Judge Sides With Foes of Hiring Ban : Labor: A temporary restraining order is granted against an Encinitas ordinance that made curbside soliciting of workers illegal.

In what an ACLU attorney called “a ringing defense of the Bill of Rights,” a federal judge Thursday granted a temporary restraining order against a new curbside hiring ordinance in Encinitas on the grounds that it deprived migrant laborers and others of their right to free speech.

In a 15-page opinion, U.S. District Judge John S. Rhoades predicted that the ordinance enacted last month by the North County beach city would fail to pass constitutional scrutiny. He set a July 13 hearing on the merits of a lawsuit filed against the ordinance by the American Civil Liberties Union and a migrant advocacy group.

The new ordinance went into effect Saturday, giving the San Diego County Sheriff’s Department the power to cite persons who solicit day laborers on public property or along public streets. But the department said it would not enforce the law pending Rhoades’ ruling.

Critics of the ordinance have claimed that it abridges free speech and is aimed at ridding the city of its growing population of undocumented and documented laborers from Mexico and Central America by taking away their means of support.

In rendering his decision, Rhoades alluded to an Encinitas City Council meeting in March in which officials discussed drafting the curbside ban. “Prior to opening discussion on the subject of transient issues, the minutes reflect that the Pledge of Allegiance was recited,” he said.

“As we all know, the pledge calls for ‘one nation, indivisible, with liberty and justice for all.’ In this case, ‘liberty’ is the operative word.”

Migrant laborers, he pointed out, were also included in the message delivered by the Pledge of Allegiance. “Implicit in the concept of liberty is the idea that people within our borders-- all people, regardless of their citizenship--will have the freedom to pursue their basic needs.

“This court believes, and the Supreme Court has recognized, that an individual’s right to work for a living--to enable him to obtain food and shelter, to support his family and to become a productive member of the community, is at the heart of every individual’s understanding of the personal liberty this country guarantees.”

Betty Wheeler, an ACLU attorney who argued before the judge for the restraining order, said she was elated not only by the judge’s decision, but by his impassioned analysis of the rights of free speech.

“It was so eloquent. This is why people go to law school,” she said. “When he was done, there was nothing left to be said. We anticipated the outcome, but we didn’t anticipate such a ringing defense of the Bill of Rights. It says that the First Amendment still rings true in Encinitas.”

For more than 20 minutes, Rhoades grilled Encinitas City Atty. Roger Krauel on the city’s claim that the ordinance was not a speech issue but one of conduct for which more relaxed constitutional standards apply.

The judge also queried Krauel about the city’s claim that the curbside hiring ban was necessary to ensure the success of a job center opened seven months ago. The center, sponsored by the city, matches documented workers with employers.

Repeatedly, Rhoades asked Krauel to detail under what conditions the city would enforce the law, which carries a fine of $100 to $500.

“Do you mean that, if my wife is on the beach and she decides she has to run a few errands so she tries to hire a baby-sitter on the next blanket, that she would be subject to a citation or arrest under your ordinance?” he asked.

“And do you mean that any conversation in the middle of the freeway or the street, in a public park or at the beach where you talk about employment, that’s also a violation?”

“Yes, your honor,” Krauel responded repeatedly.

Referring to a state of emergency declared by Encinitas this spring because of its migrant problems, Rhoades said: “You can’t violate the Constitution of the United States simply by calling a state of emergency.”

After the hearing, Krauel said he was unmoved by the judge’s occasionally harsh tones.

“I was prepared for what happened,” he said. “Remember, it’s the first step in a very long process. The judge was stating his opinions, not ruling on the merits of the case.”

He said the Encinitas City Council will call a special meeting before bringing its case to the July 13 hearing. “I think the City Council has always been interested in what the judge has to say,” he said. “We’ll call a meeting to decide what our next move is.”

As both sides filed from the courtroom, Peter Tobias smiled broadly, as if he’d won a million dollars. What he won on Thursday, Tobias said, was worth much more.

Tobias, a 45-year-old Scripps Clinic biochemist who lives in Encinitas, was named a plaintiff in the ACLU suit. After becoming frustrated over the City Council’s treatment of migrant laborers, he said he called a migrant advocacy group and offered his help.

“I told them, ‘This is ridiculous. I’m ready to go to jail,’ ” he said. “I’m just a believer in free speech and fair play.

“I mean, I drive down the same streets as the City Council members, and I don’t see the problems associated with migrant workers they see. They just don’t have the right to deprive people of their rights to free speech to deal with what the city considers to be a problem.”