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South Amp Ton Amicus With Exhibits

South Amp Ton Amicus With Exhibits

Page 1: South Amp Ton Amicus With Exhibits


Number of Pages:81

Date Created:June 26, 2007

Date Uploaded to the Library:February 20, 2014

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Plaintiffs Index No. 07-12608 
-against-Hon. Jeffrey Arlen Spinner 

Jason Aldrich 
501 School Street, S.W., Suite 500 
Washington, D.C. 20024 

Counsel for Amici Curiae 
The Suffolk County Coalition for Legal Immigration (NO AMNESTY) (the "Coalition") and Judicial Watch, Inc., counsel, hereby submit this brief amici curiae support Plaintiffs and the Town Southampton. 
The Coalition, unincorporated association concerned residents the Town Southampton ("Town"), the Village Southampton ("Village"), and Suffolk County, supports enforcement immigration laws and securing the borders. also opposed any use taxpayer resources that undermines existing immigration laws, promotes illegal immigration, facilitates the employment persons not legally present the United States. 
Judicial Watch, Inc. ("Judicial Watch") not-for-profit, tax-exempt educational organization that seeks promote integrity, transparency, and accountability government and fidelity the rule law. part its efforts promote fidelity the rule law, Judicial Watch has provided legal representation taxpayers and taxpayer organizations seeking challenge local government actions and expenditures that undermine federal immigration laws. See Karunakaram Town Herndon, No. 2005 4013 (Fairfax Co., Va. Cir. Ct.) (lawsuit challenging 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); Sturgeon Bratton, No. BC351646 (Los Angeles Co., Calif. Super. Ct.) (lawsuit challenging police department policy limiting communication between officers and federal immigration officials). Judicial Watch also regularly files amicus curiae briefs means advance its public interest mission. 
Amici support Plaintiffs' and the Town Southampton's legal arguments that the Village's plan operate day laborer hiring site protected open land purchased with monies from the Community Preservation Fund ("CPF") violates state law. addition, amici respectfully submit that the Village's proposed creation day laborer hiring site also contrary federal law relating the employment illegal aliens and, contrary the Village's legal argument, not required the First Amendment the U.S. Constitution. 
The property issue, which located along Aldrich Lane and North Sea Road (hereafter "the CPF Land"), owned jointly the Village and the Town and was purchased with CPF monies. Not only does the Village intend use the CPF Land for day laborer hiring site, but has already made some modifications the property for this purpose. addition, the Village reportedly plans have third party --proposed Intervenor "The Coalition for Worklink Center" and/or Catholic Charities --operate the hiring site. See, e.g., Susan Greenberg, "Village, Town Debate Creation Hiring Site," Suffolk Life, April 11, 2007 (attached Exhibit l); Lisa Finn, "Green Light for Southampton Hiring Site," The Independent, April 2007 (Exhibit 2). The Village asserts that its actions are necessary ameliorate the "adverse impacts public health, safety, and welfare" caused the "street-side solicitation employment" throughout the Village. See Aff. Village Mayor Opp. Mot. for Prel. Inj., 10. 
ARGUMENT 	The Village's Creation Hiring Site CPF Land Contrary State Law. 
Land purchased with CPF monies governed detailed statutory scheme that authorizes only narrow range uses and imposes several specific duties and requirements. Specifically, land purchased with CPF monies must used manner that "compatible with the natural, scenic, historic, and open space character such lands" and "preserves the native biological diversity such lands." Town Law 64-e(9); Town Code 140-6. addition, the law "limits improvements enhancing access for passive use such lands, such nature trails, boardwalks, bicycle paths and peripheral parking areas, provided such improvements not degrade the ecological value the land threaten essential wildlife habitat." Id. local government may enter into agreement with nonprofit corporation "engaged land trust activities" land purchased with CPF monies manner consistent with the statute. Id. 
Working conjunction with the Coalition, April 2007, Judicial Watch submitted Freedom oflnformation Law ("FOIL") request the Village seeking access records regarding the Village's proposed use the CPF Land for day laborer hiring site, and, more specifically, how the proposed use was consistent with the requirements the CPF. Judicial Watch requested that the Village produce the following documents, among others: 

Estimates the number day laborers expected use the hiring site daily, weekly, monthly, annual, other similar basis; 
Estimates the number employers expected use the hiring site daily, weekly, monthly, annual, other similar basis; 

Estimates studies traffic volume, traffic flow, and/or traffic patterns associated with the proposed use the parcel hiring site; 
  Increases expansion police presence associated with the proposed use the parcel hiring site;  

 Analyses, determinations, findings whether (or how) the proposed use the parcel hiring site allows public use and enjoyment the parcel manner compatible with its natural, scenic, historic, and open space character (see, e.g., N.Y. Town Law 64-e(9));  
  Analyses, determinations, findings whether (or how) the proposed use the parcel hiring site will preserve the native biological diversity the parcel and surrounding lands (see, e.g., N.Y. Town Law 64-e(9));  
  Analyses, determinations, findings whether (or how) any proposed improvements the parcel for use hiring site, including but not limited construction the gravel driveway, will will not degrade the ecological value the parcel threaten essential wildlife habitat (see, e.g., N.Y. Town Law 64-e(9)); and  
  The identity the entity organization that will operating the hiring site, including whether the entity organization organized not-forprofit corporation under the corporation law and whether the entity organization has been engaged previously land trust activities management (see, e.g., N.Y. Town Law 64-e(9)).  

See Letter Diane Carpenter dated April 30, 2007 (Exhibit 3). certainly would reasonable expect that, municipality were going propose particular use land purchased with CPF monies, then first would review the CPF statute and undertake analysis determine whether the proposed use was consistent with the requirements the statute. And certainly, also would reasonable expect that, municipality undertook such analysis, then would have least some documentation its efforts, not its conclusions. Good government and sound policy fomrnlation would require less. Revealingly, when the Village responded Judicial Watch's FOIL request letter from the Village Attorney dated May 25, 2007, stated that had documents responsive any 
the requests referenced above. See Exhibit Nor did have any documents responsive any Judicial Watch's other, comparable requests. Id. 
The Village apparently failed undertake even the most basic analysis whether its proposed use the protected land issue consistent with the requirements the statute. Although entrusted with maintaining the "natural, scenic, historic, and open space character" the CPF Land, the Village apparently has made effort estimate the number day laborers who will use the site, the number prospective employers who will present the site, the resulting traffic impact, much less whether hiring site compatible with the natural and open space character the land. Similarly, the Village cannot have fulfilled its duty not "degrade the ecological value" the land "threaten essential wildlife habitat" did not even consider the impact that the proposed day laborer hiring site will have the the CPF Land issue.1 Certainly had done so, then the Village would able produce least some records responsive Judicial Watch's FOIL request. 
While amici will not reiterate here the cogent analyses presented Plaintiffs and the Town their briefs, logic and common sense would appear indicate that use the CPF Land hiring site for day laborer inconsistent with the requirements governing the use land purchased with CPF monies. Rather, would appear that the Village views the CPF Land convenient depository for all the "adverse impacts public health, safety, and welfare" 

The Village also has the responsibility select not-for-profit corporation engaged land trust activities manage the CPF Land manner that furthers the requirements the statute. Instead, the Village apparently plans select provider social services --either the Coalition for Worklink Center Catholic Charities --to operate the hiring site. 
which Mayor Epley referred his affidavit the Court. Clearly, the Village's proposed use 
the CPF Land create and operate hiring site for day laborers contrary state law. 
II. 	The Village's Facilitation the Employment Illegal Aliens Contrary Federal Law. the Village's stated purpose use the CPF Land issue operate site that facilitates the hiring day laborers prospective employers. set forth below, creating and operating taxpayer-funded marketplace that facilitates the hiring anyone not authorized work the United States violates federal immigration laws. common knowledge that unlawful for employers hire persons who are not authorized work the United States. Federal law expressly prohibits the recruiting hiring alien known that the alien not authorized work the United States. U.S.C.  1324a(a)(l)(A). Moreover, unlawful hire any individual for employment the United States without complying with federal employment eligibility verification requirements. 
U.S.C.  1324a(a)(l)(B)(I). also unlawful aid abet the commission offense against the United States. U.S.C.  addition, federal immigration law makes illegal "encourage induce alien come to, enter, reside the United States, knowing reckless disregard the fact that such coming to, entry, residence will violation law." U.S.C.  1324(a)(l)(A)(iv). Federal immigration laws also make unlawful aid abet the commission such acts. U.S.C.  1324(a)(l )(A)(v)(II). Facilitating the illegal employment undocumented aliens may deemed encouraging inducing alien come to, enter, 
reside the United States. See, e.g., US. Kim, 193 F.3d 567, 574 (2d Cir. 1999); United 
States Oloyede, 982 F.2d 133 (4th Cir. 1992). Suffolk County, like elsewhere the United States, cannot reasonably disputed that day laborers consist predominantly persons not legally present authorized work the United States. Village Mayor Epley recently acknowledged that day laborers are subject deportation illegal aliens. Southampton Press, "The View East: 'High Noon' With Mark Epley" (May 31, 2007) ("Either they [federal government] have deport all these guys, they have have registration program that the men don't stand the street.") (Exhibit 5). Moreover, recent, comprehensive study day laborers confirms that least seventy-five percent (75%) day laborers the United States are illegal aliens. See Abel Valenzuela, Jr., al., "On the Corner: Day Labor the United States," (Jan. 2006) (UCLA/University Illinois survey 2,260 day laborers 264 hiring sites states, including New York) (Exhibit 6). Accordingly, abundantly clear that users the Village's proposed hiring site will include illegal aliens. creating and operating taxpayer-funded marketplace for the employment illegal aliens, the Village will become complicit illegal activity. also will encourage and induce illegal aliens remain the United States making easier for them obtain employment and will aid and abet unlawful hiring. Such conduct violates both the letter and the spirit federal law. should not countenanced the Court. 
III. The Village's Attempt Hide Behind the First Amendment Unavailing. 
The Village attempts justify its actions invoking the alleged First Amendment rights day laborers. First, preliminary matter, axiomatic that the First Amendment cannot 
invoked justification engage illegal activity. United States rel. John Turner 
Williams, 194 U.S. 279, 292 (1904); see also Pittsburgh Press Co. Pittsburgh Comm Human Rights, 413 U.S. 376 (1973) (no First Amendment right advertise illegal activity). Illegal aliens simply have right under the First Amendment seek illegal employment, and 
employers likewise have right hire them. any event, the Village's own interpretation the First Amendment belies its application this case. The First Amendment rights day laborers, assuming any exist, not allow the Village trample valid land-use statutes violate federal law. Nor they create affirmative duty provide taxpayer-funded marketplace for laborers solicit employment, legal otherwise. the contrary, the First Amendment allows many limitations speech, including the power enact content-neutral "time, place manner" restrictions. See, e.g., Ward Rock Against Racism, 491 U.S. 781, 798 (1989); Perry Educ. Ass'n Perry Local Educators Ass 'n, 460 U.S. 37, (1982). 
The speech issue this case undisputably "commercial speech," and, such, entitled lesser protection under the First Amendment, entitled any protection all. Central Hudson Gas Electric Corp. Public Service Comm 'n, 447 U.S. 557, 562-63 (1980) (holding that the Constitution "accords lesser protection" commercial speech and only that speech concerns "lawful activity"). Metromedia, Inc. City San Diego, 453 U.S. 490 (1981), the U.S. Supreme Court reaffirmed that, Central Hudson Gas Electric Corp., it: 
adopted four (4) part test for determining the validity government restrictions commercial speech, distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only ifthat 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 (4) reaches further than necessary accomplish the given objective. 453 U.S. 507 (citing Central Hudson Gas Electric Corp., 447 U.S. 563-66). contrast, the authority which the Village chiefly arises, Loper New York City Police Dep 't., 999 F.2d 699, 704 (2d Cir. 1993), did not even address regulation commercial speech, but instead concerned loitering/begging, which the Court found analogous more protected, expressive speech.2 this 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. The Village well aware its power regulate speech. Just recently, the Village adopted ordinance proscribing demonstrations public street front private residence. See Mitchell Freedman, Newsday, "Law Makes Illegal Picket Mayor's House" (May 30, 2007) (Exhibit 7).3 The Village also recently entered into settlement agreement relating the upcoming iuly 4th parade under which the Village will adopt regulations governing participation the parade. Jennifer Davis, Southampton Press, "Settlement Clears the Way for July Parade" (May 31, 2007) (Exhibit 8). While both these situations involve political speech, opposed lesser-valued commercial speech, the ability the Village impose reasonable "time, place manner" restriction speech unquestioned. 
The Village also erroneously relies People Barton, N.Y.3d (N.Y. 2006), which likewise addressed anti-panhandling statute rather than commercial speech. 

This new ordinance apparently was enacted after opponents the proposed hiring site demonstrated front Mayor Epley's residence. this case, the Village seek end "street-side solicitation employment" but 
erroneously believes that, order so, necessary create alternative channel for day laborers solicit employment. Not only does this argument erroneously rely the standards governing regulation political speech, which requires alternate channels communication left open (Perry Educ. Ass 'n, 460 U.S. 45), but also ignores the standard applicable regulation commercial speech, which does not contain any such requirement. Metromedia, Inc., 453 U.S. 507; Central Hudson Gas Electric Corp., 447 U.S. 563-66. Moreover, the Village has variety options available address the problem street-side solicitation employment other than creating and operating taxpayer-funded marketplace that facilitates unlawful hiring. The Village, like all municipalities, has well-established authority regulate persons engaged commerce. Municipalities routinely require that such persons obtain registration and/or license relating their commercial activities. The Town, for instance, requires that any persons who solicit the street door-to-door first obtain license and, among other information, provide photographs and fingerprints used criminal background check. See Town Code 254-(3)(4) ("Peddlers and Solicitors Law") (Exhibit 9). 
The Village thus has other, reasonable alternatives available address street-side solicitation employment, such licensing registration scheme. part registration process, the Village could require verification eligibility for employment the United States order promote, rather than undermine, enforcement federal immigration laws. This could accomplished easily through the electronic system now widely used employers called "Basic Pilot," program created and administered the federal government. See Exhibit 10. the alternative, could require, part the registration process, that persons seeking engage street-side solicitation swear under penalty perjury that they are authorized work the United States. Regardless, the Village clearly can regulate the street-side solicitation employment manner that not only consistent with the law, but also promotes enforcement federal immigration laws. 
Accordingly, Amici respectfully suggest that the Village explore such reasonable alternatives rather creating and operating taxpayer-funded marketplace that facilitates unlawful employment and runs afoul both state and federal law. Dated: June 25, 2007 Respectfully submitted, 
Washington, D.C. 

501 School Street, S.W. Suite 500 Washington, D.C. 20024 202-646-5172 
Attorneys for Suffolk County Coalition for Legal Immigration (No Amnesty) and Judicial Watch, Inc. 
CERTIFICATE SERVICE hereby certify that the 251h June, 2007, the foregoing Order Show Cause, 
Affirmation Support Filing Brief Amici Curiae, and the accompanying Brief Amici 
Curiae The Suffolk County Coalition for Legal Immigration (NO AMNESTY) and Judicial 
Watch, Inc. was sent overnight mail the following: 
Anton Borovina, Esq. Borovina Marullo PLLC 445 Broadhollow Road Suite 334 Melville, New York 11747 
Attorneys for Plaintiffs 
Garrett Swenson, Jr. Southampton Town Attorney 116 Hampton Road Southampton, N.Y. 11968 
Attorney for Defendants Town Board the Town Southampton, the Town Southampton, and Patrick Heaney his capacity the Supervisor the Town Southampton 
Richard DePetris, Esq. South Main Street Southampton, New York 11968 
Attorneys for Defendants Village Southampton, Board Trustees Village Southampton, and Village Officials 
Foster Maer Ghita Schwarz Puerto Rican Legal Defense Education Fund Hudson Street, 41h Floor New York, 10013-2815 
Attorneys for Proposed Intervenors 


Suffolk Life Newspapers -Top Stories -04/11/2007 -Village, Town Debate Creation Hiring... Page 

Village, Town Debate Creation Hiring Site 
By:Susan Greenberg the midst the ongoing controversy surrounding the gathering day laborers the 7-Eleven North Sea Road 
Southampton Village, last week Village Mayor Mark Epley announced the creation official hiring site, located 
preserved parkland adjacent Aldrich Lane. However, Southampton Town officials have raised concerns over whether the 
property should used for such purposes. 

The fact that the day laborers were "spreading through the village" was "safety and aesthetic issue," said Epley, who was inspired take action when took self-paid trip Jupiter, Florida, where similar issues had been resolved through the implementation hiring site and the creation oflaws designed prohibit solicitation. "Something had done," explained. Although there will construction structure the parcel, the land has been preserved open space under Southampton Town's Community Preservation Fund, tall evergreen trees will planted for the sake privacy, and gravel U-shaped driveway and curb cuts will installed allow for the traffic flow contractors picking workers, according Epley. Southampton Town Councilwoman Linda Kabot expressed her concerns about the use CPF land for the purpose hiring site. There are some questions about the allowable uses for the parcel, which was bought with town funds, but primarily under the management and ownership the village, she said. "Although the mayor installing the typical improvements that one would see park, the use the land hiring site not municipal purpose," said Kabot, who added that neither she nor any other board member was contacted Epley before the improvements for the site were initiated. The exact operating details have yet confirmed, Epley said, but estimated that the site will open from 6:30 a.m. a.m., with stiff fines imposed under yet-to-be-instituted anti-solicitation law for people not obeying the time constraints. Fines under the ordinance also will imposed people outside the boundaries the site, which should approximately feet from the curb. "There will heavy police presence there keep order," said Epley. Sandra Dunn, executive director Organizacion Latino Americana Eastern Long Island, and spokesperson for the Coalition for Worklink Center, umbrella local organizations galvanized address the issue day-laborer hiring, said that the site "is good first step the part the mayor." Dunn said that the coalition has been working with the mayor for year and half order come with solution. Some the previous ideas that were met with community protest bureaucratic obstacles included the construction eight-by 40-foot trailer near the train station the village, and previous initiative erect what turned out disallowable building the current Aldrich Lane parcel. But Councilman Christopher Nuzzi expressed serious reservations about the creation hiring site, stating that his position "has always been" that public property and public funds "should not used for the facilitation any illegal activity," such the hiring undocumented workers. However, said Nuzzi, has great sympathy for the predicament Epley, who said was put the "untenable position" having 
deal with the local illegal immigration issue "due the inaction" the federal government. "The responsibility for illegal immigration Southampton does not rest Mark Epley's shoulders," said Nuzzi, who added that believes Epley's actions are due his frustration over lack viable solutions. "He was forced unfairly deal with this very real situation his backyard, and came with what believes practical solution," Nuzzi stated. "Meanwhile, the federal government, and our local senators and [representatives] Congress ... are refusing take stand either way about any kind solution, which leaves all our small towns without recourse." Epley said that had exhausted all appeals for help from outside entities avail, including multiple calls political officials from every level government. was very frustrated with the lack response got from absolutely everybody and decided take action this manner," Epley explained. The work the site should finished the end the month, con firmed the mayor, and the ordinance should place few weeks after that. Dunn confirmed that the site will run Catholic Charities, which will keep the venue organized registering both workers and the people who come hire them. addition, said Dunn, Catholic Charities will eventually install benches and portable toilets, which are allowable under CPF parkland regulations. Kabot confirmed that letter was recently sent Epley from Southampton Town Supervisor Patrick Heaney "reminding" him that the property "is jointly owned the town and the village for the specific use parks and recreation use" through the community 1776dept_id=6365newsid= 18195618 6/25/2007 
Life Newspapers -Top Stories -04/11/2007 -Village, Town Debate Creation Hiring... Page 2of2 
preservation project plan for the site, which was developed before was purchased. "The supervisor raised many questions the 
letter, one which brings the issue ofliability," Kabot said. "If owned both the town and the village, then there joint 
liability, and both entities should have say about its use." 
"Although will continue look for other alternatives, this seems the best solution now," said Dunn, who added that the 
eventual goal the coalition have hiring site with permanent structure where other services, such community outreach 
programs and English classes, can offered. 
Kabot said that "there will many discussions upcoming board meetings about the steps that the board may may not take 
regarding the site." 

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Suffolk Life Newspapers 2007 776dept_id=636 5newsid= 18195618 6/25/2007 

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Tue, April 24, 2007 
2007-04-03 fl>" News fl>" 
April 03, 2007 

Green Light for Southampton Hiring Site Lisa Finn 
It's go. 
Southampton Village Mayor Mark Epley announced last week that has given the nod hiring site, located Aldrich Lane next the 7Eleven. The day laborer issue has been hotbed controversy recent months. 
Upon hearing the news, protestors 
who have long renounced formal 
hiring site the village vowed 
remain vigilant their efforts. 

Contractor Tom Wedell, falT)iliar 
figure who stands outside 7-Eleven 
protesting illegal immigration, 
promised stand firm. intend there every day prevent them 
from doing anything that piece 
property," said Sunday. "If they 
try move one machine onto it, I'll underneath the wheels, promise 

And Monday morning, when 
village workers appeared the site, 
Wedell was there, standing hole. was arrested a.m. village 
police for disorderly conduct. Wedell 
was back the site protesting 

click see advertisement earlier proposal for hiring hall located the Aldrich Lane property upset residents. the end, because the village-owned parcel was purchased with Community Preservation Funds, was deemed that hiring hall could built. 
Epley has been seeking solution stem the ever-escalating dangers North Sea Road and County Road posed crowds more than 200 day laborers who congregate outside 7-Eleven, well irate protesters. 
The mayor's new plan calls for the empty lot the Knight's Last Stand property six-acre parcel purchased the village 2001 with CPF funds -to hedged in, with gravel turnaround added where drivers can pick day laborers safely. 
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