Mark McDermott

City defends anti-solicitation law before panel of federal judges

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A seven year legal battle that began with the arrests of day laborers along Artesia and Manhattan Beach boulevards reached an "en banc" panel of 11 Ninth Circuit judges. Photo by Mark McDermott

City Attorney Mike Webb defended a city ordinance aimed at stopping day laborers from soliciting work on city streets and sidewalks before a special panel of federal judges in San Francisco on Monday.

The hearing, before an ‘en banc’ panel of 11 judges from the United States Court of Appeals for the Ninth Circuit, followed a legal victory last June in which a three judge panel upheld the constitutionality the city’s law. A coalition of groups, including the Comite de Jornaleros and the Mexican American Legal and Educational Defense Fund, has challenged the law as a violation of First Amendment free speech rights. The lawsuit was originally filed in 2004. The coalition won the first round in a district court,  but the appeals court overturned that decision last year.

Webb argued Monday that Redondo Beach’s ordinance – enacted in 1987 – was explicitly based on an ordinance adopted in Phoenix that has been upheld by the Ninth Circuit. He said the city’s law was simply a practical attempt to alleviate ongoing traffic problems caused by day laborers soliciting employment on city streets.

“In trying to deal with it in a constitutional manner, [the city] copied, word for word an ordinance that had been approved by this court some eight months before,” Webb told the justices. “Here we are now 24 years later, we are pushing our seventh year of litigation – the city defending itself on a facial challenge of the very ordinance that this court approved, and that has been approved several times.”

Most of the justices did not comment or question the argument. A few sharply questioned Webb.

Justice Marsha Berzon noted that Redondo had added an entire subsection to the Phoenix law specifying that it was also illegal for motorists to stop in order to hire someone seeking employment and suggested the city’s law may not be “content neutral” in that it could be seen as regulating speech, depending on what its content is, which would be a violation of free speech law. She questioned the need for the ordinance in addition to existing traffic laws.

“What difference does that make? If the problem the city is experiencing is a slowdown of traffic, people stopping and  blocking the street – why isn’t it a complete answer to tell them to stop and walk the street?” Berzon said.

Justice Milan Smith also said that the Phoenix and Redondo ordinances were not identical because the city added sidewalks to its definition of a street or roadway. The Phoenix ordinance was unsuccessfully challenged by the ACORN activist group – who had solicited financial contributions from motorists – and only implicitly included sidewalks in its roadway definition.

“It’s not identical, and that, in and of itself, changes the ballgame, because you have the employment focus and deal with the sidewalk issue and the like,” Smith said. “…Because in ACORN, you have people running out to the car right in traffic, exchanging money.

“I live in Manhattan Beach, so I know about Redondo Beach,” Smith added.  “It’s a very nice town and people are friendly and all that sort of thing. A lot of things happen on sidewalks that have absolutely nothing to do with what they had in ACORN. So I am puzzled why the city is so obdurate in refusing the fact that this is a content-based ordinance. It is a restrictive ordinance. It bans some solicitation, but not all solicitation.”

Webb said that both the district and previous appeal court had found Redondo’s ordinance content neutral. He said the city had added language to its ordinance so it could not be challenged for being overly vague. Webb repeatedly argued that the city’s law was tailored to a very specific problem rather than “a hypothetical” and it had worked effectively in a way previously existing traffic laws did not.

“Again, we are trying to address the actual concerns we have,” Webb said.

Thomas Saenz, an attorney representing the day laborers’ coalition, also pounded away on the “content neutral” argument.

“We have an ordinance that is constitutionally discriminatory on its face by not covering all solicitations….. that would require a car to stop,” Saenz said. “This ordinance, for example, would not stop someone from soliciting for signatures on a petition, whether a petition to quality for a ballot or petitioning for the Rock N’ Roll Hall of Fame to induct Brittany Spears.”

“That Brittany Spears thing doesn’t happen very often,” said Chief Justice Alex Kozinski. “Which is understandable.”  ER