IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE

ROSA A. QUINTEROS, ))

Plaintiff, ))

vs. ) Civil Action No. 08-2535-I)

METROPOLITAN GOVERNMENT )OF NASHVILLE AND DAVIDSON )COUNTY and DAVIDSON COUNTY )ELECTION COMMISSION )

))

Defendants. )

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO INTERVENORS’ MOTION TO DISMISS 1

Comes now the Plaintiff and files this memorandum of law in response

to the Motion to Dismiss (and accompanying memorandum of law filed by

Intervenors Eric Crafton and Nashville First, Inc. (referred to hereafter as

“Intervenors”) and would respectfully show as follows:

I. INTRODUCTION

As a preliminary matter, Plaintiff objects and respectfully responds

herein to the following characterization of Plaintiff’s Complaint made by

Intervenors in their memorandum of law:

This is a last-ditch effort by anti-democratic protesters to violate the Civil Rights of the 12,222 registered voters (including Eric Crafton) by preventing their valid petition of the government. Moreover, it is an undisguised attempt to violate the Civil Rights of the 346,889 registered voters of Davidson County who now have a vested right to vote on the ballot proposal.

1 An electronic version of this brief may be downloaded at: http://www.drslawfirm.com/quinteros/breifresponseinterv.doc

Intervenors’ Memorandum of Law in Support of Motion to Dismiss (at unnumbered page 3).

This Complaint is filed by a single individual, Rosa Quinteros, who is

not aligned with, or part of any group. Legal Challenge to English Only

Election Not Linked to Formal Opposition (Nashville Post, Nov. 20, 2008).

Intervenors’ invective “anti-democratic” charge is also a false. Plaintiff

seeks to restore and protect the democratic process by seeking judicial

review of an illegal and unconstitutional effort by “English only” advocates

who seek to displace the clear will of the people of Nashville as expressed

through their elected representatives.2 As noted in Plaintiff’s brief in

response to Defendants’ Answer, the U.S. Constitution guarantees a

republican form of government – i.e. a government by representatives

chosen by the people. Although “direct democracy” initiative and

referendum procedures are recognized in certain states, including

Tennessee, it is because of the very real threat that some measures

constituting a tyranny of the majority will be advanced in an attempt to

2 The Metro Council voted 25-8 against this English Only amendment: http://www.nashvillepost.com/news/2008/8/7/council_passes_resolution_opposing_english_only

The Mayor of Nashville opposed this English Only amendment and personally addressed the Metro Council urging its rejection: http://nahcc7.tripod.com/id45.html

The Metro Human Relations Commission opposes this amendment and voted against it:

http://www.nashvillepost.com/news/2008/8/5/metro_agency_opposes_english_only

A version of this English Only law offered as an ordinance by the same proponents was vetoed by prior Metro Mayor Bill Purcell and was declared unconstitutional by a formal opinion of the Metro Law Department:

http://www.nashville.gov/mc/resolutions/term_2007_2011/rs2008_402.htm

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deprive persons, especially minorities, of constitutional rights that pre-

election judicial review of such ballot measures for facial unconstitutionality

is well-accepted and recognized in the law. Comment, Reforming Direct

Democracy Lessons From Oregon , 93 CALIF. L. REV . 1191, 1240-1241

(2005).; James D. Gordon III & David B. Magleby, Pre-Election Judicial

Review of Initiatives and Referendums, 64 NOTRE DAME L.REV . 298, 314 and

315-316 and 320 (1989)

By contrast, Intervenors Eric Crafton and "Nashville First, Inc. "--who

are the proponents behind this English Only Charter amendment-- are being

funded by a Virginia-based organization, "ProEnglish"3 whose founder and

current board-member, John H. Tanton4, has a long history of funding hate

organizations, white supremacists, eugenics and anti-immigrant causes5. A

Tennessean newspaper article, "English first backer tied to hate groups,"

details these associations.6 Plaintiff submits that the drive and legal effort to

3 ProEnglish Confident Nashville English Initiative Will Qualify and Pass and Says it Helped Fund the Effort (Reuters, PRNewswire, Press Release of ProEnglish, Aug. 14, 2008). http://www.reuters.com/article/pressRelease/idUS211739+14-Aug-2008+PRN20080814 4 See ProEnglish website. http://www.proenglish.org/main/gen-info.htm5 The Southern Poverty Law Center states: http://www.splcenter.org/intel/intelreport/article.jsp?sid=72

“The organized anti-immigration "movement" is almost entirely the handiwork of one man, Michigan activist John H. Tanton. Here is a list of 13 groups in the loose-knit Tanton network, followed by acronyms if the groups use them, founding dates, and Tanton's role in the groups. … Pro English 1994, founded and funded; U.S.English 1983, founded and funded; U.S. Inc. 1982, founded and funded”

6 http://m.tennessean.com/news.jsp?key=118147&p=2

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place this concededly unconstitutional measure on the ballot is being

funded by an out-of state organization with direct ties to hate groups.7, 8,9

Simply because ProEnglish and its local followers (the Intervenors)

have gathered enough signatures to otherwise qualify for a charter

amendment election does not mean that any notion of law or democracy

requires submitting an unlawful (ultra vires) and facially unconstitutional

ballot measure to an election. It is well settled that a facially

unconstitutional ballot measure or referendum that is beyond the powers

and subject of the governmental entity should not be placed before the

voters. City of Memphis v. Shelby County Election Commission , 146 S.W. 3d

531 at 539 (Tenn. 2004)10; “An election should not be held if the ordinance

proposed [is] clearly invalid on its face. . . . A court of equity will not as a

general rule restrain the holding of an election, but there are some well-

known exceptions to this rule. An election held in violation of law or

7 Attorneys for Morris Dees’ Southern Poverty Law Center prepared a documentary video, “Behind the Veil: America’s Anti-Immigration Network” tying ProEnglish’s founder John Tanton to a web of hate groups supporting white supremacy, eugenics and anti-immigration. http://www.youtube.com/watch?v=qpiq1nAK4a0&eurl=http://www.drslawfirm.com/englishonly.html 8 James Crawford, Anatomy of the English Only Movement,http://ourworld.compuserve.com/homepages/jWCRAWFORD/anatomy.htm; http://ourworld.compuserve.com/homepages/JWCrawford/

9 The Teflon Nativists, FAIR Marked by Ties to White Supremacy (Southern Poverty Law Center)http://www.splcenter.org/intel/intelreport/article.jsp?aid=846

10 In City of Memphis v. Shelby County Election Commission , 146 S.W. 3d 531 at 540 (Tenn. 2004)the Tennessee Supreme Court quoted with approval Town of Hilton Head Island v. Coalition of Expressway Opponents ,307 S.C. 449, 415 S.E.2d 801, 806 (S.C.,1992) (because ordinance was facially defective Town had no obligation to place the initiated ordinance on the ballot. Appellants had no right to obtain a vote to enact invalid legislation. “A court should not compel the doing of a vain thing and the useless spending of money.”)

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contrary to well-established legal requirements, or when it would result in

substantial injury to any suitor or the public generally, may on proper

showing be enjoined where there is no other legal remedy.” Dulaney v. City

of Miami Beach , 96 So.2d 550 (Fla.App. 1957).

II. PLAINTIFFS’ CAUSE OF ACTION IS PROPER.

Intervenors Eric Crafton and Nashville First, Inc. fundamentally (and

incorrectly) misperceive the nature of Plaintiff’s action. This is not a

complaint for damages nor a case seeking a private or implied cause of

action under the Tennessee Constitution. Rather, this is a well-accepted and

recognized cause of action/constitutional challenge for declaratory

judgment and injunctive relief under state and federal law (42 U.S.C. §

1983) wherein Plaintiff as a taxpayer, and person with a discrete and

palpable injury --threatened loss of constitutional and vested rights (by

unconstitutional state action in the form of an unlawful and unconstitutional

charter amendment election)-- seeks injunctive and declaratory relief. See

e.g., Colonial Pipeline Co. v. Morgan , 263 S.W.3d 827 (Tenn.,2008)

(taxpayer bringing constitutional challenge to facial validity of statute may

sue for declaratory and injunctive relief for violation of state and federal

constitutions); Beneficial Tennessee, Inc. v. Metropolitan Government of

Nashville and Davidson County , 2006 WL 568250 (Tenn.Ct.App., March

08, 2006) (suit for injunctive may be brought in state court for violation of

federal constitution pursuant to 42 U.S. C.§ 1983).

III. Plaintiff Has Standing

5

Plaintiff’s November 24, 2008 Memorandum of Law in Response to

Defendants’ Answer and In Further Support of a Temporary Restraining

Order details at length the legal support and authority for Plaintiff’s proper

standing in this case11. The Intervenors’ brief challenges standing with a

mis-placed (and incorrect) argument that as a person of limited English

proficiency, Ms. Quinteros lacks standing, citing inapposite cases.

Plaintiff’s challenge in this case is that: 1) the proposed amendment is

beyond Metro’s powers to legislate (and an improper subject matter for a

charter amendment); 2) that the amendment is also ultra vires because of

state supremacy and intrastate preemption analysis in that the amendment

conflicts with state law and seeks to prohibit what state law permits in a

field that the state has preempted and 3) that the amendment is facially

unconstitutional as a violation of First Amendment and Tennessee

Constitution free speech rights.

Intervenors cite and discuss cases that are simply off-point to this

subject matter (power)/free speech challenge. For example in Frontera v.

Sindell , 522 F.2d 1215 (6 th Cir. Ohio 1975) the issue was whether it violated

the Fourteenth Amendment (equal protection) for a city to give civil service

exams only in English (and not Spanish as well). The fact that there is no 11 Rosa Quinteros, as a taxpayer has standing to challenge an illegal ultra vires election. Subject matter challenges are justiciable and only require taxpayer standing (to in effect challenge an illegal election). Moreover Plaintiff has standing as having suffered a discrete and palpable injury because there is an imminent threat of the loss of her constitutional free-speech rights by this election (now conceded by Metro to be a vote to enact an unconstitutional English-only measure). Taxpayer and injury-in-fact (threatened/imminent) standing is present. Finally, because Metro and the Election Commission have conceded that the proposed English Only charter amendment is unconstitutional, the election itself is unconstitutional state action and standing and ripeness are present as a matter of law.

6

constitutional right to obtain or receive particular government services in

languages other than English (the holding in Frontera) is of no moment,

consequence or relevance to this subject matter/First Amendment-free

speech challenge. Frontera was not a First Amendment-free speech case.

Nor was Carmona v. Sheffield , 475 F.2d 738 (9th Cir. 1973) (cited by

Intervenors as to whether unemployment notices must be in Spanish)12.

Where an ordinance or amendment prohibits or chills protected speech a

facial constitutional challenge is proper. Board of Airport Com'rs of City of

Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568 (1987)

(Under the First Amendment, an individual whose own speech or conduct

may be prohibited is permitted to challenge a statute on its face because it

also threatens others not before the court, those who desire to engage in

legally protected expression but who may refrain from doing so rather than

risk prosecution or undertake to have the law declared partially invalid). In

Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska,2007)

the Alaska Supreme Court held that by requiring the use of English by all

government officers and employees in all government functions and actions,

this violated the free speech rights of government officers and employees

and the recipients of their speech, and the rights of citizens to petition their

government; The first sentence of the “Scope” section of the Alaska

English-only statute was declared unconstitutional in Kritz under a facial

challenge. The sentence stated: “The English language is the language to be 12 Likewise: Soberal-Perez v. Heckler 717 F.2d 36 (2d Cir,1983 ) (cited by Intervenors on right to receive Social Security forms in English was not a First Amendment/free speech case).

7

used by all public agencies in all government functions and actions.” Id. at

190.The Court explained that this was facially unconstitutional:

"In light of our discussion of the extent of the English-only requirement imposed by a redacted section .320, see supra at 197-98, and given that the current challenge is a facial one and thus there are limited facts before us, we do not believe that the appellees have established at this time that there is a “realistic danger” that sections .340(a)-(b) and .380 will chill the free exercise of speech.

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."

Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 214 (Alaska,2007).

Similarly, In Ruiz v. Hull , 957 P. 2d 984 (Ariz. 1998) the Arizona

Supreme Court reviewed the constitutionality under federal and state law of

an amendment to the Arizona state constitution (sponsored by US English

and John Tanton)13 requiring that the “State and all political subdivisions of

[the] State shall act in English and in no other language.” The court

rejected the ballot proponent's argument that “the decision to speak a non-

English language does not implicate pure speech rights, but rather only

13 http://www.proenglish.org/board/tanton.html

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affects the ‘mode of communication.”’ The court concluded that the ban on

government speech in a language other than English “bars communication

itself.” Id. at 999. Thus, “its effect cannot be characterized as merely a time,

place, or manner restriction because such restrictions, by definition, assume

and require the availability of alternative means of communication.” Id.

The decision to speak in a particular language is a choice rooted in

speech itself. In Yniguez v. Arizonans for Official English, 69 F.3d 920, 936

(9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official

English v. Arizona , 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). ,

the Ninth Circuit concluded, “[s]peech in any language is still speech and

the decision to speak in another language is a decision involving speech

alone.” The Ninth Circuit found that a regulation requiring the state of

Arizona to “act” in English did not single out one word for repression, “but

rather entire vocabularies.” Importantly, Yniguez also involved a facial

challenge to unconstitutionality:

After construing Article XXVIII, the district court ruled that it was unconstitutionally overbroad. Under the overbreadth doctrine, an individual whose own speech may constitutionally be prohibited under a given provision is permitted to challenge its facial validity because of the threat that the speech of third parties not before the court will be chilled. Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987). Moreover, a party may challenge a law as facially overbroad that would be unconstitutional as applied to him so long as it would also chill the speech of absent third parties. Lind, 30F.3d at 1122-23 (finding statute unconstitutionally overbroad as well as unconstitutional as applied to plaintiff). The facial invalidation that overbreadth permits is necessary to protect the First Amendment rights of speakers who may fear to challenge the provision on their own.

9

Yniguez v. Arizonans for Official English, 69 F.3d 920, 931 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona , 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). 14

Simply put, this case is about a charter amendment that patently and

facially violates First Amendment rights. The right to receive non-English

Government services is not at issue and the Intervenors’ brief, respectfully,

misses the point entirely. As the Oklahoma Supreme Court explained in

striking down a similar English only measure:

In finding Initiative Petition No. 366 is constitutionally infirm, we are not requiring any Oklahoma governmental entity to provide services in languages other than English beyond what is presently required by law. The issues before this Court do not include the extent that government must accommodate non-English proficient citizens and residents. Further, we do not express the propriety of laws promoting English as an official language. That is not the duty of this Court. We hold only that the restrictions Petition No. 366 places on constitutionally protected rights runs afoul of the Oklahoma Constitution.

In re Initiative Petition No. 366 , 46 P.3d 123, 129 (Okla.,2002) (emphasis supplied).

Clearly, Intervenors’ objection to standing on the basis that Plaintiff

has “no constitutional right to demand services from the Metropolitan

Government in any language other than English” is without merit. It is free

14 "In contrast, Yniguez attacked the facial validity of Arizona's Article XXVIII under the First Amendment. This challenge enabled the Ninth Circuit to invalidate Arizona's official English amendment and all of its potential applications." Language is Speech: The Illegitimacy of Offical English After Yniguez v. Arizonans for Official English, 30 U.C. DAVIS LAW REVIEW, 277, 290-291 (Fall 1996).

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speech that is stake and the ability to communicate and petition the

Government.

Intervenors also argue that because there is a second (unchallenged)

proposed charter amendment scheduled for the January 22nd election (to

shorten the time to bring amendments via petitions) Plaintiff’s claim of a

waste of taxpayer money associated with the English only amendment is de

minimis (since Metro will still presumably have to hold an election as

scheduled). This argument does not deprive Plaintiff of taxpayer standing to

challenge an unlawful (beyond subject matter) and facially unconstitutional

ballot measure. A taxpayer may properly sue to enjoin an illegal, beyond

the powers or facially improper measure on the grounds that such a

measure would be a waste of taxpayer time, a nullity, in vain as well as a

waste of money. “[T]he courts have recognized an exception to the general

rule where it is asserted that the assessment or levy of a tax is illegal or that

public funds are misused or unlawfully diverted from stated purposes.”

Badgett v. Rogers , 222 Tenn. 374, 436 S.W.2d 292, 294 (1968) ; see also La-

Follette Med. Ctr. v. City of LaFollette , 115 S.W.3d 500, 504

(Tenn.Ct.App.2003). Any funds spent for an illegal/beyond the powers

election vests taxpayer standing and standing also exists because the act is

in vain and illegal. Dixon v. Provo City Council , 12 Utah 2d 134, 135, 363

P.2d 1115, 1116(Utah 1961) (cited with approval by the Tennessee Supreme

Court in City of Memphis v. Shelby County Election Commission , 146 S.W.

3d 531 at 540 (Tenn. 2004) (“ Since the ordinance proposed here would

11

have presented to the electors an unsanctioned form of government, the

balloting and the election of three commissioners would be not only a waste

of taxpayer time and money, but a nullity. The proposed ordinance is also

defective and might lead to an absurdity to which this court could not

subscribe.” See also James D. Gordon III & David B. Magleby, Pre-Election

Judicial Review of Initiatives and Referendums, 64 NOTRE DAME L.REV . 298,

314 (1989):

Furthermore, the doctrine of avoiding constitutional questions [in a subject matter/powers challenge] unless necessary is not violated: the only constitutional issues involved are those specifically governing the proponents' right to invoke the direct legislation process. Determination of those questions before the election is necessary because the basis of the challenge is that the proponents are not entitled to invoke the process and thereby cause the expenditure of public funds. If the election is permitted, the very injury complained of will occur.

Plaintiff (as detailed in her brief in response to Defendant’s Answer) in

addition to taxpayer standing to challenge an illegal and “vain” election,

also has standing due to the imminent threat of a discrete and palpable

injury.15

15 See Affidavit of Rosa Quinteros.

In addition, as a person with limited English proficiency, by federal law Plaintiff would be entitled to certain assistance under Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (which provides that no person shall ‘‘on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’’

The Department of Health and Human Services has issued federal regulations, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting LimitedEnglish Proficient Persons , 68 Federal Register 153 (August 8, 2003) that require language assistance for persons who have limited English proficiency, particularly:

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IV. Plaintiff’s Challenge Is Ripe, Justiciable & Has A Substantial Likelihood of Success on the Merits

Intervenors fail to address the preliminary basis for Plaintiff’s

challenge: Metro lacks the power to even consider this subject

matter/ordinance. In Crawley v. Hamilton County, Tennessee, 2005 WL

123495 (Tenn.Ct.App.,2005) the Court summarized the well-accepted

principle that a city or municipality “may not prohibit what state law

permits”:

It has long been held that “municipal ordinances in conflict with and repugnant to a State law of a general character and state-wide application are universally held to be invalid.” Southern Ry. Co. v. City of Knoxville, 223 Tenn. 90, 442 S.W.2d 619, 621 (Tenn.1968). The test of whether such county or municipal rule is in “conflict with and repugnant to” a statute is whether the rule takes away a right granted by the state, or conversely grants a right denied by the state. As stated by the Supreme

persons seeking Temporary Assistance for Needy Families (TANF), and other social services; persons seeking health and health-related services; community members seeking to participate in health promotion or awareness activities; Persons who encounter the public health system; and Parents and legal guardians of minors eligible for coverage concerning such programs.

Such programs would include, for example: Hospitals, nursing homes, home health agencies, and managed care organizations; Universities and other entities with health or social service research programs; State, county, and local health agencies; State Medicaid agencies; State, county and local welfare agencies; Programs for families, youth, and children; and Head Start programs.

The Federal Register announcement specifically states: “Finally, some recipients operate in jurisdictions in which English has beendeclared the official language. Nonetheless, these recipients continueto be subject to federal nondiscrimination requirements, includingthose applicable to the provision of federally assisted services to personswith limited English proficiency."

Plaintiff submits the threatened loss of these services provides additional support for standing and also demonstrates the lack of power to enact this charter amendment on federal supremacy grounds.

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Court, “the city may not pass an ordinance which ignores the State's own regulatory acts, or deny rights granted by the State or grant rights denied by the State and thus in effect nullify the State law.” State ex rel. Beasley v. Mayor and Aldermen of Town of Fayetteville, 196 Tenn. 407, 268 S.W.2d 330, 334 (Tenn.1954). As we have further explained, “[a] test which has been widely used in determining whether the provisions of a municipal ordinance conflict with a statute governing the same subject, is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute forbids.” City of Knoxville v. Currier, 1998 WL 338195 (Tenn.Ct.App.1998)16.

The State of Tennessee already has an official language law, T. C. A. §

4-1-404:

English is hereby established as the official and legal language of Tennessee. All communications and publications, including ballots, produced by governmental entities in Tennessee shall be in English, and instruction in the public schools and colleges of Tennessee shall be conducted in English unless the nature of the course would require otherwise.

Moreover, this state law has been interpreted by the Tennessee

Attorney General to allow governmental entities in Tennessee to

“disseminate and post information” in languages other than English! Thus

the proponents’ proposed charter amendment directly conflicts with state

law and is therefore ultra vires. Tennessee Attorney General Opinion 07-

112 (July 24, 2007) states:

QUESTIONS16 "Municipal ordinances in conflict and repugnant to a State Law of state wide application, are universally held to be invalid. Southern Railway Co. v. The City of Knoxville, 223 Tenn. 90, 442 S.W.2d 619 (Tenn.1968). A test which has been widely used in determining whether the provisions of a municipal ordinance conflict with a statute governing the same subject, is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute forbids. 56 Am.Jur.2d Municipal Corporations, etc., § 374 at p. 408." City of Knoxville v. Currier (Tenn.App.,1998. June 26, 1998); See also Family Golf of Nashville, Inc. v. Metro. Gov't of Nashville , 964 S.W.2d 254, 258 (Tenn.Ct.App.1997) (“Local governments may decide for themselves how best to exercise ... powersdelegated by the General Assembly as long as their decisions do not conflict with state law.”).

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1. Is it lawful for a governmental agency in Tennessee to post information in any language other than English?OPINIONS1. Yes. Tenn. Code Ann. § 4-1-404 requires that all governmental agency communications and publications be in English. However, to avoid constitutional challenge, a court would likely conclude that the statute does not forbid agency communications and publications in other languages as long as all such materials are also published in English.

. . . .

This Office has previously opined that a Senate Bill similar to the statute in question, requiring all driver's license tests to be administered in English, may be subject to attack under Title VI of the Civil Rights Act of 1964. See Op. Tenn. Att'y Gen. 05-125 (August 17, 2005). Because the less restrictive construction of Tenn. Code Ann. § 4-1-104 posited above would avoid the thorny constitutional issues discussed in Ruiz, we conclude that a court would most likely interpret the statute to mean that governmental agencies in Tennessee must disseminate information in English but are not prohibited from posting the same information in other languages as well.

Plaintiff submits that the proposed charter amendment election

conflicts with what is permitted by state law and that in any event the

general law of the state preempts expressly or impliedly any attempt

to regulate speech and communication in English or other languages.

Jordan v. Knox County, 213 S.W.3d 751 (Tenn.,2007) (general law of

the state preempts local laws in conflict).

No reported case supports the proposition advanced by intervenors:

that cities or municipalities have the power to legislate or direct a

particular language, especially where a state law controls and covers the

subject. The only cities that have “passed” English-only laws are very small

15

cities17 (whose laws have not been challenged). In the sole case to directly

address a pre-election challenge to an English only referendum the New

Jersey Court of Appeals in Bogota v. Donovan, 9 07 A.2d 433, 388 N.J. Super.

248 (N.J. Super. 2006) held a local municipality has no power to legislate

language or define an official language.

Plaintiff also has a strong likelihood of success on the merits on the

grounds that the proposed charter amendment is facially unconstitutional.

In addition to the U.S. Supreme Court case in Board of Airport Com'rs of

City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568

(1987) that under the First Amendment an individual whose own speech or

conduct may be prohibited is permitted to challenge a statute on its face,

courts and commentators have expressly held and stated that this type of

English only law—that prohibits government action and speech (by and to

the government) is facially unconstitutional. Ruiz (Ariz. Sup. Ct.), Kritz

(Alaska Supreme Court), Yniguez (Ninth Circuit) and In re INITIATIVE

PETITION NO. 366, State Question No. 689 (Okla. Supreme Court) have all

struck down prohibitive English only laws as facially unconstitutional ballot

17 The Maryland city cited by intervenors has a population of 5,000. http://www.washingtontimes.com/news/2006/nov/14/20061114-104157-8637r/Other English-only laws have been passed in similarly small towns:

“Similar measures have passed in smaller communities, namely Taneytown, Md., the Dallas suburb of Farmers Branch and the Atlanta suburb of Cherokee County. But Nashville, with a population of almost 600,000 including a number of political refugees from Iraq, Somalia and Sudan could be the first large city to pass a language bill like this.”

Associated Press, English - Only Movement Targets Nashville, Tenn. (Aug. 11, 2008).

16

measures. As NYU law professor David Gans observed in a leading law

review article:

"The same link between liberty and equality that Lawrence [U.S. Sup. Ct. case striking down homosexual sodomy laws] observed may be implicated when other substantive constitutional rights are at stake. Consider English-only laws requiring all government business to be conducted in English, thus forbidding government employees from communicating with persons in languages other than English while performing their official duties. One reason to invalidate such laws on their face is to prevent a chilling effect on protected speech. The English-only law chills too much protected speech between government employees and non-English speakers, thus necessitating its facial invalidation.”

David H. Gans, Strategic Facial Challenges, 85 BOSTON UNIVERSITY LAW REVIEW 1333, 1380, 1381 (2005) (emphasis added).

Because City of Memphis v. Shelby County Election Commission , 146 S.W.

3d 531 at 539 (Tenn. 2004) expressly authorizes pre-election challenges to

facially unconstitutional efforts to deprive constitutional rights, Plaintiff

Rosa Quinteros is empowered to bring this case and it is ripe and proper for

judicial review. As cogently explained in a law review article by Professor

Robert Sedler:

Where a litigant mounts a facial challenge to a law that restricts expression, the Court will determine the validity of the law by looking only to its terms, without reference to whether the litigant's expressive conduct was itself unconstitutionally restrained. The Court has explained that the policy basis for this rule is that it wants to prevent the existence and threatened enforcement of vague and overbroad laws from having a chilling effect on exercise of first amendment rights. Reasoning that a finding of facial invalidity would mean that the law “abridged expression in such a way that it could never be constitutionally applied,” the Court has allowed litigants to claim that though a statute may be constitutional as applied to them, it would be unconstitutional as applied to others.

17

Robert A. Sedler, The Assertion of Constitutional Jus Tertii: A Substantive Approach, 70 California Law Review 1308, 1326-1327 (1982)

V. CONCLUSION

That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution-a desirable end cannot be promoted by prohibited means.

Meyer v. Nebraska , 262 U.S. 390, 491, 43 S.Ct. 625, 627 (1923)

The motion to dismiss filed by Eric Crafton and Nashville First, Inc.

lacks merit and should be denied. Plaintiff Rosa Quinteros has taxpayer

standing to challenge an illegal ultra vires ballot measure. Such an election

will be in vain, waste taxpayer time and will waste whatever monies are

accountable to this measure. The election itself is unlawful and a taxpayer

may sue to stop the government from proceeding with an unlawful election.

Plaintiff also has discrete and palpable injury standing as she suffers from

a distinct threat of imminent harm (as a person of limited English

proficiency) of unlawful “state action” in the form of a facially

unconstitutional ballot measure. The cases and authorities cited and relied

by Intervenors are inapposite.

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Respectfully Submitted,

LAW OFFICES OF DAVID RANDOLPH SMITH & EDMUND J. SCHMIDT III

By: _____________________________________David Randolph Smith, TN Bar #0119051913 21st Avenue SouthNashville, Tennessee 37212Phone: (615) 742-1775Fax: (615) 742-1223drs@drslawfirm.com

Sean Lewis, TN Bar #021222144 Second Avenue North, Suite 150Nashville, Tennessee 37219Phone: (615) 646-6002Fax: (866) 495-1214

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document has been served upon the following on this day of , 2008, via facsimile and first-class, postage prepaid U.S. Mail:

James L. CharlesAssociate Director of Law, # 9007Lora Barkenbus Fox, # 17243Kevin C. Klein, # 23301Assistant Metropolitan AttorneysMetropolitan Courthouse, Suite 108P.O. Box 196300Nashville, Tennessee 37219-6300Attorneys for Defendants

James RobertsJames D.R. Roberts & Janet L. Layman701 Broadway/Customs House, Suite 401, Mailbox 1Nashvi1le, Tennessee 37203Attorneys for Eric Crafton & Nashville First, Inc.

David Randolph Smith

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