Click to go back Click here for .pdf document. Click here for MS Word (*.doc) document

(ProEnglish members vs. Bob Riley, Governor of Alabama)

IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA

R.W. COLE, J.P. HENDRICK, THOMAS F. SCHENZEL, STUART SHIPE, and CHARLES VAN BROCK,
Plaintiffs,
vs.
BOB RILEY, Governor of the State of Alabama,
and W.M. COPPAGE, Director of the Alabama, Department of Public Safety, in their official capacities,
Defendants.

JURY TRIAL DEMANDED

PLAINTIFFS' ORIGINAL COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF

 I. INTRODUCTION

1. Plaintiffs R.W. Cole, J.P. Hendrick, Thomas F. Schenzel, Stuart Shipe, and Charles Van Brock, all citizens of the State of Alabama, come before this Honorable Court to challenge, as violative of the Alabama Constitution, the policy of the Alabama Department of Public Safety ("ADPS") of offering the Alabama Driver's License Examination in languages other than English.

2. Pursuant to Alabama Rules of Civil Procedure 57 and 65, Plaintiffs seek (a) a declaratory judgment that Alabama's policy of offering its Driver's License Examination in languages other than English violates Ala. Const. Art. I, § 36.01; and (b) a permanent injunction prohibiting Defendants from maintaining any policy that allows candidates for Alabama driver's licenses to be tested in a language other than English.

 II. JURISDICTION AND VENUE

3. This Court has jurisdiction over this action pursuant to Ala. Const. Art. I, § 36.01 and Sections 12-11-30, 12-11-31 and 6-6-222 of the Code of Alabama.

4. The Circuit Court of Montgomery County is the proper venue for this action pursuant to the common law of the State of Alabama.

III. PARTIES

5. Plaintiff R.W. COLE is a citizen of the State of Alabama who resides at 608 Wena Avenue, Birmingham, Jefferson County, Alabama.

6. Plaintiff J.P. HENDRICK is a citizen of the State of Alabama who resides at 1200 Beacon Parkway East #309, Birmingham, Jefferson County, Alabama.

7. Plaintiff THOMAS F. SCHENZEL is a citizen of the State of Alabama who resides at 163 Hillside Ridge, Wetumpka, Elmore County, Alabama.

8. Plaintiff CHARLES VAN BROCK is a citizen of the State of Alabama who resides at 16 Meadowview Drive, Jasper, Walker County, Alabama.

9. Plaintiff STUART SHIPE is a citizen of the State of Alabama who resides at 2219 Cecille Drive, Huntsville, Madison County, Alabama.

10. Defendant BOB RILEY is the Governor of the State of Alabama. As Governor, Defendant RILEY is charged with the duty to enforce the Constitution of the State of Alabama. Additionally, Defendant RILEY has the authority to shape, determine and change ADPS policies regarding the languages in which the Alabama Driver's License Examination is offered. Defendant RILEY is sued solely in his official capacity.

11. Defendant W. M. COPPAGE is the Director of ADPS. As Director, Defendant COPPAGE has the authority to shape, determine and change the policies of ADPS regarding the languages in which the Alabama Driver's License Examination is offered. Additionally, Defendant COPPAGE is charged with carrying out those policies. Defendant COPPAGE is sued solely in his official capacity.

IV. FACTUAL ALLEGATIONS

12. Prior to 1990, ADPS offered the Alabama Driver's License Examination in fourteen (14) languages. However, on July 13, 1990, the voters of the State of Alabama ratified by a 9-1 margin Ala. Const. Art. I, § 36.01. That amendment, initially proposed by the state legislature in its 1989 session, clearly states that "English is the official language of the state of Alabama." Al. Const. Art. I, § 36.01 (1990) (attached hereto as Appendix "A").

13. Ala. Const. Art. I, § 36.01 further provides that all "officials of the state of Alabama," including the state legislature, "shall take all steps necessary to insure that the role of English as the common language of the state of Alabama is preserved and enhanced." Id. The amendment expressly forbids the Alabama legislature from enacting any law that "diminishes or ignores the role of English as the common language of the state of Alabama." Id.

14. As a direct result of the consideration, passage, public referendum, and enactment of Ala. Const. Art. I, § 36.01, ADPS changed its policy of multilingual testing, and began administering the Alabama Driver's License Examination exclusively in English. This action was consistent with both legislative intent and the public's understanding of the effect Ala. Const. Art. I, § 36.01 would have on state practices regarding the administration of driver's license examinations. Requiring all applicants to take the exam in English tested whether the applicant was able to read and understand sufficient English to follow emergency road signs and obey instructions given by emergency personnel and law enforcement officers.

15. In 1996, a group of non-English-speaking Alabama residents sued ADPS, complaining that the state's policy of giving its Driver's License Examination exclusively in English discriminated against certain individuals on the basis of their national origin, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. In response to this lawsuit, Attorney General Bill Pryor argued that the state policy of administering the Driver's License Examination exclusively in English

not only . compl[ied] with the requirements of Amendment 509 and not only did it avoid the demeaning assumption that adult residents of the State were unable to learn English when they put their mind to it, but it also had the virtue of advancing public safety.. [T]he overriding police-power objective of testing applicants before giving them permission to drive is to ensure that they are capable of driving safely.. An ability to understand road signs, together with an ability to communicate with law enforcement and medical personnel, all support requiring Alabama drivers to be fluent in English..

Brief of Petitioners, 1999 U.S. Briefs 1908, p. 6. The State of Alabama further argued that

Title VI merely bars the kind of intentional discrimination barred by the Fourteenth Amendment, which has never included the notion that English-language requirements represent a proxy for discrimination on the basis of national origin.. No part of the legislative history indicates, or even hints, that Title VI was designed to bar generally-applicable English-fluency requirements.. And if the sovereign choice to use a common language in providing government services and to decide when and how to administer driving-license examinations do not represent the types of policy issues that are "traditionally relegated to state law," it is difficult to imagine what would meet this test. 

Id. at pp. 18-19. Alabama also argued that, because few, if any, ADPS employees are fluent in a foreign language, ADPS must rely on outside entities to monitor and grade foreign language examinations, thereby increasing the potential for fraud. Brief of Petitioners, 2000 WL 1708208 *6.

16. In 1998, a federal district court found that Alabama's policy of giving its driver's license examination exclusively in English discriminated on the basis of national origin in violation of Title VI. Sandoval v. Hagan, 7 F.Supp.2d 1234 (M.D. Ala. 1998). In response to this decision, then-Governor Don Siegelman changed the state's policy so that the Alabama Driver's License Examination was given in multiple languages, including Chinese, French, German, Japanese, Spanish, English, and Vietnamese. The Eleventh Circuit Court of Appeals affirmed the trial court's decision. Sandoval v. Hagan, 197 F.3d 484 (11^th Cir. 1999).

17. In 2000, then-Congressman (now Governor) RILEY, in accord with the clear mandate of Alabama's voters, joined fourteen of his colleagues in the U.S. House of Representatives in filing an amicus curiae brief to the U.S. Supreme Court supporting Alabama's right to give its Driver's License Examination exclusively in English. In that brief, attached hereto as Appendix "B", the amici vigorously and persuasively argued that Alabama's policy of giving the exams exclusively in English did not discriminate on the basis of national origin. Specifically, Governor RILEY and his colleagues argued:

Equating a person's language with the person's national origin has no basis in law or fact. There is no statutory language or legislative history in the civil rights laws which suggests such an equation.

 

Nor is there any judicial decision which finds such an equation in the civil rights laws..

 

The equation of language to national origin also has no basis in fact, and would be both over- and under-inclusive. Spanish, for example, is the official language of at least 13 countries, impairing a determination of a speaker's ancestry. Many Hispanic-Americans do not speak Spanish, and many non-Hispanic-Americans do.

 

Any such equation of language and national origin would [also] affect "original power" core functions of States. Choice of language for internal functions has historically been left to the States. Federal intervention on language choice over a vast sweep of State programs will weaken the state's powers.. Absent a clear and explicit abrogation of those State powers, the States should be left to decide - through their own political processes - which language burdens to accept. There is no such clear and explicit abrogation of State power for the language choices in this case.

Brief of Amicus Curiae, 2000 WL 1701936 at pp. 9-10. At least six (6) other states - including Alaska, Maine, New Hampshire, Oklahoma, South Dakota, and Wyoming - currently offer their Driver's License Examinations exclusively in English.

18. In April 2001, the Supreme Court of the United States reversed the lower court decisions and found that Title VI did not create a private right of action for individual plaintiffs. Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In so doing, the Court "assume[d] for purposes of deciding th[e] case that regulations promulgated under Section 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under Section 601." 532 U.S. at 286, fn. 6. The Supreme Court's ruling in Sandoval cleared the way for ADPS to reinstitute its pre-Sandoval policy of administering the Alabama Driver's License Examination exclusively in English.

19. Despite the Supreme Court's ruling and the clearly evidenced desire of the voters of Alabama that procedures and tests related to the granting of state driving privileges occur exclusively in English, Governor Siegelman chose to maintain the policy imposed by the trial court judge in the original Sandoval decision, of giving the Alabama Driver's License Examination in multiple languages. That policy remains in effect today. In fact, as of the time of this filing, candidates for an Alabama driver's license can take the test in any one of twelve (12) languages, including Chinese, English, Farsi, French, German, Greek, Japanese, Korean, Russian, Spanish, Thai and Vietnamese.

20. Alabama's policy of offering its Driver's License Examination in multiple languages violates Ala. Const. Art. I, § 36.01 to the Alabama Constitution, which requires state officials to "take all steps necessary to insure that the role of English as the common language of the state of Alabama is preserved and enhanced." Additionally, allowing candidates to take the exam in their preferred language "diminishes or ignores the role of English as the common language of the state.." Id. Defendant RILEY's failure to order ADPS to change its policy after the U.S. Supreme Court issued its decision in Sandoval constitutes a breach of his duty to enforce Ala. Const. Art. I, § 36.01.

21. Like other states, the State of Alabama has a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles. Alabama's policy of offering its Driver's License Examination in multiple languages endangers the safety of Alabama drivers. Drivers who cannot read and understand English pose a significant threat to the safety of other drivers. These individuals cannot understand -- and therefore cannot follow -- traffic signs and directions, hazard warnings, and detour and other highway instructions. Last September, one Alabama official attributed the steep rise in Alabama's work-related fatalities -- the large majority of which are due to traffic accidents -- to the fact that a growing number of workers cannot read or understand signs in English.[1] In addition to the inability to understand warning signs, such persons cannot communicate effectively with police or other public safety personnel in the event of a traffic accident or emergency. Alabama's policy of allowing driver's license applicants to take their exams in languages other than English endangers everyone who drives on Alabama roads and highways.

22. Alabama's policy of offering its Driver's License Examination in multiple languages also results in significant unnecessary expenditures of taxpayer funds. According to US Census figures for 2000, only 1.5 percent of Alabama residents ages five years and older "speak English less than very well." Of Alabama's 4,152,000 residents in 2000, 3,990,000 - over 98% - can speak English fluently.[2] The state is therefore using money collected from all Alabamians to implement an unnecessary, unconstitutional, and dangerous policy that, at most, benefits less than 2 percent of the state's population.

V. CAUSE OF ACTION

COUNT ONE - VIOLATION OF ALABAMA CONSTITUTION

23. Plaintiffs hereby reallege and incorporate by reference the allegations contained in Paragraphs 1 through 22 as though fully set forth herein.

24. The actions of Defendants in maintaining and carrying out a policy of offering the Alabama Driver's License Examination in languages other than English violate Ala. Const. Art. I, § 36.01, in that they fail to insure that the role of English as the common language of the state of Alabama is preserved and enhanced. Defendants' actions further violate Ala. Const. Art. I, § 36.01 in that they ignore and diminish the role of English as the official language of the State of Alabama.

25. Defendants' actions in continuing a policy of offering the Alabama Driver's License Examination in languages other than English fail to protect the role of English as the common language of the state of Alabama. Defendants' failure to offer the Alabama Driver's License Examination exclusively in English also dilutes, ignores and diminishes the role of English as the official language of the state of Alabama.

VI. PRAYER FOR RELIEF

WHEREFORE, based on the foregoing, Plaintiffs respectfully pray that this Court:

 (a) Assume jurisdiction over this action;

 (b) Empanel a jury to decide such triable issues as may exist in the case;

 (c) Declare that Defendants' policy of offering the Alabama Driver's License Examination in languages other than English violates Ala. Const. Art. I, § 36.01;

 (d) Enter a permanent injunction prohibiting Defendants from maintaining any policy that allows candidates for Alabama driver's licenses to be tested in languages other than English;

 (e) Make such award of costs, attorney's fees and expenses as may be permitted by law or equity; and

 (f) Grant to Plaintiffs such further relief to which they may be justly entitled.

Respectfully submitted this 17^th day of May, 2005.

Shannon L. Goessling
Georgia Bar No. 298951 (applying to appear pro hac vice)

Katherine D. Jordan
Texas Bar No. 00786005 (applying to appear pro hac vice)

SOUTHEASTERN LEGAL FOUNDATION, INC.
6100 Lake Forrest Drive, N.W., Suite 520
Atlanta, Georgia 30328
Tel. 404-257-9667
Fax 404-257-0049

ATTORNEYS FOR PLAINTIFFS