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In what surely will advance the cause of lawyers engaged in a state-by-state “living wage” campaign on behalf of the working poor, a freshly retired Manhattan litigator and a young activist with the Brennan Center for Social Justice scored a victory last week in a sweeping decision from the New Mexico Court of Appeals. The high court’s decision — in New Mexicans for Free Enterprise v. City of Santa Fe, No. 25,073 — upheld Santa Fe’s right to set local minimum hourly pay at $8.50 for virtually all workers, in both the public and private sectors. Santa Fe’s minimum wage would rise to $9.50 in the New Year and $10.50 in 2008, compared with the current federal minimum of $5.15, which Congress has left unchanged since 1997. “We think we have a landmark decision,” said Sidney S. Rosdeitcher, 69, who was lead pro bono counsel in successfully defending Santa Fe at trial against challenges by local business groups. “This is a reaction to federal inaction. Low-wage workers desperately need help,” said Rosdeitcher, who retired in January as a partner at Paul, Weiss, Rifkind, Wharton & Garrison where he remains of counsel. “This is the civil rights movement of the 21st century.” Paul K. Sonn, deputy director of the Brennan Center at New York University School of Law and co-counsel with Rosdeitcher, said the Santa Fe case would have “a substantial impact” in the national living wage campaign. “The movement has really grown over the last seven years,” said Sonn, 39, a former Skadden fellow. “What began as campaigns to enact very narrow laws affecting workers under government contract has now become a movement affecting all large businesses.” Which is mainly what makes the New Mexico decision significant to lawyers involved in an increasing number of similarly argued cases, according to Columbia Law School Professor Richard Briffault, who submitted an amicus brief in the Santa Fe case on behalf of the New Mexico Municipal League and signed by 30 other law professors from around the country. “I believe this is the first time an appellate court has upheld a local living wage ordinance that applies broadly across the workforce,” said Briffault, whose brief addressed questions of city powers under home rule law. “The usual argument is that local governments don’t have the authority to adopt such ordinances, or that a state minimum wage pre-empts a city from adopting a higher one, or that local home rule doesn’t extend to regulating employment relationships.” All four categories of argument offered by plaintiffs attorneys — violation of municipal authority, violation of equal protection and eminent domain principles, illegal rate-making and procedural errors in enacting the Santa Fe ordinance and at trial defense — were rejected by the New Mexico Court of Appeals, which agreed with Rosdeitcher and Sonn that the cost of living in Santa Fe was substantially higher than anywhere else in the state and higher than the national average. The court further held: “The connection between wages and the general welfare of workers is well established in American jurisprudence. … In West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the United States Supreme Court … concluded that wages insufficient to support basic needs are a public problem due to the impact on the entire community.” Sonn credited Rosdeitcher’s eloquence at trial and in brief writing — along with a team of current and former Paul Weiss associates who “poured their hearts and souls into this case” over almost three years — for the appellate victory and for establishing a pro bono structure that will be of future benefit to the Brennan Center. “Sidney has really been a mentor to me,” said Sonn of Rosdeitcher, whose association with the Brennan Center began in 1999 when he was still working in antitrust litigation. “He’s our full-time senior policy advisor. This model of having a senior member of the bar devoting energies to public interest work is wonderful. Sidney provides a system allowing young Paul Weiss lawyers to come work on our projects.” Paul Weiss associates who worked on the Santa Fe case include Carmen K. Cheung, Evan Norris and Solomon N. Klein. Also on the case were former associates Matthew Gaul, now with the New York State Attorney General’s Office; Matthew Kalmanson, now at practice in Oregon; Yoaz Sapir, who practices in Israel; Lauren McMillen, now at Heller Ehrman; Patricia Ronan, at Kramer, Levin, Naftalis & Frankel; and Geoffrey Upton, legislative counsel for the investigative division of the City Council. Rosdeitcher, chairman of the Civil Rights Committee of the New York City Bar Association, dates his involvement in pro bono matters to 1963 when he took on the case of a young man arrested in Americus, Ga., for standing on the steps of a church and inviting passersby to come inside to talk about desegregating local schools and lunch counters. “He was charged under a Georgia statute that made that a capital offense,” said Rosdeitcher. “Back in 1936, the statute had been declared unconstitutional, but that didn’t seem to matter to the authorities. “One of the happiest moments of my life was walking out of the jail cell with that young man I freed,” Rosdeitcher said. As for his work now on the living wage campaign, he said, “It makes me feel better about being so affluent.”

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