Major Portions of Prop. 187 Thrown Out by Federal Judge : Immigration: U.S. law preempts state from barring federally funded services to those in the country illegally, ruling says. Issues are expected to be decided eventually by Supreme Court.

By PAUL FELDMAN

Nov. 21, 1995 12 AM PT

TIMES STAFF WRITER

A year after California voters overwhelmingly approved Proposition 187, a federal district judge in Los Angeles ruled Monday that major portions of the landmark immigration initiative are invalid because they clash with superseding federal laws.

“The authority to regulate immigration belongs exclusively to the federal government, and state agencies are not permitted to assume that authority,” U.S. District Judge Mariana R. Pfaelzer ruled in a 72-page decision, throwing out significant chunks of the initiative without need for a full-blown trial.

Pfaelzer ruled that the state is preempted from barring illegal immigrants from health care and social welfare services that are federally funded and to which they are otherwise entitled under federal law. She also decided that a ban on public elementary and secondary school education for illegal immigrants was invalid because it flew in the face of a 1981 U.S. Supreme Court decision.

Moreover, Pfaelzer ruled that the initiative’s provisions for investigating, notifying and reporting alleged illegal immigrants constitutes an unlawful state scheme to regulate immigration.

“The California voters’ overwhelming approval of Proposition 187 reflects their justifiable frustration with the federal government’s inability to enforce the immigration laws effectively,” she wrote. “No matter how serious the problem may be, however, the authority to regulate immigration belongs exclusively to the federal government.”

Pfaelzer, at the same time, declared that the ballot measure’s provisions for penalties for the sale and use of fake citizenship documents are not preempted by federal law. Those are the only provisions of the initiative that, under previous court rulings, are being enforced.

Pfaelzer also ruled that the section of Proposition 187 that excludes illegal immigrants from public colleges and universities is not, on its face, invalid.

In addition, the judge said that state voters may have the right to deny illegal immigrants purely state-funded health care and social welfare services. However, few such programs exist, principally covering prenatal care and long-term care for elderly illegal immigrants.

In issuing the summary judgment ruling, Pfaelzer said that further proceedings could be held on the sections of the initiative not declared legally invalid. Further court dates have yet to be set.

The state attorney general’s office has indicated that it will appeal the portions tossed out by Pfaelzer to the 9th Circuit Court of Appeals. Whatever happens at that level, the ultimate fate of Proposition 187 is expected to eventually be decided by the U.S. Supreme Court.

Legal observers say the process could take several years, during which time most of the ballot measure, approved by a 59% to 41% vote last November, would remain on hold.

Reaction to the summary judgment ruling was swift and strong.

“I’m ecstatic--Proposition 187 effectively has been thrown out by the federal courts,” said Fred J. Kumetz, one of several anti-Proposition 187 attorneys whose suits were ruled on by Pfaelzer.

“This is a historic decision for the rights of immigrants and their children,” said another anti-Proposition 187 attorney, Peter A. Schey of the Center for Human Rights and Constitutional Law in Los Angeles.

In the meanwhile, Ira Mehlman, state spokesman for the Federation For American Immigration Reform, blasted Pfaelzer’s decision as “outrageous.”

Gov. Pete Wilson, who led the charge for passage of the initiative, said the decision, although not unexpected, would have the effect of “frustrating the will of the people of California.”

Speaking Monday night before a Beverly Hills fund-raiser for Senate Majority Leader Bob Dole (R--Kan.), Wilson said the decision is “exactly the kind of thing we had hoped would not occur,” but that it would “shift the focus [of immigration reform] properly, to the Congress.”

The judge’s summary judgment order, acting on legal motions by anti-Proposition 187 attorneys, means that major portions of the legal fight over the fate of the initiative will move directly to the appellate court level without a full-blown trial, which had initially been scheduled to begin nearly three months ago.

“We are in the first round of a 10-round heavyweight fight and at this point we are about even on the score card,” said Atty. Gen. Dan Lungren, whose office is leading the state’s efforts to win court approval for the ballot measure.

Lungren said that his office is more concerned about laying proper legal groundwork for an eventual Supreme Court fight than in setbacks along the way. “Given where many people thought we were going, this is not a bad day for us,” he said.

Yet even if Pfaelzer’s rulings eventually are overturned by the 9th Circuit Court of Appeals or the Supreme Court, the legal process could still continue indefinitely. Having limited their summary judgment motion to the question of whether the state initiative usurped federal powers, anti-Proposition 187 lawyers would seek to return to federal district court and renew their fight against the measure on other legal grounds.

Restraining Order

Proposition 187 called for banning illegal immigrants from receiving public education, non-emergency health care and already limited social welfare services. In addition, school, health and law enforcement officials were to be required to report suspected illegal immigrants to state and federal authorities and to notify the suspects in writing that they must either obtain legal status or leave the United States.

On the latter provisions, Pfaelzer was particularly forceful.

“Proposition 187’s . . . requirements directly regulate immigration by creating a comprehensive scheme to detect and report the presence and affect the removal of illegal aliens,” she wrote, concluding, “The state is powerless to enact its own scheme to regulate immigration.”

Despite Proposition 187’s overwhelming popularity at the ballot box, its key elements have never been set into motion because of a swift series of legal rulings on eight lawsuits filed in federal and state courts almost immediately after the November, 1994, election.

Within days of the lopsided vote, U.S. District Judge W. Matthew Byrne Jr. in Los Angeles issued a temporary restraining order barring implementation of all portions of the initiative except its sanctions on the sale and use of fraudulent citizenship documents.

Proposition 187’s bans on public school and state higher education for illegal immigrants--probably the most controversial elements of the initiative--also were quickly enjoined in three San Francisco Superior Court cases.

Gov. Wilson and other initiative proponents had conceded before the election that the public school ban ran counter to a landmark 1982 U.S. Supreme Court ruling, Plyler vs. Doe, which declared unconstitutional a Texas law that said undocumented children no longer qualified for a free public education. But the pro-Proposition 187 forces contended that the 5-4 decision was ripe for revisiting by an increasingly conservative high court.

No trial dates had been set in the San Francisco suits, as the parties awaited Judge Pfaelzer’s decision. “This denial of public education,” Pfaelzer wrote in her opinion, “directly conflicts with federal law.”

Perhaps not since tax-cutting Proposition 13 had a California ballot initiative sparked such debate and affected the national political scene as dramatically as Proposition 187.

Despite its modest origins--unlike so many ballot initiatives, there were no deep-pocket corporate sponsors behind it--the measure tapped into a vein of discontent among voters angered at the massive immigration that has radically altered Southern California’s demographics since the late 1970s.

In suburban venues statewide, and even in South-Central Los Angeles and other once predominantly African American neighborhoods now home to thousands of new immigrants, Proposition 187 clearly reflected a mood of restiveness largely ignored by mainstream politicians.

The initiative also drew a strong counter-reaction.

Less than a month before the election, more than 70,000 protesters, mostly Latinos, marched through the streets of Downtown Los Angeles in what may have been the largest demonstration in city history. However, their hoisting of red, white and green Mexican flags--prominently featured in news coverage--served to drive more voters into the pro-Proposition 187 camp, and was later cited by anti-initiative strategists as a fatal blow to efforts to quash the initiative.

The Proposition 187 movement has since spawned the creation of similar initiative movements in several states, notably Florida and Arizona. Proposition 187 leaders also are gathering signatures for a follow-up ballot effort in California for next year.

In the months since Proposition 187 was approved, the political and economic landscape of California and the nation have changed significantly, making it more difficult in the short run and less likely in the long run for illegal immigrants to continue availing themselves of government services.

As a result of its new Republican domination, Congress is seriously considering several Proposition 187-inspired crackdowns. They range from a proposal to bar illegal immigrants from any kind of federal assistance other than public education and emergency medical care to a measure that would end the system that allows a single federal judge to halt by injunction a voter-approved initiative.

Republican legislators are also giving thought to requiring public hospitals to report suspected illegal immigrants to authorities and allowing states to expel illegal immigrant pupils from public schools.

Moreover, these lawmakers are even contemplating reductions in government benefits to legal U.S. residents who are non-citizens--an extension of the Proposition 187 ethos that many immigrant advocates find particularly troubling. The perception of a growing gap between rights for citizens and non-citizens is one of several factors that have prompted an unprecedented surge of legal immigrants to apply for U.S. citizenship this year, especially in California.

Further diluting the potential impact of Pfaelzer’s ruling is the sluggish California economy, which will almost surely make it more difficult for illegal immigrants to continue receiving services that they would otherwise continue to qualify for.

To receive health care, illegal immigrants often have nowhere to turn except county-run facilities. But Los Angeles County, home to the state’s largest population of undocumented immigrants, is in a financial crisis so severe that until the Clinton Administration recently intervened on a one-time basis, county officials were preparing to shut down public hospitals, comprehensive health centers and many of their 39 medical clinics.

Even with a $364-million infusion of federal funds, thousands of county health-care workers have been laid off and significant cuts are scheduled in the outpatient clinics at county hospitals and at the health centers and clinics that will remain in operation and available to undocumented immigrants.

Previous Rulings

Pfaelzer’s ruling was not the first in which a federal court has invalidated a California ballot measure on constitutional grounds.

One such case took place in 1967 when the U.S. Supreme Court declared invalid a California state initiative aimed at nullifying state and local anti-discrimination housing laws. Although voters approved the measure by a nearly 2 to 1 ratio, the high court ruled that Californians did not have the right to make race discrimination one of the basic policies of the state.

Pfaelzer’s findings served as a legal thrashing for major chunks of the sometimes confusingly worded initiative that arose from Los Angeles’ far-flung suburbs to galvanize the still-unfolding national debate about immigration.

The proposition’s legally unsound and sometimes contradictory nature is perhaps easy to understand in light of its somewhat free-form origins: it was a loosely vetted joint creation of an ad-hoc Orange County-based committee whose principal members included an unemployed accountant and a civilian police employee as well as a GOP state legislator and two former Republican appointees to U.S. Immigration and Naturalization Service posts.

While disorganized and lacking campaign funds, the so-called “Save Our State” committee had a major ally: Gov. Wilson and his media-savvy, well-funded campaign structure. The governor’s politically astute decision to tie his fortunes to a winner--Proposition 187--meant that proponents did not need a separate, big-money advertising campaign. The anti-187 camp, itself often divided and underfunded, couldn’t match Wilson’s campaign coffers and media exposure.

Times staff writers Patrick J. McDonnell, Bob Sipchen and Eric Malnic contributed to this report.

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The Decision

* RULING: U.S. District Judge Mariana R. Pfaelzer ruled Monday that major portions of Proposition 187 were legally invalid because they conflicted with federal laws, which take precedence. Among the provisions tossed out were a ban on public elementary and secondary education for illegal immigrants and bans on federally funded health care services to which they are otherwise entitled. Pfaelzer said the measure’s sanctions on the sale and use of fake citizenship documents were not preempted by federal law, nor were bans on public college and university education for illegal immigrants.

* BACKGROUND: Proposition 187 was approved by state voters last November by a 59%-41% margin. The illegal immigration measure had been sponsored by an Orange County-based group known as SOS--Save Our State. The grass-roots effort secured enough petition signatures to put the measure on the Nov. 8, 1994, ballot.

* PROVISIONS: The initiative called for barring illegal immigrants from receiving public education, non-emergency health care and certain social welfare services. It also called upon school, health and law enforcement officials to report suspected illegal immigrants to state and federal authorities and to notify the suspects in writing that they had to obtain legal status or leave the country.

* COURT BATTLE: Most of Proposition 187 has never been put into effect. On the day after the measure’s passage, a federal court in Los Angeles and a state court in San Francisco halted enforcement of most provisions. The only section implemented barred the manufacture or sale of fraudulent immigration documents.

* NEXT STEP: The decision is expected to be appealed to the 9th Circuit Court of Appeals and eventually to the U.S. Supreme Court. During that period, implementation of most key provisions will remain on hold.