Judge rules Carcieri not in contempt

THE ASSOCIATED PRESS
Published: November 12, 2008

PROVIDENCE—A judge has ruled that Gov. Don Carcieri was not in contempt of court when the state made emergency rules implementing part of his executive order to crack down on illegal immigrants before taking public comment.

The state affiliate of the American Civil Liberties Union, which filed a lawsuit to block part of the order, argued that Carcieri violated a judge’s ruling by forcing companies doing business with the state to check the immigration status of new hires using a federal database, E-Verify.

Superior Court Judge Mark Pfeiffer ruled Wednesday that “in no way, shape or form” did the state violate his order, which directed Carcieri and the Department of Administration not to terminate any existing contracts with the state for companies who didn’t yet use E-Verify.

And the state had been taking appropriate steps to implement the E-Verify program according to the rules he specified, which include public input, Pfeiffer said.

A public comment period on E-Verify is scheduled for Dec. 3.

While the contempt question has been answered, the ACLU is still pushing for a restraining order against Carcieri and the state, claiming they used the “emergency” rules to skirt public input but that there is no true emergency.

With that tactic, state officials did an end-run around the public notice period “that Bill Belichick would be proud of,“ said ACLU attorney Randy Olen, referring to the New England Patriots’ head coach in his argument.

But lawyers for the state said two events signaled an emergency: the economic crisis, coupled with raids on state courthouses in July resulted in the arrests of 31 janitors who were suspected of being in the country illegally, four of whom were also charged with identity fraud.

“We issued emergency regulations because we are under an executive order to follow the E-Verify requirements,“ Michael Mitchell, an attorney for the state, said in court.

“The fiscal crisis is very much an alarm bell,“ he said. Rhode Island, which currently has the nation’s highest unemployment rate, needs jobs for Americans and legal immigrants, he said.

The federal government already requires employers to verify that potential employees are properly documented to work in the U.S., Olen argued.

Pfeiffer indicated his reluctance to interfere with the state’s ability to decide for itself what constitutes an emergency.

“I sit here and am skeptical as to why the judiciary should second guess” Carcieri and his administration, Pfeiffer said.

He gave attorneys from both sides one week to submit information on case law about similar emergency measures and how they were decided. But his remarks led Steve Brown, the executive director of the ACLU of Rhode Island, to call the quest for a restraining order “an uphill battle” after the hearing.

The state’s current economic woes are “totally irrelevant to this particular regulation,“ Brown said.