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Alvarez v. State of Utah | Complaint

29 November 2000 Published in Litigation Materials

Alvarez v. State of Utah

Milo Steven Marsden (#4879)
Adam B. Price (# 7769)
GIAUQUE, CROCKETT, BENDINGER & PETERSON
170 South Main Street, Suite 400
Salt Lake City, UT 84101
Telephone: (801) 533-8383

Stephen C. Clark (# 4551)
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

Marlene Gonzalez (#7386)
MULTI-CULTURAL LEGAL CENTER
309 East 100 South, # 3
Salt Lake City, UT 84111
Telephone: (801) 486-1183

Attorneys for Plaintiffs

(Additional Counsel listed on next page)

IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH

COMPLAINT

Case Number 000909680
Judge Nehring

ROSS C. “ROCKY” ANDERSON, ROBERT “ARCHIE” ARCHULETA, PETE SUAZO, JESSE GARCIA, MARK MARYBOY, JAMES YAPIAS, UTAH HISPANIC CHAMBER OF COMMERCE, MULTI-CULTURAL LEGAL CENTER, and ALICIA ALVAREZ, Plaintiffs,

v.

STATE OF UTAH, MICHAEL O. LEAVITT, Governor, and JAN C. GRAHAM, Attorney General, Defendants.

OF COUNSEL:

Edward M. Chen
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
1663 Mission Street, Suite 460
San Francisco, CA 94103
Telephone: (415) 621-2493

Antonia Hernandez
Vibiana Andrade
Hector Villagra
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
634 S. Spring St., Eleventh Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512

Kenneth Kimerling
ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
99 Hudson Street
New York, NY 10013
Telephone: (212) 966-5932

Christopher Ho
EMPLOYMENT LAW CENTER OF THE LEGAL AID SOCIETY OF SAN FRANCISCO
1663 Mission Street, Suite 400
San Francisco, CA 94103
Telephone: (415) 864-8848

Robert L. Rusky
159 Beaver Street
San Francisco, CA 94114
Telephone: (415) 255-7385

Plaintiffs, by and through their attorneys, hereby allege and complain as follows:

NATURE OF ACTION

1. This is an action for declaratory judgment pursuant to Rule 57 of the Utah Rules of Civil Procedure and Chapter 33 of Title 78 of the Utah Code and/or injunctive relief pursuant to Rule 65A of the Utah Rules of Civil Procedure. Plaintiff seeks to have determined a question of construction arising under a statute, Utah Code Ann. § 63-13-1.5 (the “English-Only Statute”), and to obtain a declaration of rights, status and legal relations thereunder. The English-Only Statute declares English “to be the official language of Utah”; makes English “the sole language of government”; and requires “all official documents, transactions, proceedings, meetings, or publications issued, conducted, or regulated by, on behalf of, or representing the state and its political subdivisions” to be “in English,” subject to limited exceptions. Utah Code Ann. § 63-13-1.5(1)-(3). Plaintiffs seek a declaration that the English-Only Statute violates their rights under the Utah State Constitution and an injunction against its implementation and enforcement or, in the alternative, a declaration that the English-Only Statute does not impose any substantive obligations whatsoever upon plaintiffs or others, is merely symbolic and cannot be interpreted or applied to require the performance or omission of any action with respect to providing, assisting individuals in receiving, seeking or receiving government services in languages other than English.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this matter, and venue is proper in this Court, pursuant to Utah Code Ann. § 78-33-1.

PARTIES

3. Plaintiff Ross C. (“Rocky”) Anderson is a citizen of the State of Utah and the Mayor of Salt Lake City, a political subdivision of the State of Utah. Mayor Anderson is not proficient in any language other than English, but during the performance of city government business has spoken to various community groups through interpreters in an effort to communicate with his constituents and the people his office serves. Before the adoption of the English-Only Statute, Mayor Anderson enjoyed substantial discretion to design and implement the policies and programs of, and to conduct the business of Salt Lake City in languages other than English, as he deemed appropriate. Among other things, Mayor Anderson has made a point of hiring bilingual employees to boost the efficiency and effectiveness of the City’s ability to serve its residents. Based on the adoption of the English-Only Statute, he stands to be substantially burdened in his official duties as Mayor of Salt Lake City by vague and arbitrary restrictions on his ability to design and implement policies and programs and to conduct business on behalf of Salt Lake City in languages other than English. Mayor Anderson is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

4. Plaintiff Robert (“Archie”) Archuleta a bilingual citizen of the State of Utah. Mr. Archuleta is employed by Salt Lake City as Assistant Administrator for Minority Affairs. Mr. Archuleta’s job description includes providing assistance to minorities and refugees in languages other than English. In the ordinary course of his employment, Mr. Archuleta finds it necessary or advisable to communicate with Salt Lake City residents in Spanish. Based on the adoption of the English-Only Statute, he stands to be substantially burdened in his employment by vague and arbitrary restrictions on his ability to communicate effectively to meet his constituents’ needs. Mr. Archuleta is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

5. Plaintiff Pete Suazo is a bilingual citizen of the State of Utah. Mr. Suazo is a Utah State Senator and is employed by Salt Lake Neighborhood Housing Services, a Utah non-profit organization that provides housing services to, among other populations, language minorities. As a State Senator and in the ordinary course of his employment, Mr. Suazo has found it necessary or advisable to communicate with his constituents and clients in Spanish, as he represents constituents and advises clients who are not proficient in English. Based on the adoption of the English-Only Statute, he stands to be substantially burdened in his duties as an elected official and in his employment by vague and arbitrary restrictions on his ability to communicate effectively to meet his constituents’ and clients’ needs. Mr. Suazo is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

6. Plaintiff Jesse Garcia is a bilingual citizen of the State of Utah. Mr. Garcia is a member of the Ogden City Council and is employed by Weber County Human Services, a governmental agency that provides services to, among other populations, language minorities. As a City Council member and in the ordinary course of his employment, Mr. Garcia has found it necessary or advisable to communicate with his constituents and clients in Spanish. For example, as a City Council member Mr. Garcia has spearheaded the publication of a newsletter targeted to Ogden City’s substantial Hispanic population. On his personal voice mail at work, Mr. Garcia records his personal message in both English and Spanish, and he takes other measures at work to ensure that he can effectively communicate with and meet the needs of his clients. Based on the adoption of the English-Only Statute, he stands to be substantially burdened in his duties as an elected official and in his employment by vague and arbitrary restrictions on his ability to communicate effectively to meet his constituents’ and clients’ needs. Mr. Garcia is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

7. Plaintiff Mark Maryboy is a bilingual citizen of the State of Utah and the Navajo Nation. In 1987, Mr. Maryboy was elected a San Juan County Commissioner, becoming the first Native American to hold such a position in the State of Utah, and he continues to serve as such. He is also the Aneth, Mexican Water and Red Mesa delegate to the Navajo Nation Council, which is the tribe’s legislative body. Mr. Maryboy has long been involved in the struggle for civil rights. For example, Mr. Maryboy is the parent of a child represented in the class action of Sinajini v. Board of Education, and is a class member in the case of Crank v. Utah Judicial Council, both of which seek to redress decades of unfair and unequal treatment of Native Americans in San Juan County. An injunction has been entered in the Sinajini case mandating, among other things, bilingual and bi-cultural education in the public schools, and in the Crank case the parties have entered an agreement requiring proportional representation of Native Americans in jury pools. As a County Commissioner and in the ordinary course of his duties as a delegate to the Navajo Nation Council, Mr. Maryboy has found it necessary or advisable to communicate with his constituents and clients in Navajo, as he represents constituents who are not proficient in English. Based on the adoption of the English-Only Statute, he stands to be substantially burdened in his official duties by vague and arbitrary restrictions on his ability to communicate effectively to meet his constituents’ and clients’ needs. Mr. Maryboy is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

8. Plaintiff James Yapias is a bilingual citizen of the State of Utah. Mr. Yapias is the Chair of the Governor’s Hispanic Advisory Council, part of the Utah Office of Hispanic Affairs. He is not an elected official, but was appointed to his position. The Office of Hispanic Affairs maintains an official website, with information in both English and Spanish, at www.dced.state.ut.us/hispanic. As described on the website, “[t]he mission of the State Hispanic Advisory Council is to create and focus state and other resources to improve the quality of life for all of Utah’s Hispanic citizens.” Its goals are to “provide a forum for discussion of ideas and issues relevant to the Hispanic community to make state government more responsive”; to “develop alternative solutions for our socio-economic problems and act as a catalyst to existing resources”; and to “identify and improve delivery, access, and content of resources and services.” To pursue the goals of the State Hispanic Advisory Council effectively, Mr. Yapias must communicate in Spanish with the population that the Council and the Office of Hispanic Affairs serve. Based on the adoption of the English-Only Statute, Mr. Yapias stands to be substantially burdened in his activities by vague and arbitrary restrictions on his ability effectively to coordinate government services for the population that the Utah Office of Hispanic Affairs serves. Mr. Yapias is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

9. Plaintiff Utah Hispanic Chamber of Commerce (“UHCC”) is a non-profit (501(c)(6)) business chamber organization founded in 1992 by Utah Hispano/Latino business owners. UHCC is committed to serving the needs of more than 2300 Hispano/Latino-owned businesses in Utah. UHCC’s mission is “to promote entrepreneurial growth and economic development of Utah Hispano/Latino-owned or –serving businesses.” In pursuit of that mission, UHCC and its members have had occasion to call on government services provided in languages other than English, and have actively advocated for language-inclusiveness as the best means of creating and expanding business opportunities for all of Utah’s Hispanic residents. Based on the adoption of the English-Only Statute, UHCC and its members stand to be substantially burdened in their activities by vague and arbitrary restrictions on their ability effectively to coordinate government services for Hispano/Latino businesses. UHCC is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2. UHCC brings this action on its own behalf and on behalf of its members under Rule 17(d) of the Utah Rules of Civil Procedure.

10. Plaintiff Multi-Cultural Legal Center (“MLC”), founded in 1997, is a nonprofit organization dedicated to using and strengthening Utah’s system of justice to ensure that racial and ethnic communities receive equal representation and treatment. Last spring, the MLC formed its Unpaid Wages Project in order to ensure that day laborers with limited English proficiency had access to existing governmental services for resolving unpaid wage claims and otherwise ensuring fair employment practices. Because the bilingual assistance provided by the Anti-Discrimination Division of the Utah Labor Commission falls outside of the exceptions included in the English-only law, the MLC is concerned that victims of these crimes will no longer receive assistance from the Labor Commission and as a result, will not be able to exercise their First Amendment rights to petition the government for a redress of grievances. MLC brings this suit in its own capacity and on behalf of its members under Rule 17(d) of the Utah Rules of Civil Procedure.

11. Plaintiff Alicia Alvarez is a resident of Salt Lake City. Ms. Alvarez has limited English proficiency. On several occasions she has needed to seek access to government information and services in Spanish, her native language, but she has met with difficulties in doing so. Although she wants to learn English and understands the importance of doing so, she currently relies on interpreters or Spanish-language communications to fully and effectively communicate with the government. Based on the adoption of the English-Only Statute, Ms. Alvarez stands to be substantially burdened in her efforts to access government information and services by vague and arbitrary restrictions on the ability of government officials and employees who are able and willing to communicate with her in any language other than English. Ms. Alvarez is therefore a person whose rights, status or other legal relations are affected by the English-Only Statute within the meaning of Utah Code Ann. § 78-33-2.

12. Defendant Michael O. Leavitt is the Governor of the State of Utah. His mailing address is Office of the Governor, 210 State Capitol, Salt Lake City, Utah 84114-0811. Under the Utah Constitution, the executive power of the State is vested in the Governor, “who shall see that the laws are faithfully executed.” Utah Constitution, Article VII, Section 5(1).

13. Defendant Jan C. Graham is the Attorney General of the State of Utah. Her mailing address is Office of the Attorney General, 236 State Capitol, Salt Lake City, Utah 84114-0811. Ms. Graham is a proper party under Utah Code Ann. § 78-33-11.

14. Defendant State of Utah is named as a party defendant insofar as the English-Only Statute applies to the State and its political subdivisions and insofar as, in interpreting or enforcing the Statute, the State may act through its various agencies, instrumentalities, departments, divisions and political subdivisions.

FACTUAL ALLEGATIONS

15. On November 7, 2000, the voters of the State of Utah passed “Initiative A,” adopting the English-Only Statute. A true and correct copy of the English-Only Statute, to be codified at Utah Code Ann. § 63-13-1.5, is attached hereto as Exhibit A.

16. Under Utah Code Ann. § 20A-7-211, once the votes on Initiative A have been counted, canvassed and delivered, the Lieutenant Governor must certify to the Governor the votes for and against the Initiative, and the Governor must then “immediately” issue a proclamation declaring the English-Only Statute to be in full force and effect as the law as the State of Utah. Utah Code Ann. § 20A-7-211(1)-(3). By law, the English-Only Statute becomes effective five days after the Governor’s proclamation. Utah Code Ann. § 20A-7-212(2)(c). On November 28, 2000, the Governor issued the required proclamation. Accordingly, by law the English-Only Statute will take effect on or about December 3, 2000 unless enjoined.

17. The English-Only Statute provides, in part, that “English is declared to be the official language of Utah,” and that “[a]s the official language of this State, the English language is the sole language of the government,” subject to specific, limited exceptions. Utah Code Ann. § 63-13-1.5(1), (2). It further provides that “all official documents, transactions, proceedings, meetings, or publications issued, conducted, or regulated by, on behalf of, or representing the state and its political subdivisions shall be in English.” Utah Code Ann. § 63-13-1.5(3). As interpreted by defendant Graham’s office, these provisions mean that “no other language may be used officially unless authorized by an express (or necessarily implied) exception,” and that “as a general rule in Utah, official business with government must be conducted exclusively in English.”

18. Section 4 of the English-Only Statute contains a list of limited exceptions to the “general rule.” Among other things, it provides that languages other than English may be used “when required” by law. Utah Code Ann. § 63-13-1.5(4). Defendant Graham’s office has described Section 4 as “a fairly complex listing of exceptions which in this case seem to prove the rule” that “official business with the government must be conducted exclusively in English.”

19. Plaintiffs’ use of languages other than English in providing or receiving government services and communicating with their constituents or representatives is essential for purposes of effective communication among members of the public who are not proficient in English. Whether or not “required” by law – a determination plaintiffs cannot feasibly make on the spot under the wide variety of circumstances they encounter in the course of their various functions each day – plaintiffs’ communication in languages other than English furthers their official objectives, aids the dissemination of information and exchange of ideas, and contributes to the efficiency of their organizations.

FIRST CAUSE OF ACTION
(For Construction of the English-Only Statute Under Utah Code Ann. § 78-33-2)

20. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 19 of this Complaint as if fully set forth herein.

21. An actual controversy has arisen and now exists between plaintiffs and defendants. Plaintiffs contend that the English-Only Statute requires that all official business of the State and its political subdivisions be conducted in English unless plaintiffs can demonstrate that federal or state constitutions, laws or regulations require otherwise, and is therefore vague and substantially overbroad. Plaintiffs are informed and believe, and thereon allege that defendants contend the English-Only Statute is not vague or substantially overbroad, and/or does not impose any substantive obligations on plaintiffs, but is merely symbolic.

22. Pursuant to Utah Code Ann. § 78-33-2, plaintiffs are entitled to a declaration of their rights, status and other legal relations under the English-Only Statute as prayed for below.

SECOND CAUSE OF ACTION
(For Violation of Utah Constitution Article 1 Sections 1 and 15)

23. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 22 of this Complaint as if fully set forth herein.

24. Article 1 Sections 1 and 15 of the Utah Constitution guarantee all persons in Utah freedom of speech, the right to petition the government for redress of grievances, and the right to communicate freely their thoughts and opinions.

25. The English-Only Statute violates those constitutional guarantees in the following ways, among others:

(a) By requiring that government officials and employees communicate only in a language which is awkward, difficult, or incomprehensible to limited- and non-English-speaking persons, the law imposes a linguistic barrier between persons and their government, depriving such persons of access to essential information about and from their government, impeding their ability to seek redress from their government, and inhibiting their ability to participate fully in the political processes of their government by expressing their thoughts, opinions and needs;

(b) By directly banning pure speech, the law deprives elected or appointed officials and public employees of the ability to communicate with many of their constituents and with many members of the public;

(c) By allowing speech on certain subjects while banning it on others, the law imposes content-based restrictions on speech;

(d) Because the scope of its exceptions is unduly vague, the law is void for vagueness, and chills a substantial amount of speech that may arguably fall within the margins of the law;

(e) Because the law prohibits a wide range of constitutionally protected speech, it is substantially overbroad and facially invalid; and

(f) The law’s chilling effect on freedom of speech and expression, the free discussion of thoughts and opinions, and the right of the people to petition the government is not supported by any compelling or even legitimate state interest, nor is the law narrowly tailored to achieve any such interest.

THIRD CAUSE OF ACTION
(For Violation of Utah Constitution Article 1 Sections 1, 7 and 24)

26. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 25 of this Complaint as if fully set forth herein.

27. Article 1 Section 1 of the Utah Constitution guarantees all Utah persons equal protection of the law. Article 1 Section 7 guarantees no person will be deprived of liberty or property without due process of law. Article 1 Section 24 requires that all laws of a general nature shall have uniform application.

28. The English-Only Statute violates these constitutional protections in the following ways, among others:

(a) The law deprives persons who are limited in English proficiency, or entirely lacking in it, of protected liberty and property interests without due process of law by denying them access to government entitlements, benefits and services;

(b) The law substantially burdens the fundamental rights of persons who are limited in English proficiency, or entirely lacking in it, to petition the government for redress of grievances, to communicate freely their thoughts and opinions, to participate in government and seek and obtain information from government officials and employees about government business, and to participate equally in the political process;

(c) By requiring that all government officials and employees conduct all government functions and actions only in English, the law denies limited- and non-English-speaking persons equal rights, opportunities, and protections on the basis of race or national origin; and

(d) The law imposes an unjustifiable disparate impact upon the ability of language and national origin minorities to receive governmental services on a par with their English-fluent peers.

29. The law’s adverse impacts described above are not supported by any compelling or even significant state interests, nor is the law narrowly tailored to serve any such interests.

WHEREFORE, plaintiffs demand the following relief:

1. That the Court construe the English-Only Statute in accordance with its plain language and with established rules of construction and declare that the English-Only Statute is vague and substantially overbroad, violates Article 1 Sections 1, 7, 15 and 24 of the Utah Constitution, and thus is null and void and cannot be enforced as written;

2. That the court enter a permanent injunction enjoining defendants from enforcing the English-Only Statute;

3. In the alternative, that the Court declare that the English-Only Statute imposes no substantive obligations and is merely symbolic;

4. That pursuant to Utah Code Ann. § 78-33-10 the Court award plaintiffs such costs as seem equitable and just; and

5. That the Court grant such other and further relief as it deems just and proper.

DATED: November 30, 2000.

GIAUQUE, CROCKETT, BENDINGER & PETERSON
Milo Steven Marsden
Adam B. Price
ACLU OF UTAH FOUNDATION, INC.
Stephen C. Clark

MULTI-CULTURAL LEGAL CENTER
Marlene Gonazlez

By: Milo Steven Marsden
Attorneys for Plaintiffs