Parts of Prop. 187 Blocked by Judge : Immigration: Temporary order targets medical, educational and social services. Jurist says measure may conflict with federal laws and U.S. Constitution.

By PAUL FELDMAN and JAMES RAINEY

Nov. 17, 1994 12 AM PT

TIMES STAFF WRITERS

Saying that portions of Proposition 187 may conflict with federal statutes and the U.S. Constitution, a federal district judge in Los Angeles issued a temporary restraining order Wednesday blocking immediate enforcement of the sweeping initiative’s bans on non-emergency medical, educational and social services for illegal immigrants.

U.S. Dist. Judge Matthew Byrne Jr. also ordered a temporary halt to the initiative’s requirement that police and government agencies report suspected illegal immigrants to the federal Immigration and Naturalization Service and the state attorney general’s office.

The ballot measure, which was approved by an overwhelming 59%-41% margin in last week’s state election, raises “serious questions” as to whether immigrants’ constitutional right to due process would be impeded because the measure does not provide for hearings before or after people are denied government services, Byrne said at the conclusion of a dramatic two-hour hearing.

He also said that the get-tough ballot measure’s bans on health and social services may conflict with federal laws that specify who is eligible for such services.

Byrne, who set another hearing before U.S. District Judge Mariana R. Pfaelzer for Tuesday, left intact only the initiative’s sections increasing state penalties for the sale and use of fraudulent citizenship documents.

At next week’s status conference hearing, Pfaelzer will finalize the date for a hearing on requests by Proposition 187 foes for a preliminary injunction, designed to block implementation of the initiative until its legality is determined in extended court hearings.

Meanwhile, a backlash against public officials who have tried to block Proposition 187 in court gained steam Wednesday--forcing the Los Angeles City Council to reconsider its stand against the measure and leading a citizens group to launch a campaign to recall the president of the Los Angeles school board.

Byrne’s ruling will block implementation of the law for only a few days--and will have little direct impact because most portions of the initiative were not due to take effect until state agencies finished preparing enforcement regulations in coming weeks. Nevertheless, it was hailed by Proposition 187 opponents as a major victory and by state Atty. Gen. Dan Lungren as a disappointment.

“This is a terrific day for California,” said Mark D. Rosenbaum, legal director of the American Civil Liberties Union of Southern California, which, along with several other civil rights groups, filed one of four lawsuits against the initiative that Byrne heard jointly Wednesday. “There’s a long fight in front of us, but we couldn’t be starting any better--they’re on the ropes already.”

“While the issuance of a temporary restraining order is not entirely unexpected, it is disappointing,” Lungren said later. “By delaying the state’s mandate to implement this new law, the court is also denying the will of California voters who specifically rejected the status quo on Nov. 8.

“Nevertheless, my office will continue to press for a resolution as quickly as possible so that the law can be enforced.”

Ron Prince, who headed the pro-187 campaign committee, said the performance of Lungren’s lawyers in court made him wonder if they were adequately prepared.

“I’d have to question whether they’ve even read the initiative,” said Prince, who viewed the proceedings in the packed Downtown Los Angeles courtroom. “(But) this isn’t going to be on ice forever.”

State Assistant Atty. Gen. Charlton Holland, one of two lawyers from the attorney general’s office to speak during the court session, had no immediate reaction after the ruling. But Holland did tell the judge that his office stands ready to extend the temporary restraining order until mid-December to allow more time for legal briefs to be prepared.

Eight separate lawsuits have been filed in state and federal courts in Los Angeles, San Francisco and Sacramento to thwart implementation of Proposition 187 since its passage.

The morning after the election, San Francisco Superior Court Judge Stuart R. Pollak issued a temporary restraining order against the initiative’s bans on public school, college and university enrollment for illegal immigrants, saying the strictures could not be put in place before further court hearings. The challenge to the school ban was brought by the Los Angeles and San Francisco Unified school districts and the California School Boards Assn.

Byrne’s restraining order also covers the educational provisions of Proposition 187, based on lawsuits filed on behalf of schoolchildren by the Los Angeles-based Center for Human Rights & Constitutional Law and attorneys Stephen Yagman and Fred Kumetz.

A fourth lawsuit before Byrne on Wednesday, filed by the ACLU and a coalition of civil rights groups, charges that the sweeping ballot measure unlawfully intrudes on federal jurisdiction over immigration and denies constitutional rights by terminating benefits without legal hearings and by encouraging discrimination against people who look or sound foreign.

In its court papers, the ACLU filed sworn declarations from more than 120 doctors, educators, immigration experts and illegal immigrants attacking Proposition 187 on a variety of grounds.

During Wednesday’s hearing, much of the legal debate centered around whether either side would suffer hardship if the initiative was temporarily enjoined.

Rosenbaum contended that because of ambiguous statements by state officials including Gov. Pete Wilson since last week’s election, many illegal immigrants have been scared to keep appointments at public health clinics for fear that they would be reported to immigration authorities.

Attorneys representing the state were less expansive.

When asked what hardship the state would suffer if a restraining order were issued, Deputy Atty. Gen. Jon Ichinaga replied: “The state is harmed because nearly 60% of the state’s voters voted for this measure.”

Byrne dismissed the argument as having no legal bearing. “What case in the world has ever said that?” he asked Ichinaga.

Then, when asked by the judge what harm the restraining order would have on such provisions as the requirement for police officers to determine the immigration status of arrestees, Ichinaga said he could cite no specific harm.

The court hearing also touched upon specific impacts of the ballot measure. At times, Byrne made pointed comments about its apparent legal deficiencies. Noting that Proposition 187 contains several different definitions for illegal immigrants, he said “it looks as if it’s been drafted by committee.”

In court Wednesday, Lungren’s lawyers told the judge that a restraining order was unnecessary because state agencies have not prepared regulations to implement the measure. Moreover, they said, the regulations would be drafted to avoid any constitutional pitfalls that a strict reading of the ballot measure could raise.

Byrne said he could not take into account any unformulated regulations because that would require speculation. His decision, Byrne said, had to be based strictly on the ballot initiative as written.

After the hearing, Rosenbaum said the state’s plans to draft regulations that clear up unconstitutional portions should not be allowed by the courts. “It’s like giving a face lift to Frankenstein to turn it into Mother Teresa.”

The hearing also saw a split between lawyers for the various groups challenging the ballot measure. Yagman and Kumetz told Byrne they want a hearing Wednesday before Pfaelzer on a preliminary injunction. Rosenbaum and Peter Schey of the constitutional law center said they agree with the state that the restraining order could stand until mid-December.

The rash of lawsuits filed or contemplated by the Los Angeles Unified School District, the Los Angeles City Council and other governmental bodies statewide has drawn an angry response from proponents of the initiative.

After nearly a week of largely negative phone calls, the City Council on Wednesday prepared to drop an outright challenge of the law in favor of merely asking the courts to clarify how it should be applied by city departments.

The council had voted 10 to 3 last week to join lawsuits opposing Proposition 187. Councilman Joel Wachs, who opposed that position, said Wednesday that he has lined up enough votes now so that the council will merely ask the courts for clarification.

After a bitter discussion of the issue, an immediate vote was headed off when council members Mike Hernandez, Richard Alarcon and Ruth Galanter broke a quorum by walking out of the meeting.

“It doesn’t matter if you walk out now,” Wachs told his colleagues. “This issue will be back before us Friday and the meeting after that and the meeting after that until we decide it.”

A Galanter aide said later that she had to leave City Hall to attend a meeting in her district. Hernandez and Alarcon said they walked out because the council’s discussion was a “meaningless” attempt by some members to find political cover.

Ironically, the politically charged discussion may not have a practical effect on how City Atty. James K. Hahn pursues the Proposition 187 issue.

Wachs’ motion calls on the city attorney to take “whatever steps are necessary” to clarify the city’s responsibilities under the measure. But Hahn said Wednesday that the only way his office can obtain such clarification is to join a lawsuit and challenge the constitutionality of the measure.

Hahn said no other party to the lawsuit “will ask the kinds of questions we will”--about whether the proposition bans illegal immigrants from public pools, crime victims’ assistance programs, child care at city parks and other programs.

At the Los Angeles Unified School District headquarters, several key sponsors of Proposition 187 announced plans to launch a recall petition drive against Mark Slavkin, president of the school board.

“Not only did this board openly defy the people, they used the people’s money to do so,” said Glenn Spencer, president of the Voice of Citizens Together, a Sherman Oaks-based anti-illegal immigration group that worked for the measure’s passage.

Slavkin defended the district’s participation in the lawsuit as an attempt to protect and clarify constitutional issues, which otherwise could result in the loss of up to $628 million in federal funds. The district’s share of the lawsuit, he said, will be only “a few hundred thousand dollars.”

Times staff writers Amy Pyle and Beth Shuster also contributed to this story.