Throughout the fall election campaign and in state and federal courtrooms since, Proposition 187 has been repeatedly attacked as poorly written. “It looks as if this was enacted or drafted by one person drafting one section and some other person drafting another section,” a U.S. district judge declared last month before blocking most portions of the sweeping ballot measure from taking effect immediately.
Well, says the initiative’s chief sponsor, the anti-illegal immigrant measure was drafted by committee. Moreover, proponents say they are proud it was prepared that way.
“We had a committee of 10 and I worked with each and every member to make sure every word was written and approved by them,” said Ron Prince, who chaired the pro-187 “Save Our State” campaign.
With the fate of Proposition 187 resting squarely in the courts, the wording of the get-tough initiative is under heightened legal scrutiny. If judges conclude that its language and intent fly in the face of state or federal statutes or the U.S. Constitution, it will not matter that it was approved by a 59% to 41% margin. Just like the 1964 state initiative that banned anti-discrimination housing laws but was later declared unconstitutional, the key provisions of Proposition 187 would simply never take effect.
The next major court date for the measure is scheduled today in Los Angeles before U.S. District Judge Mariana R. Pfaelzer, who will decide whether to issue a preliminary injunction halting the measure’s implementation until the legal questions are resolved in prolonged court hearings.
Already, a state court judge in San Francisco and U.S. District Judge W. Matthew Byrne Jr. in Los Angeles have issued temporary restraining orders raising constitutional questions about the initiative, which would bar illegal immigrants from public educational, non-emergency health care and social welfare services.
Just how was the measure stitched together and what was the thinking of its authors? In a series of post-election interviews, they said:
* The drafting of the measure was a group effort undertaken by a committee that included an unemployed accountant, a political consultant and a civilian police employee, as well as a state legislator and the nation’s former top immigration officer. Many of the initiative’s key elements were eventually reviewed on a piecemeal basis by the state legislative counsel’s office, but the measure as a whole was never reviewed by state lawyers and few changes of import were suggested or made.
* Knowing that an educational ban would stir inevitable legal challenges because of a 1982 U.S. Supreme Court ruling ensuring free public schooling for undocumented youngsters in Texas, some members of the “Save Our State” committee had deep reservations about whether to include a ban. However, after lengthy debate the committee agreed to do so in order to maintain the support of Orange County grass-roots activists who would be circulating the petitions to earn the measure a place on the November ballot.
* Although Harold Ezell, the most publicly recognizable leader of the pro-187 movement, was long billed as the initiative’s co-author, the former western regional director of the Immigration and Naturalization Service actually contributed no more than a handful of the words that appeared on the ballot.
* Some leading sponsors, in hindsight, have second thoughts about the wording of the initiative, which calls for each educator, health administrator and law enforcement officer to report people he or she “reasonably suspects” of being illegal immigrants to state and federal authorities. Ezell, in particular, wishes the word suspects had never been included, because of its inflammatory nature.
“There’s no need to run red flags up like that,” Ezell said. “It fanned the flames of the opposition. . . . To me, the word should have been better defined.”
Because the proposition won by an overwhelming margin, several sponsors say the exact wording should now make little difference.
“They’re picking it to death,” said co-author Alan C. Nelson, a Sacramento-based attorney and director of the INS during the Reagan Administration. “The initiative sets forth the general principles and we’d have the state follow up with regulations and implementing procedures.”
Moreover, many pro-187 voters appear angry that the measure has been blocked from taking effect by eight lawsuits filed by civil rights groups and government entities, including the Los Angeles Unified School District.
However, legal experts say the wording must play a key role in the ultimate fate of the initiative.
“The court has to decide whether this law as written is constitutional, not whether some imaginary law that could be better drafted is or is not constitutional,” said USC constitutional law professor Erwin Chemerinsky. “Whether the law meets due process, whether it denies equal protection, the court has to consider: Is this statute constitutional?”
In issuing a temporary restraining order, Judge Byrne declared that the sections banning health and social services appear to conflict with federal laws. The initiative also does not provide for hearings before or after suspected illegal immigrants are denied government services. That, said Byrne, raises “serious questions” whether the initiative violates the constitutional right to due process.
Proposition 187 was spawned last fall in discussions among Orange County political consultant Robert Kiley; his wife, Yorba Linda Mayor Barbara Kiley; and Prince, an accountant who has been without work for three years, according to his recently filed bankruptcy papers.
To test the waters, Prince, who had previously launched an unsuccessful petition drive calling for lawyers in California to be re-examined every four years, stood outside a Vons supermarket in Tustin, seeking signatures for a vaguely defined anti-illegal immigration initiative.
Next, Barbara Kiley called Ezell for expert assistance.
“When the (Kileys) came to me, I thought they were talking about illegal immigration in Yorba Linda,” Ezell recalled. “So they came in and we talked for a couple of hours about illegal immigration and its impact and they knew very little about it at the time. It was a business consideration for them at the time. That’s their business--campaigns.
“Two hours later, this guy by the name of Prince comes in--he was the guy who originally talked to them about it.”
As it turned out, Prince had big things on his mind: specifically, a national constitutional convention concerning immigration.
“Prince’s original idea,” said Ezell, “was some cockamamie constitutional amendment that was so far out it had nothing to do with the issues we had in Proposition 187.”
At a subsequent Oct. 5 meeting at the members-only Center Club in Costa Mesa, the committee expanded its ranks to 10, including Nelson, Assemblyman Richard L. Mountjoy (R-Arcadia) and Barbara Coe, an Anaheim Police Department civilian employee who headed the grass-roots California Coalition for Immigration Reform.
Mountjoy quickly convinced the group that a state ballot measure denying public services to illegal immigrants was the best option.
Meeting for much of the day, the group divided into subcommittees to explore what public services to ban. The most contentious issue that day and at the committee’s subsequent sessions in Ezell’s Newport Beach office concerned the public education ban and the litigation that would surely result.
“This was the most controversial part,” recalled Coe, who said her coalition considered the ban a must. "(Some committee members) said, ‘Oh boy,’ and we said we knew it would be an ‘Oh boy.’ But the result was everyone finally agreed if we were going to do it, do it all the way or not bother.”
Coe also insisted that the initiative require parents or guardians of schoolchildren to provide proof of their own legal residency.
“It’s the whole logical overview,” Coe said. “What we are trying to do is resolve the overall illegal alien problem.”
Soon after the Oct. 5 meeting, Nelson worked up an initial draft, according to Prince and Nelson, who refused to make a copy public because of the pending litigation.
In Nelson’s draft, Prince said, several different terms were used to describe people to be reported to immigration authorities. Among them: those “determined or believed to be in violation of federal immigration laws,” those “known or believed to be” in violation of the laws and anyone “arrested for a crime who is suspected of being present in the United States in violation of U.S. immigration law.”
Eventually, the wording of several sections was modified--at the suggestion of either the state legislative counsel’s office or Nelson, according to various committee members--to require each health, educational and social welfare entity to report those it “determines or reasonably suspects” of being illegal immigrants to the state attorney general and the INS.
The measure fails to define in detail why a person would be reasonably suspected. Prince and Nelson--as well as Gov. Pete Wilson, a leading Proposition 187 advocate--say suspects would be people who fail to provide documentation of legal residency status when applying for public benefits or after having been arrested for another offense.
But Nelson acknowledges that in hindsight, “people misunderstood it.”
“If we knew we’d get all this flak,” he said, “it would have been very easy to say the definition of suspect is failure to provide documents and take away any doubt.”
Ezell, for his part, calls the terminology “probably the biggest goof in the wording.
“When I saw it, I said, ‘Holy Toledo, what is this?’ ” he said. “It won’t be in any other propositions that (I) have anything to do with.”
Prince said that at Mountjoy’s request, he drafted the only parts of the measure not blocked by Judge Byrne--sections providing new sanctions for the manufacture or use of fraudulent citizenship documents and a severability clause stating that if one portion of the initiative is ruled invalid, other portions could still take effect.
The wording for the severability clause came from other ballot measures, according to Prince. “I wrote it myself,” he said, “largely plagiarizing other initiatives.”
Prince said he chose the wording for the false-document section--which was later unsuccessfully introduced as state legislation by Mountjoy--to avoid affecting young Americans using fake identification for such purposes as purchasing alcohol.
“I didn’t want American kids in trouble,” he explained. “But if an illegal alien is trying to hide his citizenship, that then is now going to be a major felony in California and it should be.”
However, law enforcement officials say the initiative’s wording leaves it doubtful whether many illegal immigrants or document manufacturers will receive stiffer penalties than in the past.
Los Angeles County Sheriff Sherman Block says that because the initiative does not address the issue of possession of false documents, a suspect would have to actually use a fake identity card in order to face arrest.
Prince, who has no law degree or law enforcement experience, says Block and Dist. Atty. Gil Garcetti, both of whom opposed Proposition 187, are wrong.
In the wake of their electoral success, some committee members now seem at odds on how portions of the initiative were drafted.
Prince says Nelson was responsible for the education, health and law enforcement sections. Prince then did some editing of these sections, he says, and distributed copies of rough drafts to committee members for comments and approval.
Prince says that he also faxed copies to Mountjoy’s Sacramento office for review by the legislative counsel’s office, but that what few changes were suggested were mainly for grammatical purposes.
Mountjoy counters that he was responsible for the initiative since he had previously introduced illegal immigration bills, unsuccessfully, in the Assembly on topics covered by Proposition 187.
“It was just stuff I was doing, when I ran into these people,” he said. “It was also a group effort, basically along the lines of: ‘Can you live with this? Can you campaign on this? Can you stand up and justify this?’ ”
Mountjoy says that he showed most portions of the measure to the legislative counsel at one point or another and that among the suggestions made were to include the phrase “reasonably suspects.”
Without that wording, Mountjoy said, education, health and social service administrators who turned in names might be sued if suspects turned out to be legal residents. “I think that’s a good clause,” said Mountjoy. “You clear yourself of liability.”
Mountjoy did credit Nelson with suggesting one major concept--providing illegal immigrant students a 90-day grace period before being tossed out of school. That provides time for the INS to conduct deportation hearings, Mountjoy reasoned.
Ezell was listed as a co-author because he was better known than other committee members and was serving as a spokesman, sponsors say. But his role in writing the measure was limited to six words, according to Prince. “In Section 9, I left out the reference to the INS. He pointed it out and I made the correction.”
Ezell, who hosted the committee’s sessions, sees things differently. “The designation that Nelson and I had was co-author,” he said. “If that means you, in long hand, write it out, then that’s not what I think co-author is. Co-author is pulling the parts and pieces together.”
As it turns out, Proposition 187 is different from many initiatives because it is written in such easy-to-read English. In the state ballot pamphlet, the measure took up just more than one page. In contrast, Proposition 186, the unsuccessful health care reform measure, filled 16 pages.
“Some of these petitions look like you could build a house out of them,” said Robert Kiley.
Regardless, the “Save Our State” committee’s approach may prove in the long run to have serious, even fatal, consequences.
Different sections of the initiative contain different definitions of who would be barred from receiving public services. Moreover, the initiative does not use the same terminology as the federal government for declaring who is eligible for services.
Byrne cited both points before issuing his restraining order.
“In two sections, they list (as legal residents) . . . a citizen of the United States, an alien lawfully admitted as a permanent resident, an alien admitted lawfully for a temporary period of time,” said Byrne. "(But) they leave out of that certain people that the federal government would assume are entitled to benefits or really are, quote, legally in the country.”
Elsewhere in the initiative, Byrne added, “They use totally different language.”