Judge Backs Town

Judge Backs Town

Anti-solicitation ordinance upheld.

Members of Herndon's Town Council have remained firm in their plans to change operators of the town's day labor site following a ruling last week by a Fairfax County General District Court judge that upheld the town's ordinance forbidding informal employment solicitations.

The ruling was in response to the first challenge to Herndon's anti-solicitation ordinance, which was passed by the former Town Council along with the creation of the day labor site in late 2005, to manage what the town called a public safety issue regarding workers on the street and in private parking lots.

Defendant Stephen Thomas, who was arrested by the Herndon Police Department for violation of the ordinance on Elden Street on Sept. 16 was found guilty of the Class II misdemeanor and fined $100. Thomas was cited by Herndon Police after he asked a man at a 7-Eleven on the 1100 block of Elden Street for help doing yard work, according to court records. Several calls made to Thomas's attorneys at the Fairfax-based law firm Leffler & Hyland were not returned.

Thomas's attorney, Alexa Mosley, had argued that the ordinance was unconstitutional, as it impeded his right to free speech, guaranteed by the first amendment.

In her ruling, Judge Lorraine Nordlund stated that the ordinance met constitutional free speech requirements in that it was narrow enough as to not impede broader free speech, reflected needs for secondary public safety effects and that the speech was still legally regulated at the town's organized day labor site.

A similar ordinance passed in Redondo Beach, Calif., a Los Angeles suburb, was repealed last year after a federal judge ruled it unconstitutional.

"The very fact that [the day labor site] exists could be one of the strongest reasons for upholding this ordinance," Nordlund said at the conclusion of her ruling. "If it was not for the town's [day labor] center, I would have had to strike this ordinance."

THE RULING TO uphold the anti-solicitation ordinance is a confidence booster for Vice Mayor Dennis Husch, who said that his desire to change the town's current day labor site operator to one that would check for legal work authorization status is as strong as ever.

The town's current day labor operator, Reston-based non-profit Project Hope & Harmony, has refused to check for work authorization status as they have stated that it is not in their legal right to do.

Herndon's Town Council issued in January a request for proposals to operators who would check work authorization status. That went unanswered, with some companies citing a lack of perceived profit, according to town reports. They are working to refine the request to make it more attractive, Husch said.

The town's current day labor site has long been cited by attorneys as being the main reason that the ordinance has been upheld.

For Husch, so long as there is a site that provides a place for workers to go to solicit employment freely, regardless of whether or not it checks for work authorization status, the ordinance can be upheld.

"No one has said that we're going to get rid of the site, we just plan on finding an operator that will check work authorization status," Husch said. "We have no responsibility to serve illegal aliens and I feel confident that her ruling would remain the same," provided a new site was introduced and the current one closed.

Calls made to Mayor Steve DeBenedittis, who was present during the ruling, were not returned.

BUT THE RULING may not remain the same if the site is changed, as it would then prohibit the right to free speech of a certain group of people, according to attorney and former Mayor Mike O'Reilly, whose council passed the ordinance.

"I don't think that there's any question that if the regulated site is not open to everyone to exercise their free speech rights that this ordinance would be overturned," O'Reilly said. "Even if [workers] don't have documents they still have basic constitutional rights … and there cannot be laws passed that prohibit them."

Since the town cannot enforce federal immigration law, the question is about whether or not workers, regardless of their immigration status, are allowed to solicit employment on the street. As the current day labor site provides a regulated method for soliciting work for everyone, the ordinance can be upheld constitutionally, according to O'Reilly. The legal challenges to that ordinance gain more credence when that site is changed or closed to certain groups, he said.

"Like it or not, illegal aliens have [constitutional] rights … just on the virtue of their presence in this country," O'Reilly said. "Frankly this was a very close case … and I think that if that site didn't exist the way it does now, you would be looking at the very strong possibility of the ordinance being overturned."