PROVIDENCE – The American Civil Liberties Union’s Rhode Island affiliate is seeking a contempt-of-court citation against Gov. Donald L. Carcieri for his “emergency” implementation last month of an E-Verify requirement for state vendors and contractors.

The battle dates back to March, when Carcieiri signed an executive order on illegal immigration, declaring that, “in these difficult fiscal times, we barely have enough resources to take care of the neediest amongst us who are here legally.” (READ MORE)

That order sought to tighten enforcement efforts statewide. It also demanded that the R.I. Department of Administration use the E-Verify online database to check the legal status of employees; encouraged other state agencies to use the system; and ordered all state vendors and contractors– and their subcontractors – to use the controversial database to check the immigration status of new employees.

In a September lawsuit, the Rhode Island ACLU asserted that the controversial database “returns inaccurate information … at more than a minimal rate.” It argued that the program was subject to abuse by employers seeking to discriminate against foreign or minority workers. And it charged that Carcieiri’s order violated state law and the Separation of Powers clause of the state constitutution. (READ MORE)

In a Sept. 15 ruling, R.I. Superior Court Judge Mark Pfeiffer rejected most of those arguments, but did find it “more likely than not” that the R.I. Department of Administration had “illegally circumvented” the state Administrative Procedure Act (APA) when it imposed E-Verify without first developing rules, publicizing those rules and accepting public comment. (READ MORE)

Pfeiffer therefore ruled that the state could proceed with implementation of the executive order – but only after holding public hearings on the new rules and issuing guidelines for their enforcement, as required by state law.

“However, the ACLU was recently advised that – although the state had commenced the rule-making process – it had also adopted ‘emergency’ regulations for the program, to take effect immediately, thus circumventing the advance notice and comment mandate,” the civil liberties group said in a statement today, adding: “In attempting to justify filing the rules on an emergency basis, the state cited the July courthouse raids – which resulted in the detention of 32 janitors alleged to be illegally in the country – and the state’s high unemployment rate.”

Carcieri implemented the emergency rules in mid-October, spokeswoman Amy Kempe told the New London Day. The governor contends, in documents filed with the R.I. Secretary of State’s Office, that Rhode Island has 20,000 to 40,000 illegal immigrants, whose presence endangers the public. “To not know who’s working in state buildings – it’s definitely a safety issue,” Kempe said.

But in a brief filed Friday on behalf of the Rhode Island ACLU, volunteer attorney Randy Olen describes the state’s arguments as “specious.” The administration’s emergency filing “is not only in contempt of the ruling of this court, it is itself yet another clear violation of the APA,” the motion contends.

The ACLU filing quotes the APA, which allows the emergency rules only in cases of “imminent peril to the public health, safety or welfare.” Yet, the ACLU noted today, seven months have passed since Carcieri issued his executive order, and three months since the raids took place. (READ MORE)

The group therefore asks the court “to find the state in contempt or to issue a temporary restraining order to halt implementation of the emergency regulations,” the ACLU said.

“The APA allows for the immediate adoption of a temporary regulation only in exceptional cases involving a true emergency,” Olen said in a statement today. “The state’s attempt to justify the use of this extraordinary provision on the basis of the discovery of a handful of individuals cleaning offices without formal work authorization is nothing short of outrageous and a brazen misuse of authority. This transparent attempt to again circumvent the requirements of the APA is itself unlawful, and the defendants should not be allowed to benefit from it.”

A hearing on the motion is slated for tomorrow in Superior Court.

Meanwhile, the ACLU is pushing forward with efforts in Superior Court to permanently block the mandatory use of E-Verify. (READ MORE) Legal briefs in that case are due this month.

The American Civil Liberties Union of Rhode Island – the Rhode Island affiliate of the nationwide ACLU – is a nonprofit, nonpartisan organization that aims to defend the constitutional and civil rights of all Rhode Islanders through ligitation, legislation and education. Additional information, including the 12-page motion filed Friday by the state ACLU, is available at www.riaclu.org.

News and information from the R.I. Governor’s Office are available at www.governor.ri.gov.