State Counsel Questions Parts of Prop. 187

A Proposition 187 mandate that police question arrestees about their legal residence status would violate constitutional guarantees of privacy, according to a state advisory opinion released Tuesday, but provisions barring illegal immigrants from receiving social and health services generally conform with existing law.

While bestowing its legal stamp on cutting off such services to illegal immigrants, the nonpartisan office of the legislative counsel found that the initiative’s reporting requirements for health, social service and educational programs may violate U.S. guidelines and threaten federal funding.

The legislative counsel’s mixed opinion, while lacking force of law, adds a new twist to the contentious debate about the legality of Proposition 187, the sweeping ballot initiative that would make illegal immigrants in California ineligible for most state-funded services. The proposition has galvanized debate on the issue of illegal immigration and become the central voter concern of Tuesday’s elections.

The counsel, which acts as a kind of lawyer for the California Legislature, was asked by Assemblywoman Grace F. Napolitano (D-Norwalk) to study potential conflicts between Proposition 187 and federal law. The 43-page report is strictly a legal analysis, deliberately omitting mention of some of the more emotional possible impacts, such as the potential spread of communicable diseases among those lacking health care.

Though some of the counsel’s findings come as no surprise, others add new dimensions to the swirling proposition debate while providing legal-brief ammunition to one side or the other.

For instance, the legislative counsel found that denying illegal immigrant youngsters public school education not only runs counter to U.S. law--as proposition backers have long conceded--but also would fly in the face of the California Constitution. The state Supreme Court, the opinion noted, deemed education a “fundamental interest,” entitling all children to primary and secondary schooling.

In a related matter, however, the opinion found that the initiative’s prohibition against the enrollment and attendance of illegal immigrants at public colleges and universities did not violate federal law. The proposed post-secondary educational ban has not generated as much controversy as the measure’s strictures on enrollment in the lower grades, but critics have vowed to fight the plan.

In fact, passage of Proposition 187 in Tuesday’s elections would probably trigger a barrage of lawsuits seeking to invalidate the incendiary measure virtually section by section. Opponents have indicated their intention to battle under both U.S. and California law to retain the right of education for illegal immigrant children.

The public debate about Proposition 187 has focused on schooling, health care and public services, but the counsel’s report opened up a potentially broad new legal front: the measure’s requirement that law enforcement authorities--including local police, the California Highway Patrol and other officers statewide--attempt to verify the status of arrestees suspected of being illegal immigrants. The names of apparent unlawful residents are to be reported to the U.S. Immigration and Naturalization Service.

The “intrusive nature” of such questioning, the report concluded, would violate constitutional privacy guarantees and create “the increased potential of harassment . . . (of) groups that might be discriminated against.”

A wide array of law enforcement figures, including Los Angeles County Sheriff Sherman Block and Los Angeles Police Chief Willie L. Williams, have expressed public opposition to Proposition 187, asserting that their already overburdened officers would become quasi-immigration agents. Provisions requiring that authorities question suspected illegal immigrant arrestees about their residence status, critics say, would also sow distrust among immigrants, prompting wary crime victims, witnesses and informants to shun police.

Proposition 187 proponents argue that such police questioning is necessary to ensure that illegal immigrants picked up by police are promptly turned over to U.S. Immigration and Naturalization authorities and deported or otherwise returned to their homelands.

“When a person has been arrested for a crime, it is the obligation of the police agency involved to identify that person because you don’t want them back out on the street committing more crimes,” said Ron S. Prince, chairman of the Proposition 187 campaign.

Prince called the legislative counsel’s opinion on the law enforcement provisions “bizarre.”

But anti-187 forces said the new report underlined the initiative’s illegality and the confusion that would result if the ballot measure passed and was implemented.

Mark Rosenbaum, legal director of the American Civil Liberties Union of Southern California, called the legislative counsel’s office “a conservative, cautious set of attorneys with a bent to uphold state legislation,” adding: “If they’re saying this is flawed . . . what does that say about the legal integrity of this measure?”

On the core issue of benefits, the legislative opinion found that Proposition 187 provisions barring illegal immigrants from receiving taxpayer-funded social services and non-emergency health care do not conflict with federal law. That finding is significant, but it does not reflect the principal arguments posited against those provisions.

On the crucial funding issue, the advisory opinion agreed that Proposition 187 probably does clash with federal reporting and privacy guidelines, thus threatening U.S. aid to California for health, social and education services. Such conflicts could arise, for instance, on proposition requirements that the names of suspected illegal immigrants applying for welfare and Medi-Cal benefits be turned over to the INS, the legislative counsel’s opinion stated.

Thus the report, in essence, provides a legal underpinning for the assertion that California could lose billions of dollars in federal aid if Proposition 187 is implemented--a central dispute in the campaign.

The official California ballot pamphlet says the measure places at risk up to $15 billion in federal funds.

Proposition 187 supporters have disputed the figure as exaggerated, and contended, moreover, that Washington would never take such Draconian action against the nation’s most populous state.

Meanwhile, former U.S. Atty. Gen. William Barr waded into the debate Tuesday, accusing current Justice Department officials of undertaking an unprecedented politically partisan role by involving themselves in a state initiative process. President Clinton, Atty. Gen. Janet Reno and other top Administration officials have gone on record against Proposition 187.

“This is a real important policy issue and the people of California should be able to decide it on the merits,” said Barr, who served as the nation’s chief law enforcement officer under former President George Bush. “Trying to cut short the debate with that kind of rhetoric is doing a disservice to the people of California.”

In another development, Taxpayers Against 187, a coalition of groups opposed to the ballot measure, asserted Tuesday that their overnight tracking polls show for the first time that Proposition 187 may be slightly trailing. Their latest poll, conducted by a Texas-based research organization Monday night, showed the measure behind by a 44%-41-% margin. The poll’s margin of error was 4.7%, a spokesman for the group said.

A week ago, the Los Angeles Times Poll had the measure ahead among likely voters by a 51%-41% margin.