Alaskans for a Common Language, Inc. appeals from a decision of the superior court that the Official English Initiative, AS 44.12.300-.390, violates speech rights protected by the federal and Alaska Constitutions. We hold that a portion of the statute's principal provision violates constitutionally protected speech. We also hold, however, that this unconstitutional portion of the statute may be severed from the remainder of the principal provision and that the remainder, if given a narrowing construction, is constitutional. We therefore affirm in part, and reverse in part, the judgment of the superior court.
In 1998 Alaskans for a Common Language, Inc. (ACL), an Alaskan non-profit corporation, sponsored a ballot initiative to adopt English as the state's official language and to require its sole use in "all government functions and actions." The Official English Initiative (OEI or the initiative), entitled "Requiring Government to Use English," was described on the ballot as follows:
The OEI was approved by the voters on November 3, 1998 and was subsequently codified at AS 44.12.300-.390 to become effective March 3, 1999. Accordingly, this case requires us to interpret a statute enacted pursuant to the people's power of the initiative.
Following passage of the initiative, two sets of plaintiffs filed suit against the state to block its implementation. The Kritz plaintiffs consisted of Moses Kritz, Stanley Active, and Frank Logusak, all of whom are lifelong residents of Togiak. Kritz and Active are both public officials, the former proficient in English and Yup'ik and the latter only in Yup'ik. Logusak is a citizen who is fluent in both languages. The Alakayak plaintiffs are a group of Alaska residents from various cities and native villages, many of whom are either bilingual in English and Yup'ik, Inupiaq, or Spanish, or proficient only in their native languages and unable to communicate in English. The lead plaintiff, Henry Alakayak, is a member of the city council for the City of Manokotak who has limited proficiency in English and performs his job exclusively in Yup'ik. Both sets of plaintiffs alleged that implementation of the OEI would adversely affect numerous Alaskans who are themselves bi- or multi-lingual government officials or employees, or citizens who rely on
The cases were consolidated and, in March 1999, Superior Court Judge Fred Torrisi granted the plaintiffs' motion for a preliminary injunction, enjoining implementation of the initiative pending further order of the superior court or of this court. ACL then sought to intervene as a defendant.
All parties then moved for summary judgment, agreeing that the matter could be resolved without an evidentiary hearing. In March 2002 Judge Torrisi granted the plaintiffs' motions for summary judgment, finding that the OEI violated the free speech clause of the Alaska Constitution because "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." The court further stated that "[t]he wide reach of the initiative chills the exercise of protected speech, and there is no construction that can cure this problem."
The superior court rejected the argument that the initiative was purely symbolic and that it did not prevent anyone from speaking languages other than English, concluding that ACL failed to demonstrate how the initiative could be reasonably construed to permit government employees to routinely speak a language other than English, except in limited circumstances. Relying upon the Ninth Circuit's statement that "[s]peech in any language is still speech and the decision to speak in another language is a decision involving speech alone,"
With respect to elected officials, the superior court found that the OEI limits their ability to "freely speak" and thus violates article I, section 5 of the Alaska Constitution.
Concluding that the initiative failed to meet the stringent standard required under Alaska law to justify an infringement upon the speech rights of Alaska citizens, the superior court declined to make any findings regarding whether the OEI was content-based or to address the plaintiffs' equal protection arguments. However, the court noted that an overbreadth analysis would lead to the same conclusion because the initiative swept in too much constitutionally-protected speech to be construed narrowly. Finally,
ACL appealed. Following oral argument, we asked the parties to submit supplemental briefing on the issue of severability. The state had declined to participate in the original appeal but, at our request, submitted briefing on the issue of severability.
We apply our independent judgment to questions of constitutional law and review de novo the construction of the Alaska and federal Constitutions.
We review a grant of summary judgment de novo and will affirm the judgment if there are no contested issues of material fact and if the moving party is entitled to judgment as a matter of law.
There are now English-only laws in twenty-four states.
Alakayak and Kritz ask that we strike down the OEI on a constitutional basis similar to that used by the Arizona and Oklahoma courts. To determine whether the initiative is a constitutional regulation of speech we must determine (1) the scope of the law, (2) whether it burdens any constitutionally-protected rights, and, if so, (3) whether it withstands the appropriate level of judicial scrutiny given the nature of the rights it implicates.
Determining the scope of the OEI requires us to construe its meaning. In Part IV.A., we conclude that the first sentence of AS 44.12.320 broadly requires the use of English by all government officials and employees in all levels of government. Next, determining whether the statute burdens any constitutionally-protected rights requires us to evaluate its impact on the rights of private citizens, elected government officials, and government employees. In Part IV.B., we conclude that the same sentence impacts the constitutionally-protected speech of each of these groups. Third, determining whether the OEI withstands the appropriate level of scrutiny is a two-step process. In Part IV.C., we first identify and evaluate the government interest in prescribing the use of English; second, we determine how closely the means chosen by the OEI fit the ends it serves. We conclude that while the OEI serves a compelling governmental interest, the means it uses are not sufficiently narrowly tailored to satisfy the federal or Alaska Constitutions.
In Part IV.D., we consider whether any unconstitutional provisions can be severed to preserve a portion of the law. We conclude that the first sentence of AS 44.12.320 can be severed, allowing the second sentence of that section to stand. Finally, in Part IV.E. we set out the general principles for analyzing the other sections of the law.
The parties vigorously dispute the scope and effect of the law. We begin our analysis with its text:
ACL argues that the superior court misconstrued the purpose of the OEI, and that the law would have little impact on government because it was never intended as a categorical ban on communication in other languages. ACL claims that any potential constitutional problems can be avoided if we interpret the OEI as requiring the use of English only in the "formal" and "official" acts of government rather than as a categorical ban on speech in other languages in all aspects of government. The superior court, agreeing with Kritz and Alakayak, rejected ACL's proposed interpretation as unsupported by the text of the initiative itself or by the other ballot materials provided to voters on or before November 3, 1998.
Our precedent clearly establishes that "courts should if possible construe statutes so as to avoid the danger of unconstitutionality."
While we often look to legislative intent to construe the meaning of ambiguous statutes, we take a slightly different approach when interpreting initiatives enacted by the voters.
ACL has urged this court to consider the affidavits of the OEI's drafters and sponsors as we construe the initiative. Kritz responds that it would be inappropriate to rely on these affidavits as evidence of voter intent because materials which were not published and distributed to the electorate "do not carry the indicia of trustworthiness from having been presumptively distributed to and read by each and every voter." We agree. Because we must construe an initiative by looking to the materials considered by the voters themselves, we cannot rely on affidavits of the sponsors' intent.
The parties dispute whether the OEI is properly characterized as an English-only law. ACL's statement in support of the initiative stated that "this bill will have no impact on public or private use of Alaska Native languages," that the initiative will impose a limit only on the government, and that "[p]rivate citizens will still be able to use any language they want, anywhere, at any time." (Emphasis in original.) The summary described English as "our official language," "a symbol" which reminds "Alaskans of every race, religion, and background of what we all have in common."
In contrast, the opposition statement of the American Civil Liberties Union (ACLU) warned that, if enacted, the law "will have severe consequences for the many non-English speaking residents and citizens of Alaska." Highlighting some of these consequences, the statement cautioned that the law would not protect the use of Native languages, that it would require government employees to communicate with non-English speakers only in English even if they were able to speak the individual's language, that it would bar non-English speakers from receiving many services to which they are entitled, and that it would violate the constitutional rights of each Alaskan "to speak in the language of their choice," "to petition their
The OEI, presented to voters as Ballot Measure 6, was entitled "Requiring Government to Use English." The ballot measure contained a neutral summary prepared by the lieutenant governor, a Legislative Affairs Agency summary, a copy of the full text of the proposed statute, a statement in support of the statute drafted by its sponsor ACL, and a statement in opposition to the statute drafted by the ACLU.
The neutral summary stated:
The Legislative Affairs Agency summary explained that the OEI would require each public office, including each office of the state, public corporations and local governments, to use English in all functions, except in eleven enumerated circumstances. It further explained: "A person who is not a public officer or employee may make a statement to the government in another language if it is changed into English and made a part of the record." (Emphasis added.) The summary concluded: "The government may not stop the use of another language in a private function. A person may sue to enforce this measure."
ACL argues that AS 44.12.310 and .320, when read together, support its argument that the OEI was meant to apply only to the "official" or authorized acts of the State, and prove that the OEI recognizes a "common sense" distinction between "formal" and "informal" acts of government. These sections of the initiative provide:
(Emphasis added.) According to ACL, if the first sentence of section .320 applied to all acts by government employees, the second sentence would be unnecessary; thus its inclusion plainly modifies the reach of the initiative to govern only "official" state functions. ACL maintains that the OEI's language "plainly contemplates a category of informal, unofficial, written documents which it does not purport to govern." ACL argues in addition that because the OEI contemplates instances in which the government may use informal written materials in languages other than English, it is reasonable to construe the statute to permit informal oral communication in languages other than English as well. While ACL concedes that the government must act through its officers and employees, it claims that the OEI requires only that they use English to the extent that they are carrying out the "government functions and actions" of "public agencies" — that is, only to the extent they are performing official, authorized acts of
A similar argument was attempted — unsuccessfully — by proponents of English-only laws before the highest courts of both Arizona and Oklahoma. The Arizona court addressed the distinction between "official" and "unofficial" acts of government in Ruiz v. Hull,
The Supreme Court of Oklahoma reached a similar conclusion in In re Initiative Petition No. 366.
The same issues are presented in this case. The first sentence of AS 44.12.320 requires the use of English in "all government functions and actions." Because the plain language of the initiative is so clear, ACL "bears a correspondingly heavy burden of
ACL points to no ballot materials that indicate that the voters might have contemplated distinctions between "official" and "unofficial" or "formal" and "informal" acts of government when they enacted the OEI. The Legislative Affairs Agency summary explicitly stated that, pursuant to the OEI, every public officer or employee of the state would be required to use English in all functions, except in situations governed by the eleven enumerated exceptions. While ACL's statement in support of the initiative claimed that it would limit only government speech and would have no effect on the speech of private individuals, it did not state that the initiative would allow government employees to engage in informal or unofficial conversation with private citizens regarding government business in a language other than English.
Because the meaning of the first sentence of AS 44.12.320 appears plain and unambiguous, and because ACL has not offered sufficient evidence of contrary voter intent, we have no basis to find that the voters shared what ACL calls its "common sense" reading of the initiative. The first sentence of Section .320 plainly mandates the use of English by government officers and employees in the performance of their jobs, whether communicating with English or non-English speakers, except in specific circumstances. Accordingly, we reject ACL's contention that the plain language of the first sentence of AS 44.12.320, permits the "unofficial" or "informal" use of languages other than English by state officials or employees in the performance of their duties.
The same principles we applied to the first sentence of the OEI apply here as well. A "presumption of constitutionality applies, and doubts are resolved in favor of constitutionality."
In contrast to the first sentence of .320, the second sentence is capable of a narrow reading that is supported by its text and by the ballot materials. The text of the second sentence includes the word "official," thus "plainly contemplat[ing]," as ACL argues, "a category of informal, unofficial written documents" outside the reach of the OEI. Furthermore, the part of the neutral ballot summary addressing the second sentence of .320 states only, "State records must be in English." It does not require that all state records must be in English, at least suggesting that those state records that are not official are not within the reach of the OEI. Since the text of AS 44.12.320 and the ballot
Of what, then, does this "category of informal, unofficial written documents" consist? We agree with ACL's position that the distinction between "official" and "unofficial" is "a conceptual distinction, not a laundry list." Looking at the record, we are met with various examples of documents that appear to be "unofficial" or "informal." They are not published to the public but rather are written for an individual or a private audience. They lack indicia of formality such as seals or binding. They may even be handwritten. This category of unofficial or informal documents would include such documents as a note in Spanish from a teacher to a monolingual Spanish-speaking parent; a letter from a city councilor in Yup'ik responding to a constituent inquiry; a letter in Tlingit from a public health employee offering medical advice; or an invoice prepared in Yup'ik by a city mechanic for services rendered. None of these documents is an "official public document" in the sense that each one is individually tailored, is geared to address a private inquiry, and is generally not released to the public. These enumerated examples are neither exclusive nor comprehensive; nor by the discussion of these specific examples do we mean to provide a definitive holding as to their nature. This case presents, after all, only a facial challenge to the statute.
Furthermore, we construe the second sentence of AS 44.12.320 to mean that multilingual official documents are not prohibited so long as an English version of the document is published. The second sentence states that "[t]he English language shall be used" in official documents. The first sentence, in contrast, states that English is "the language" to be used. We take this to mean that the first sentence of AS 44.12.320 intends an exclusivity of English and has a prohibitory function. The second sentence, in contrast, has a permissive aspect, allowing the use of non-English languages in documents so long as English is also used. Thus, the OEI would allow a fisheries notice to be posted in English and Yup'ik; it would allow the Department of Labor and Workforce Development to provide written information in English, Tagalog, and Spanish; and it would allow the Department of Motor Vehicles to give examinations in multiple languages. In keeping with this narrow construction, we believe, contrary to the argument of Alakayak, that the second sentence would not prohibit the publication of "monograms of graduate student dissertations . . . children's books written in Yup'ik . . . ads and messages placed in the Anchorage Blue Book . . . or assorted messages and notes tacked to a community bulletin board in a Yup'ik village." This construction is the basis for our holding that unconstitutional portions of the OEI may be severed from constitutional portions.
Having determined that the first sentence of AS 44.12.320 broadly requires the use of English by all government officers and employees in all government functions and actions at the state and local levels, we next examine whether this mandate impacts rights protected by the Alaska or federal Constitutions.
The protections for speech provided by the Alaska and federal Constitutions are numerous and sometimes overlapping, and nearly all of them are relevant to official-English laws. The federal Constitution provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
ACL argues that the OEI has no impact on constitutionally-protected speech because the government can determine the content, form, and manner of its own speech. According to ACL, since the OEI governs only government speech, no individual liberty interests are implicated. In support of this argument, ACL cites four U.S. Supreme Court cases
Alakayak acknowledges the state's discretion to control its own speech, but it argues that ACL places more weight on the state-as-speaker doctrine than it can bear. It also disputes ACL's characterization of the OEI as investing a monolithic state government with a single pro-English message conveyed by every public official, employee, and agency at both the state and local levels at all times.
First, Alakayak argues that ACL mischaracterizes the state-as-speaker doctrine, which Alakayak claims has never been extended further than messages communicated by a narrow sector of government (i.e., the grantees of a single federally-funded program
Second, Alakayak charges that ACL overreaches in characterizing the OEI as a "message." Alakayak argues that the government "messages" that have been upheld by the U.S. Supreme Court in government-as-speaker cases have been narrow and related to a specific objective of a specific government program.
We agree that ACL overstates the scope of the government-as-speaker doctrine. The government actors/speakers in these federal cases were narrowly defined (specific funding grantees,
ACL's argument, that all speech restricted by the OEI can be characterized as "government speech" subject to the state-as-speaker doctrine, must fail. While we have not previously been required to articulate the contours of the state-as-speaker doctrine, we cannot conclude that the U.S. Supreme Court intended this doctrine to justify a speech ban affecting every elected official and employee in the legislative and executive branches, all departments and offices of state government, and all subordinate local governments. Rather, it appears that the state-as-speaker doctrine governs communications made by a defined group of government employees or agents in the pursuit of narrowly-focused policy goals. Accordingly, the OEI cannot be justified as a limit on the government's own speech.
Having determined that the OEI is not exempt from scrutiny as a regulation of the government's own speech, we must next determine
Alakayak and Kritz argue that the OEI infringes the recipient speech rights of Alaska citizens. Recipient speech rights are predicated on the idea that the First Amendment ensures "public access to discussion, debate, and the dissemination of information and ideas."
Alakayak urges us to find the OEI unconstitutional on similar grounds because, it asserts, information about government is essential to full participation in civic life, and there are many bilingual or multilingual employees who could willingly provide this information if they were allowed to do so.
Alakayak and Kritz also argue that the OEI restricts the ability of Alaska's citizens to petition their government, a right protected both by the First Amendment to the federal constitution and by article I, section 6 of the Alaska Constitution.
ACL does not address the argument that the OEI restricts the right to petition the government. Rather, it objects to appellees' recipient rights analysis because, it claims, these rights exist only if there is a "willing speaker," which, it asserts, by virtue of the OEI, the state is not.
The trial court's factual findings contain numerous examples of the ways in which multi-lingual government officials and employees assist and provide information to non-English speaking citizens in the course of performing their jobs. For example, Henry Alakayak, a member of the city council and local community school committee in Manokotak, regularly uses Yup'ik in the course of his government duties to assist his village and constituents; several educators indicated that they would not be able to perform their jobs properly if they could not use other languages to communicate with students and parents; and an employee of the Alaska State Ferry System communicates with both co-workers and passengers in Spanish. The pleadings and affidavits submitted by appellees offer numerous additional examples of such behavior.
No court has held that a government is constitutionally required to provide services to its citizens in a language other than English,
We agree with Kritz and Alakayak that the OEI adversely affects the recipient speech rights of Alaska citizens with limited English proficiency, and that it impedes their ability to effectively petition the government.
The right of elected officials to speak freely and to communicate with their constituents is firmly grounded in constitutional law. In Bond v. Floyd
Alaska Statute 44.12.340(a)(11) provides a limited exception to the English-only requirement: It allows elected officials and their staffs to communicate orally with their constituents in a language other than English if the speakers are already proficient in the language used. But this exception for oral communication does not allow legislators to exercise their full speech rights to speak with each other in a language other than English, or even to communicate with their constituents if the elected officials are not already proficient in that language;
ACL does not address Bond, but it argues that Thoma is irrelevant because, under ACL's "official/unofficial" construction, the OEI touches no protected speech. We have already rejected ACL's contention that the OEI governs only the most formal written acts of government; as discussed in Part IV.A.2., this argument is wholly unsupported by the text of the initiative or the materials presented to the electorate. Because the
In Wickwire v. State
ACL reasons that when a government employee exercises his or her free-speech rights, he or she speaks "as a citizen" and not as an employee; therefore such speech is the employee's private speech, which is specifically excepted from the reach of the OEI in AS 44.12.370.
As we noted in Part IV.B.1., the OEI governs more than merely the government's own speech. And a broad ex ante prohibition on communication runs afoul of our prior construction of Pickering. We have previously noted the difficulty of predicting in advance what types of employee speech will turn out to be protected, stating that "[d]ue to the wide variety of situations in which public employee free speech issues may arise, the [Pickering] court expressly declined to establish a general standard against which the statements of all public employees could be judged";
In addition, Alaska law is more protective of employee speech than is federal law. Shortly after the U.S. Supreme Court in Connick v. Myers
Alaska constitutional law posits that a public employee's speech on matters of public concern may indeed be most valuable when contributed by an employee as an employee; it does not recognize a strict division between the speaker as citizen and as employee. Because ACL concedes that the intent of the OEI is to restrict the speech of public employees as public employees, we conclude that the OEI implicates employee speech rights.
The Ninth Circuit reached a similar conclusion in Yniguez, a case in which the named plaintiff was a bilingual state employee who feared disciplinary action if she continued to communicate in Spanish with Spanish-speaking clients.
We agree that a wholesale prohibition on speech in languages other than English by all state and local government employees creates an untenable risk of preventing employees from speaking freely on matters of public concern. To the extent that the OEI bars elected officials and public employees from helping citizens secure available services and participate fully in civic life,
Having determined that the OEI infringes upon protected speech, we turn next to whether this infringement may be upheld.
Having determined that a provision of the OEI impacts the speech rights of the public, of elected officials, and of public employees, we next address whether the act survives constitutional scrutiny. This is a multi-part inquiry. First, we consider how the OEI impacts protected speech, for this will tell us the level of scrutiny to which the law must be subjected. Next, we identify and evaluate the government's interest in prescribing the use of English in communications between government and its constituents. Finally, we determine how closely the means chosen by the OEI fit the ends served by the law.
How the OEI impacts protected speech determines the state's burden in upholding the law's constitutionality. ACL argues that the OEI affects only the form and not the content of government speech, and that it affects neither the form nor content of citizen speech. Alakayak and Kritz respond that the OEI constitutes a content- and viewpoint-based restriction, as well as a prior restraint, both in its parts and as a whole.
Laws prohibiting communication in languages other than English are difficult to categorize. We can readily agree with the Ninth Circuit that such a restriction affects more than conduct, because "[s]peech in any language is still speech, and the decision to speak in another language is a decision involving speech alone."
If all government communications must be in English, some voices will be silenced, some ideas will remain unspoken, and some ideas will remain unchallenged. Such a requirement harms "society as a whole, which is deprived of an uninhibited marketplace of ideas."
Because the OEI literally restricts speech itself — both oral and written communications in languages other than English — it must overcome a significant hurdle to justify its constitutionality.
The purpose of the OEI is described in AS 44.12.300, which states:
ACL argues that the OEI also serves the goal of "promoting unity among Alaskans
Courts have historically found a broad range of governmental interests to be compelling. During one recent term alone, the United States Supreme Court acknowledged as compelling the government's interests in promoting racial diversity in education,
Turning to the specific governmental interests involved in this case, courts have recognized the importance of promoting linguistic unity in a diverse society
We have held that in order for a law to survive strict scrutiny, it must be narrowly tailored to promote a compelling governmental interest and be the least restrictive means
The OEI's first enumerated goal is "promoting, preserving and strengthening the use of English."
Indeed, not only is the OEI insufficiently narrowly tailored to pass constitutional muster, but the methods it employs in support of its admirable goals may be of questionable efficacy. While the statement in support of the ballot measure noted that "[w]e need to help people learn English," the OEI does not create or expand programs to teach English to non-English speakers, but merely creates an incentive to learn English by making it more difficult for people to interact with their government.
ACL argued below that it was unnecessary to make provisions for English-language education since other state laws address general and bilingual education. Instead, ACL explained, "the very purpose of AS 44.12.320 and the Law generally is to encourage English-learning by sending a clear message to the public, and by preventing the government from discouraging English-learning by unchecked expansion of non-English services." In Meyer v. State of Nebraska,
Having decided that the OEI unconstitutionally infringes upon the speech rights of government officials and employees, and that it limits Alaskans' ability to participate fully in public life, we must next determine if the law can be saved by severing any unconstitutional provisions. After oral argument, and in light of our initial reservations about the constitutionality of the OEI's broad reach, we asked the parties to submit additional briefing on whether any potentially unconstitutional provisions of the OEI could be severed.
A proper measure of respect for lawmaking by the people through the initiative process requires that only those portions of initiated laws that are unconstitutional should be struck down. We have previously held that striking the whole of an initiative "rather than excising the invalid portion would place an unwarranted constriction on the rights of the people to express their will by popular vote."
In answering whether this is an appropriate case for severance, we first consider the various severance tests we have used in past cases and determine the proper standard for a statute that has been enacted through the initiative process. We then determine whether the initiative in this case, as redacted, meets those standards.
We originally established standards for determining whether a statute is severable in Lynden Transport, Inc. v. State.
ACL urges that we use the test articulated in McAlpine v. University of Alaska
We conclude that there is no compelling reason to apply a different severability analysis to statutes enacted by the people from those enacted by the legislature. Thus, there is no reason that McAlpine should apply to enacted initiatives. Whether a statute was enacted by vote of the legislature or vote of the people, the risk involved in severing a statute is that an erroneous judicial reading of the intent of those who enacted the statute will result in a statute that no one wanted. While this risk is real, it is not qualitatively different for a statute enacted by the legislature and one enacted by the voters. Thus, there is no need for a different test.
Several other states treat statutes the same for the purposes of severability regardless of the manner in which the statute was enacted. For example, the California Supreme Court has stated that, in matters of severability, "we can discern no meaningful distinctions between statutes `enacted' by the people and statutes enacted by the Legislature."
For these reasons, we conclude that the proper test to apply in determining severability of the EOI is that set out in Lynden Transport. We turn now to application of that test.
At the outset it is important to note the consequences of the voters' approval of the severability clause in the initiative, AS 44.12.390.
The emphasis was added by the Lynden court. We applied this rule in Kenai Peninsula Borough School District v. Kenai Peninsula Borough School District Classified Association,
The first part of the Lynden Transport test for severability, determining whether "legal effect can be given" to the remaining provisions of the statute,
As noted above the OEI must be redacted by severing the first sentence of AS 44.12.320.
The second part of the Lynden Transport severability test asks whether the voters "intended the provision to stand" in the event that portions of it were struck down.
First, as discussed above, the initiative contains a severability section: "The provisions of [the act] are independent and severable, and if any provision ... shall be held to be invalid by a court of competent jurisdiction, the remainder ... shall not be affected and shall be given effect to the fullest extent practicable."
This conclusion is buoyed by our analysis of the overarching purposes of the initiative: unification of our diverse state. In attempting to make English the official language of the state of Alaska, the initiative proceeds on the assumption that a common language is thought to exert a unifying force. As the statement in support noted: "Like our flag, the pledge of allegiance, and our national anthem, English as our official language is our symbol. These symbols remind Americans and Alaskans of every race, religion, and background of what we all have in common." The initiative, as redacted, continues to reflect the voters' belief in the unifying force of a common language and their intent that provisions establishing a common language be upheld "to the fullest extent practicable."
Moreover, the voters had the benefit of the sponsors' statement in the election pamphlet, and it is clear that the sponsors of the initiative — who drafted the severability clause — favored preservation of the constitutional provisions of the initiative. Alaskans for a Common Language has filed a supplemental brief so indicating:
The intent and desire of the sponsors is therefore clear. And apart from the voters' indication of intent in the severability clause, we do know that the initiative was well received. It passed with the approval of more than sixty-eight percent of the voters. It is difficult to construct an argument as to why a version of the initiative shorn of the unconstitutional provisions but still establishing English as the official language of the state and requiring that English be used in all official documents and records would be any less favorably received. The opponents of the initiative before this court have not attempted to make a case as to why this might be so. They have thus failed to meet their burden of showing, by a clear probability, that the voters would not have supported the initiative as redacted.
We conclude that the initiative is severable, because (1) the remaining provisions can be given legal effect and (2) the voters intended that they be given effect. The requirement that the government use English in official documents can be given legal effect and is enforceable. Indeed, as noted, many official English acts in other states are limited to similar provisions.
In this opinion we have decided the constitutionality of the principle provision of the OEI, AS 44.12.320, striking the first sentence of that section but upholding the second sentence. Because the remaining provisions of the OEI relate to section .320, our holdings as to the constitutionality of that section have implications for the remainder of the OEI. Some provisions may be rendered superfluous or hortatory. Others may present similar constitutional concerns to the ones we thus far have considered. As such the parties may desire that we analyze and parse each line of the OEI in a search for a definitive constitutional ruling on each.
We are mindful, however, that the case comes to us as a facial challenge to the statute. In such cases it is our practice to reserve as many questions for as-applied challenges as possible, in keeping with the legislative policy stated in AS 01.10.030:
This provision further animates our decision to sever the unconstitutional provision of the OEI rather than invalidate the entire act. We have consistently severed laws rather than invalidating them when construing this general severability clause.
When we consider the facial invalidity of a statute, we require the party seeking to invalidate the statute to bear the burden of demonstrating the necessity of invalidation.
We are further bolstered in our inclination not to consider each of the other sections of the OEI at this time by the state's apparent willingness to implement the OEI with clarifying regulations, including a regulation to clarify that the second sentence of AS 44.12.320 does not prohibit oral communication between state employees and the public in languages other than English. Any further consideration of the OEI we leave to as-applied challenges, confident that setting out the relevant interpretive principles in this
Because a portion of the Official English Initiative — the first sentence of AS 44.12.320 — violates the federal and Alaska constitutional rights to free speech and to petition the government, we hold that the Official English Initiative is unconstitutional as enacted. Because, however, the unconstitutional provision is severable from the initiative, and the remainder of the section is capable of a constitutional construction, we uphold the constitutionality of the second sentence of AS 44.12.320. We find it unnecessary at this time to consider in greater depth other sections of the law, other than to note that, in the event of a future challenge, they must be construed narrowly if possible to avoid unconstitutionality. We thus AFFIRM in part, and REVERSE in part, the judgment of the superior court.
BRYNER, Chief Justice, dissenting.
I agree with today's ruling that section .320 of the Official English Initiative is unconstitutional because it violates protected freedoms of speech. But I do not agree that this infirmity can be cured by severing the section's first sentence and giving the remaining language of the section — and the entire initiative as well — a new meaning that conflicts with its plain meaning as originally enacted. Nor do I agree that the court's decision to rewrite section .320 can justify its refusal to recognize and address the obvious overbreadth problems left unresolved in the initiative's remaining provisions. Because section .320 is the initiative's keystone provision, because its original purpose and meaning are plainly unconstitutional, and because no court has the power to redraft an invalid statute, I believe that the constitution requires us to strike the initiative in its entirety.
As the court recognizes in Part IV.A.2.b of its opinion, the Official English Initiative (OEI) was presented to the voters as an English-only law. The core provisions of the initiative are sections .320, "Scope," which describes when English must be used, and .340, "Exceptions," which specifies when languages other than English are allowed.
Section .340 then describes eleven limited purposes for which government officials may use other languages "when necessary"; it also specifies that private citizens who address government officials may communicate in a language other than English, but only if their statements are translated into English:
All members of the court, including myself, agree on the intended meaning and dominant purpose of these provisions. Today's opinion correctly rejects the argument of Alaskans for a Common Language, Inc. (ACL) that we should read the initiative leniently, so that it applies only to "formal" and "official" documents and records. As the opinion states in concluding that section .320 as a whole cannot be read leniently:
All members of the court further agree that, so construed, the initiative's requirements impinge on constitutionally protected rights of free speech and are therefore invalid. Yet despite this understanding of section .320's "plain and unambiguous" meaning, the court proceeds to give the second sentence of section .320 precisely the meaning that it just rejected for the section as a whole.
Because the second sentence of section .320 refers to "official" documents and records, the court reasons, it is "capable of a narrow reading," which, in the court's view, plainly contemplates a permissible category of "informal, unofficial written documents" outside the reach of the OEI. The court also points out that the initiative's neutral ballot summary stated that "[s]tate records must be in English"; in the court's view, because this wording fails to specify that "all records must be in English," it "at least suggest[s] that those state records that are not official are not within the reach of the OEI." Finally, the court finds nuanced meaning in subtle phrasing differences between section .320's two directives to use English: the first sentence directs that "[t]he English language is the language to be used," while the second directs that "[t]he English language shall be used." The court takes this difference in the two otherwise clear directives as showing "a permissive aspect" in the second sentence — an aspect "allowing the use of non-English languages in documents so long as English is also used."
Through the narrow opening created by these infinitesimal textual gaps, the court leaps immediately to the conclusion that, because doubtful meaning should be resolved in favor of constitutionality, it has a duty to adopt this artificially narrow reading of the second sentence. The court makes no effort to first determine whether this meaning is textually or contextually plausible. Given the second sentence's newly declared meaning, the court leaps once more to conclude that the entire initiative can be rescued from unconstitutionality by severing the first sentence of section .320 and allowing the second to stand — again making no attempt to ask first whether the severed statute it adopts makes any sense in light of the primary
This interpretive process results in a radically rewritten law that bears no realistic semblance to the version originally presented to and enacted by Alaska voters. By the court's own account, the initiative started out, and was sent to the voters, as a comprehensive and inflexible English-only law that covered the entire universe of government communications — spoken and written — and ranked among the nation's "most restrictively worded official-English law[s] to date."
In my view, this interpretation makes no sense, and its adoption violates settled principles governing statutory construction and severance of unconstitutional language. Our duty to construe statutes in a way that avoids a finding of unconstitutionality is firmly constrained, as the court notes, "by the constitutionally decreed separation of powers which prohibits this court from enacting legislation or redrafting defective statutes."
In reflexively giving the second sentence of section .320 the narrowest meaning it could possibly have in the first sentence's absence, today's opinion completely forgets to apply these prudential rules by ignoring the second sentence's meaning in its original context — the meaning that sentence had as an integral part of section .320 as a whole as that provision appeared in its original form. The court's interpretation of the second sentence in isolation from the first is consequently unsound — both textually and contextually.
As a textual matter, there is simply no basis for the court's assumption that the second sentence's reference to "official" documents implies a permissible category of "informal, unofficial written documents" outside the reach of the OEI. The court's assumption ignores a simpler and more likely meaning of "official documents and records" — that is, all documents and records prepared or retained by government employees in performing their official functions and actions. Indeed, the restricted meaning proposed by the court quickly becomes implausible when carried over to other parts of the initiative. If we accept the court's proposed interpretation of the word "official," parallel logic would advise us to read section .310's broad declaration
Moreover, section .320's second sentence incorporates other wording that rules out the court's proposed interpretation of "official" documents and records. Specifically, the second sentence requires English to be used not just in "all official public documents and records," as today's opinion suggests, but rather "in the preparation of all official public documents and records."
The second sentence's surrounding context points to the same conclusion. As already noted, the first sentence of section .320 unequivocally extends the initiative's English-only requirement to all actions and functions performed by government officers and employees. Because writing performed in the course of government work falls within the meaning of government "functions and actions," the first sentence of section .320 would normally extend its English-only requirement to all writings produced in the course of government employment, regardless of the second sentence's presence. Given the first sentence's broad reach, the second sentence can best be understood, not as a sentence that covers the act of writing, but rather as one that covers the government's preparation and retention of writings produced by or submitted to the government for public use.
While the two sentences may well overlap to a considerable extent when read in this way, the second sentence nonetheless served a valuable purpose in its original context — that is, as part of an initiative designed to apply a strict English-only requirement. By cementing the point that all writings produced by government functions and actions or submitted from other sources must always stay in English if they are to be kept as public records and documents, this sentence closes any potential gaps left open by the first. When construed in context with the original initiative as a whole, then, including its sibling first sentence, the second sentence originally meant to strengthen, not to dilute, the force of the first.
Indeed, the court's own expressed understanding of "the plain language of the first sentence of AS 44.12.320 conflicts with its proposed narrow reading of the section's second sentence. The court properly concludes that section .320 is incapable of being read in its entirety to "permit[ ] the `unofficial' or `informal' use of languages other than English by state officials or employees in the performance of their duties." Given this conclusion, the court's proposal to read the second sentence of the section as having precisely that meaning would make no sense in the sentence's original context. Thus, as now adopted, this narrow meaning does violence to the manifest original purpose of section .320.
A different contextual anomaly arises between the court's proposed narrow meaning of section .320 and the plain meaning of section .340. As we have seen, section .320 sets out the "scope" of the initiative's English-only requirement by defining the circumstances in which English must be used, while section .340 defines the permissible uses of other languages by adopting an exclusive list of specific "exceptions" that can be invoked only "when necessary."
Separate problems arise from the court's attempt to invoke severance as a means to enact its recrafted version of section .320's second sentence. This court's authority to sever unconstitutional provisions from an act derives from the same source as its power to adopt narrowing constructions: the court's duty to uphold a statute as constitutional whenever the result is reasonably possible. As Sutherland explains, "[t]he courts recognize a duty to sustain an act whenever this may be done by proper construction, and extend the duty to include the obligation to uphold part of an act which is separable from other and repugnant provisions."
By the same token, the court's severance powers are restrained by the same constraints that fence its powers to adopt limiting constructions: "If a court finds a statute or portions of it unconstitutional, it has the power to strike it down or sever the invalid portion. It does not have the power to redraft the statute as that is the province of the legislature."
In keeping with these principles, our severance cases have often observed that, for purposes of determining whether the legislature would have wanted to enact the remaining portion of a severed statute, the critical inquiry is whether the severed portion remains faithful to the "primary intent,"
Yet here, in deciding to sever the first sentence of section .320, reconstrue the second, and leave the rest of the initiative intact, the court never once stops to consider the effects of its ruling on the initiative's original intent and dominant purpose, which openly conflict with the intent of the severed initiative's remaining provisions. After all, as the court itself acknowledges early on in its opinion, the original initiative meant to impose a uniquely stringent and all-encompassing English-only requirement on all government communication. In contrast, the revised law as it now stands freely allows government communication in any language for any purpose, as long as English versions of "official" records and documents are kept. Moreover, as the court admits, its interpretation of section .320 makes other provisions of the initiative "superfluous or hortatory" — a classic sign of changed meaning and improper severance.
Instead of focusing on the initiative's original intent and purpose, the court's opinion seems to suggest that severance is justified because the newly interpreted second sentence of section .320 now has a constitutionally permissible meaning and still serves a useful purpose. But as I have already explained, the court minted its new interpretation of the second sentence after striking the first sentence, and without initially asking whether the interpretation did violence to the initiative's original intent and purpose; had the court stopped to ask, it would have found that its permissive reading of the second sentence conflicts with the basic purpose that the initiative was intended to serve — to impose a strict English-only requirement on all government speech. Because of this conflict, it is "bootstrapping"
Gottschalk v. State
Today's opinion leans heavily on the initiative's express severance clause and the general severance preference appearing in the Alaska Statutes. The opinion seems to suggest that the electorate's expressed preference for severance somehow confers special powers on the court to rely on the severance doctrine when its use might otherwise be barred. But the court misunderstands the limited role of a severance clause. A general severance law like AS 01.10.030
In each case, then, courts must look to the totality of the evidence bearing on "the content of the measure and the circumstances surrounding its proposal"
Today's opinion completely fails to undertake this endeavor. The closest it comes are its brief discussion of the "overarching" symbolic importance that an official-English measure can have; its description of the fervent plea for severance advanced in ACL's supplemental brief; and its cryptic reference to the initiative's opening provision, AS 44.12.300, which broadly finds that "English is the common unifying language of the State of Alaska and the United States of America," and then "declare[s] a compelling interest in
The danger posed by the court's approach lies in the inevitable temptation it creates to overreach the limits of judicial power by trying to redraft an initiative to mean something that the court believes the voters would have wanted to enact had they proposed a constitutionally valid measure. The court in effect converts ACL's sincere desire to do something constitutional along the initiative's general lines — its fervent wish to adopt some valid form of "official-English" measure if its "English-only" initiative would not pass muster — into a mandate to engage in judicial legislation. The institutional harm of succumbing to this temptation is that it leads to public laws drafted and enacted by judges — a power that the Constitution does not confer on the judicial branch, but always allows the legislature and the voters to pursue for themselves.
This type of danger, and the need to avoid it, was recognized and aptly described in State v. Zarnke,
The Wisconsin Supreme Court granted Zarnke's petition to review the intermediate court's severance ruling.
Here, neither the initiative's severability clause nor ACL's commendable aspirations can dispel the conclusion that the weak and largely symbolic official-English law the court now adopts diverges radically from the restrictive and inflexible intentions manifested in the original initiative's deliberately sweeping and restrictive English-only requirements. As today's opinion makes clear, if the initiative's sponsors had wanted to propose a moderate and permissive official-English initiative, they would have had numerous examples to use as models — indeed, they still have those models and are free to propose them. Instead, the initiative's sponsors chose to propose a carefully crafted and elaborately structured measure that, the court concedes, clearly and unambiguously mirrored the nation's "most restrictively worded official-English law[s] to date."
Today the court claims to have transformed the original initiative from a divisive, zero-tolerance English-only mandate into a unifying and permissive symbol of our common linguistic bond; yet in the same breath, the court declares that it sees no real change in the original initiative's basic meaning and primary intent. The court's goal may be laudable, but in my view, its vision fails. As I see it, the court's action is judicial legislation, pure and simple. I would hold that the original initiative "means what it says."
Having reshaped section .320 to fit constitutional limits, the court all but ignores the overbreadth claims that address the initiative's other provisions; the court dismissively finds that these claims pose no realistic danger of chilling free speech and can safely be left for later challenges on an as-applied basis. I think that the court is correct in recognizing that its reinterpretation of section .320 will ultimately render many of the initiative's remaining provisions "superfluous or hortatory." But it seems wrong to assume that these provisions have been sufficiently disarmed to pose no lasting danger of a chilling effect. Because I would hold that the initiative must be struck in its entirety and because the court declines to address the remaining overbreadth claims at all, it would be pointless to discuss the claims in detail. But since I think that the court's resolution of the case should require it to address these claims, it seems appropriate to outline my reasons for believing that these claims warrant the court's immediate attention.
As a preliminary matter, I would note that to the extent that these claims have become hortatory and superfluous, their current status results from the court's decision that the
More importantly, in their present nebulous state, at least some of these provisions continue to pose the same obvious danger of chilling free speech that led the court to strike the first sentence of section .320. Like landmines left behind in the aftermath of a war, these provisions will continue to be a clear and present danger until they are identified, examined, and defused.
For example, in the absence of any further provision requiring the exclusive use of English, section .340(a)'s list of exceptions would at first blush seem meaningless and presumably harmless. Yet as long as they continue to stand as part of the literal law, these "exceptions" can hardly be counted on to be harmless. As already mentioned, even in section .320(a)'s absence, section .340(a) is capable of being read to stand on its own as an exclusive list of circumstances in which languages other than English may be used by the government. While we might be able to count on courts to understand that today's ruling makes these provisions superfluous, many members of the public — both within government service and outside of it — will not share that understanding and may conform their conduct to the literal terms of this statutory language.
Section .340(b) creates a separate problem by allowing members of the public to communicate with government officials in languages other than English, but only if their communications can be translated into English:
Though originally designed as a narrow exception that would override section .320(b)'s English-only requirement by allowing English to be used if a translator could be found, now this subsection will surely be read and applied as a stand-alone provision that requires non-English communications to be translated even though the rule that justified the exception has been struck. As a logical matter, the exception should disappear with the rule; yet today's opinion seems to recognize section .340 as continuing to exist.
Section .350 vastly compounds the problem created by the holdover status of subsection .340(b):
Though styled as an "accountability" provision, this section actually erects an appropriation requirement. By demanding that the costs of preparing all non-English government writings be accounted for by "separate line item in the budget of every governmental agency," subsection .350(b) ultimately means that no government writings can be prepared in a language other than English unless line-item funds have been appropriated for the preparation. Thus, although the court now recognizes that section .320 creates a permissible "category of unofficial or informal documents" that includes writings like a "note in Spanish from a teacher," "a letter from a city councillor in Yup'ik," or "a fisheries notice to be posted in English and Yup'ik," section .350 may well require all government workers, before sending or accepting such notes, letters, and notices, to locate the line-item money. And if the money
The lingering concerns posed by these provisions are further exacerbated by the overarching language of section .380:
In effect, this provision gives every person in Alaska a wildcard to sue — or to threaten suit — for enforcement of the initiative's requirements.
Although this private-prosecution function might have played a vital role in ensuring that the original initiative's broad requirements were enforced, now that the initiative no longer has any hard and fast requirements, it seems fair to wonder what will be left to enforce. The question is hardly moot: there is no reason to expect that Alaskans who hold strong views favoring the adoption of English as our only official language will hesitate to sue, or to threaten suit, based on their personal impressions of what the initiative means and requires. In many cases, these impressions will now reflect misperceptions stemming from the initiative's unsettled meaning in its just-adopted form. Because the initiative's newly proclaimed meaning creates no obvious rights that would be capable of being privately enforced, the only suits likely to be threatened under section .380 are suits triggered by the problematic provisions described above. The only effect section .380 seems capable of producing, then, is a chilling effect. And since the threat of suit can be as effective in chilling free speech as the suit itself, courts are not likely to see any sign of this chilling effect.
We have previously held that "[a] statute regulating speech is overbroad, and thus unconstitutional, `when constitutionally protected conduct as well as conduct which the state can legitimately regulate are included within the ambit of [a] statute's prohibition.'"
In considering whether the combined effect of the provisions discussed above creates a realistic danger that free speech will be chilled, we must start by bearing in mind the importance of our right to speak freely and by recognizing that, when First Amendment freedoms are at stake, "[t]he threat of sanctions may deter their exercise almost as potently as the actual application of sanctions."
Here, the right threatened — the right to communicate with government — is among the most vital of potential free-speech rights; the threatened deprivation could result in a lack of access to government services; and the two classes at risk are non-English-speaking citizens and government workers — both of which have a membership that is extremely vulnerable to deterrence by the
Considering these factors, as well as the systemic nature of the problem, I think that there are compelling reasons to believe that a realistic danger of a chilling effect does in fact exist. I would therefore conclude that, unless the court strikes the initiative in its entirety, it must review and decide the remaining overbreadth claims now.
Because the initiative was carefully crafted in its entirety to prohibit or impermissibly chill the right to free speech, I would hold that it must be declared invalid in its entirety. Although I agree with the court's ruling that section .320 is unconstitutional, I dissent from its decision that the rest of the initiative can be saved.
The dissent argues that the court takes the second sentence of AS 44.12.320 out of context, suggesting that the court fails to consider whether its "interpretation [does] violence to the initiative's original intent and purpose." (Dissent at 220; see also id. at 222 n. 40). But this is clearly not so. The initiative intended to "promot[e], preserv[e] and strengthen[ ]" the use of the English language. AS 44.12.300. There can be no doubt that the severed statute, in requiring that English be used in all official public documents and records, serves these purposes.
Finally, the first part of the Lynden Transport test merely requires a court to determine if legal effect can be given to the remaining provisions. But the dissent, in adopting the challengers' view that the severed provision is "the centerpiece of the initiative," concludes that its deletion somehow impermissibly changes the meaning of what remains. (Dissent at 220) This analysis is wrong, for the remaining statute still promotes and strengthens the use of English in the state, and it goes far beyond the first part of the Lynden Transport test, which asks only whether the remaining provision can be given legal effect.
We have previously held that the existence of this general savings clause creates a weak presumption in favor of severability. Lynden Transp., 532 P.2d at 712. But the presumption of severability is stronger where, as here, the statute in question contains a severability clause. Id.