speaker: Ah, so that's why they're stuck.
Could... I have two questions briefly that I'd like to hear your answer to.
The most important is, I'd like to hear clearly what your answer was to Justice O'Connor's initial question.
I take it in the district court there was a person, the plaintiff, and a defendant, the Governor, who had an argument.
The plaintiff won, and the Governor didn't appeal.
All right, but the question was, was there ever a controversy between them, and the answer to that depends upon whether there was a reasonable threat of prosecution, isn't that right?
That's the case they cited in support of that.
Mr. Pohlman: --I--
Unknown Speaker: Now, you pointed to a place in the district court's opinion which says I, the district judge, think there was a reasonable threat of prosecution.
Where in the record do I find the material upon which that conclusion rests?
Mr. Pohlman: --You will find the testimony in our appendix attached to our brief on the merits at pages 14 and 15, which is the testimony of Ms. Yniguez concerning her fear that she may be prosecuted, or that there may be a citizens suit based upon the test of Article XXVIII.
You will find the judge's conclusion on page 102a of the appendix to the petition for certiorari, where he finds that in fact Ms. Yniguez has suffered an injury in fact due to the threat of potential disciplinary action by virtue of--
Unknown Speaker: Was Ms. Yniguez... excuse me.
Where do I find what the Governor said, because what he's saying is it's the Governor's statement that leads me to think that the Governor might prosecute her.
Mr. Pohlman: --That is in the stipulated facts that are in the joint appendix, I believe.
If not, they may be in our appendix beginning at pages 5 and 6.
I don't have that right in front of me, but I can find that for you, Justice Breyer.
Unknown Speaker: Mr. Pohlman, I hate to come back to this, but I'm still not clear on it.
After the State came in on the appeal, when did the cross-appeal for the denial of nominal damages occur?
Mr. Pohlman: The cross-appeal for the denial of nominal damages occurred shortly after the first appeal on the merits was ever filed by any intervenor, and that was after the case had been remanded, following the decision on the suggestion of--
Unknown Speaker: Okay.
Mr. Pohlman: --It was the first--
Unknown Speaker: After remand, though.
It's after remand.
The original appeal to the Ninth Circuit went up and back down without any claim of nominal damages involved.
Mr. Pohlman: --The original appeal was not on the merits, Justice Scalia.
Unknown Speaker: I understand.
Mr. Pohlman: That's why the cross-appeal we are not entitled to unless there are... we don't need to cross-appeal on the judgment unless there is actually an appeal on the judgment.
There was none until it was remanded.
That's the first time a notice of appeal on the judgment itself was ever filed under Pellegrino v. Nesbit.
Unknown Speaker: Did the stipulation you... as to the facts covering the Governor's position, I thought that stipulation said nothing about the Governor intending to take enforcement actions, just that the Governor intended to comply.
Well, if the Governor intends to comply by herself speaking English, I suppose that wouldn't affect this at all.
Is there anything in the stipulation that says the Governor intends to take enforcement actions against people like Yniguez?
Mr. Pohlman: Justice O'Connor, I don't believe there's anything that says that per se.
Unknown Speaker: No, I didn't think so.
Mr. Pohlman: In our appendix at page 8 to our brief on the merits some of the stipulations appear.
Unknown Speaker: In your red brief?
Mr. Pohlman: Pardon me?
Unknown Speaker: This is in your red brief?
Mr. Pohlman: Yes, Mr. Chief Justice, in the red brief.
Unknown Speaker: Page 8?
Mr. Pohlman: Page 8 of our appendix shows some of the stipulations pertaining to what occurs in the disciplinary process.
The testimony below was Ms. Yniguez had seen people disciplined before, that she understood that she was expected to comply--
Unknown Speaker: Disciplined under this statute?
Mr. Pohlman: --Not under this statute, no.
People were disciplined for failing to follow the laws of the State or the constitution of the State--
Unknown Speaker: Well, that's scarcely surprising.
Mr. Pohlman: --That they would be disciplined for that, and that's what we agreed, Mr. Chief Justice.
It is scarcely surprising.
That's why she was in fear of her job.
Unknown Speaker: Well, but the question is, did the enactment of this law put her in fear of her job.
Mr. Pohlman: Yes, it did, and that is precisely what the district court found, that she had a reasonable belief that she may be disciplined if she in fact spoke something other than English on the job.
Unknown Speaker: Thank you, Mr. Pohlman.
Mr. Zall, you have 5 minutes remaining.
Rebuttal of Barnaby W. Zall
Mr. Zall: I'd like to point the Court's attention to the rulings of the two lower courts on this case.
In the petition appendix, page 112, 113a, the order of the district court says, it is further ordered that Article XXVIII of the constitution of the State of Arizona is hereby declared to be void as being invalid on its face in violation of the First Amendment of the Constitution of the United States.
And on page 60a of the same appendix, the Ninth Circuit en banc decision says, we affirm the district court's judgment that Article XXVIII of the Arizona constitution is facially overbroad and violates the First Amendment, and that the article is unconstitutional in its entirety.
I think that is the heart of the matter here, Your Honors.
Petitioners are bound by the lower court judgment because they intervened as a party.
If Article XXVIII is void in its entirety, then petitioners do not have the enforcement rights that the court suggests that they do.
In addition, on the question of who defends the actions, I think in this case the Attorney General attempted to defend, and because of the application of 2403(b) in this case the Attorney General and the State's rights under the Eleventh Amendment were implicated because--
Unknown Speaker: Well, the Attorney General's position is, wisdom has come a little late, but now the Attorney General is enlightened and understands that long before any judgment was entered in the Ninth Circuit the case was moot, so if we accept that, that wipes out the Ninth Circuit's decision, because the Ninth Circuit has no authority to issue a judgment in a moot case.
Mr. Zall: --It would also wipe out the district court opinion.
Unknown Speaker: Not necessarily, because if the mootness occurred on appeal, you don't ordinarily wipe out a final judgment from which no party to that judgment has appealed.
If we had a lawsuit with two parties at the end of the road, neither pursued an appeal in the district court, and then we have quite different lawsuit in the Ninth Circuit and the State is telling us as to that lawsuit mootness occurred before the judgment, how do you reach back and say, but the mootness also affects the original suit and that original judgment between the plaintiff and the Governor?
Mr. Zall: Your Honor, the problem with the hypothetical is that this is not a standard contract case or an employment problem case.
This is a facial overbreadth First Amendment attack on a State constitution which was held to be void in its entirety.
This is not just Ms. Yniguez and the Governor.
The Court has held that judgments have a value in and of themselves.
People rely on them.
We cannot go into State court--
Unknown Speaker: But you can't rely on a judgment that's vacated, and the Federal court has no authority to deal with anything that isn't a genuine controversy at the time judgment was entered.
Mr. Zall: --But, Your Honor, the problem is, if we go into State court and say, sue anyone in the State, the defense by everyone is, the district court for Arizona has held this statute... this constitutional provision unconstitutional in its entirety.
Unknown Speaker: It was my understanding that a district court's judgment doesn't necessarily bind even another district judge in the same district.
Mr. Zall: But it does--
Unknown Speaker: So how does it bind a State court?
Mr. Zall: --It doesn't bind it in the sense that it's automatically controlling, but in a number of cases... FDIC v. Jennings, I think in the Tenth Amendment--
Unknown Speaker: It's like a law review article, isn't it?
Mr. Zall: --It's the prospect of an unfavorable precedent looming over the case to the extent that a State court judge is going to say, this is a question of Federal law.
Am I going to apply Federal law to this question differently than the district court of Arizona?
I would find that a prospect that would be daunting for a litigant.
Unknown Speaker: I've known some State judges who would do that.
How many district... how many Federal district judges sit in Arizona?
Do you have any idea?
Mr. Zall: No.
No, Your Honor.
I think there's only... I think there's four.
Unknown Speaker: There's six in Phoenix and three in Tucson.
Chief Justice Rehnquist: Thank you, Mr. Zall.
The case is submitted.