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Redondo Amicus

Redondo Amicus

Page 1: Redondo Amicus

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Number of Pages:19

Date Created:July 9, 2007

Date Uploaded to the Library:February 20, 2014

Tags:Redondo, solicitation, Ordinance, COMMERCIAL, Beach, employment, Amicus, amendment, Speech, Supreme, acorn, Supreme Court, states, district, united, court


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NO. 06-55750 THE UNITED STATES COURT APPEALS 
FOR THE NINTH CIRCUIT 

COMITE JORNALEROS REDONDO BEACH, al., 
Appellee, 
CITY REDONDO BEACH, 
Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT CALIFORNIA 
No. 04-CV-9396-CBM 
Honorable Consuelo Marshall 

BRIEF AMICUS CURIAE JUDICIAL WATCH, INC. SUPPORT APPELLANT, CITY REDONDO BEACH 

Paul Orfanedes 
James Peterson* 
JUDICIAL WATCH, INC. 
501 School Street, S.W. 
Suite 500 
Washington, D.C. 20024 
(202) 646-5172 

Counsel for Amicus Curiae 
*Not Admitted the Ninth Circuit 

TABLE CONTENTS 

STATEMENT THEAMICUS CURIAE .... ...... .........1 ...... 
SUMMARY ARGUMENT
.....	............................... 
	
ARGUMENT ...................................................... 	
The District Court Failed Use the Appropriate First Amendment 
Standard Its Review the Anti-Solicitation Ordinance ........ 

II. 	
Street-Side Solicitation Employment Must Regulated 
Commercial Speech 
CERTIFICATE COMPLIANCE 
CERTIFICATE SERVICE 

CONCLUSION ................................................... 

TABLE AUTHORITIES 

Cases 

ACORN City Phoenix, 798 F.2d 1260 (9th Cir. 1986) ............. 
ACORN St. Louis County, 930 F.2d 591 (8th Cir. 1991) ................. 
Board Trustees State University Fox, 492 U.S. 469 (1989) ............ 
Balker Comm'r, 760 F.2d 1039 (9th Cir. 1985)) ......................... 
Central Hudson Gas Electric Corp., 447 U.S. 557 (1980) .......... 
City Cincinnati Discovery Network, 507 U.S. 410 (1993) .............. 
Coalition for Humane Immigrant Rights Los Angeles (CHIRLA) Burke, 2000 U.S. Dist. LEXIS 16520 (C.D. Cal. 
2000) ............ 
Cold Mountain Garber, 375 F.3d 884 (9th Cir. 2004) .................... mite Jornaleros Redondo Beach City Redondo Beach, 

475 Supp. 952 (C.D. Cal. 
2006) ........ ....... passim 
Florida Bar Went For It, Inc., 515 U.S. 618 (1995) .................... 
International Society for Krishna Consciousness New Orleans 

(ISKCON) City Baton Rouge, 876 F.2d 494 (5th Cir. 1989) ........ 
4th 352

Los Angeles Alliance for Survival City Los Angeles, Cal. Cal. tr. 993 P.2d 334 (2000) .......................... 
Metromedia, Inc. City San Diego 453 U.S. 490 (1981) .............. 
Miller-Wohl Co. Commissioner Labor Industry, 

694 F.2d 203 (9th Cir. 1982) .................................... 

Ohralik 
Ohio State Bar Ass 'n, 436 U.S. 447 (1978) ................... 

Spence 
Washington, 418 U.S. 405 (1974) ............................. 

Virginia State Bd. Pharmacy Virginia Citizens Consumer Council, 
425 U.S. 748 (1976) 
........................................... 

Ward 
Rock Against Racism, 491 U.S. 781 (1989) ....................... 

Xiloj-Jtzep 
City Agoura Hills, Cal. App. 4th 620, Cal. Rptr. 879 (Cal. Ct. App. 1994) ......................... 

Other Authorities 
Abel Valenzuela, Jr., al., "On the Comer: Day Labor the 
United States," (Jan. 2006) ..................................... 

STATEMENT THEAM/CVS CURIAE 
Judicial Watch, Inc. ("Judicial Watch"), counsel, hereby submits this brief amicus curiae support Appellant, City Redondo Beach. Judicial Watch not-for-profit, tax-exempt educational organization that seeks promote integrity government and fidelity the rule law. Judicial Watch regularly files amicus curiae briefs means advance its public interest mission. part its efforts promote fidelity the rule law, Judicial Watch has provided legal representation taxpayers and taxpayer organizations seeking challenge local governments' use taxpayer resources establish hiring sites for day laborers. Often, such sites are created means address street-side solicitation employment. See Berkoski Bd. Trustees, Case No. 07-12608 (Suffolk Co., N.Y. Supreme Ct.) (amicus curiae supporting legal challenge use taxpayer resources operate day laborer site); Garcia City Laguna Beach, No. 06CC10595 (Orange Co., Calif. Super. Ct.) (lawsuit challenging use taxpayer resources operate day laborer site); Karunakaram Town Herndon, No. 2005 4013 (Fairfax Co., Va. Cir. Ct.) (same). Because day laborer hiring sites often are used aliens not authorized work the United States, these sites facilitate violations federal immigration laws. 
Numerous communities across the nation have attempted address the burgeoning problem street-side solicitation employment enacting antisolicitation ordinances. Based upon erroneous application First Amendment jurisprudence however, many local governments have mistakenly believed that, order regulate street-side solicitation employment, necessary establish taxpayer-funded day laborer hiring site. Much this mistaken belief arises from decisions trial courts within the U.S. Court Appeals for the Ninth Circuit ("Ninth Circuit"), including the ruling the District Court this case, that fail differentiate between commercial speech, which entitled lesser protection under the First Amendment, and political expressive speech, which enjoys greater protection under the First Amendment. See Comite Jornaleros Redondo Beach City Redondo Beach, 475 Supp. 952 (C.D. Cal. 2006); see also mite Jornaleros Glendale, al. City Glendale, No. 05-55880 (9th Cir., fully briefed, awaiting oral argument). Judicial Watch's knowledge, this Court has not yet issued reported decision which has addressed whether local ordinance regarding the streetside solicitations employment should analyzed lesser-protected 
commercial speech more highly-protected expressive political speech.1 thus vital that this Court confirm that local governments may regulate such activity commercial speech. 
Judicial Watch cognizant the fact that the briefing this appeal ongoing. this regard, appears that the due date for Appellees file their opposition brief has been extended twice and the briefing related appeal, Comite Jornaleros Redondo Beach City Redondo Beach, Case No. 0656869 (9th Cir.), has been stayed. Nonetheless, the Court has the discretion accept the filing amicus curiae briefs any time, and Judicial Watch respectfully submits that the Court should accept its amicus curiae brief this time because the brief will assist the Court addressing pure issue law and because the parties this litigation will have additional opportunities address this issue later these proceedings. See FRAP 29( ("Court may grant leave for later filing, specifying the time within which opposing party may answer."). addition, because was not participant the lower court proceedings, unclear Judicial Watch whether the parties fully briefed that court the issue whether street-side solicitation employment should analyzed 

This Court's ruling ACORN City o.f Phoenix, 798 F.2d 1260 (9th Cir. 1986) addressed the street-side fundraising advocacy group, not the purely commercial solicitation employment. 
lesser-protected commercial speech more highly-protected expressive 

political speech. Whatever the case may be, this Court may invoke its discretion hear even previously unconsidered claims under three recognized exceptions: the "exceptional" case which review necessary prevent miscarriage justice preserve the integrity the judicial process, [2] when new issue arises while appeal pending because change the law, [3] when the issue presented purely one law and either does not depend the factual record developed below, the pertinent record has been fully developed. 
Cold Mountain Garber, 375 F.3d 884 (9th Cir. 2004) (quoting Balker Comm'r, 760 F.2d 1039, 1042 (9th Cir. 1985)). Certainly one, and perhaps two, these exceptions, apply here. The issue raised Judicial Watch question pure law that does not depend the factual record below, and this case clearly "exceptional" impmiance because the precedent that may set. essential that this Comi fully apprised the clear error law committed the District Court and all the relevant arguments. See Miller-Wohl Co. Commissioner ofLabor Industry, 694 F.2d 203, 204 (9th Cir. 1982) (the classic role amicus curiae assist case general public interest, supplement the efforts counsel, and draw the court's attention law that might otherwise escape consideration). Toward that end, Judicial Watch respectfully suggests that its brief will significant service the Court. 
SUMMARY ARGUMENT 
The District Court erred its review the City's anti-solicitation ordinance not analyzing street-side solicitation employment commercial speech. doing so, the District Court failed apply the appropriate First Amendment analysis the ordinance. Because this fundamental error, the District Court's ruling should reversed. 
ARGUMENT 	The District Court Failed Use the Appropriate First Amendment Standard Its Review the Anti-Solicitation Ordinance. 
The speech that the City seeks regulate this case the solicitation employment persons gathering certain public spaces, typically along streets sidewalks. This type speech -the proposal commercial transaction -is distinct subset speech under the First Amendment known commercial speech. its review the City's anti-solicitation ordinance,2 however, the District Court failed even consider whether the well-established First Amendment standard governing regulation commercial speech should have been applied. See generally Comite Jornaleros Redondo Beach City Redondo Beach, 475 Supp. 952, 958-68 (C.D. Cal. 2006). Redondo Beach Municipal Code  3-7.1601 (the "Ordinance"). 

The U.S. Supreme Court has long distinguished between commercial and non-commercial speech. Central Hudson Gas Electric Corp., 447 U.S. 557, 564 (1980). Commercial speech relates solely the "economic interests the speaker and its audience" "speech proposing commercial transaction." Id. 561-62. contrast, the First Amendment affords the most protection speech which "integrally related the exposition thought." Virginia State Bd. Pharmacy Virginia Citizens Consumer Council, 425 U.S. 748, 779-80 (1976) (Stewart, J., concurring). Because commercial speech integrally related advancing economic interests, not thoughts ideas, invariably receives "lesser protection than other constitutionally guaranteed expression." City Cincinnati Discovery Network, 507 U.S. 410, 422 (1993) (citing Ohralik Ohio State Bar 
Ass 'n, 436 U.S. 447, 455-56 (1978). 
The Supreme Court has established clear framework for determining the 
validity restrictions speech that commercial nature. Specifically, the 
Court has: 
adopted four part test for determining the validity government restrictions commercial speech, distinguished from more fully protected speech. The First Amendment protects commercial speech only that speech concerns lawful activity and not misleading. restriction otherwise protected commercial speech valid only (2) seeks implement substantial governmental 
interest,(3) directly advances that interest, and reaches further than necessary accomplish the given objective. 
Metromedia, Inc. City San Diego 453 U.S.490, 507 (1981) (citing Central 
Hudson Gas Electric Corp., 447 U.S. 563-66). regard the fourth 
criterion, regulation need not the "least-restrictive means accomplish the 
government's goal." Board Trustees State University Fox, 492 U.S. 469, 
480 (1989). Instead, there must "reasonable fit between the ends and the 
means,a fit "that employs not necessarily the least restrictive means, but ... 
means narrowly tailored achieve the desired objective." Id. this case, the speech that the City seeks regulate through its anti
solicitation ordinance is, most, commercial speech.Not unlike hot dog vendors t-shirt sellers commonly seen the streets busy cities across America, day 
laborers "propose commercial transaction prospective employers standing certain locations, like streets and sidewalks. Their conduct communicates considered commercial speech under Central Hudson, street-side solicitation employment day laborers would first have "lawful activity." Redondo Beach, however, like elsewhere the United States, day laborers consist predominantly persons not legally authorized work the United States. recent, comprehensive study day laborers determined that least seventy-five percent (75%) day laborers the United States are illegal aliens. See Abel Valenzuela, Jr.,et al., "On the Corner: Day Labor the United 
States," (Jan. 2006) (UCLA/University Illinois survey 2,260 day laborers 264 hiring sites states, including California). Solicitation unlawful 
employment would not seem activity protected under Central Hudson. 

these employers that they are willing provide work exchange for payment. See Spence Washington, 418 U.S. 405, 409 (1974) (holding that particularized message conduct intended audience qualifies for First Amendment protection). other message intended communicated. Certainly political message conveyed. The only message "Hire Me." 
The Supreme Court has recognized solicitation employment form commercial speech analogous context. Ohralik Ohio State Bar Ass 'n, 436 U.S. 447 (1978), the Court considered whether in-person solicitation clients attorneys was constitutionally protected speech. The Court specifically concluded that solicitation clients lesser-protected commercial speech that does not rise the level speech "more traditionally within the concern the First Amendment." Id. 457. Moreover, according the Court, "in-person solicitation lawyer remunerative employment business transaction which speech essential but subordinate component." Id. The Court also stated that lower level judicial scrutiny, consistent with the commercial speech doctrine, was appropriate. Id. Clearly, iflawyers' solicitation potential clients lesser-valued commercial speech, then solicitation employment day laborers should merit greater First Amendment protection. 
Despite the obviously "commercial" nature day laborer "speech," the District Court failed analyze the Ordinance lesser-protected commercial speech.4 Instead, the Court, without any discussion this issue, applied the "time, place, manner" test intended for higher-value non-commercial speech. 475 Supp. 958 (following the test developed Ward Rock Against Racism, 491 U.S. 781, 791 (1989)). Under this stricter test, the government may impose content-neutral "time, place, manner" restrictions protected speech the restrictions are narrowly tailored serve significant government interest and leave open alternative channels communication. 475 Supp. 958 (citing 
Ward, 491 U.S. 491). This test plainly different from the Central Hudson test for commercial speech, and, this lesser standard for commercial speech had been appropriately applied this case, would have yielded different result. 
The cases relied upon the District Court not even address lesser-protected commercial speech, but instead concern solicitation relating more expressive activity. For example, ACORN City Phoenix, 798 F.2d 1260 (9th Cir. 1986) ("ACORN"), involved review city ordinance restricting solicitation fact, the District Court's only reference commercial speech was footnote which correctly stated that review under the overbreadth doctrine would not available commercial speech case. 475 Supp. 952, 958 n.2. streets. Id. 1262. Critically, however, the "speech" issue ACORN was speech "political activist organization" whose members would, among other things, approach motorists solicit contributions and distribute information about the organization. 475 Supp. 964. Hence, the speech issue ACORN was not commercial, but was higher-value political speech. Thus, application the "time, place, manner" ACORN was entirely appropriate. ACORN, however, provides support for application "time, place, manner" test this case. 
Other solicitation cases cited the District Court similarly involved noncommercial speech. ACORN St. Louis County, 930 F.2d 591, 594 (8th Cir. 1991) (political organization seeking donations) (religious organization seeking donations); International Society for Krishna Consciousness New Orleans (ISKCON) City Baton Rouge, 876 F.2d 494 (5th Cir. 1989) (members religious organizations seeking donations); Los Angeles Alliance for Survival City Los Angeles, Cal. 4th 352, Cal. Rptr. 993 P.2d 334 (2000) (members charitable organization seeking funds). Similarly, the only reported cases addressing street-side solicitation employment overlook the commercial nature the "speech" involved and erroneously apply the "time, place, manner" test. Coalition for Humane Immigrant Rights Los Angeles (CHIRLA) Burke, 2000 U.S. Dist. LEXIS 16520, (C.D. Cal. 2000); Xiloj-ltzep City Agoura Hills, Cal. App. 4th 620, Cal. Rptr. 879 (Cal. Ct. App. 1994). 
Because the District Court failed apply the commercial speech doctrine the City's efforts regulate street-side solicitation employment, the District Court erred its review the Ordinance. 
II. 	Street-Side Solicitation Employment Must Regulated Commercial Speech. discussed above, the District Comi should have applied the Central Hudson test for commercial speech its review the Ordinance. had, likely the Ordinance would have been upheld. 
First, the District Court would have considered whether street-side solicitation employment day laborers lawful activity, which doubtful.5 Next, assuming that the activity lawful, the District Court would have found that the Ordinance directly advances the substantial government interests asserted the City, namely traffic flow and safety. 475 Supp. 963. The District Court already has stated that both these constitutes least "significant 
The District Court simplistically states that "there does not appear any law that bars undocumented persons from seeking work." 475 Supp. 957. This assertion ignores, among other things, that unlawful enter into conspiracies violate federal law (18 U.S.C.  371) aid abet U.S.C.  the violation federal immigration laws. 

interest." Id. 964; Metromedia, Inc. City San Diego 453 U.S. 507 (City's interest traffic safety justified prohibition commercial billboards). 
Finally, the District Court would have found that the Ordinance "reasonable fit" for the activity seeks regulate. What required reasonable fit" between the ends and the means chosen accomplish those ends. Florida Bar Went For It, Inc., 515 U.S. 618, 632 (1995). The fit need not perfect nor the single best achieve those ends, but one whose scope narrowly tailored achieve the City's objective. Id. this case, while the fit may not "perfect," reasonable means accomplish the City's goals. 
Accordingly, when properly reviewed under the commercial speech doctrine, the Ordinance entirely proper use the City's power regulate commercial speech. Otherwise, the Court were interpret soliciting employment more akin expressive political speech than less protected commercial speech, would effectively destroy the distinction between political speech and commercial speech established the U.S. Supreme Court Central Hudson Gas Electric Corp. and reaffirmed Metromedia, Inc. 
CONCLUSION 
Because its failure apply the law governing commercial speech, the judgment the District Court should reversed. 
Dated: July 2007 Respectfully submitted, 

Counsel for Amicus Curiae 
CERTIFICATE COMPLIANCE certify that pursuant Fed. App. 29(d) and 9th Cir. 32-1, the attached amicus brief proportionally spaced, has typeface points more and contains 3,398 words. 
July 2007 

CERTIFICATE SERVICE hereby certify that July 2007 two true and correct copies the foregoing BRIEF AMICUS CURIAE JUDICIAL WATCH, INC. SUPPORT APPELLANT, CITY REDONDO BEACH was served the following counsel record and first class U.S. mail, postage prepaid: 
Robert Rubin, Esq. 
LAWYERS' COMMITTEE FOR 
CIVIL RIGHTS 
131 Steuart Street 
San Francisco, 94105 
Cynthia Valenzuela, Esq. 
MEXICAN AMERICAN LEGAL DEFENSE 
AND EDUCATION FUND 
634 Spring Street 
Los Angeles, 90014 
Counsel for Appellees 
Michael Webb, Esq. 
OFFICE THE CITY ATTORNEY 
415 Diamond Street 
P.O. Box 270 
Redondo Beach, 90277-0270 

Julie Fleming, Esq. 
MANNING MARDER KASS ELLROD 
RAMIREZLLP 
801 Figueroa Street 
Los Angeles, 90017 
Counsel for Appellant 

David Rothstein



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