State Tries to Wrest Prop. 187 Case From U.S. Judge : Law: Officials want state courts to rule on the measure’s legality first. Lungren admits swift results from his office’s strategy are unlikely.

Stifled in their efforts to implement Proposition 187, state attorneys have launched the legal equivalent of a full-court press to take the ball out of the hands of a federal judge in Los Angeles who has temporarily blocked most of the controversial initiative’s key provisions.

Launching a flurry of legal motions in state and federal courts over the last month, state Atty. Gen. Dan Lungren says the maneuvers are part of an overall strategy to expedite court approval of the ballot measure targeting illegal immigration, which won overwhelming support from state voters in November.

At this point, state lawyers are apparently convinced that they would find a more favorable reception before another judge. They also believe they may stand a better chance in the long run before the same U.S. district judge, Mariana R. Pfaelzer, if a state court first approves regulations now being drafted by state officials for implementing the initiative.

But Lungren, noting that “we go into these things with our eyes open,” refused to predict the state’s ultimate chance of success. Moreover, he emphasized that swift results are highly unlikely. “We’re certainly talking about months and it could be some years,” the state’s chief legal officer said in a telephone interview earlier this month.

Civil rights attorneys fighting the initiative contend that the state’s strategy appears to be motivated by politics rather than sound legal reasoning.

“Every document that comes out of the attorney general’s office has one message and that is: We’re going to get walloped in federal court,” said Mark D. Rosenbaum, legal director of the American Civil Liberties Union of Southern California, which has filed one of eight ongoing lawsuits against Proposition 187. “Maybe it would resonate as a political campaign device in trumpeting states’ rights. But as a legal strategy, it’s bizarre.”

Legal experts believe that Lungren stands a remote chance of wresting the case from Pfaelzer, a Carter Administration appointee known for her independence. But some think the attorney general’s office has substantially hurt that chance by waiting too long to launch its full-bore counterattack. The legal salvo did not come until after Pfaelzer had issued a written preliminary injunction against the ballot measure--more than two months after its passage.

“I think some of the (state’s) arguments are frivolous,” USC constitutional law professor Erwin Chemerinsky said. “And I think some of them are plausible arguments but weak.”

The new offensive is being undertaken on both ends of the state. In San Francisco Superior Court, the attorney general’s office, representing Gov. Pete Wilson, has filed a motion asking that state courts interpret Proposition 187 in a way that will uphold its validity under state and federal law.

In two separate federal actions, state attorneys have appealed Pfaelzer’s injunction to the 9th Circuit Court of Appeals and have asked Pfaelzer to either dismiss the case before her or abstain from taking further action until state courts finish dealing with the initiative’s legality.

“We’re trying to juggle things as best we can,” Lungren said. “Some would say: Forget the state courts and go to the federal courts--(that) you move faster that way to the federal level of appellate courts and the Supreme Court.

“But it’s extremely important, if we can, to allow the state court to have the first crack at the interpretation of the statute--what it means and how it would be reasonably implemented.”

Lungren bristles at the notion that he and Wilson are trying to make political hay with their moves. “The opposition attorneys are the ones that made the political choice not to allow the state courts to construe a state law,” the attorney general said. “That was their choice, not ours.”

Wilson spokesman Sean Walsh added: “It is strictly a matter of pursuing every avenue to see that the will of the people of California is enforced.”

The ACLU’s Rosenbaum counters that the legal battle would eventually end up in the federal court system anyway.

“They are ignoring the advice of the great constitutional scholar Muhammad Ali, who said, “You can run, but you can’t hide,” he said. “. . . They might as well get on a mountaintop shouting, ‘We know we’re going to lose in federal court and we’re panicked.’ ”

Lungren’s attorneys cite several legal doctrines in their motion to persuade Pfaelzer to abstain from conducting a full trial on Proposition 187’s constitutionality in coming months.

Under what are known in legal circles as the Younger, Burford and Pullman doctrines, federal courts are required to abstain from various kinds of cases where clarification of a state law by a state court would make federal rulings unnecessary. Such abstention, the Supreme Court has reasoned, lessens the potential for friction between the two court systems. The state can interpret its own laws and federal courts can avoid making constitutional rulings.

The Younger doctrine restricts federal judges from enjoining most state court cases that have already begun. However, in the Proposition 187 litigation, state attorneys are now seeking to halt an ongoing federal case in which there have already been significant rulings.

To stand a chance under this doctrine, Chemerinsky said, “The state should have filed the state proceedings prior to the federal proceedings or immediately after.”

Lungren disagrees that his attorneys reduced their chances by tarrying, but is somewhat vague on the reason.

“We filed when we thought it was appropriate,” he said. “It might have been more orderly and a different scenario if we weren’t the ones filed on (by initiative opponents) within 24 hours after the law was passed.”

Chemerinsky and other experts say the state’s argument under the Burford doctrine is frivolous because the doctrine is generally restricted to cases involving complex ongoing state administrative procedures.

The state’s best chance to persuade Pfaelzer to abstain, experts say, is under the Pullman doctrine, which calls for federal courts to allow a state court to clarify state laws that could make federal constitutional rulings unnecessary.

“The state courts must be afforded a reasonable opportunity to interpret Proposition 187 before (Judge Pfaelzer) adjudicates its constitutionality,” the state’s legal papers read. UC Berkeley constitutional law professor Jesse Choper said there is nothing unusual about seeking such an abstention. “It’s a regular procedure under which the federal courts abstain.”

But the likely pitfall for the state, others add, is the argument of anti-Proposition 187 lawyers that the initiative, on its face, clearly violates the federal Constitution by limiting equal-protection and due-process rights of undocumented immigrants.

“I don’t think they’re going to win on any of their arguments, but the Pullman one is certainly plausible,” UCLA law professor Jonathan Varat said. “(Opponents of the measure will argue) the core objections to 187 aren’t going to go away no matter how much the state interprets it, so there’s no point delaying the federal case.”

State lawyers have countered that legal questions posed by Proposition 187 can be cleared up in regulations currently being drafted to implement the measure, which would bar illegal immigrants from public education, non-emergency health care and social services and require administrators to report suspects to state and federal authorities.

“(However), the problems with Proposition 187 are all over the lot,” Whittier Law School professor Mary Ellen Gale said. “It’s not just narrowing down the central focus.”

Besides, Gale said, Pfaelzer, who has already rejected limited abstention arguments during hearings on the initiative, is unlikely to change her mind.

“I’d expect her not to back off,” Gale said. “She would say, ‘I’ve thought of this already.’ ”

Pfaelzer, who has invited state lawyers to argue abstention issues more fully, is due to hold a hearing on the matter this month or in early March.

No court dates have yet been set in the motions filed in state court and the federal appeals court. Moreover, the state has sought no expedited court action in either forum.

Thus it is likely that a trial before Pfaelzer will take place before any action occurs in the other courts, said Loyola law professor Karl Manheim, who is assisting the ACLU in its anti-Proposition 187 suit.

Besides, Pfaelzer has no duty to bow out even if a state court agrees to take up the state’s request for an interpretation of the initiative, Manheim said. And attorney Peter A. Schey, whose Center for Human Rights & Constitutional Law has filed one of the anti-Proposition 187 cases, said he may countersue the state for damages because its state court suit, in which several of his clients are named defendants, is completely malicious.

The chances of successfully appealing Pfaelzer’s injunction are also remote, experts say, because the higher court judges would have to determine that she abused her discretion in making her decision.

Further compounding the problem for proposition proponents is that they are having no better luck in state court. San Francisco Superior Court Judge Stuart R. Pollak issued a preliminary injunction this month preventing the state from enforcing the measure’s section excluding illegal immigrants from state colleges and universities. Pollak has also blocked the measure’s ban on public school education.

“I’m waiting to hear they’ve filed a new case in Chico,” Rosenbaum said. “I think their ultimate objective is to have a piece of litigation in every county.”

Nevertheless, after all the legal jockeying, Choper said, the final legal decisions on Proposition 187 will almost certainly be thrashed out in the same place.

“Look, lawyers and litigants not infrequently get involved in forum shopping. For one reason or another, they make a determination of where, at least as an initial matter, they’re more likely to get a favorable ruling,” he said. “But in the end, this case will end up in all likelihood in the U.S. Supreme Court, and it won’t make too great a difference in all likelihood if it comes to the Supreme Court through the state or the federal system.”