U.S. Court of Appeals Docket No. 05-55880 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT COMITE de JORNALEROS de GLENDALE, an unincorporated association; NATIONAL DAY LABORER ORGANIZING NETWORK, an unincorporated association, Plaimijfs and Appellees, vs. CITY of GLENDALE, Defendant and Appellant. On Appeal From the United States District Court for the Central District of California Hon. S. James Otero Case No. CV -04-03521 SJO LEAGUE OF CALIFORNIA CITIES MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE IN SUPPORT OF APPELLANT CITY OF GLENDALE JEFFREY V. DUNN, Bar No. 131926 MARC S. EHRLICH, BarNo. 19g112 BEST BEST & KRIEGER LLP 5 Park Plaza, Suite 1 500 Irvine, California 92614 Telephone: (949) 263-2600 Facsimile: (949) 260-0972 Attorneys for Amicus Curiae Applicant League of California Cities
Introduction Pursuant to Federal Rule of Appellate Procedure 29, the League of California Cities (the "League") respectfully moves this Court tor leave to file the attached brief as amicus curiae in support of Appellant City of Glendale. The League is an association of 476 California cities united in promoting the general welfare of cities and their citizens. It is advised by a Legal Advocacy Committee, which is comprised of 24 city attorneys representing all!6 divisions of the League from all parts of the state. The Committee monitors appellate litigation affecting municipalities and identifies cases of statewide significance. The League's Interests In The Issues Raised By This Action This appeal raises important questions regarding the extent to which cities may adopt content-neutral time, place and manner restrictions on expressive activity- specifically, soliciting employment- while respecting the First Amendment rights of persons subject to such regulations. Appellant City of Glendale adopted an ordinance regulating solicitation of employment in and around public streets and sidewalks. The Ordinance allows solicitation on the sidewalk, but prohibits such activity in the street or on the curb. Appellees Comite de Jornaleros de Glendale, eta!., challenged the Ordinance on the ground that it violated their First Amendment free speech rights. The District Court held the ordinance was invalid on the grounds that: (I) it was not narrowly
tailored to serve Glendale's stated government interests in promoting efficient traffic flow and public safety; and (2) it failed to leave open sufficient alternative channels for persons who solicit work as day laborers. The District Court also fmmd the Ordinance's use of the words "curb" and "street" were vague and did not provide notice as to what portions of public streets and sidewalks the Ordinance regulated. Glendale now appeals, arguing that the Ordinance is narrowly tailored because it only applies in the street and on the curb; that adequate alternate channels are available because day laborers can solicit employment from the sidewalk or at the city's Temporary Skilled Worker Center; and that the commonly-used terms "curb" and "street" cannot render the ordinance vague. This Court's resolution of whether the Ordinance is narrowly tailored, leaves sufficient alternate channels of communication, or is vague, will directly determine the extent of cities statewide to regulate employment solicitation in or on public streets, roadways, curbs, parkways, alleys, highways, or driveways. Numerous cities statewide have enacted similar ordinances to address the safety concerns raised by aggressive roadway soliciting and in response to its harmful secondary effects. Many cities have reported increased vandalism, littering and various disturbances of the peace requiring police intervention in areas where unregulated employment solicitation by day laborers is prevalent. However, the cities' primary concern is the safety of the day laborers and the - 2 -
pedestrians and motorists they solicit. In many cases, laborers competing for prospective employment will swarm into a busy street to reach a vehicle stopped at a busy intersection. Besides the obvious danger to the laborers, such activities place motorists and pedestrians at risk. A content-neutral time, place and manner restriction on such solicitation is a reasonable and necessary exercise of a city's police power in the interest of public safety. Such regulations are also indispensable to a city's ability to govern because they improve traffic flow, help to regulate the growing temporary worker economy and ameliorate the harmful secondary effects of employment solicitation. This Court's decision will affect the interests and the legislative and policymaking decisions of nearly 500 California municipalities many of which have adopted, or are considering adopting, measures similar Glendale's Ordinance. Significance and Relevance of the League's Interests The League is familiar with the issues before this Court and the scope of the City of Ci lendale' s appeal. Accordingly, the I.eague' s analyses of the following matters, which the Parties are unlikely to directly address, will assist the Court in resolving this appeal's ultimate issue and determining the appropriate balance between a city's power to adopt content-neutral time, place and manner restrictions on expressive conduct in public forums, and the First Amendment Rights of persons soliciting employment from passing motorists. - 3 -
The District Court's reading of Glendale's Ordinance is inconsistent with well-established Ninth Circuit jurisprudence. The court adopted a hyper-technical reading of the Ordinance's terms "curb" and "street" as a basis for invalidating it as vague. However, the commonly-held understandings of these non-technical tem1s provide persons of ordinary sophistication clear and fair warning of which actions the statute prohibits and which it allows. The court's construction of the Ordinance could seriously hamper the ability of cities to enact regulations that improve public safety, enhance quality of life and regulate day laborers. The District Court relied on an unpublished district court decision involving a similar ordinance regulating solicitation, rather than adhering to established Ninth Circuit precedent. However, Glendale's ordinance was amended in response to the unpublished district court decision and Glendale's changes render that case distinguishable. Accordingly, the League respectfully requests that its amicus curiae brief be filed and considered by this Court. Dated: October 20, 2005 BEST BEST & KRIEGER LLP By:!hi cu_..., S. [b --4-0\, JEFFREY V. DUNN MARC S. EHRLICH Attorneys for Amicus Curiae Applicant League of California Cities - 4-
PROOF OF SERVICE STATE OF CALIFOR!\IA, COUNTY OF ORANGE lam employed in the County of Orange, State of California. I am over the age of 18 and not a party to this action. My business address is Best Best & Krieger LLP, 5 Park Plaza, Suite 1500, Irvine, California 92614. On October 20, 2005, I served the foregoing document described as LEAGUE OF CAUFORNIA CITIES MOTION FOR LEAVE TO FILE BRmF OF AMICUS CURIAE IN SUPI>ORT OF APPELLANT CITY OF GLENDALE on the INTERESTED PARTIES named below by enclosing a copy in a sealed envelope addressed as follows: Thomas A. Saenz, Esq. Shaheena Ahmad Simons, Esq. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 South Spring Street, I I '" Floor Los Angeles, California 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 Attorneys tor Plaintiffs and Respondents Scott H. Howard, City Attorney Ann M Maurer, Assistant City Attorney 613 East Broadway, Suite 220 Glendale, California 91206 Telephone: (818) 548-2080 Facsimile: (818) 547-3402 Attorneys tor Plaintiffs and Respondents
Hon. S. James Otero UNITED STATES DISTRICT JUDGE CENTRAL DISTRICT OF CALIFORNIA 312 North Spring Street, Courtroom I CJOO Los Angeles, California 90012 (XX] (BY FEDERAL EXPRESS) I placed the envelope for collection and mailing on the date show above, at this office in Irvine, California, following our ordinary business practices. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the Federal Express on that same day. l declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 20, 2005, at Irvine, California. Winty Bui