Davis Weighs Dropping Defense of Prop. 187

SACRAMENTO —  Gov. Gray Davis is weighing whether to drop the state’s legal defense of Proposition 187, which would probably end chances that the landmark measure to deny public benefits to illegal immigrants will be implemented.

A federal judge ruled last spring that core provisions of the 1994 proposition are unconstitutional, prompting former Gov. Pete Wilson to file an appeal that many considered certain to reach the U.S. Supreme Court.

Now Davis, who opposed the measure, is responsible for the appeal, and attorneys on both sides agree that if he drops the case, it is probably too late for any other party to revive it. Even so, they said supporters of the ballot measure might file a longshot attempt.

“It’s sort of like throwing the fight,” said Sen. Richard Mountjoy (R-Arcadia), one of the original sponsors of the initiative. “The players in this today are not on the side of 187, they are on the side of giving all kinds of benefits to illegal aliens. . . . If that’s what we’ve got, we will lose the battle on 187.”

Davis has given no hint about what he might do but said he will announce a decision within 30 days.

State officials said the decision rests solely with Davis. “We are acting as attorneys for the governor, so he would be the one deciding how to proceed,” said Sandra Michioku, a spokeswoman for state Atty. Gen. Bill Lockyer.

The issue could be a wrenching one for the new governor, forcing him to choose between two of his frequent campaign pledges--not to thwart the will of the people and, at the same time, to seek better race relations in California.

Out of respect for voters, Davis has vowed to uphold two other controversial initiatives that he opposed--Proposition 209, which banned government affirmative action programs, and Proposition 227, which ended bilingual education.

Davis also was against Proposition 187 when it was passed by nearly 60% of California voters in an emotional campaign that became a cornerstone of Wilson’s 1994 reelection.

Activists look back on the effort to end benefits for illegal immigrants as the harbinger of a series of racially charged debates that eventually caused a surge in Latino political participation and a national focus on difficult issues related to diversity.

Now, opponents of the measure say that Davis could jeopardize his credibility on the issue of race relations if he chooses to lead the state’s effort to enforce Proposition 187.

“I think it would call into question some of the backbone of his campaign,” said Thomas A. Saenz, an attorney who represented the Mexican American Legal Defense and Educational Fund in challenging the measure four years ago. “The political leader here has to weigh . . . what’s best for the state in the future.”

On Wednesday, Assembly Speaker Antonio Villaraigosa (D-Los Angeles) and Lt. Gov. Cruz Bustamante, both Democrats, urged the governor to drop the case. “I don’t think the state of California should spend any more taxpayer money to defend what a federal court has already ruled to be an unconstitutional idea,” he said.

Advocates for immigrants warned that the governor could strain his fledgling relations with Mexico, where last month he visited President Ernesto Zedillo and offered symbolic reassurance that “the days of shouting and finger-pointing are over.”

California’s population of about 10 million Latinos includes the largest immigrant community from Mexico. About 275,000 illegal immigrants settle each year in the United States, with about 40% living in California, according to federal immigration officials.

“The right thing to do--as we know he knows--is to end the appeal,” said Antonio Gonzalez of the Southwest Voter Registration Project. “It’s extremely important for him to send a rejection of the wedge-issue politics of his predecessor.”

One year ago last week, U.S. District Judge Mariana R. Pfaelzer ruled unconstitutional the core provisions of Proposition 187--banning illegal immigrants from receiving nonemergency health care, public schooling and many social services.

The ruling also blocked provisions directing local law enforcement authorities to turn in suspected illegal immigrants. It let stand a portion that raises penalties for the manufacture or use of fraudulent documents for immigration purposes.

Pfaelzer, who was appointed to the bench by former President Jimmy Carter, based much of her finding on the 1996 federal overhaul of the welfare system, which included broad new restrictions on benefits for noncitizens that were partly inspired by Proposition 187.

She said the action by Congress confirmed her belief that only the federal government, not individual states, has authority on immigration issues.

Wilson and other supporters of the ballot measure argued the opposite--that the welfare legislation proved state law and federal law are consistent.

Wilson appealed Pfaelzer’s ruling to the U.S. 9th Circuit Court of Appeals. Since then, the state has filed briefs and the court has received responses from all but one of the original challengers to the proposition.

After Davis was elected, however, the judges granted a temporary delay based on the possibility Davis could change the state’s position.

The court is expecting an update April 5 on whether the state’s position will change. If Davis has not reached a decision by then, attorneys involved said the matter is likely to be delayed further.

Sponsors of Proposition 187 tried to become parties to the suit in 1997 because they were angry that Pfaelzer’s decision was taking so long. Pfaelzer, however, rejected the request from the Pacific Legal Foundation.

Now, Pacific Legal attorneys say it is doubtful they could intervene in the case if Davis decides not to pursue the appeal.

Attorneys from both sides noted that the U.S. Supreme Court recently ruled against an Arizona organization that filed a similar request for late intervention in a lawsuit over a ballot measure in that state.

Still, Proposition 187 supporters said they might argue to the court that this case is different.

But if Davis drops the appeal, Mountjoy said, the most likely reaction is that illegal immigration will return as an election year issue--perhaps in the form of another ballot measure.

“The issue of illegals entering this country and reaping rewards for it is still alive and well amongst the populace,” he said. “It would come back, I feel, as a political issue if they throw in the towel.”