State Capitol News
Tue September 20, 2011
New federal court ruling threatens to undermine key provisions of SB1070
Phoenix, AZ – In 1984, Phoenix adopted a law making it a crime to try to solicit work, business or donations from the occupants of passing vehicles. Two years later, the 9th Circuit Court of Appeals upheld its legality. Based on that, cities in Arizona adopted similar laws. And just last year, a three-judge panel of the 9th circuit court of appeals turned away a challenge to a similar law from Redondo Beach California. All this is important because when U.S. District Court Judge Susan Bolton last year barred the state from enforcing key provisions of SB 1070, she refused to block one section aimed at making it illegal for day laborers to get into cars stopped in traffic. And Bolton specifically cited that Redondo Beach decision as the reason. But on Friday, the full 9th Circuit overturned not only the Redondo Beach ordinance but also the original Phoenix city code. Attorney Victor Viramontes of the Mexican American Legal Defense and Educational Fund, said Monday that changes everything.
(Now we have a ruling from the binding court in this circuit that these anti day labor solicitation ordinances violate the First Amendment. That is exactly what Arizona did in SB 1070.)
Rep. John Kavanagh, who crafted that language, said he was disappointed the full 9th Circuit overturned the Redondo Beach and Phoenix ordinances. But Kavanagh said the state law is different. It makes it a crime for a day laborer to get into a car only if it impedes traffic. He said that should help it survive any constitutional challenge.
(I don't dispute the First Amendment right to stand on a corner and solicit employment and get into a car. I do believe that you're not allowed to create a situation where you impede traffic and disrupt activity. And that's a requirement in the law that I wrote. So I believe it'll be found constitutional.)
But Viramontes countered that streets are public forums and that the state and cities cannot put broad restrictions on what people can do there -- even if they may be impeding traffic.
(There's no doubt that there's a legitimate state goal with traffic. But there is jaywalking laws. There are parking laws. And none of those laws burden speech. That's the problem with the SB 1070. It's burdening and discriminating against day labor speech.)
Friday's federal court ruling is going to have more immediate ripple effects. It most immediately voids the Phoenix law. But after the 1986 ruling upheld that ordinance, other cities in Arizona modeled their own anti-solicitation laws on what Phoenix adopted. One of those was Tucson, where city attorney Mike Rankin said council members, looking at the Phoenix law, saw that as a way to deal with people on street corners and roadway medians begging for money and work.
(The idea was, if the activity was going to result in a potential transaction right there in the roadway, then we had the public safety basis and the traffic control basis to regulate and prohibit that. And so now, this case clearly changes the rules with respect to that.)
Ken Strobeck, executive director of the League of Arizona Cities and Towns, said he does not know how many of the state's 91 incorporated communities also have laws which may now be unenforceable. For Arizona Public Radio this is Howard Fischer.