Uncertainty, Lawsuits Would Greet Prop. 187 : Election: Many hospitals, clinics have yet to prepare contingency plans. Disobedience and confusion predicted.

If Proposition 187 is approved by California voters, most of its get-tough provisions eliminating government services to illegal immigrants would be scheduled to take effect immediately.

However, with little more than a week before Election Day, many hospitals, clinics and government entities--confused by the measure’s broad wording or concerned about its harsh consequences and hopeful that it will be rejected either by state voters or by the courts afterward--have yet to prepare contingency plans for implementing the sweeping initiative.

State health officials say they don’t plan to give guidance to local hospitals and clinics until after the election, and are not yet sure how they will provide such basic services as communicable disease control because of the wording of Proposition 187.

Complicating matters further are petitions being circulated among health care professionals pledging their refusal to implement the initiative, which would require personnel at most hospitals and clinics to refuse non-emergency treatment to illegal immigrants and to report the names of suspected illegal immigrants to federal authorities.

“The overlay of civil disobedience, general confusion, lawsuits and uncertainty about how to apply the law will result in great chaos,” predicted David Langness, a vice president of the Hospital Council of Southern California.

Indeed, at this point, one of the few certainties is that if Proposition 187 is approved Nov. 8, a flurry of lawsuits will be filed in federal and state courts across California beginning Nov. 9.

“The celebration election night will be very short,” acknowledged Ronald Prince, co-chair of the pro-187 campaign committee, “because we’ll have to be in court the next morning.”

Lawyers for the California Medical Assn., the California Assn. of Hospitals, the American Civil Liberties Union of Southern California and the National Immigration Law Center, among other groups, are currently ensconced at their computer terminals, preparing lawsuits to thwart the measure.

“If you want to talk about a lawyer’s employment program, this is it,” said one such attorney, Peter D. Roos of the Bay Area-based Multi Cultural Education Training and Advocacy Inc. “The O.J. case is a whodunit--it’s simple compared to this.”

Anti-187 lawyers say the issues to be covered will range from the constitutionality of Proposition 187’s key educational provisions to whether California voters even have the right to consider wide-ranging immigration questions, since immigration is generally within the purview of the federal government.

“Because of the fact the federal government constitutionally has basically been given the responsibility of dealing with immigration--and this proposal defines legal residency status differently than the way the federal government does--there is a clear conflict there,” said Lilly Spitz, staff attorney for the California Assn. of Hospitals.

The ACLU of Southern California is considering filing a comprehensive suit on behalf of several organizations to scuttle the measure’s impact on about 15 health and social services programs. However, ACLU legal director Mark Rosenbaum said that at this point, he prefers to focus on Election Day rather than the day after.

“The ballot box is the only 100% certain way to defeat the measure,” he said, “and litigation, if required, is going to be time consuming, enormously divisive and expensive beyond belief.”

When pressed, Rosenbaum asserted that the initiative, co-authored by Harold Ezell, former INS Western regional commissioner and fast-food executive, is chock full of legal flaws.

“This measure is like target practice against the Constitution,” Rosenbaum said. “It was written by a hot dog executive, with the same level of sophistication as stuffing a hot dog.”

Prince, the head of the pro-187 campaign, refuses to discuss legal issues. “We can’t help you there,” he said. “We don’t have a lawyer who wouldn’t charge to consult with you on that.”

Initiative co-author Alan Nelson, an attorney, says he expects the state attorney general’s office to deal with a barrage of lawsuits, but he is confident the measure will hold up.

The measure “ought not to be so specific as to cover every nitty-gritty thing,” he said. “It sets forth the general principles and we’d have the state follow up with regulations and implementing procedures.”

Ballot measures often spawn long and costly lawsuits--the insurance reform measure, Proposition 103, is a prime example.

But Proposition 187 is different in one key regard: Its sponsors are actually inviting litigation.

In the 1982 case of Plyler vs. Doe, the U.S. Supreme Court ruled unconstitutional a Texas law eliminating a free public school education for illegal immigrant children. By asking California voters to banish illegal immigrants from schools, Proposition 187 sponsors are essentially asking the electorate to authorize a taxpayer-funded lawsuit to request the court to take another look at the same issue.

“The purpose of the initiative is to have the court revisit and reconsider the Plyler decision,” Nelson said. “Passage of the initiative will provide that vehicle.”

Among those planning challenges of the measure’s schooling ban if it passes are attorney Roos, of Multi Cultural Education Training and Advocacy, and Peter A. Schey, who heads the Los Angeles-based Center for Human Rights and Constitutional Law. Both attorneys appeared before the Supreme Court more than a decade ago to successfully argue the Plyler vs. Doe case.

Because the basic issue has already been adjudicated once, constitutional law experts say, the initiative is bound to speedily make its way back to the court.

“If it went first to either the state or federal court system, all the lower courts would have to declare it unconstitutional because only the Supreme Court could overrule Plyler vs. Doe,” said USC law professor Erwin Chemerinsky.

Because the measure’s public school provisions would not take effect until Jan. 1, 1995, school suits might not be filed immediately.

Schey, for one, said he probably will hold off until state government agencies make clear “how they intend to interpret the measure’s very ambiguous provisions.”

The state attorney general’s office, as it routinely does, is preparing to defend the ballot measure. “You can imagine how quickly legal actions will be filed,” said spokesman David Puglia.

School officials, meanwhile, say they are fielding calls from parents worried about the repercussions of Proposition 187.

“There’s rumors, confusion and a lack of understanding of how initiatives work,” said Los Angeles Board of Education President Mark Slavkin. “We’re trying to get out the message that children should keep coming to school. That’s where they belong. If there is to be a change in our practices and procedures, we’ll let people know.”

Even if the schooling ban were declared unconstitutional, other portions of the measure could still take effect due to a severability clause in the initiative. Since these portions, covering health care, social services and law enforcement, do not include implementation dates, they are scheduled to go into effect immediately upon passage, according to the secretary of state’s office.

“Like any initiative, if regulations are needed to clarify it or have to be promulgated to implement it, they will,” said Leslie Goodman, director of communications for Gov. Pete Wilson.

Among the first expected to file lawsuits is the Los Angeles-based National Immigration Law Center, which plans to seek an immediate federal court ruling on behalf of immigrants who claim they are entitled to full Medi-Cal benefits but do not have documents readily available to prove it.

Center attorney Charles Wheeler said the suit would be designed to enforce a 1991 federal ruling ordering state officials to provide full benefits while giving immigrants “a reasonable opportunity” to obtain necessary documents. The injunction also covers undocumented immigrants the INS is aware of but is not considering deporting.

Other potential lawsuits would attack the entire initiative on constitutional or statutory grounds. For example, the requirement for reporting people reasonably suspected of being illegal immigrants to federal authorities raises discrimination issues, said Spitz.

“By attempting to treat people differently because of their accent, dress and their ethnicity, the law on its face would be unconstitutional,” she contended.

With the measure continuing to receive slightly more than 50% support in pre-election polls, officials of health care facilities and government agencies that would be directly impacted say they have little direction on how to proceed if the measure wins.

The Los Angeles County Department of Children and Family Services, which cares for children who have been abused or abandoned, generally has about 200 undocumented children under its wing at any given time. Because the measure’s ban on social services for illegal immigrants lists no exception for children, department Director Peter Digre says he is caught between a rock and a hard place.

“I can’t believe the public in any way intends if we find a battered 2-year-old toddler that we not remove the toddler from the situation,” said Digre. “Our responsibilities are outlined in great detail in (federal law) . . . and we have a whole network of court orders that tell us what to do.”

Co-author Nelson said last week he wasn’t fully clear about the measure’s intent on abused and abandoned children, since he didn’t draft that section. “But if they are illegally in the country, they shouldn’t be getting publicly funded benefits and that would include foster care,” Nelson said.

The Los Angeles Police Commission is awaiting word from the city attorney’s office on whether to revise its policy of limited cooperation with the U.S. Immigration and Naturalization Commission. The ballot measure calls for police to verify the legal status of any person arrested if he or she is suspected of being an illegal immigrant.

“Right now we only notify the INS if we have someone arrested and charged with a felony and (the person) is found guilty in court,” said Chief Willie L. Williams. “Technically, when you stop someone for a traffic violation, that’s an arrest.”

At this point, says Langness, Southern California hospitals and health clinics also have not yet formulated plans to implement Proposition 187.

“We hope the measure will be defeated, and if it passes, we anticipate court action that will last a long time,” he said, “We have also heard from many clinics and several hospitals that petitions are circulating among doctors and nurses . . . saying they will refuse to implement 187 if it passes.”

Nelson responded that “promoting anarchy is a big P.R. gimmick. You have to believe most people will adhere to the law.”

The Los Angeles Free Clinic, for one, is considering a third option: setting up a parallel clinic funded entirely by private donations.

“We could not as public health providers in good conscience turn people away who need health care,” said Executive Director Mary Rainwater. “It violates every principle that we hold . . . that health care is a basic human right.”

In recent weeks, the state Department of Health Services, seeking to meet the wishes of the Wilson Administration, has been working on directives to be issued to hospitals and clinics shortly after Election Day.

Plans call for the state to advise hospitals to continue treating anyone who bears a full-scale Medi-Cal card, said Deputy Director Elisabeth C. Brandt.

“That means they’re not undocumented aliens and already have been found by our department to have an appropriate immigrant status,” said Brandt, the agency’s chief counsel. “We want to be sure providers don’t discriminate against anyone based on suspected alien status when we’ve already gone through that. That would be a real problem with federal laws and jeopardize federal medical funds.”

Such advice, however, appears at odds with the aims of initiative sponsors, who have argued illegal immigrants now receive government funds for which they are ineligible because of the ease of obtaining fraudulent documents. Moreover, Gov. Pete Wilson, one of the leading proponents of Proposition 187, has called for the issuance of new tamper-proof ID cards to provide proof of legal residency.

Brandt said the state government is also considering becoming directly involved in administering immunizations because the measure forbids publicly funded hospitals and clinics from serving illegal immigrants. Such action would come in large part, Brandt said, because Wilson has indicated to the agency that he doesn’t want to place the larger population at risk of contagious disease if Proposition 187 wins approval.

“The initiative doesn’t say the government can’t pay for the service,” asserted Brandt . “It says the (hospital or clinic) facility may not provide it.”

Such thinking, however, appears to fly in the face of the measure’s intent. Its authors have made clear time and again their main goal is to prevent government funds from being spent on illegal immigrants.

“As far as giving free medical aid to every other person here illegally, you have to say no,” Ezell said recently. “If it’s immunizations, let some of the private groups pay for some of this stuff. Let MALDEF (the Mexican American Legal Defense and Educational Fund) open a clinic for it. Let the Ford Foundation pay for that.”

Doris Meissner, INS commissioner, is cautious about discussing how her agency would go about enforcing Proposition 187 if it becomes law. Under the measure, hospitals, schools and some others government entities are directed to report people suspected of being illegal immigrants to the INS.

“At this time we have not made any special preparations,” she said recently, though she acknowledged the measure would strain the overburdened immigration service.