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U.S. Judge Blocks Most Sections of Prop. 187 : Courts: Jurist cites significant constitutional questions. Enforcement is delayed pending outcome of lawsuit.

TIMES STAFF WRITERS

In a crippling new blow to Proposition 187, a federal district court judge Wednesday prohibited most key provisions from taking effect until a trial determines the constitutionality of the sweeping illegal immigration ballot initiative.

The ruling by U.S. District Judge Mariana R. Pfaelzer means that the measure’s bans on public and secondary school education, non-emergency health care and social welfare services for illegal immigrants probably will be blocked for at least six months to a year--if they are ever allowed to become law.

Pfaelzer, announcing her decision after a freewheeling two-hour court debate in Los Angeles, said the measure’s education, law enforcement, social welfare and health care bans raise serious constitutional questions as well as other, more practical, issues.

“The loss of medical services for illegal aliens could result in greater health risks for the general population,” said Pfaelzer, echoing arguments of initiative foes that the measure would prohibit illegal immigrants from receiving immunizations and other non-emergency treatment for such highly contagious diseases as tuberculosis.

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Pfaelzer also barred implementation of a portion of the measure mandating that law enforcement officers seek to verify the legal status of all arrestees and notify those suspected of unlawful status that they must become legal or leave the country. Additional requirements that educators, social workers and health administrators quiz people about their status and report suspects to authorities were also blocked.

Pfaelzer kept in place new state sanctions against the manufacture or use of fraudulent citizenship documents--the one portion of the measure that she and another federal judge had previously allowed to take effect. She also declined to enjoin a portion of the initiative excluding illegal immigrants from public colleges and universities. However, that section of the measure is on hold in a separate lawsuit filed in a state court in San Francisco.

Under crisp evening skies, about 100 anti-Proposition 187 protesters, joined by the lawyers fighting the measure, lauded the judge’s ruling in an impromptu celebration outside the Downtown Los Angeles courthouse.

“This is a great day for the U.S, the Constitution and for the immigrant community,” said attorney Peter A. Schey, director of the Center for Human Rights and Constitutional Law, one of four civil rights attorneys who presented oral arguments to Pfaelzer on Wednesday.

Assistant Atty. Gen. Charlton G. Holland, who represented the state, said he was disappointed with the results.

The state attorney general’s office can immediately appeal Pfaelzer’s ruling to higher courts. However, the legal standard for earning a reversal by the U.S. 9th Circuit Court of Appeals is far tougher than winning the preliminary injunction hearing, lawyers said.

To overrule Pfaelzer, appellate judges would have to determine that she abused her discretion when she decided that Proposition 187 opponents were likely to succeed in their lawsuit or suffer irreparable harm if the initiative were enforced immediately.

David Puglia, a spokesman for state Atty. Gen. Dan Lungren, said a decision has yet to be made on whether to appeal the injunction. The state, he said, will consider that question and other options in the next few days.

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“We will seek the course that brings implementation soon rather than later,” he said. “How we do that . . . is not certain.”

One consideration for the state is whether it might take longer to appeal the injunction than to continue moving forward to trial.

Initiative sponsors, who were scattered throughout the audience at the packed court hearing, expressed displeasure but added that they expect to prevail.

“This is definitely a victory for the other side, but this is long from over,” said initiative co-author Alan C. Nelson, a former director of the U.S. Immigration and Naturalization Service.

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Ron Prince, who chaired the pro-Proposition 187 campaign committee, said the decision “would force the people of California to be victims of illegal aliens.”

During the far-reaching court hearing on four anti-Proposition 187 lawsuits, much of the debate focused on a central question: Whether the measure was an unconstitutional infringement on the federal government’s mandate to oversee immigration law.

Mark Rosenbaum, the American Civil Liberties Union of Southern California’s legal director, argued that it would be akin to California’s setting up its own post office system or military.

“That is the dominion of the federal government,” Rosenbaum said.

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State attorneys disputed that the measure conflicted with federal responsibilities, arguing that it was in essence aimed at limiting benefits to illegal immigrants. Other state laws, they noted, now prohibit illegal immigrants from receiving certain benefits and services.

“We’re not here today to invade Haiti,” said Cyrus J. Rickards, a deputy attorney general.

Lawyers challenging Proposition 187 also reiterated arguments that the measure’s wording tends to oversimplify the multitude of immigration categories.

In the social services and health categories, the measure solely permits publicly funded assistance for U.S. citizens and immigrants “lawfully admitted” to the United States. That definition excludes many asylum applicants and tens of thousands of other foreign nationals who have some measure of legal protection from deportation under U.S. procedures.

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Pfaelzer said that in reaching her decision, she took into account that Proposition 187 was approved by a 59%-41% margin last month and that state voters are extremely frustrated at federal immigration policies.

Nonetheless, she said, portions of the initiative appear to establish a state scheme to regulate immigration--thus intruding on the federal government’s overriding role to handle immigration policy. Moreover, the bans on health and social welfare services appear to conflict with federal statutes outlining who is eligible to receive care, the judge ruled.

A day after the Nov. 8 election, San Francisco Superior Court Judge Stuart R. Pollak, acting on lawsuits brought by the Los Angeles Unified School District, other school boards and individuals, ordered that the initiative’s elementary, secondary and post-secondary education bans be blocked before further court hearings. The next session before Pollak is scheduled for February.

In mid-November, after a hearing in Los Angeles, U.S. District Judge W. Matthew Byrne Jr. issued a temporary restraining order halting implementation of all portions of the ballot measure except its sanctions for the sale and use of fraudulent citizenship documents.

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Byrne’s temporary restraining order, already extended once by Pfaelzer, had been due to expire after Wednesday’s hearing.

Byrne and Pfaelzer had given the state permission to work on its proposed regulations for implementing Proposition 187 while the court hearings proceed. But Pfaelzer had ordered that any completed regulations not be made public--let alone enforced. She reiterated those instructions Wednesday.

Department of Health Services spokeswoman Shannon Bowman said regulations are still being prepared by the state’s health and social service agencies.

“We’re letting the departments have all the time they need to do a thorough and thoughtful job,” she said. “They’re trying to get them completed as soon as possible. I can’t tell you if it will be three days, a week, two weeks, or a month.”

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With state Atty. Gen. Dan Lungren readily conceding in interviews that portions of Proposition 187--as it appeared on the ballot--are legally problematic, Lungren’s lawyers argued Wednesday that regulations now being drafted would minimize its potential legal problems.

When Pfaelzer questioned whether regulatory moves could preserve the proposition’s legality, Holland argued that state regulators could act with “surgical” precision.

But attorneys challenging Proposition 187 countered that no guidelines could cloak the measure’s lack of constitutionality.

“They need an act of Houdini to change this law and that’s what they were trying to do,” Rosenbaum said after the hearing.

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In issuing her ruling, Pfaelzer agreed that “there’s very little you can do by regulation” to change the initiative’s requirement that law enforcement officers inform suspects that they must obtain legal status or leave the United States.

“Persons who have a right to stay,” the judge said, “may mistakenly leave because of this notice. . . . It’s not an innocuous notice.” The public school ban, she added, clearly runs counter to a 1982 U.S. Supreme Court decision ensuring free public schooling for undocumented youngsters in Texas. During the election campaign, Wilson and leaders of the Proposition 187 “save our state” campaign committee acknowledged that a vote for Proposition 187 would result in a taxpayer-paid lawsuit to overturn the 1982 Plyler vs. Doe decision.

More on Immigration

* Reprints of the Times “Immigration” series are available by mail from Times on Demand. $5. Order No. 8504. For an article explaining Proposition 187 order No. 5509. $2.50. A package of articles on immigration, including proposed ways to deal with illegal immigration and commentary, is also available on TimesLink.

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Details on Times electronic services, B4


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