IN THE SUPERIOR COURT FOR THE STATE OF ALASKA 
THIRD JUDICIAL DISTRICT AT DILLINGHAM

 

MOSES KRITZ, individually and as Mayor, City
of Togiak, STANLEY ACTIVE, SR., individually
and as City Councilor, City of Togiak, and
FRANK LOGUSAK, Plaintiffs,
    v.
STATE OF ALASKA, and TONY KNOWLES,

Governor, State of Alaska, Defendants, and
ALASKANS FOR A COMMON LANGUAGE, Defendant in Intervention
       Case No.  3DI-99-12 CI

HENRY ALAKAYAK, ANECIA LOMACK,
NANCY SHARP, VERONICA MICHAEL,
WALTER TIRCHIK, GEORGE H. AHMAOGAK,
MOLLY PEDERSON, FANNIE AKPIK, JANE
HARCHAREK, MICHAEL AAMODT, JIM
VORDERSTRASSE, MANUAEL MACEDO,
JULIA SAMANTEGO, JAMES GILMAN,
ELIZABETH BEAVER, through her father and
next friend, Leo Beaver, LEO BEAVER, RUTHIE
BEAVER, MINNIE MARK, SOPHIE EVAN,
GRACE L. HILL, ANNIE CLEVELAND,
ELIZABETH PLEASANT, SUSIE FOSTER,
WASSILLIE BAVILLA, PAUL BEEBE, and
JOHN O. MARK, Plaintiffs,
     v.
STATE OF ALASKA, Defendant, and
ALASKANS FOR A COMMON LANGUAGE, Defendant in Intervention.

Case #3AN-99-4488 CI

Memorandum of Decision on Cross Motions for Summary Judgment

 

Table of contents.

Page

Introduction; the general position of the parties.

2

Procedural history.

4

What does the initiative say?

5

     AS 44.12.300-390

5

Does the initiative bar speech in languages other than English?

7

Who are the Plaintiffs and how do they think the initiative will affect them?

10

Togiak plaintiffs and the motion to strike.

10

Alakayak plaintiffs and other Alaskans.

12

Freedom of speech.

15

Does a restriction on language abridge free speech?

16

Free speech, the public forum doctrine and the public employee.

17

Balancing the State’s interest in Official English.

25

Elected officials.

26

Non-elected employees and officials.

26

Conclusion, and a note on vagueness.

30

Remaining issues.

33

Constitutional claims.

33

Native American Languages Act.

33

Can legal effect be given to part of the initiative?

34

Conclusion.

36

           

Introduction; the general positions of the parties.

            In 1998, Alaska voters approved an initiative[1] that made English the State’s official language. This lawsuit seeks resolution of novel questions raised by this new law, including whether or not it infringes upon the free speech rights of public employees,[2] or the people they serve. Because I conclude that it is impossible to restrict the initiative’s reach to the speech of government as an employer, and because even viewed in this way it is not  justified by a legitimate interest, I conclude that it violates the free speech clause of the Alaska Constitution.  The wide reach of the initiative chills the exercise of protected speech, and there is no construction that can cure this problem.

The Kritz or Togiak plaintiffs argue that the law is a content-based prior restraint on speech, that it is vague and overbroad, and that it violates the free speech, equal protection and due process clauses of the state and federal constitutions.[3]  In the alternative, they seek an order declaring that the law does not apply in any manner to one speaking an Alaska Native language such as Yup’ik.[4]  The Alakayak plaintiffs maintain that the initiative is facially invalid, as violative of the Alaska Constitution,[5] and that interpretation of NALA is a path that need not be traveled in this case.[6]  The State agrees with the Alakayak plaintiffs that a purely legal question is presented,[7] but contends that first of all, the initiative only applies to government employees and officials, and secondly, it doesn’t actually prohibit the use of any language.[8]  It agrees with Intervening Defendant Alaskans for a Common Language that the law carves out an exception for Native languages.[9]  Intervenor, however, maintains that the initiative does indeed command government to speak only in English, and that this prohibition does not violate any constitutional provision.[10]  The parties also divide over whether or not the provisions of the initiative are severable.

Procedural history.

            Alaskans for a Common Language (ACL) was the primary sponsor for the Official English Initiative, which was ballot measure number 6 for the 1998 election.[11]  The initiative[12] as set out on the ballot[13] was the subject of litigation between ACL and the State.[14] As is usual in Alaska,[15] the initiative was also set forth in the Election Pamphlet circulated to all registered voters, along with the verbatim language to be enacted, a summary by the Legislative Affairs Agency, a summary by a party favoring passage (here, ACL), and another by a party opposed (the Alaska Civil Liberties Union).[16]  On November 3, 1998, 153,000 Alaskans voted for the initiative (a number topped only by those opposed to billboards),[17] it was certified a month later and would have gone into effect March 4, 1999.[18]  Shortly before this date, however, these two lawsuits were filed,[19] and, following consolidation,[20] an order was entered enjoining implementation of the initiative.[21]  ACL and U.S. English to moved to intervene, but this court sought to limit their participation to enhanced amici.[22]  The Alaska Supreme Court reversed this decision as to ACL,[23] so that briefing stretched into a third year.  All parties maintain that this matter can be decided without an evidentiary hearing, and oral argument on the pending motions for summary judgment[24] took place on October 12, 2001.[25] 

What does the initiative say?

            Laws crafted in Juneau and those arising from the initiative process are of course two different creatures, and determination of a law’s intent will necessarily vary as well.  As noted above, Exhibit H to ACL’s briefing contains the summary of the Official English Initiative that appeared on the 1998 ballot as prescribed by AS 15.45.180, and that will need to be examined to determine the voters’ intentions.  But first it makes sense to examine the entire statutory scheme that was enacted, which of course was also available to those voters who read the Election Pamphlet.[26]  These statutes have now been codified as AS 44.12.300-390.

Sec. 44.12.300.  Findings and Purpose.  The people of the State of Alaska find that English is the common unifying language of State of Alaska and the United States of America, and declare a compelling interest in promoting, preserving, and strengthening its use.

 

Sec. 44.12.310.  Official Language.  The English language is the official language of the State of Alaska.

 

Sec. 44.12.320.  Scope.  The English language is the language to be used by all public agencies in all government functions and actions.  The English language shall be used in the preparation of all official public documents and records, including all documents officially compiled, published, or recorded by the government.

 

Sec. 44.12.330.  Applicability.  AS 44.12.300—AS 44.12.390 apply to the legislative and executive branches of the State of Alaska and all political subdivisions, including all departments, agencies, divisions and instrumentalities of the State, the University of Alaska, all public authorities and corporations, all local governments and departments, agencies, divisions, and instrumentalities of local governments, and all government officers and employees.

 

Sec. 44.12.340.  Exceptions.  (a) The government, as defined in AS 44.12.330, may use a language other than English when necessary for the following purposes:

(1)   to communicate health and safety information or when an emergency requires the use of a language other than English;

(2)   to teach another language to students proficient in English;

(3)   to teach English to students of limited English proficiency;

(4)   to promote international relations, trade, commerce, tourism or sporting events;

(5)   to protect the constitutional and legal rights of criminal defendants;

(6)   to serve the needs of the judicial system in civil and criminal cases in compliance with court rules and orders;

(7)   to investigate criminal activity and protect the  rights of crime victims;

(8)   to the extent necessary to comply with federal law, including the Native American Language Act;

(9)   to attend or observe religious ceremonies;

(10) to use non-English terms of art, names, phrases, or expressions included as part of communications otherwise in English; and

(11)to communicate orally with constituents by elected public officials and their staffs, if the public official or staff member is already proficient in a language other than English.

 

(b) An individual may provide testimony or make a statement to the government in a language other then English, if the individual is not an officer or employee of the government, and if the testimony or statement is translated into English and included in the records of the government.

 

Sec. 44.12.350. Public accountability. All costs related to the preparation, translation, printing, or recording of documents, records, brochures, pamphlets, flyers, or other material in languages other than English shall be defined as a separate line item in the budget of every governmental agency, department, or office.

 

Sec. 44.12.360. Non-denial of employment or service. (a) No governmental entity shall require knowledge of a language other then English as a condition of employment unless the requirements of the position fall within one of the exceptions provided in AS 44.12.340, and facility in another language is a bona fide job qualification required to fulfill a function  included within one of the exceptions.

  (b) No person may be denied services, assistance, benefits, or facilities, directly or indirectly provided by the government , because that person communicates only in English.

 

Sec. 44.12.370. Private sector excluded.  AS 44.12.300 – 44.12.390 shall not be construed in any way that infringes upon the rights of persons to use languages other than English in activities or functions conducted solely in the private sector, and the government may not restrict the use of language other than English in such private activities or functions.

 

Sec. 44.12.380. Private cause of action authorized. Any person may bring suit against any governmental entity to enforce the provisions of AS 44.12.300 – 44.12.390.

 

Sec. 44.12.390. Severability.  The provisions of AS 44.12.300 – 44.12.390 are independent and severable, and if any provision of AS 44.12.300 – 44.12.390, or the applicability of any provision to any person or circumstance, shall be held to be invalid by a court of competent jurisdiction, the remainder of AS 44.12.300—44.12.390 shall not be affected and shall be given effect to the fullest extent practicable.

 

Does the initiative bar government speech in languages other than English?

            Section 300 contains findings and a declaration of purpose that will be addressed below.  Section 310 simply makes English the state’s official language, which, by itself might not be much different from the designation of the dragonfly as our official state insect,[27] or the woolly mammoth as our official state fossil.[28]  But the fluff stops here, as section 320 begins:

                        The English language is the language to be used by all public

            agencies in all government functions and actions.

            It goes on to extend the scope to all documents compiled, published or recorded by the government, and in section 330 defines government in a most comprehensive way.  Further, section 340 purports to carve out exceptions where the government “may use a language other than English when necessary.”  The very title of the ballot initiative said “Requiring Government to Use English.”[29]  Nevertheless, the State has argued from the inception of this lawsuit[30] that the initiative does not prevent anyone from speaking languages other than English.[31]  It distinguishes the law found unconstitutional in Ruiz v. Hill,[32] contending that our law falls somewhere in between the command in Arizona’s proposed amendment that its government act “in English and no other language”[33] and those purely symbolic acts found in several states across the country.[34]

            The court has the duty to attempt to interpret laws to avoid unconstitutionality.[35]  Because the State’s interpretation of the initiative has the potential to resolve or at least simplify this case, I am addressing it at the outset.  The only direct authority noted by the State is a case cited by the Ruiz court[36] interpreting an Illinois statute that everyone—including the State[37]--agrees is purely symbolic.  While ACL goes on at length that the initiative does not restrict the use of Native languages nor private speech, it nowhere argues that a loophole exists that actually allows government employees to routinely speak a language other than English while working. Nor do plaintiffs make this argument, and the actual language of the initiative seems to belie this interpretation:  “English is the language to be used...in all government functions and action;” the law applies to “all legislative and executive branches;” the government “may use a language other than English when necessary for the following” exceptions; a person “may bring suit against any governmental entity to enforce” the law.  None of this makes sense, nor are any of the exceptions necessary, if the initiative didn’t require the government to speak only in English.

            The State’s bare assertion of this interpretation, without analysis or authority, would leave little more to be discussed on the point.  However, last March, Utah District Court Judge Nehring did buy a similar argument in the face of legislation that provided that “English is the sole language of the government” except as otherwise provided in the listed exceptions.[38]  He began as this court did by finding that section 1 of the act, standing alone, “would be at home in the company of the State flower (sego lilly)...and State cooking pot (dutch oven).”  He then noted that the phrase “sole language of the government” was followed by “except as otherwise provided,” and the next section modified the scope of the law to all “official” documents and proceedings.  This lead Judge Nehring to the conclusion that all Utah’s initiative did was to divide the work of government into two parts, official and unofficial.  Noting that “Moderation is seldom a hallmark of the rhetoric used by either proponents or opponents of a controversial initiative,” he concluded that both sides were wrong and in fact the act allowed the government to communicate in any language.  It appears that no appeal of this ruling is pending.

            While Judge Nehring seems to have discerned his interpretation of Utah’s official English law on his own, he at least had a theory and laid it out in his decision.  The State has not offered a comparable analysis in this case, and I am unable to see one in the plain language of our initiative.  Although section 320 also uses the term “official,” it is preceded by a sentence that is written quite plainly, and section 330 contains language not present in the Utah initiative.  While Judge Nehring’s conclusion that Utah’s law is largely symbolic might be drawn from our initiative as well, the path is too tortured for me to follow.  I conclude instead that our initiative does indeed command government employees and officials to speak in English, except as is otherwise allowed by the enumerated exceptions.

Who are the plaintiffs and how do they think the initiative will affect them?

            Togiak plaintiffs and the motion to strike.

 

            Annexed as Appendix A are the Findings of Fact and Conclusions of Law entered at the outset of this case.  Findings 1-7 describe the plaintiffs, and not much has changed since to alter those findings.[39]  There is a question as to how much detail is necessary to decide this case, with the Kritz plaintiffs supplying the most, while others argue that a purely legal question is posed.  These plaintiffs went so far as to have their lawyer and their expert sit down and have coffee with them while being videotaped in Togiak talking about how that city operates, what kind of things city employees do and what it might mean if they were prohibited from speaking Yup’ik while working.[40]  These were duly accompanied by affidavits saying that they incorporated their earlier interviews as additional sworn testimony.

            Not surprisingly, Defendants objected to this novel procedure, arguing Evidence Rules 402, 603, 604 and 901.[41]  The court declines to set off on an academic side trip on this point, although certainly not everything on these videotapes is admissible.  Some of the speakers are not properly identified and portions of the discussion are irrelevant to this case.  But I’m not going to exclude a Yup’ik discussion in the Official English case because it isn’t properly translated.[42]  The language itself and the manner in which the speakers present is at least as important as the content of these conversations, and Dr. Hensel’s affidavit makes it plain that he relied upon his observations, some of which were recorded on the tapes.[43]  While the State is correct that this does not make the tape automatically admissible—it is usually the opposing party who might successfully get it in[44]--I conclude that under the unique circumstances of this case the tapes are useful as examples of how Togiak residents speak.  As exhibits to affidavits properly offered under Civil Rule 56(e), the motion to strike is denied, although the court will not rely on the tapes for the truth of the matters asserted, except to the extent the same information is presented in a sworn affidavit.  But it is apparent from a perusal of the voluminous material presented, that no party believes that we have a genuine issue of material fact,[45] and so inclusion of the videotapes should not be prejudicial.

            And the point of most of the Togiak affidavits is that if city officials and employees were required to communicate only in English, life there would be drastically different.  Since no party is arguing that the initiative actually requires that, I will not dwell on what such an interpretation would mean. The record is replete with uncontested evidence on this subject, even if the videotapes were to be excluded.  In addition to the affidavits of plaintiffs and Dr. Hensel, the affidavits of the city clerk,[46] an administrative assistant,[47] and water & sewer director[48] were filed. It is apparent that there is a significant number of people in Togiak who do not speak English, or who speak it only superficially, and the City of Togiak assists these people with all sorts of tasks not normally performed by government.  These tasks include helping residents complete federal applications required to fish for halibut,[49] performing plumbing and auto repairs, and selling fuel oil and gasoline.[50]  Council members and employees routinely translate documents both official and unofficial for each other and for members of the public.[51]  These activities are in addition to those more typical functions of government, which are also done in both languages, as was described briefly in the Findings of Fact made at the inception of this lawsuit.[52]

            Alakayak plaintiffs and other Alaskans.

            Henry Alakayak and some of the other parties to this lawsuit assert positions similar to the Kritz plaintiffs.[53]  But Alaska Natives do not live only in rural Alaska, and of course there is an increasing number of people of other cultures living in Alaska.  Thirty years ago, when there were 125,000 people in Anchorage, 12,000 were minorities, which included African-Americans, Hispanics and Alaska Natives.[54]  Now there are more than 17,000 Hispanics alone (25,000 statewide), some 20,000 Alaska Natives and another 20,000 Asian or Pacific Islanders (30,000 statewide).[55]  The 27% of Anchorage that is a racial or ethnic minority appears to be rising, since the figure is 34% in the city’s schools.[56]  While these numbers include many long-time Americans, they may also be assumed to include a sizable number of recent immigrants, many of whom are not yet proficient in English.

            Plaintiffs point to several areas in which they believe Official English will adversely affect these Alaskans.  One of these is education.  Fannie Akpik is an Assistant Professor of Inupiat Studies at Ilisagvik College in Barrow, and before that taught the Inupiaq language in the North Slope School District for many years.[57]  Anecia Lomack is also bi-lingual and teaches in an elementary school in Manokotak which uses a transitional program to ease Yup’ik students into a more typical English-based curriculum.[58]  Nancy Sharp teaches Yup’ik in the same school to first and second graders.[59]  Walter Tirchik is an educator and author working to develop curricula for the Lower Kuskokwim School district.[60]  The different types of programs that have been used in village schools are described by Veronica Michael, who taught Plaintiff Elizabeth Beaver in a First Language program when Ms. Beaver was in second grade.[61]  All of these people have concerns about any limitations on the right to speak Alaska’s Native languages, although, as discussed earlier, no party to this litigation believes that the initiative actually requires that.

            But Plaintiffs also point to educational concerns that don’t involve Native languages.  Camille Brito teaches English as a Second Language in Kodiak to students who grew up speaking Spanish, Korean, Tagalog and other dialects of the Philippine Islands, and naturally ends up translating for them and their families from time to time.[62]  Social studies teacher Manuel Macedo worries that he won’t be able to clarify substantive matters when he switches to Spanish to help Hispanic students learn about our government.[63]  He also helps translate for parents, including those of children enrolled in special education classes.  Plaintiffs maintain[64] that the exceptions listed in the initiative[65] do not allow the teaching of math, science or social studies in a language other than English,  nor do they allow educators to use other languages when speaking to parents about their children’s progress or problems.  Plaintiffs also wonder whether the exception that allows public officials to talk any language with their “constituents” would allow Filipinos of Unalaska to speak Tagalog to a representative of Anchorage, if the latter were able to speak that language, since such folks are not technically her constituents, and what it means that this exception only applies to “oral” communications.[66]  Can elected Yup’iks in Manokotak or Hispanics in Fairbanks talk business with each other in a language other than English?  And what about the social worker or other government employee trying to apply substantive law to a given situation, or simply to assist a citizen obtain benefits or services available under the law?[67]

            As noted earlier, the State takes the position that the initiative doesn’t bar anyone from speaking English, and ACL maintains that the Native American Languages Act exception[68] solves the problem at least as far as Alaska Natives are concerned.  It also believes that Plaintiffs’ “parade of horribles” must be tempered by an objective and common sense interpretation of the initiative.[69]  ACL envisions that there are a “broad range of topics that potentially could fall within the ‘health and safety exception’”[70] of the initiative.[71]  Further, it contends[72] that a teacher’s “casual conversation” with a student or parent is private, and therefore not prohibited by the initiative.  It makes the same point as to informal discussions between government officials and citizens, and describes the initiative, properly read, as “a positive and practical limitation on Alaska government that has little or no impact on the manner in which Plaintiffs presently conduct their business or lives.”[73]  ACL files several affidavits supporting that view of the initiative.[74]

Freedom of speech.

            We are all familiar with the language “Congress shall make no law ...abridging the freedom of speech...”[75]  We all know as well that this isn’t exactly correct, starting with the restrictions on yelling “fire” in a crowded theatre.  The Alaska Constitution is worded differently:  “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”[76]  While there are several ways of looking at the Official English Initiative, it makes sense to start with freedom of speech, and particularly, with the question of what that means with respect to public officials and employees.  Is a command to speak English a restriction on speech?  If so, is such a restriction unconstitutional even when applied only to the speech of a government employee?  And, if this is permissible, then we still arrive at the thorny issues of whether the line between public and private speech can be delineated with enough precision to pass constitutional muster, and whether the initiative infringes on the rights of the listener. 

            Does a restriction on language abridge freedom of speech?

            Is a restriction on the language one can speak a restriction on speech itself?  This rather esoteric inquiry is likely apparent to most non-lawyers, and I will try not to confuse the matter any more than necessary.  Plaintiff’s expert Dr. Hensel certainly believes that restrictions on language are restrictions on speech: 

(a)    requiring a Yup’ik person not proficient in English to converse in

English bars communication itself because at least one person is excluded

from the conversation;

 

(b)    requiring a bilingual Yup’ik person to converse in English bars

effective communication because the content of the message delivered or

received is often not the same as the message intended to be delivered or

received;

 

(c)    the very existence of a requirement to converse in English tends to

deter Yup’ik speaking individuals from speaking in conversations or

communications designated to be in English;

 

            ...[77]

Dr. Hensel goes on to discuss the distinct conversational norms of Yup’ik

speakers, which involve turn taking, the length of pauses, eye contact and even what subjects may be discussed and in what way they might be discussed.[78]  From this, the Kritz plaintiffs argue that the initiative is content based and abridges communication itself.[79]  (This of course is not determinative, since the very case they cite held that a law which allows the addressee to bar from his or her mailbox junk or offensive mailings is quite constitutional.[80])   The Alakayak plaintiffs also assume as a given that the initiative restricts speech and therefore communication, regardless of whether it can be characterized as content based or not.[81]

            As noted earlier, the State maintains that even if the initiative is construed to require the use of English, it only restricts government speech, and doesn’t affect Native languages at all. ACL is even more insistent that government may tell its employees exactly what to say; it is not the person’s speech but the government’s.[82]  But again, this does assume that a restriction on the language spoken is a restriction on speech itself. 

            And that is what the philosophers tell us: language is the beginning, it is part of who we are.[83]  Beyond defining our ethnicity, it organizes our minds.[84]  I therefore agree with the two courts that addressed the merits of the Arizona Official English Amendment: “Speech in any language is still speech and the decision to speak in another language is a decision involving speech alone.”[85]

            Free speech, the public forum doctrine and public employees.

            When the initiative first came before me on the motion for a preliminary injunction, I held that the First Amendment protects the communication, its source and its recipient,[86] and that prohibitions on speech may not be justified by the simple assertion that the government is one’s employer.[87]  But Defendants strenuously urge that this analysis is faulty; that the “employee speaking officially is not the speaker”—the government is.[88]  Since the purpose of the law is neutral,[89] and since it doesn’t require the speaker to parrot the party line, the State argues that the initiative is not content-based and should be scrutinized as affecting only the manner or mode of expression.[90] 

            ACL agrees with this approach.  If the government can tell its employees what they need to say, it can certainly tell them in what language they must say it.[91]  ACL contends that Plaintiffs’ briefs are 100% dicta, and that not “a single authority cited...is on point or recognizes a right on the part of public employees in the content or viewpoint expressed by the government’s speech.”  It stresses that Plaintiffs are seeking “completely new rights,” and that there would be “dramatic consequences” if this court were to recognize those rights.[92]  The United States Supreme Court at one point granted certiorari on this issue under the federal constitution, but ultimately didn’t decide it.[93]

            Defendants cite several federal cases in support of their position, starting with Rosenberger v. Rector and Visitors of the University of Virginia, where Justice Kennedy wrote that “when the State is the speaker it may make content-based choices.”[94]  The court however distinguished Rust v. Sullivan,[95] and went on to hold that a publicly funded university may not pick and choose which campus organizations it will support based on their views.  Rust was the case in which the court upheld a federal law that prohibited counseling on abortion in those family planning centers funded under the act.  The Chief Justice observed that the court had the duty to construe the act to be constitutional if at all possible, stopping short only of “disingenuous evasion,”[96] and that it was clear that Congress could make a value judgment in its allocation of funds to favor childbirth over abortion, just as the National Endowment for Democracy might prohibit its workers from counseling communism or fascism.[97]  Grantees were allowed to say what they wanted, as long as they physically separated banned activities from the facility receiving the federal funds.  The Chief Justice distinguished FCC v. League of Women Voters of California,[98] which banned all “editorializing” at noncommercial radio and television stations receiving federal funding, because such stations had no way of separating their functions even if most funding was private.[99]  Finally, the court observed that a public subsidy did not mean the government could control the content of speech in areas that have been traditionally open to the public for expressive activity, and that the vagueness and overbreadth doctrines were available to limit the doctrine at such places as publicly funded universities.[100]  Four justices dissented, holding to the view that the act conditioned receipt of federal funds on the relinquishment of a constitutional right, which had never previously been sanctioned.[101]

            When you read these opinions and the others cited by Plaintiffs and distinguished by Defendants, it is immediately apparent that the government-as-speaker-exception is not a settled area of the law.  On the one extreme are cases such as Bond v. Floyd,[102] where Chief Justice Warren, speaking for a unanimous court, told the Georgia Legislature that it couldn’t throw Julian Bond out no matter what he said about the war in Vietnam.  There is no reason to suspect that the Rehnquist court would reach any other conclusion today.  The initiative under consideration here does purport to limit the speech of elected officials, and it is worth remembering the court’s words that a state has “no interest in limiting its legislators’ capacity to discuss their views,” and that the First Amendment requires that they be given the “widest latitude to express their views on policy.”[103]  On the other end of the spectrum are the funding cases discussed above, which reach opposite conclusions and are decided by 5-4 votes.[104]  While the reach of Official English is far broader than an admonition to a government agency that it not contravene administration policy on a particular subject,[105] and overbreadth remains an issue, Article I, section 5 of the Alaska Constitution protects speech in a more direct manner than its federal counterpart.[106] Accordingly, I now turn to the state cases that address the free speech rights of public employees.

            It has been said that a court’s duty in interpreting its state constitution is to discover the core value that gave the provision life, recognizing that each state’s framers sought to protect local values “however the philosophy of the United States Supreme Court may ebb and flow.”[107]  It is not immediately apparent that our framers were thinking about English one way or another, even though it was a very volatile issue for our neighbor to the east, where the late Pierre Elliott Trudeau pushed Canada into enshrining French as the country’s second official language over tremendous opposition west of Quebec.[108]  But the Alaska Supreme Court has not hesitated to recognize fundamental rights under our constitution even though the issue was unsettled under federal law,[109] and Justice Rabinowitz’ comment in interpreting Art. I, sec.1 in Breese v. Smith has often been quoted:

                        The United States of America, and Alaska in particular, reflect

            a pluralistic society, grounded upon such basic values as the preservation

            of maximum individual choice, protection of minority sentiments, and

            appreciation for divergent lifestyles.  The specter of governmental

            control of the physical appearances of private citizens, young and

            old, is antithetical to a free society, contrary to our notion of a

            government of limited powers, and repugnant to the concept of

            personal liberty.[110]

 

            It is with these thoughts in mind that we turn to the Alaska decisions that concern the free speech rights of public employees and what limitations can be placed on government in this regard.  The first of these is Alaska Gay Coalition v. Sullivan,[111] which the Kritz Plaintiffs characterize as an illustration of the public forum doctrine.[112]  In this case, the Alaska Supreme Court ruled that the Anchorage Blue Book, a government publication, was indeed a public forum, and could not exclude an organization based on the group’s beliefs.[113]  While this decision extended the public forum doctrine from the usual geographic description—sidewalks, parks, utility poles, bus stations—it was based on the First Amendment, and was similar to Rosenburger[114] in its holding that government cannot decide to fund or list organizations and then choose among them based on the view that they espouse.  But despite the Kritz Plaintiffs’ insistence that the State’s establishment of municipalities should trigger a similar analysis here, especially given the way in which the City of Togiak operates,[115] Official English doesn’t readily fit into this line of cases.

            There are several Alaska cases that directly address the free speech rights of public employees.  One involved a Sitka Police captain who was fired after signing a letter critical of his department.[116]  While again based on the First Amendment and citing federal cases,  Justice Dimond wrote that the applicable balancing test

                        allows a government employer to limit the First Amendment rights

            of an employee only if it can demonstrate that its legitimate interest in pro-

            moting efficiency in its operation outweighs the interests of the employee

            in commenting on matter of public concern.[117]

            While recognizing that the officer’s status as a police captain was relevant to the analysis of his claim, the court did not accept the argument that his free speech right “does not protect a police officer who is in a ‘policymaking’ position and makes statements critical of departmental action.”[118]  Two years later, Justice Matthews again cited Pickering in analyzing whether the Legislative Affairs Agency could discipline Sharman Haley for speaking her mind on multinational corporations in violation of a neutrality policy.[119]  The court affirmed the granting of summary judgment to the employee on the main issue, concluding that the State had not shown that any disruptions caused by Ms. Haley’s statements were substantial or material.[120]  Nor could the State insist that she refrain from making such statements in the future, since doing so would constitute an impermissible prior restraint on speech.[121]

            The Court adhered to this approach in State v. Wickwire,[122] and took the occasion to comment on how its view of the matter was affected by Article I, section 5 of the Alaska Constitution:

                        [W]e believe it appropriate to construe the “public concern” broadly

            to encompass speech on a wide variety of subjects.  From a public policy

            standpoint, it makes sense to encourage employee speech about the operations

            of government since employees often are in the best position to offer informed

            opinions.[123]

            While in Wickwire the court found the employee’s speech not to address a matter of public concern, such was not the case in the 1997 decision of Thoma v. Hickel, where the court disallowed a claim against state officials based on the State Constitution “because...a government official has a constitutionally protected right to speak, or write, in response to critical speech.”[124]  ACL seeks to distinguish this decision by arguing[125] that the plaintiff was trying to hold the state official personally liable for job-related speech, and it also asserts that the case was decided by a divided court.  But my reading of the case is that all four participating justices joined part III B of the opinion, and the fact is the court held that a government official has free speech rights.[126]  ACL’s position that all of these cases are inapposite because they don’t say that the employee has “a personal free speech interest in the government’s speech”[127] is lost on me.  Captain Swanner, Ms. Haley and Governor Hickel’s office were all addressing issues of public concern, and the court said this speech was constitutionally protected.[128]  Would it have been any less protected had they spoken in French?  If Defendants are truly arguing, as they seem to be,[129] that Ms. Haley’s comments on multinationals, Captain Swanner’s criticism of his department and whistleblowing in general are truly private speech, then they have made the case for vagueness as well as Plaintiffs ever could.  How can it be so clear that speech on “matters of public concern” is different from speech as an instrumentality of the government?[130]  Presumably, one of the reasons the TV station wanted to interview Ms. Haley was because she was a researcher who studied the policy implications of pending legislation,[131] but even if this were not the case, it certainly could have been.  Public employees are featured on the media every day, and reporters will take a good quote whether spoken officially or unofficially.  The work of state employees is by definition a matter of public concern, and if they have to worry about whether their comments are legal or illegal, that is a prior restraint on speech, which is presumptively unconstitutional.[132]  Further, as the Alakayak plaintiffs point out,[133] one agency’s party line might be whistleblowing at another.  I conclude that public officials and employees do have free speech rights and that the Official English Initiative interferes with those rights.  The next question would be, as the State in the end concedes,[134]  whether the State’s legitimate interest in promoting efficiency outweighs the free speech rights of its officers and employees.[135]

            The State’s interest in Official English.

                        Elected officials.

            President Bush’s election win was attributed by some to his proficiency in Spanish, and in celebration of Cinco de Mayo last year he decided to begin broadcasting his weekly radio addresses in that language.[136]  While the Official English Initiative would not prevent Alaska’s Governor from doing that (assuming the Governor was proficient in another language), since that position has a stateside constituency,[137] it would appear to prevent a legislator from the Kuskokwim speaking a language other than English at a meeting held in Ketchikan.  Nor are these far-fetched examples in the Alaska we live in today.[138]  This once again seems unwarranted under Bond v. Floyd, where the court wrote that a state has “no interest” in limiting its legislators’ capacity to discuss their views, and that they be given the “widest latitude” to express those views.[139]  While it may be true in a broad sense that a citizen’s remedy if he disagrees with government speech is to vote in a new administration,[140] that would hardly seem to be fair to the elected official who herself is prevented from saying what she wants to say in the language she wants to say it.  To the extent that the Official English Initiative prohibits elected officials from speaking languages other than English, it limits their ability to “freely speak,” and violates Article I, section 5 of the Alaska Constitution.  Going as it does to the core values of this republic, it would also appear to violate the First Amendment,[141] but I find it unnecessary to reach this issue.

                        Non-elected employees and officials.

            Assuming for the moment no difficulties with the rights of citizens, restrictions on the free speech rights of public employees must be justified by a strong State interest.  The act’s findings and purpose are set forth in section 300, which identify English as our “common unifying language,” and declare “a compelling interest in promoting, preserving and strengthening its use.”  An affidavit filed by the CEO of amicus U.S. English, Inc.,[142] traces that organization’s roots back to the late Senator S. I. Hayakawa, who said that they wanted to make sure that no-one was locked out of the mainstream by permanent language barriers:

                        A common language can unify; separate languages can fracture and

            fragment a society.  The American “melting pot” has succeeded in creating a

            vibrant new culture among peoples of many different cultural backgrounds

            largely because of the widespread use of a common language, English.[143]

            Mr. Mujica and the others in this movement believe they are empowering immigrants, and putting them on notice that full inclusion in American society requires proficiency in English.  They argue that it is dishonest to send any other message, and that those who do not learn English will be “trapped on the lower rungs of our socio-economic ladder.”  They also argue that “bilingual efforts by government” waste public funds.[144]  ACL has similar objectives.[145]

            This has been, of course, a continuing issue in America.  Stephen Moore of the Cato Institute reported in 1999 that 800,000 immigrants arrive here every year, and past information shows that 60% of them and 90% of their children speak English well or very well 10 years after arrival.[146]  He also reports that immigrants catch up economically in 10-15 years.  But there are no doubt many other views on this subject, as one can see from the many official languages acts that have been passed from time to time.  Puerto Rico, championed for statehood by Alaska Congressman Don Young,[147] named both English and Spanish its official languages a hundred years ago.[148]  In 1991, the island changed its official language to Spanish only, but it reversed course again two years later to make both languages official.[149]  Letters to the editor appeared around the country when El Cenizo, Texas decided to make Spanish its official language.[150]  Ken Jacobus, who wrote the Official English Initiative, reviewed acts from Virginia, Wyoming, New Hampshire and Nevada during the drafting process,[151] and there are many other such acts around the country.[152]  Legislation has been introduced in Congress on this subject throughout our history,[153] and it is apparent that language and ethnic conflicts around the world imperil the very existence of several countries today.[154]

            I realize that I may have gone outside the parties’ memoranda more than is usual, but the people of Alaska did pass this initiative, and it starts with a presumption of constitutionality.  In the end, however, it appears that the main purpose of the initiative was to try to change people’s behavior; to make non-English speakers learn the language more quickly.[155]  But both the American experience and a world view teach otherwise—in a free society, laws about language don’t accomplish much.  Gaelic is in decline despite laws promoting its use in Ireland, while Welsh has survived despite such laws.[156]  And so in those situations in which it can’t be said that the use of another language actually interferes with a public employee’s job,[157] it becomes difficult to justify official English on the basis of efficiency.

            It was this conclusion that led the Ninth Circuit to find that official English actually runs directly counter to the goal of an effective and efficient state work force.[158]  If you happen to have a Filipino seeking to register a snow machine at a DMV office where the worker actually speaks the right dialect, how is it efficient to have her restricted to the use of English?  Even Judges Kozinski and Kleinfeld, who vehemently disagreed with the way in which the Yniguez majority analyzed public employees’ First Amendment rights, accepted the fact that Arizona’s Amendment “makes it harder for many Arizonans to receive government services.”[159]  While Defendants also cite cost as a government interest,[160] there is scant evidence of that in the record, and therefore little on this side of the ledger to balance against the free speech rights of State employees.  Nor is it appropriate to jettison the usual strict scrutiny test based on the assertion of broad governmental interests unrelated to government employment.[161]  Further, the initiative seeks to impose its ban to municipal governments and instrumentalities, where the State’s interest would be even less strong.  Given the Alaska Supreme Court’s view that such speech ought to be encouraged,[162] I find that the Official English Initiative violates Article I, section 5 of the State Constitution as applied to non-elected public employees and officials as well as those who are elected.

            As discussed earlier, this holding does not grant state employees immunity from discipline for using a language other than English when this actually interferes with the work being done.   Nor does it require the State to hire hundreds of translators to accommodate speakers of all languages,[163] nor is it prohibited from structuring curricula, as long as it is “reasonably related to pedagogical concerns.”[164]  I simply hold that the State has failed to justify a law that would impose a blanket prohibition on public employees speaking languages other than English.

            Conclusion as to free speech, and a note on vagueness.

            Official English resists legal pigeonholing and, staying with the avian metaphor, may remind some of the debate over whether the eagle or the turkey should be our national emblem.  The proponents of the initiative see it as a positive and practical limitation on government,[165] while opponents see it as a patently unconstitutional threat to the unfettered exchange of views that is central to our system of government.[166]  I have resisted the urge to join the fray over whether Official English is a content-based exclusion,[167] although Plaintiffs’ comparison to flag burning prohibitions seems an apt one,[168] because I have concluded that the initiative was not narrowly tailored to achieve a legitimate state interest and unduly constricts the opportunities for free expression.[169]  I have also found no need to re-examine my original conclusion that the initiative violated the rights of citizens to receive information and ideas, which itself requires the State to show a compelling interest to justify the infringement.[170]

 While I have not focussed on overbreadth in analyzing the initiative, that is another approach to the issue that ends up at the same place.  Overbreadth is of course related to vagueness, which, Judge Boochever recently wrote, is applied more strictly in First Amendment cases.[171]  Courts have the duty to seek to find a narrowing construction that would limit the sweep of an overbroad law; mere uncertainty at the margins will not warrant facial invalidation of a law that is clear in the vast majority of its intended applications.[172]

 The problem, however, is that the initiative is too all-encompassing to allow for such a construction.[173]  Seeking to cure an overbreadth problem by inserting an exception for constitutionally protected speech itself makes a statute vague.[174]  Nor is it entirely nitpicking to note that exception 4 allows you to speak German or Chinese to promote trade and tourism but not to speak out, similar to what Sharman Haley was doing, against such activities for one reason or another.[175]  The University’s inclusion[176] is itself problematic given its “traditional sphere of free expression so fundamental”[177] that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”[178]  When is a food stamp worker who is comforting a crying child working, as opposed to simply being human?  What, exactly, constitutes an “emergency” that requires use of another language?  Also confusing is the use of the words “proficient” and “proficiency” in the initiative,[179] which introduce another source of ambiguity in interpreting what the law does and doesn’t and prohibit.  While the Ninth Circuit was able to construe California’s initiative to make it clear that it only applied to teachers in the classroom actually instructing in math or geography,[180] no similar construction of our initiative has been suggested that would address the concerns of educators.[181]  Further, the broad scope of the initiative[182] makes it plain that it was intended to apply to all city councils, school boards, zoning commissions, maintenance departments—all government agencies and instrumentalities—so that the task of fashioning a limiting construction is just not possible.  I also adhere to my original decision that because government officials and employees are supposed to follow the law, the initiative is subject to the vagueness analysis.[183]

At oral argument on the motion for a preliminary injunction three years ago, counsel for the Alakayak plaintiffs read a compelling quotation from Cohen v. California[184] that has been cited by our own supreme court.[185]  I won’t repeat it here, but the idea is that Americans will put up with a lot of cacophony, viewing it not as a weakness but as a strength.  This is surely no less true in Alaska.  We don’t inquire too much into the motives of a law restricting speech, we don’t worry about whether the speaker makes sense, and we even tolerate some downright offensive language, all to make sure we don’t chill the exercise of our most fundamental right.   The Official English Initiative violates this principle by its extremely broad sweep, and so violates Article I, section 5 of the Alaska Constitution.

 

 

Remaining issues.

            Other constitutional claims.

While I touched upon plaintiffs’ vagueness challenge to the initiative, they also assert a more broad-based due process challenge,[186] as well as one based on a denial of equal protection.[187]  Analysis of the latter claim would involve closer scrutiny of the initiative’s purpose than I have given it so far,[188] with proponents arguing that the means chosen to reach the stated goals of the initiative are not well-fitted, and that education would be a less restrictive and more effective way of getting everyone to speak English.[189]  Since I have found that Official English implicates the exercise of a fundamental constitutional right, the initiative is subject to strict scrutiny, which requires a compelling State interest.[190]  It is, however, unnecessary for me to reach this issue, or any of the other claims pleaded in the complaints.[191]  AS 22.10.020(g) makes it plain that the court may issue a Declaratory Judgment “whether or not further relief is or could be sought,” and it has the effect of a final judgment.

Native American Languages Act.

Many of the plaintiffs are Alaska Natives,[192] and they are aware of past efforts both here and in other parts of the country to suppress Native languages and culture.[193]  ACL responds that not only did the initiative’s sponsors draft language to exempt Native languages,[194] they filed a lawsuit seeking to force the Lieutenant Governor to better inform voters of the NALA exception in the Election Pamphlet.[195]  Further, Defendants have asked the court to remove any doubt on the issue by declaring that Native languages are exempt from the Official English law.[196]

Plaintiffs cite federal cases to illustrate that an exception “to the extent necessary to comply” with NALA doesn’t quite cut it, especially since the drafters could have made a Native languages exemption explicit in section 320.[197]  They maintain that NALA is not binding on the states and that its scope is far less expansive than that of Official English.  Once again, however, this is an issue that need not be reached.  While the initiative, if it did apply to Native languages, would likely cause more problems in the villages than elsewhere, it does restrict many other languages unprotected by NALA.  Accordingly, a decision on the interplay between NALA and the Official English Initiative would not resolve this case, and is unnecessary in light of the decision that I have reached.

Can legal effect be given to part of the initiative?

            The Official English Initiative contains an express severability clause, which states that if any part of the law is found to be invalid, the other parts are to be enforced “to the fullest extent possible.”[198]  Such a clause creates a “slight presumption in favor of severability.[199]  In the usual case, the parties agree,[200] the

                        key question is whether the portion remaining, once the offending

            portion of the statute is severed, is independent and complete in itself so

            that it may be presumed that the legislature would have enacted the valid

            parts without the invalid part.[201]

            The parties of course did not agree on what result this test produces in this case, and Defendants were a little short on detail as to how I might actually accomplish this here.[202]  They also divide over how or whether to apply the doctrine to an initiative, where there is no legislative history to assist in determining the intentions of those passing the bill.[203]  Since a court is not supposed to write laws, the fundamental problem is how to best effectuate the will of the people once a provision has been struck down.  On the one hand, I should try to give effect to the law they sought to enact,[204] but on the other hand, I cannot simply assume that the voters would prefer the initiative to stand as altered.[205]  “Striking the entire initiative on the ground that one sentence of secondary importance is constitutionally invalid would be strong medicine,”[206] but how about striking the entire initiative to leave just one sentence?  For with no disrespect to the public intended, it certainly does not appear unreasonable to me that this is exactly what many voters would want:  The English Language is the official language of the State of Alaska.[207]

            I suggested exactly this at oral argument.[208]  The Alakayak plaintiffs stress[209] that such a law would certainly not be the same one passed by the voters; moreover, how can you give legal effect to a law that simply makes English our official language?  Nor does ACL agree with this approach, arguing in its Reply[210] that several sections that Plaintiffs see as part and parcel of what the court has today found violative of our constitution can actually stand on their own.  Given this wide disparity, and the uncontested fact that the centerpiece of the initiative has been invalidated, I find that I would be legislating if I attempted to pick and choose and recast the law from the remnants.[211]  While I might capture the “spirit of the measure,”[212] I can’t say that it would be evident that voters would prefer the measure as altered, and so I decline to give effect to any remaining parts of the initiative.

Conclusion.

            For the reasons set forth above, I find the Official English Initiative violative of Article I, section 5 of the Alaska Constitution and have signed a Declaratory Judgment to that effect.    Defendants’ cross motion for summary judgment is denied.

            Dated at Dillingham, Alaska, this _______day of March 2002.

 

                                                                        _______________________________

                                                                        Fred Torrisi, Judge

           

 

           

           

           

           

           

 

 

           

           

           

           

           

                       


[1] Ballot Measure No. 6, approved by the voters on 11/3/98, codified at AS 44.12.300-390, to become effective 3/4/99, but enjoined by this court 3/3/99.

[2] See Arizonans for Official English v. Arizona, 520 U.S. 43, 48, 64, 137 L.Ed.2d 170, 181, 191, 117 S.Ct. 1055, 1067 (1997).

[3] Memorandum of Togiak Plaintiffs in Support of Motion for Partial Summary Judgment, filed 6/16/99, at 1-3.

[4] Togiak Plaintiffs’ Combined Reply Brief, filed 4/18/01, at 53-54; see AS 44.12.340(a)(8) and the Native American Languages Act (NALA), Pub.L. 101-379, 25 U.S.C. 2901-6.

[5] Alakayak Plaintiffs’ Motion for Summary Judgment, filed 6/7/99, at 64-65.

[6] Alakayak Plaintiffs’ Reply, filed 4/16/01, at 1-3.

[7] Defendants’ Memorandum in Opposition to Motions for Summary Judgment and in Support of Cross Motion, filed 11/16/00, at 2-3.

[8] Id. at 5-7.

[9] Id. at 7-11, State’s Reply, filed 6/15/01, at 2-4; Memorandum in Support of Alaskans for a Common Language’s Motion for Summary Judgment Against Kritz Plaintiffs and Combined Motion for Rule of Law on Construction of Official English Law Re: Alaska Native Languages Exception, filed 11/17/00, and Combined Reply, filed 6/18/01, at 4-10.

[10] Alaskans for a Common language briefing, supra.

[11] Affidavit of Ken Jacobus, annexed to ACL’s briefing, supra, and Exhibit H.

[12] See Ak. Const. Art. XI, section 1.

[13] AS 15.45.180.

[14] See Alaskans for a Common Language v. Kritz, 3 P.3d 906, 909-10 (Alaska 2000); see also exhibits annexed to Motion for Preliminary Injunction, filed 2/22/99.

[15] AS 15.58.010-020.

[16] Exhibit H, supra note 11, pp. 1-3, and Ex. A to Alakayak plaintiffs’ opening brief.

[17] Exhibit A to the State’s Memorandum, supra note 7.

[18] AS 15.45.220.

[19] Kritz  v.  State was filed in Dillingham on 2/12/99, and Alakayak in Anchorage four days later.

[20] Order of 2/19/99.

[21] Preliminary Injunction, 3/3/99.  See also Findings of Fact and Conclusions of Law Supporting Preliminary Injunction, annexed as Appendix A.

[22] Memorandum of Decision on Motion to Intervene, 5/10/99.

[23] ACL v. Kritz, supra note 14.

[24] Civil Rule 56.

[25] CD 3DIA01-196, log 1:31-3:09.

[26] See notes 15-16, supra.

[27] AS 44.09.130.

[28] AS 44.09.120.

[29] Exhibit A to Alakayak Plaintiffs’ opening brief, at 5-7.

[30] See Defendants’ Opposition to Motion for Preliminary Injunction, filed 2/26/99, at 1-3, 17.

[31] State’s memorandum at 1-2, 6-7; Reply at 2, 5-6.

[32] 957 P.2d 984 (Ariz. 1998), cert. denied, Arizonans for Official English v. Arizona, 525 U.S. 1093 (1999).

[33] Ariz. Const. art. XXVIII, sec. 3(1)(a).

[34] The State cites Illinois, Indiana and Kentucky statutes at page 7 of its brief.  See also Ruiz, supra note 32, 957 P.2d at 994-96.

[35] Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978); see also cases cited on page 6 of ACL’s opening brief.

[36] Puerto Rican Organization for Political Action v. Kusper, 490 F.2d 575 (7th Cir. 1973).

[37] See note 34.

[38] Anderson v. Utah, Case 909680, 3d Dist. (3/5/01), construing UT ST S 63-13-1.5(2), annexed as Appendix B.

[39] Sonia Collins is no longer a plaintiff, and the new mayor of the North Slope Borough, George N. Ahmaogak, as been substituted for his predecessor.  Orders of  10/31/00.

[40] Affidavits of Moses Kritz, Frank Logusak and  Stanley Active, Sr., each with an attached video exhibit 1, affidavit of Marie Paul and exhibit 3, and affidavit of Dr. Chase Hensel and exhibits 2-4 (see 6/25/99 letter from attorney Pope).

[41] Defendant’s Motion to Strike, filed 11/16/00.

[42] Defendant’s Memorandum at 4-5.

[43] Second Affidavit of Chase Hensel, filed 6/16/99, para. 4.

[44] Evidence Rule 705(a).

[45] Civil Rule 56(c).

[46] Affidavit of Margie Coopchiak; see also Ex. 1 (her job description).

[47] Aff. (and job description) of Willie Echuck.

[48] Aff. of Darryl Thompson.

[49] Second Hensel Affidavit, supra n. 43, at 5.

[50] Id. at 18-20; see also Kritz affidavit at 4, Thompson Aff. at 2-3.

[51] Id., Affidavits of Willie Echuck, at 2-4, and Margie Coopchiak, at 2-4.

[52] Findings 1-4, Appendix A.  See also Togiak Plaintiffs’ brief, supra note 3, at 3-15.

[53] Id., Findings 4-6, see also Affidavits of Henry Alakayak, Benjamin P. Nageak, Molly Pederson and Grace Hill, Attachments A, F, G and M, annexed to Memorandum in Support of Alakayak Plaintiffs’ Motion for Temporary Restraining Order, filed 2/22/99.

[54] Anchorage Daily News, 12/10/00, A-9.

[55] Id., ADN, 4/2/00, A-1 & A-12, ADN, 3/18/02, A-6.

[56] Id.

[57] Affidavit of Fannie K. Akpik, Attachment H to Alakayak Plaintiffs’ 2/99 brief, supra note 53.

[58] Id., Attachment B.

[59] Id., Attachment C.

[60] Id., Attachment D.

[61] Id., Attachment E.

[62] Exhibit B to Alakayak Plaintiffs’ 6/7/99 brief.  See also Aff. of Julia Samaniego, Ex. D.

[63] Id., Ex. C.

[64] Alakayak Plaintiffs’ 6/99 brief at 4-5.

[65] AS 44.12.340(a).

[66] Section 340(a)(11), Alakayak brief at 3-4.

[67] Id. at 6; see also this court’s Finding of Fact No. 6, 3/3/99, annexed as Ex. A.

[68] Section 340(a)(8).

[69] ACL’s cross motion for summary judgment at 8.

[70] Section 340(a)(1).

[71] ACL br. at 10.

[72] ACL combined brief at 35.

[73] Id. at 36.

[74] Affidavits of Walter Analoak, Deborah Luper, Yolanda Clary and Irene DeLeon, annexed to the ACL combined brief; see also the affidavits of Mauro E. Mujica, Ken Jacobus and Susan Fischetti as to the reasons the sponsors promoted the initiative.

[75] U.S.Const. Amend. I.

[76] Ak. Const. Art. I, sec. 5.

[77] Second Affidavit of Chase Hensel, para. 6.

[78] Id., para 9.  See also Note, Language is Speech:  The Illegitimacy of Official English After Yniguez v. Arizonans for Official English, 30 U.C.Dav.L.Rev. 277, 305 (1996).

[79] Opening brief, supra note 3, at 59-65.

[80] Rowan v. United States Post Office Dept., 397 U.S. 728, 25 L.Ed.2d 736, 90 S.Ct. 1484 (1970).

[81] Alakayak brief at 12-17.

[82] ACL cross motion at 10-13, combined reply at 23-32.

[83] P. Schroth, Language and Law, 46 Amer. J. Comp. Law 17 (1998)(citations omitted).

[84] Id.

[85] Yniguez v. Arizonans for Official English, 69 F.3d 920, 936 (9th Cir. 1995)(en banc), vacated on other grounds, Arizonans for Official English v. Arizona, 520 U.S.43, 137 L..Ed.2d 170, 117 S.Ct. 1055 (1997), quoted in Ruiz v. Hill, supra note 32, 957 P.2d at 999.

[86] Conclusion of Law No. 4, annexed as Ex. A, citing Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 756, 48 L.Ed.2d 346, 355, 96 S.Ct.1817 (1976), also cited by the Ruiz court, 957 P.2d at 997.

[87] Id., citing Bond v. Floyd, 385 U.S. 116, 132-33, 17 L.Ed.2d 235, 245-46, 87 S.Ct. 339 (1966), Perry v. Sinderman, 408 U.S. 593, 597, 33 L.Ed.2d 530, 577, 92 S.Ct. 2694 (1972), Rutan v. Republican Party of Illinois, 497 U.S. 62, 72, 111 L.Ed.2d 52, 65, 110 S.Ct. 2729 (1990) and Wickwire v. State, 725 P.2d 695, 700(Alaska 1986).

[88] State’s 11/00 brief at 12.

[89] Id. at 4.

[90] Id. at 13-14.  Accord: Note, Yniguez v. Arizonans for Official English: The Struggle to Make English the Official Language, 34 Houston L.Rev. 1637, 1658-64 (1998).

[91] ACL cross motion at 11, State’s 11/00 brief at 15-16; see also Yniguez, supra note 85, 69 F.3d at 960-63 (dissenting opinion).

[92] Id. at 12; see also pp. 19-26.

[93] Note 2, supra.  The Arizona Supreme Court did, however.  Ruiz, supra note 32.

[94] 513 U.S. 819, 833, 115 S.Ct. 2510, 2518, 132 L.Ed.2d 700 (1995).

[95] 500 U.S.173, 114 L.Ed.2d 233, 111 S.Ct. 1759 (1991).

[96] Id. at 190-91, 114 L.Ed.2d at 253-54 (citations omitted); see also ACL cross motion at 5-7, State’s Reply at 4-6.

[97] Id. at 192-94, 114 L.Ed.2d at 255-56.

[98] 468 U.S. 364, 82 L.Ed.2d 278, 104 S.Ct. 3106 (1984).

[99] Rust, 500 U.S. at 197, 114 L.Ed.2d at 258.

[100] Id. at 199-200, 114 L.Ed.2d at 259-60.

[101] Id. at 207 et seq., 114 L.Ed.2d at 264 (Blackmun J., dissenting)(citations omitted); see esp. Perry v. Sindermann, 408 U.S. 593, 597, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972).

[102] Note 87, supra.

[103] Id. at 135-36, 17 L.Ed.2d at 247.

[104] See Legal Services Corp. v. Velazquez, 531 U.S.__, 149 L.Ed.2d 63, 121 S.Ct. __(2001).

[105] See, e.g., Wells v. City and County of Denver, 257 F.3d 1132 (10th Cir. 2001), cert. denied 151 L.Ed.2d 384 (2001).

[106] Messerli v. State, 626 P.2d 81, 83 (Alaska 1981); see also Mickens v. City of Kodiak, 640 P.2d 818, 820 (Alaska 1982).

[107] Baker v. State, 744 A.2d 864, 870 (Vt.1999), quoting State v. Jewett, 500 A.2d 233, 235 (Vt. 1985) and State v. Kirchoff, 587 A.2d 988, 992 (Vt. 1991); see also H. Linde, First Things First, Rediscovering the States’ Bill of Rights, 9 U.Balt.L.Rev. 379, 381-82 (1980) and S. Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L.Rev. 707, 717-19 (1983).  See also Hootch v. State-Operated School District, 536 P.2d 793, 800 (Alaska 1973).

[108] Colin Nickerson, Boston Globe, reprinted in the Anchorage Daily News, A-9, 9/29/00. See also R. L. King, “Should English Be the Law?” The Atlantic Monthly (April 1997).

[109] Breese v. Smith, 501 P.2d 159, 166-67 and n. 30 (Alaska 1972).

[110] Id. at 169; see also Calista v. Mann, 564 P.2d 53, 61 (Alaska 1977) and those cases cited in the Alakayak brief at 10-12.

[111] 578 P.2d 951 (Alaska 1978).

[112] Kritz brief at 52-53, Reply at 44-46.

[113] 578 P.2d at 956-58.

[114] Note 94, supra.

[115] See notes 46-52, supra.

[116] City & Borough of Sitka v. Swanner, 649 P.2d 940 (Alaska 1982).

[117] Id. at 943, citing Pickering v. Board of Education, 391 U.S. 563, 568, 20 L.ed.2d 811, 817, 88 S.Ct. 1731, 1734 (1968).  See also Connick v. Myers, 461 U.S. 138, 147, 75 L.Ed.2d 708, 103 S.Ct. 1684 (1983).

[118] Id. at 944-45.

[119] State v. Haley, 687 P.2d 305 (Alaska 1984).

[120] Id. at 313.

[121] Id. at 314-15.

[122] 725 P.2d 695 (Alaska 1986).

[123] Id. at 703.

[124] 947 P.2d 816, 824 (Alaska 1997).

[125] ACL Reply at 24-25.

[126] See also, Bond v. Floyd, supra note 102.

[127] ACL Reply at 26.

[128] See also Alakayak Reply at 16 n. 21.

[129] See State’s Reply at 14.

[130] Id. at 24.

[131] 687 P.2d at 308-9.

[132] State v. Haley, supra, 687 P.2d at 315, quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 9 L.Ed.2d 584, 593, 83 S.Ct. 631, 639 (1963).

[133] Alakayak plaintiffs’ Reply at 26-28.

[134] State’s Reply at 17.

[135] Note 117, supra.

[136] Anchorage Daily News, A-3, 5/6/01.

[137] AS 44.12.340(a)(11).

[138] T.Pryor, “Meeting the New Voters,” Anchorage Daily News, A-1, 4/2/00, mentioning former city assemblyman Mark Begich, State Rep. Pete Kott and Mayor George Wuerch’s efforts to reach out in other languages.

[139] Notes 87 and 103, supra.

[140] ACL Reply at 31, quoting Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 235, 146 L.Ed.2d 193, 209, 120 S.Ct. __(2000), quoted in Valazquez, supra note 104, 149 L.Ed.2d at 72.

[141] Ruiz, supra, 957 P.2d at 997-1000.

[142] Affidavit of Mauro E. Mujica, supra note 74.

[143] Id., quoting 127 Cong. Rec. S3998 (daily ed. 4/27/81).

[144] Id.

[145] Affidavits of Ken Jacobus and Susan Fischetti.  See also those affidavits referenced in note 74. 

[146] “America’s Melting Pot Working Just Fine,” Voice of the Times, ADN,  8/14/99, E-11.  See also J. Swerdlow, “Changing America,” National Geographic, Sept. 2001.

[147] HR 856, 105th Congress (1998).  See J. Alvarez-Gonzales, “Law, Language and Statehood: The Role of English in the Great State of Puerto Rico,” 17 Law & Inequality Journal 359 (1999).

[148] Id. at 361-62.

[149] Id. at 366-67.

[150] See www.english.org/elcenezo/elcenezoreuters81699.htm and www.raoul.net/editorials/texas.html.

[151] Affidavit of Ken Jacobus, supra note 74.

[152] See Ruiz v. Hill, supra, 957 P.2d at 994-96 nn. 8-10.  One commentator wrote a half dozen years ago that 22 states and 40 municipalities now have official English statutes.  Note, Language is Speech: The Illegitimacy of Official English After Yniguez v. Arizonans for Official English, 2 U.C.Dav.L.Rev. 277, 278 (1996).

[153] Note, supra, 2 U.C Dav.L.Rev. at 277 n. 1; R. L. King, “Should English Be the Law?”supra note 108.  For a Latino perspective on this history, see D.Cornell and W. W. Bratton, “Deadweight Costs and Intrinsic Wrongs of Nativism: Economics, Freedom and Legal Suppression of Spanish,” 84 Cornell L. Rev. 595 (1999).

[154] R. L. King article, supra.

[155] See notes 143-45, above, and accompanying text.  See also ACL brief at 44-48.

[156] R. L. King, note 108.

[157] See State’s Opp. at 18-19.

[158] Yniguez, supra note 85, 69 F.3d at 942.

[159] Id. at 963 (dissenting opinion).

[160] ACL brief at 46-47.

[161] Rutan v. Republican Party of Illinois, 497 U.S. 62, 70 n.4 & 74, 111L.Ed.2d 52, 64 & 66, 110 S.Ct. 2729 (1990), cited in Yniguez, 69 F.3d at 943-44.

[162] Note 123, supra.

[163] See Note, Yniguez v. Arizonans for Official English, supra note 90, 34 Houston L. Rev. at 1661.

[164] California Teachers Association v. State Board of Education, 271 F.3d 1141, 1149 (9th Cir. 2001), citing Hazlewood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d. 592, 108 S.Ct. 562 (1988).

[165] Note 73, supra.

[166] See J. Nemec, Comment, Yniguez v. Arizonans for Official English: Free Speech May Have Lost the Battle, But in the End, It Will Win the War, 22 Md. J. Int’l. L. & Trade 117, 133-35 (1999).  See also Garrison v. Louisiana, 379 U.S. 64, 74-75, 13 L.Ed.2d 125, 85 S.Ct. 209 (1964)(“speech concerning public affairs is...the essence of self-government”), quoted in Connick v. Myers, supra, 461 U.S. at 145.

[167] See L. Tribe, American Constitutional Law 12-2 and 12-3 (2d ed. 1988) for a useful discussion about “track one” and “track two” in analyzing First Amendment cases.

[168] Alakayak opening brief at 16, citing Texas v. Johnson, 491 U.S. 397, 105 L.Ed.2d 342, 109 S.Ct. 2533 (1989).

[169] City of Ladue v. Gilleo, 512 U.S. 43, 55 n. 13, 129 L.Ed.2d 36, 47, 114 S.Ct. 2038(1994), Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 575-76, 96 L.Ed.2d 500, 508, 107 S.Ct. 2568 (1987).

[170] Vogler v. Miller, 651 P.2d 4 (Alaska 1982), citing Messerli and Mickens v. City of Kodiak, supra note 106.  See also Meyer v. Nebraska, 262 U.S. 390 (1923)(right of pupils to acquire knowledge).  See also AS 44.12.340(b)(conditioning the right of citizens to speak to their government upon translation into English).

[171] California Teachers Ass’n, supra note 164, 271 F.3d at 1150.

[172] Id. at 151, citing Hill v. Colorado, 530 U.S. 703, 733, 147 L.Ed.2d 597, 120 S.Ct. 2480 (2000).

[173] Ruiz, supra, 957 P.2d at 999.

[174] L. Tribe, supra note 167, at 1031.

[175] Section 340(a)(4), Alakayak brief at 14-15.

[176] Section 330.

[177] Rust v. Sullivan, supra note 95, 500 U.S. at 200, 114 L.Ed.2d at 260,

[178] Keyishian v. Board of Regents of New York, 385 U.S. 589, 603, 17 L.Ed.2d 629, 640, 87 S.Ct. 675 (1967).

[179] Sections 340(a)(2), (3) and (11).

[180] California Teachers’ Ass’n, supra note 164.

[181] See notes 57-63, supra.

[182] Section 330.

[183] Conclusion of Law 12, 3/3/99, annexed as App. A; see also Ruiz, supra, 957 P.2d at 999-1000.

[184] 403 U.S. 15, 24-25, 29 L.Ed. 284, 293, 91 S.Ct. 1780, 1787 (1971).

[185] Alaska Gay Coalition, supra, 578 P.2d at 959-60.

[186] Alakayak opening brief at 40-50.

[187] Id. at 27-40, Ak. Const. Art.I, sections 1 & 3; see also Kritz opening brief at 56-58 & 66-69.

[188] See, e.g. , State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909-13 (Alaska 2001).

[189] Note, English-Only Laws and the Fourteenth Amendment:  Dealing with Pluralism in a Nation Divided by Xenophobia, 29 U. Miami Inter-Am. L. Rev. 350, 355 et seq. (1998).

[190] Planned Parenthood, supra, 28 P.3d at 909.

[191] See Kritz Complaint, Count II, para. 28-30, filed 2/12/99 (interference with local government), Alakayak Complaint, Claim for Relief, filed 2/16/99 (Ak.Const. Art I, sections 1,3,5,6 & 7; Art. VII, sec.1).

[192] See notes 40-61 and accompanying text.

[193] See Alakayak brief at 55 and legislative history of NALA cited in the briefs.

[194] AS 44.12.340(a)(8).

[195] Case No. 3AN-98-8209 CI, see note 14, supra; ACL Motion for Rule of Law on Construction of Official English Law re Alaska Native Languages Exception and annexed affidavits.

[196] Id.; see also notes 7 & 9, supra.

[197] Alakayak brief at 50.  See also Kritz brief at 31-46.

[198] AS 44.12.390.

[199] Lynden Transport, Inc. v. State, 532 P.2d 700, 712 (Alaska 1975).

[200] Kritz brief at 72, Alakayak brief at 57, State brief at 41, ACL brief at 58.

[201] Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992), Lynden Transport, supra, 532 P.2d at 713.

[202] See especially the State’s brief at 42.

[203] See McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

[204] Ak. Const.Art.II, sec. 1; Art.III,sec.1; Art.XI, sec.1; ACL brief at 60.

[205] McAlpine, supra, 762 P.2d at 92-95.

[206] Id. at 93.

[207] AS 44.12.310.

[208] CD 3DIA01-196 at 1:53.

[209] Brief at 63.

[210] At 39.

[211] See State v. Alaska Civil Liberties Union, 978 P.2d 597, 633 (Alaska 1999).

[212] McAlpine, supra.