Wednesday, September 28, 2011

Comite de Journaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 396 (9th Cir. 2011)

"This is folly." These are the opening words of 9th Circuit Chief Judge Kozinski in his dissent in this case . Incredibly, nine judges in an en banc decision supported the majority decision forbidding the city of Redondo Beach from enacting an ordinance forbidding day laborers to congregate on street corners soliciting employment.  The City submitted evidence that these purported workers interrupted traffic, blocked sidewalks, urinated, and harassed women.  In support of its ordinance, the City copied the same ordinance the 9th Circuit had approved in an earlier decision.  The 9th Circuit panel overruled its previous decision without affording either party any  notice nor did they brief the issue..
According to the majority, the First Amendment applies.  Do we need an explanation of the confusing rules  on free speech to apply to the facts described  above? The majority fears the ordinance might prohibit girl scouts from selling cookies, young children selling lemonade or some other unrealistic alternative.  The ordinance "sweeps to wide."  Yet there is no evidence of any misuse of the statute, and a failure to allow a city to control its streets defies comprehension.  As the dissent points out, this decision allows an unelected federal court to determine whether an otherwise narrowly worded ordinance is unenforceable.
This case is also another intervention by a federal court into an exclusively city matter long considered a municipal function.  The ordinance is in two simple paragraphs, easily understood, and easily applied.  That the City would interfere with girl scouts or lemonade sales is preposterous.
Moreover the plaintiffs challenged this ordinance as facially unconstitutional without any evidence of any discriminatory practices in its enforcement.

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