PROVIDENCE –– Superior Court Judge Mark A. Pfeiffer ruled yesterday that the state’s promulgation of an emergency rule requiring state vendors to screen new employees through a federal E-Verify program does not constitute contempt of a ruling Pfeiffer made in September.

The judge’s denial of the contempt motion filed by the Rhode Island Affiliate of the American Civil Liberties Union allows the Carcieri administration to push forward with an aspect of the governor’s March executive order cracking down on illegal immigration. The E-Verify program determines whether new hires are legally authorized to work in the United States.

Pfeiffer postponed for one week a hearing on the ACLU’s request for a temporary restraining order, but said he was doing so “with a certain amount of skepticism.” He said, “There’s nothing under the Administrative Procedures Act to require any hearing to be conducted to determine” whether such a situation constitutes an emergency.

In denying the contempt motion, Pfeiffer said, “I sit here and am skeptical as to why the Judiciary should try to second-guess the executive branch as to what constitutes an emergency … There is no contempt at all.”

Amy Kempe, the governor’s spokeswoman, said, “We are very pleased with the decision by Judge Pfeiffer, who emphatically denied the motion for contempt and we look forward to putting this matter to rest once and for all.”

But the ACLU affiliate’s executive director, Steven Brown, said that unless Pfeiffer grants the restraining order, yesterday’s ruling will allow the state to skirt the required public comment period and promulgate emergency regulations without public oversight.

“As a practical matter, once you have a state agency or bureaucracy come up with regulations that are actually in effect, it’s a lot harder for the public to have any real meaningful input in trying to change it,” Brown said. “It’s always easier to start at the ground level to have your comments considered as opposed to trying to change something that is already been adopted and is being implemented.”

He called “absurd” the state’s argument that Rhode Island’s unemployment rate and July courthouse raids, where 32 suspected illegal immigrant janitors were arrested, constitute an emergency.

In September, Pfeiffer denied the ACLU’s motion for a temporary restraining order on Carcieri’s directive that state vendors use the E-Verify program. The ACLU questioned the legality of that directive.

But Pfeiffer ruled that the Department of Administration “more likely than not … illegally circumvented” provisions of the Administrative Procedures Act by implementing the E-Verify mandate without providing for advance public comment, and directed the state to promulgate rules accordingly.

Several weeks later, the state put the emergency rule into effect, asked that it be made permanent, and said it will hear public comment — after the fact — at a hearing Dec. 3.

Arguing for the ACLU, lawyer Randy Olen called “borderline specious” the state’s argument that there is “imminent peril to the health, safety and welfare of the public” if it did not put the E-Verify program immediately into effect.

“There’s no emergency, your honor. There’s no peril. The real issue here is whether or not the state can undermine the rule-making process by promulgating an emergency ruling … where no emergency exists,” said Olen. “Anytime the state wants to undermine the process, they’ll simply say the sky is falling.”

He contested the state’s argument that “the presence of undocumented workers diminishes opportunities for legal citizens,” and argued that authorities have said, to the contrary, that undocumented workers are subject to taxes being withheld from their paychecks, and are often afraid to come forward to seek any state benefits. “These are rationalizations, not justification,” said Olen.

Arguing for the state, lawyer Michael Mitchell said the state put the emergency regulation into place “as expeditiously as we could, within a months’ time” after Pfeiffer ruled that the administration likely had violated provisions of the Administrative Procedures Act.

“We acknowledge that it may not be perfect, but there is a process by which it can be corrected,” through the Dec. 3 hearing, he said.

Mitchell said Jerome Williams, director of the Department of Administration, “felt confident that there is a need.” Mitchell said the courthouse raids and the fiscal crisis “were an alarm that went off,” and formed the basis for an emergency regulation.

kziner@projo.com