62
Opinion of the Court
ages. 42 F. 3d 1217 (amended Jan. 17, 1995). Despite the Court of Appeals' July 1991 denial of party status to Arizona, the Ninth Circuit apparently viewed the State as the defendant responsible for any damages, for it noted: "The State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages." Id., at 1243. The Ninth Circuit agreed to rehear the case en banc, 53 F. 3d 1084 (1995), and in October 1995, by a 6-to-5 vote, the en banc court reinstated the panel opinion with minor alterations. 69 F. 3d 920.
Adopting the District Court's construction of Article XXVIII, the en banc court read the provision to prohibit
" 'the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in § 3(2) of Article XXVIII.' " 69 F. 3d, at 928 (quoting 730 F. Supp., at 314).
Because the court found the "plain language" dispositive, 69 F. 3d, at 929, it rejected the State Attorney General's limiting construction and declined to certify the matter to the Arizona Supreme Court, id., at 929-931. As an additional reason for its refusal to grant the Attorney General's request for certification, the en banc court stated: "The Attorney General . . . never conceded that [Article XXVIII] would be unconstitutional if construed as Yniguez asserts it properly should be." Id., at 931, and n. 14.17 The Ninth Circuit also pointed to a state-court challenge to the constitutionality of
17 The Court of Appeals contrasted Virginia v. American Booksellers Assn., Inc., 484 U. S. 383 (1988), in which this Court certified to the Virginia Supreme Court questions concerning the proper interpretation of a state statute. In American Booksellers, the Ninth Circuit noted, "the State Attorney General conceded [the statute] would be unconstitutional if construed as the plaintiffs contended it should be." 69 F. 3d, at 930.
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