Uncertain Fate of Prop. 187 Tests Patience : Immigration: Negative passions stirred by legal delays raise questions about concepts of judicial review and majority versus minority rights. But some experts say court system is working as it should.


With the fate of Proposition 187 up in the air, supporters of the anti-illegal immigration initiative are up in arms.

A Los Angeles Times poll this month showed that 77% of those who voted for the popular but divisive ballot measure believe it inappropriate that lawsuits are delaying its implementation.

Gov. Pete Wilson, meanwhile, has taken to firing potshots at U.S. District Judge Mariana R. Pfaelzer, who has scheduled a full-blown trial on Proposition 187's legality in September. "The patience of Californians will soon wear thin," the governor asserted, "if their will is not carried out."

To many constitutional law professors, however, the legal proceedings are moving ahead just fine, thank you.

"This is exactly how the court system should function," said USC law professor Erwin Chemerinsky. "When a law is adopted of questionable constitutionality--whether by the Legislature or by initiative--courts have to resolve the issue."

In a fast-food, quick-fix culture, frustrations over the legal delays are hardly surprising--nor is the impulse of politicians to seize on grass-roots emotions.

But the strength of the negative passions--particularly at a time when ballot measures often pit ethnic, racial, sexual or economic groups against one another--raises provocative questions about the concepts of judicial review and majority versus minority rights.

At one end of the spectrum, leading supporters of Proposition 187 have launched or threatened recall efforts against elected officials challenging the initiative in court. Indeed, some question whether opponents should even be allowed to fight a state ballot measure in federal court.

"These people have no right to negate the will of the people," declared initiative co-sponsor Barbara Coe, who heads the California Coalition for Immigration Reform. "That is how our nation is structured--it is by the people, for the people and of the people.

"In an ideal world," Coe added, "when the people spoke, that would be the end of the subject--it would be the law."

This month, the initial legislative salvo from the pro-187 forces has come in the form of the first bill introduced in Congress by freshman Rep. Sonny Bono (R-Palm Springs). Bono's bill would require approval of three federal judges, rather than one, to block implementation of a ballot measure. It would also expedite legal challenges.

Harold Ezell, a former federal immigration official who co-sponsored Proposition 187, said the legislation would provide much-needed checks and balances. "The people are ticked, and there needs to be some way to stop the kind of things this woman judge is trying to do," he said. "Even old Sonny Bono doesn't have a bad idea."

On the other side of the coin, Mark D. Rosenbaum, legal director of the American Civil Liberties Union of Southern California, said the Bono bill raises nearly as many legal issues as Proposition 187 itself, which, according to an ACLU lawsuit, flies in the face of such constitutional rights as due process and equal protection for individuals.

"That bill," said Rosenbaum, "has as much chance of being declared constitutional as Sonny Bono has of being asked to join the Three Tenors."

As eight anti-187 lawsuits wend through the courts, some political thinkers suggest that the electoral process itself be revised to make it tougher for initiatives to win approval in the first place.

"We ought to be seeking a need for super majorities for passage of initiatives or referendums," said Curtis Gans, director of the Committee for the Study of the American Electorate in Washington, D.C.

Gans recommends requiring a 60% majority for passage of voter initiatives and 55% for referendums. "This would help get rid of trivial partisan referendum issues and would force representative government to do what it's supposed to do and not hand off every controversial issue to the voters," he said.

UCLA constitutional law professor Julian Eule, meanwhile, suggests that federal courts become more involved in examining voter initiatives, because state judges, unlike federal judges, face reelection pressures.

Eule also says initiatives tend to be confusing and fail to include the give-and-take deliberations and compromises of laws approved by legislatures. "Plebiscites offer only (two) choices," he wrote in the Yale Law Journal, "but the set of solutions to a given problem is seldom so limited."

In a recent interview, Eule reflected: "People don't realize the enormous danger these initiatives pose. The Constitution is a rejection of pure majoritarianism and creates a system of checks and balances and filters, and these initiatives don't have it. It's what the framers worried about--the rights of minorities."

In recent years, as the number of initiatives on ballots across the nation has skyrocketed, those eliciting the strongest emotions have been wedge issues aimed at winning majority support for limits on the rights of minority groups.

Some have proved less successful than others. Last fall, measures barring laws to protect gays from discrimination were defeated in Oregon and Idaho. And in Alachua County, Fla., voters approved a measure repealing an existing gay rights ordinance.

Some successful wedge initiatives have bred ongoing legal challenges. A 1992 Colorado anti-gay rights measure was struck down 6 to 1 by the state's Supreme Court on grounds that it violated the U.S. Constitution. However, the U.S. Supreme Court last month agreed to consider reviving the controversial proposition, in a case that will be heard in October.

In the case of Proposition 187--aimed at barring illegal immigrants from public education, non-emergency health care and social services and requiring administrators to report them to state and federal authorities--lawsuits are pending both in state and federal courts.

In San Francisco, a Superior Court judge dealing with three of the suits has barred enforcement of the educational components of the initiative--approved by a 59%-41% margin in November--before a trial. In Los Angeles, Pfaelzer has blocked most key portions of the measure and refused a state request that she dismiss the four cases before her or abstain from holding a trial before state courts review the initiative.

In a recent opinion, Pfaelzer wrote that state courts cannot resolve all the legal issues stemming from the anti-187 suits: "A state court determination of the state issues presented by these actions would not terminate the controversy, nor would it obviate the need for a constitutional adjudication by the federal court."

Wilson and state Atty. Gen. Dan Lungren have countered that state courts should be allowed to find a way to legally interpret the voter-approved measure before federal courts deal with any remaining constitutional issues. Pfaelzer, Lungren spokesman Steve Telliano asserted, has exhibited "a lack of respect" for Californians by deciding not to bow out of the case.

Hostility to court action appears so profound that in the Times poll this month, 30% of those who voted against Proposition 187 say it is inappropriate for lawsuits to delay its implementation.

The battle over the measure could be a prelude to an even more divisive struggle next year--when a proposition aimed at curtailing most affirmative action policies in the state is likely to be placed on the ballot.

But to Coe, federal lawsuits over popularly enacted initiatives are nothing more than legal sleight of hand to thwart the will of voters.

"The (federal) Constitution is to protect law-abiding people," Coe said. "It has nothing to do with minority versus majority rights."

Legal scholars counter that constitutional issues are at the very heart of the debate.

"There is a serious constitutional challenge to 187, so much so that every judge to consider it has found a substantial likelihood that it's going to be declared unconstitutional," Chemerinsky said.

"When you go back to the framers of the Constitution, they were very sensitive about protecting minorities from the majority," he said. "They were also very skeptical about direct democracy."

For example, James Madison, the future fourth President, wrote in 1786: "There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong."

In California, ballot measures that raise constitutional questions are not new. Nor are lengthy legal challenges.

In 1964, state voters approved by a nearly 2-1 margin a measure nullifying state and local anti-discrimination housing laws. Three years later, the U.S. Supreme Court declared the initiative unconstitutional, saying California voters did not have the right to make discrimination one of the basic policies of the state.

"Any number of statutes states pass are tested for their constitutionality on the federal level before they actually become operative," said UCLA law professor Evan H. Caminker. "It ought to make no difference that it is a ballot measure, because the people have no greater authority to transgress the Constitution than does the state Legislature."

Wilson's complaints, Caminker said, are "particularly ironic" since the governor stressed during last year's campaign that the education component of Proposition 187 was designed to spur a lawsuit seeking to overturn a 1982 U.S. Supreme Court decision. In its Plyler vs. Doe ruling, the high court voided a Texas state law preventing undocumented children from receiving a free public school education.

"If your real motivation is to get the courts to revisit a constitutional issue," said Caminker, "it's ironic you now complain the statute is not going into effect before the court decision."

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