Deadlock on Prop. 187 Has Backers, Governor Fuming

SACRAMENTO — Three years ago today, California voters recast the nation’s vision of an American melting pot and its historic immigrant traditions by solidly approving Proposition 187.

Many civil rights leaders now believe that the vote to end benefits for illegal immigrants was a harbinger of--if not a catalyst for--the ensuing rollback of such government programs as welfare, affirmative action and possibly bilingual education.

But whatever power Proposition 187 has demonstrated so far has been accomplished by symbolism alone.

Since the Nov. 8, 1994, vote, the ballot measure has not moved from the Los Angeles federal court where it landed days after the election. So far, not one benefit program has been changed.

Academic observers are not surprised. They say it is a highly charged and complex case. It also has been affected by President Clinton’s signing last year of new and overlapping legislation.

But the measure’s sponsors have grown frustrated and angry. Now, they say, its controversial legal course is creating a new legacy for the landmark ballot measure.

It already looms over the 1998 elections--spotlighting the Republican issue of court reform as well as dogging the gubernatorial bid of Atty. Gen. Dan Lungren, whose office is getting blamed for the delay by some of the measure’s original GOP authors.

It has also persuaded Congress to consider judicial reforms with far-reaching effects for America’s legal system. And on Friday, an angry Gov. Pete Wilson announced that he will seek a rare legal rebuke of Los Angeles U.S. District Judge Mariana R. Pfaelzer.

Conservative Sen. Richard Mountjoy (R-Arcadia), a coauthor of Proposition 187, has also denounced the delay. “If this judge continues to sit on it, then the effect will be to change the judiciary in this country--and that will be good,” Mountjoy said. “One of the key issues for people running in the ’98 election is going to be activism in the court. What are you going to do . . . about a court that has taken away our liberties?”

Despite all of the complaints, there are expectations by most parties involved that significant developments in the litigation might be announced soon.

Of the seven legal challenges to Proposition 187 pending, two are in a San Francisco Superior Court, and a decision in one of those is expected any day.

Superior Court Judge Stuart R. Pollak held a hearing in September on one section of Proposition 187 that would bar illegal immigrants from state colleges and universities. He is required to issue a decision within the next month.

In Washington, U.S. Atty. Gen. Janet Reno is expected to issue procedures soon that states can use to determine a person’s citizenship status. That could resolve a major dilemma that stalled the federal litigation on Proposition 187 for nearly a year.

In 1995, Pfaelzer suggested that some parts of the ballot measure might be constitutional if the state method for identifying illegal immigrants was done lawfully.

After months of studying possible new regulations, state officials decided to drop the attempt and pursue a different legal strategy.

Meanwhile, attorneys from both sides in the federal litigation believe a decision from Pfaelzer is near. Pfaelzer, who has presided over a consolidated case of five separate challenges since the measure’s passage in 1994, told attorneys in May that she had written a draft of her opinion.

“I have to look at it and refine it a little bit,” Pfaelzer said May 19, the last time she spoke with the attorneys. “I am very anxious to bring all of this to a conclusion.”

Pfaelzer, 71, was appointed to the federal bench by then-President Jimmy Carter in 1978. She has declined to comment on the case and she did not respond to a recent inquiry from The Times. When Pfaelzer was assigned to the Proposition 187 case through a random rotation, she arrived with a reputation for fairness and scholarly analysis.

Now, however, Pfaelzer is facing some of the greatest pressure in her long career. Critics accuse her of intentionally stalling a decision to prevent the measure’s implementation.

This week, they underscored their complaint about excessive delays by citing the much speedier route of Proposition 209, the anti-affirmative action ballot measure. Just one year after it was passed by voters in November, the legal challenge was dismissed by the U.S. Supreme Court on Monday.

“Judge Pfaelzer . . . is all by herself making a case that Congress needs to examine the abuse of discretion by a federal judge [who] simply fails to act,” the governor said recently. “It looks very much . . . as though this is a means that the judge has taken. . . . An interesting way of killing a vote of the people is simply to put it into the court of a federal judge who refuses to act.”

Wilson said at his Capitol news conference Friday that he is taking the highly unusual step of asking the federal appellate court to intervene and order Pfaelzer to act. He called Pfaelzer’s behavior “unprecedented.”

Such a rare step is a longshot, legal experts said. It would require the appellate court to find malfeasance by Pfaelzer.

“These are major opinions that are going to be looked at by other courts and ultimately the Supreme Court,” said Patty Blum, professor of immigration law at UC Berkeley. “They are not going to order a district judge to hurry in a complicated case.”

Congress too has targeted the court’s handling of Proposition 187. House aides said Speaker Newt Gingrich (R-Ga.) raised concerns about the measure when he assigned Rep. Henry Hyde (R-Ill.) to consider court reforms in his Judiciary Committee this year.

The committee has issued a reform package that includes a provision inspired by Proposition 187. Instead of one federal judge, it would require a panel of three to issue an injunction against a state initiative.

Rep. Sonny Bono (R-Palm Springs) first introduced the proposal in 1995 after he said he was outraged that Pfaelzer blocked Proposition 187. At the time, his bill passed the House 266 to 159. It was never acted on in the Senate and was reintroduced this year.

“Giving individual judges the power to suspend state laws indefinitely when they find them offensive is a blow to the comity which should characterize the federal-state relationship,” Lungren said in House testimony in May on behalf of the Bono bill.

Pfaelzer issued a partial ruling in the Proposition 187 case nearly two years ago. At the time, she declared the initiative’s plan to block elementary and high school education for illegal immigrants to be unconstitutional.

That was not a surprise. The U.S. Supreme Court had ruled in a 1982 Texas case that public education is open to all children. The sponsors of Proposition 187 said their goal was to have the issue reconsidered by a new Supreme Court panel.

But Pfaelzer has not ruled on other key sections of the measure that address whether illegal immigrants should have access to health or social benefits and college instruction.

Before deciding, she asked the state to prepare regulations on how it would identify the illegal immigrants. The three state college systems declined. But state officials agreed to write a plan for dropping health and social benefits.

They changed their strategy in August 1996, however, when Clinton signed a federal welfare reform bill that included many of the same bans on illegal immigrant benefits that were sought by Proposition 187.

Pfaelzer’s initial complaints about Proposition 187 were based on her finding that immigration is exclusively a federal government domain. But now, state lawyers argued that the new welfare bill proved that Proposition 187 is consistent with federal law.

Pfaelzer denied the state’s new motion in March without comment. Since then, she has asked attorneys from both sides to submit briefs addressing the question of whether the new federal legislation is proof that immigration is a federal--not a state--issue.

That query has caused attorneys in the case to speculate that Pfaelzer is going to rule Proposition 187 unconstitutional on the grounds that it preempts federal authority.

It also leaves the future of illegal immigrant benefits in a tangled legal mess.

State officials are free to end the health and social benefits under authority of the new federal welfare law--although that is certain to generate another round of legal challenges. They also plan to continue appealing Proposition 187 because it is the only case that addresses public education benefits.

In the meantime, Proposition 187 appears destined to remain one of the nation’s flash points for controversy.

“It has changed the whole political landscape,” said Avelardo Valdez, a professor at the University of Texas Hispanic Research Center. “There are things that are just beginning to play out that . . . Proposition 187 put on the table.”

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Proposition 187: A Court Chronology

1994

Nov. 8: Proposition 187 passes, 59% to 41%.

Nov. 9: Temporary restraining order issued by state Superior Court judge in San Francisco.

Nov. 21: Temporary restraining order issued by federal court in Los Angeles.

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1995

Nov. 20: U.S. District Judge Mariana R. Pfaelzer rules that ban on elementary and high school education for illegal immigrants is unconstitutional. Social and health benefits, as well as college instruction, are left undecided.

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1996

Jan. 29: State attorneys, responding to request from Pfaelzer, write procedures for implementing ban on social and health benefits. Negotiations continue through August without agreement.

Aug. 22: President Clinton signs welfare reform bill that includes a federal ban on health and social benefits to illegal immigrants.

Aug. 27: Gov. Pete Wilson, citing the federal ban, orders prenatal care benefits to illegal immigrants cut. The order is blocked by challenges in state court.

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1997

Jan. 10: State attorneys ask Pfaelzer to reconsider the case in light of the new federal legislation. She denies the motion in March without comment.

Oct. 9: Pfaelzer asks attorneys to write briefs explaining how the federal welfare reform bill might affect Proposition 187.

Nov. 7: Wilson, complaining about delay, asks that federal appellate court intervene and order Pfaelzer to act.