Despite an out-of-court settlement, two judges have asked the U.S. Supreme Court to vacate an appeals court decision that deemed discriminatory a 1984 rule requiring Southeast Municipal Court employees to speak English during office conversations.
In addition, Southeast Municipal Court Judges Porter deDubovay and Russell L. Schooling have asked the high court to review the case if it does not vacate the appellate court ruling.
“It’s a matter of principle and vindication. . . . " one of the judges’ lawyers, Larry J. Roberts, said Tuesday. “The judges want to establish what they did was proper.”
DeDubovay declined to comment on the specifics of the case, but said, “We think the Supreme Court should have a chance . . . to rule in the case.”
Schooling declined comment. A third Southeast Municipal Court judge involved in the original case, John W. Bunnett, did not participate in the petition to the Supreme Court. Bunnett also declined to comment.
Suit Challenged Rule
Alva Gutierrez, 33, a former court clerk who is bilingual, filed suit in 1985 challenging the “English-only " rule as discriminatory. Later that year, a federal judge issued an injunction blocking enforcement of the rule. The judges appealed.
In January 1988, a three-judge panel of the U.S. 9th Circuit Court of Appeals upheld the decision, finding there was evidence that the rule “contributed to a workplace atmosphere that derogates Hispanics, encourages discriminatory behavior by non-Hispanic supervisory and non-supervisory employees, and heightens racial animosity.” The appeals court decision also kept alive a suit seeking damages against the judges.
Last month, the county and Gutierrez reached a settlement, and U.S. District Court Judge Richard A. Gadbois Jr. dismissed the case. Gutierrez received $85,000 under the settlement.
“They (the judges) don’t want the U.S. Court of Appeals 9th Circuit opinion to be the law of the land,” said lawyer Gloria Allred, who represents Gutierrez. “The decision is as complete victory for us. We’re asking that (the judges’) arguments be rejected.”
Assistant County Counsel Frederick R. Bennett also attacked the decision to petition the Supreme Court. At the time of the settlement, the county had paid more than $239,000 to lawyers representing the judges. Bennett said the judges will now have to pay their own legal bills associated with the petition. Bennett called the judges’ action “chasing after windmills.”
“It’s time to bring this waste of public funds to an end,” he said.
The petition to the Supreme Court was filed on Feb. 21, a court clerk said. A decision on the petition will be made after a response is received from Gutierrez’s attorneys.
The three Municipal Court judges imposed the English-only rule in 1984, forbidding employees to speak any language except English on the job except when acting as translators. The judges took the action after an employee complained that co-workers were saying negative things about her in Spanish.
Rule Called Unfair
Gutierrez, who was a deputy court clerk and translator, sued contending the rule unfairly hurt Latinos who should be allowed to speak Spanish.
In addition to the appeals court decision, the county Civil Service Commission ruled that the English-only rule violated Civil Service guidelines prohibiting discrimination against county employees.
The judges have contended that the rule was not discriminatory because Gutierrez and the court’s other bilingual clerks could just as easily have spoken English.
Their petition contends the Supreme Court should vacate the appeals court decision because attorneys for Gutierrez did not follow proper procedure in filing the case. It also argues the decision should be vacated because the case became moot in January, 1986, when Gutierrez was granted a disability retirement and was no longer subject to the court rule. Gutierrez, of Maywood, now works for a hospital, Allred said.
Allred said said each of those arguments was without merit.
If the Supreme Court declines to vacate the appellate court decision on those grounds, the judges want the high court to hear the case. The petition argues that barring English-only rules could contribute to racial conflict in the workplace, generating complaints such as those at the Southeast courthouse.
The petition notes that another federal appeals court upheld an English-only work rule in 1980, and asks the Supreme Court to resolve the conflicting opinions. Judge Stephen Reinhardt noted in the 1988 appellate court decision that the U.S. Equal Employment Opportunity Commission passed guidelines later in 1980 saying such rules should be barred unless justified by “business necessity.”