Prop. 187 Test in State Court May Be Sought : Immigration: Official says legal action will be filed to take battle over the measure’s validity out of federal court, where much of it has been blocked.


State lawyers, hoping to find a way to move the Proposition 187 legal battle from a Los Angeles federal judge who temporarily blocked much of the ballot measure, will file a legal action in San Francisco Superior Court in a bid to let state courts interpret the initiative first, a knowledgeable state official said Thursday.

The official, who asked to remain anonymous, said the state attorney general’s office plans to file a complaint for declaratory relief today or Monday seeking “to interpret the ballot proposition in a way that will uphold its validity.”

“We think this ought to be interpreted in the state courts first before a federal court considers its validity under federal law.”

Meanwhile, a high-ranking state attorney said Thursday that the attorney general’s office plans to file motions before U.S. District Judge Mariana R. Pfaelzer, who issued a preliminary injunction against Proposition 187, asking that she either dismiss the case now before her or abstain from hearing it until state courts finish with lawsuits determining the legality of the illegal immigration initiative.


“All I can say is we’ve told the court we’ll file a motion to dismiss and abstain,” said Assistant Atty. Gen. Charlton G. Holland III.

Last week, Pfaelzer issued a final written version of her preliminary injunction blocking implementation of most portions of the measure until its legality is determined in a trial.

In her ruling, Pfaelzer questioned the constitutionality of portions of the measure barring illegal immigrants from receiving public elementary and secondary school education, non-emergency health care and social services. She also wrote that several parts of the initiative may be preempted by federal law, which has jurisdiction over most immigration matters.

Pfaelzer also rejected the state’s suggestion that she abstain from adjudicating the case so it could instead be decided--at least in its initial stages--in the state courts. “It does not appear that any of the abstention doctrines apply to the claims raised in these actions,” she wrote, adding that the state could later file a motion for abstention.


State sources said Thursday that by filing a declaratory judgment complaint in state court, Pfaelzer might change her mind about abstaining at this point. The state court would be asked to determine whether regulations now being prepared by state authorities to implement Proposition 187 are legally valid and would conform to state and federal law. Pfaelzer could then make any future rulings based on the state court’s interpretation of the measure.

Attorneys fighting the initiative contend that it is unconstitutional on its face and that forthcoming regulations cannot overcome the legal problems with the measure, as voted on and approved.

“I think the state is badly mistaken if they believe the constitutionality of Proposition 187 can or should first be decided in the state courts,” said Peter Schey, director of the Center for Human Rights and Constitutional Law. “The primary challenge we raise of preemption is a claim which can, should and will be heard in the federal courts.”

The complaint would seek declaratory relief on all portions of Proposition 187 except for its bans on public and college education, which are under review by San Francisco Superior Court Judge Stuart Pollak. Pollak has issued a temporary restraining order against the measure’s education provisions, which appear to run counter to a 1982 U.S. Supreme Court ruling.