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"I'm a governor, not a judge. I've taken an oath to uphold all the laws of the state, no matter how much I may disagree with those laws."

Gray Davis, when asked about Proposition 187 on April 15, 1999.

http://www.latimes.com/HOME/NEWS/POLITICS/CALPOL/t000067492.html

Thursday, July 29, 1999

Davis Won't Appeal Prop. 187 Ruling, Ending Court Battles

Litigation: Governor's deal with civil rights groups effectively kills 1994 anti-illegal immigrant measure. Accord is likely to ignite further controversy.

By PATRICK J. MCDONNELL, Times Staff Writer

Attorneys for Gov. Gray Davis and civil rights organizations have reached an agreement to end the litigation surrounding Proposition 187, effectively killing the landmark 1994 ballot referendum that targeted illegal immigrants and became a pivotal juncture in California's political life.

Davis has agreed not to appeal an earlier federal court ruling that held much of the initiative to be unconstitutional. The agreement, which is expected to be filed today with the U.S. 9th Circuit Court of Appeals in San Francisco, almost certainly will prevent the case from going to the U.S. Supreme Court, said lawyers on both sides of the case.

Proposition 187, approved by nearly 60% of California voters, became a national symbol of anger about illegal immigration. Court battles, however, blocked most of its provisions from being enforced.

The deal seems sure to ignite additional controversy, since it permanently bars the enactment of the ballot measure's core provisions--those preventing illegal immigrants from attending public schools and receiving social services and subsidized health care, according to the lawyers.

Also voided are requirements that local law enforcement authorities, school administrators and social and medical workers turn in suspected illegal immigrants to federal and state authorities.

All that will remain of Proposition 187 under the agreement are two relatively minor laws that establish state criminal penalties for the manufacture and use of false documents to conceal illegal immigration status.

The agreement, in essence, preserves a decision handed down last year by U.S. District Judge Mariana R. Pfaelzer in Los Angeles, lawyers familiar with the case said. Pfaelzer found that Proposition 187 was unconstitutional because it conflicted with federal authority in immigration law.

Under the agreement, both sides will drop appeals now pending before the 9th Circuit appellate court. The case will then be sent back to Pfaelzer, who will accept comments from opponents and proponents before giving final approval.

The agreement notes that the state is free to enforce any restrictions that have been adopted under other federal laws, such as the 1996 welfare overhaul. For example, Congress that year made illegal immigrants ineligible for most nonemergency public aid--a key component of Proposition 187.

Representatives of both sides, speaking under terms of anonymity, said they expect that Pfaelzer will approve the agreement, because it mirrors her ruling. The deal also is expected to lead to the dismissal of two state court cases challenging the right of illegal immigrants to attend public schools.

Confidentiality terms of the court-sponsored mediation that yielded the final deal made participants reluctant to speak publicly.

"I think that all fair-minded people will be satisfied with the announcement," said Peter A. Schey, attorney for the plaintiffs in one of five cases that successfully challenged Proposition 187 in U.S. District Court in Los Angeles.

Gov. Davis and Lt. Gov. Cruz Bustamante declined comment. Davis is expected to address the agreement during a visit to Los Angeles today.

The Democratic governor, who opposed Proposition 187, inherited the case from his Republican predecessor. Former Gov. Pete Wilson had championed the ballot measure to score a come-from-behind reelection victory in 1994.

The initiative inadvertently triggered the political awakening of many Latinos who saw themselves, regardless of their citizenship status, as being targets. In Los Angeles, with its emerging Latino majority, Proposition 187 inspired one of the largest protest demonstrations ever--activism that eventually translated into growing Latino political participation.

Waging the battle against Proposition 187 was an alliance of Los Angeles-based civil rights groups, including the American Civil Liberties Union of Southern California, the Mexican American Legal Defense and Educational Fund, and the Center for Human Rights and Constitutional Law, headed by Schey.

It is unclear what legal recourse is left for the backers of Proposition 187, who were blocked by federal courts from joining the state's case. One possibility, lawyers said, is that supporters now may seek a new court challenge to attack the agreement.

"Realistically, it depends on the nature of the agreement and what the 9th Circuit wants to do about it," said John H. Findley of the Pacific Legal Foundation in Sacramento, a conservative legal group representing some of the sponsors of Proposition 187.

Supporters of Proposition 187 blasted the agreement.

"Davis sold his soul for the Hispanic vote, and now he's paying off," said Glenn Spencer, president of Voice of Citizens Together, a San Fernando Valley-based group. "If he hadn't done this they would have lynched him. . . . The governor and the rest of these people are afraid to send this to the Supreme Court."

Massive Immigration

The initiative emerged from the suburbs of Los Angeles and Orange County in 1993 as the "Save Our State" campaign. The movement tapped into unease with more than a decade of massive immigration, mostly from Latin America and Asia. Newcomers caused a seismic shift in the state's demographic makeup.

The campaign, aided by Republican Party funding, eventually galvanized national attention around illegal immigration. Proposition 187 became the most widely watched state initiative since the tax-cutting Proposition 13 in 1978.

While Proposition 187 was tied up in court, its provisions helped inspire Congress to include many bans on immigrant aid as part of the federal welfare overhaul of 1996. Judge Pfaelzer cited those changes as evidence that immigration was an exclusively federal domain and that Proposition 187--a state "scheme" to regulate immigration, the judge ruled--was unconstitutional.

The rancorous debate about Proposition 187 is widely credited with creating a political revolution of sorts. The measure helped motivate record numbers of new immigrants to become U.S. citizens and register to vote, increasing the power of the Latino and Asian American electorate, especially in California. This new activism, analysts say, has changed the political calculation in California and other states and helped provide a cushion for President Clinton and other Democrats in the 1996 elections.

The final agreement on Proposition 187 was hammered out during three months of often-intense meetings, telephone conferences, exchanges of drafts and other discussions between the governor's representatives and attorneys for the opponents. Presiding over the sessions was David E. Lombardi, chief circuit mediator for the 9th Circuit in San Francisco.

The settlement talks followed Davis' decision in April to submit the issue for court-sponsored mediation--a step that met with a barrage of criticism. Proposition 187 advocates labeled the mediation move a sellout, while the measures's opponents--including Bustamante--called on the governor to drop the state's appeal.

In opting for mediation, the governor sought to navigate a middle ground on the issue and resolve the deep political dilemma the case presented.

Davis opposed Proposition 187 when it was on the ballot and said publicly that he believed parts of it were unconstitutional. But when he became governor, Davis said he felt duty-bound under his oath of office and the state Constitution to respect the will of the people who voted for the initiative, including defending it in court.

Nonetheless, during Mexican President Ernesto Zedillo's visit to Los Angeles in May, Davis declared, "I personally will never be a party to an effort to kick kids out of school."

A central tenet of Proposition 187 would have forced the expulsions of tens of thousands of illegal immigrant pupils from California classrooms and required administrators to report them and their undocumented parents to federal immigration authorities.

A milestone 1982 Supreme Court decision, Plyler vs. Doe, guaranteed illegal immigrant children the right to a public education. There was deep concern on both sides of the negotiating table that Proposition 187 would end up before the Supreme Court and present the nation's highest court with an opportunity to revisit that ruling.

During the settlement talks this spring, numerous drafts of the settlement were passed among the attorneys.

A potential "deal breaker," several lawyers involved in the mediation said, was the governor's apparent determination to retain the state's appeal of Proposition 187's Section 4. That section mandated that police question people they arrest about their immigration status. Officers would be required to report suspected illegal immigrants to the federal Immigration and Naturalization Service, as well as to the California attorney general's office.

Federal law allows police to report suspected illegal immigrants to the INS but does not require it.

But the governor ultimately backed down from the police provision in the face of strong opposition from the other parties, attorneys said. Representing Davis in the negotiations was Shirley Hufstedler, a former 9th Circuit judge and secretary of education in the administration of former President Jimmy Carter.

Times staff writer Henry Weinstein contributed to this report.


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