State Lawsuit Over Prop. 187 Is Moved to Federal Court

The battle over whether Proposition 187’s legality should be decided in state or federal court took a new twist this week with anti-187 attorneys having a lawsuit by state attorneys moved from Superior Court to U.S. District Court in San Francisco.

The maneuver was a likely first step toward their requesting dismissal of the lawsuit or asking that it be transferred to the Los Angeles courtroom of U.S. District Judge Mariana R. Pfaelzer, who has temporarily blocked most of the controversial initiative’s key provisions barring illegal immigrants from public education, health and social service benefits.

“This case should not be in state court and we want it out of state court,” said Thomas Saenz, attorney for the Mexican American Legal Defense and Educational Fund.

State attorneys said late Thursday that they will seek to blunt the move by asking U.S. District Judge Lowell Jensen to remand it back to state court.

“We had anticipated the (anti-187 forces) would like to remove the lawsuit from the state courts because they would prefer to avoid having a state court interpret the state initiative,” said Dan Kolkey, counsel to Gov. Pete Wilson. “(But) we wrote the (suit) in a way so as not to give them a basis to move it and specifically stated in the complaint that the lawsuit sought solely to resolve state law issues.”

In the last month, state attorneys have filed a flurry of legal motions aimed at wresting the case from Pfaelzer, who is due to hold hearings later this year on whether to permanently enjoin the divisive ballot measure, which voters approved by an overwhelming margin in November. The San Francisco suit asked that state courts interpret Proposition 187 in a way that would conform to state and federal law.

Saenz branded the state lawsuit “a litigation tactic and a public relations move. They want to present the idea they’re doing everything they can to defend Proposition 187, but the truth is these issues belong in federal court.”

Matt Ross, a spokesman for the attorney general’s office, countered: “It appears that they are obviously fearful of allowing a state court to rule on a state issue.”