Judge Asked to Declare Prop. 187 Unconstitutional : Courts: Foes seek ruling without trial after state decides not to submit rules to implement anti-illegal immigration measure. Wilson aide assails tactic.

Seizing on a decision by state officials not to submit regulations for implementing Proposition 187 to a federal judge, civil rights lawyers Monday asked the judge to declare the illegal immigration ballot measure unconstitutional without need for a full-blown trial.

The motions for summary judgment, tentatively scheduled to be heard by U.S. District Judge Mariana R. Pfaelzer in Los Angeles later this month, come less than three weeks after lawyers representing Gov. Pete Wilson and Atty. Gen. Dan Lungren decided against filing their proposed regulations with Pfaelzer.

In previous court hearings before the judge, state attorneys had repeatedly asserted that forthcoming regulations would clear up any questions about the legality of the ballot measure, which won overwhelming approval from state voters in November.

A trial beginning no later than Sept. 5 is now scheduled before Pfaelzer, who late last year temporarily blocked most portions of the measure from taking effect. If Pfaelzer, acting on the summary judgment motion, rules the entire initiative unconstitutional, a pending state court case focusing solely on the educational provisions of the initiative would be shelved pending an inevitable state appeal of Pfaelzer’s decision.

A Wilson spokeswoman called Monday’s legal action by two civil rights groups “an outrageous maneuver designed to subvert the will of California voters.”

“Not only have these special interest lawyers hindered the state’s ability to implement the will of the voters by filing lawsuits,” spokeswoman Kristine Berman said, “but now they’re quietly moving to have Proposition 187 dismissed without a proper public hearing.”

Berman said the state’s failure to submit regulations actually places a stronger burden of proof on the lawyers attacking the initiative. “We felt the best strategic course for the state to take was to force the plaintiffs to attack the proposition on its face, which the Supreme Court says is the most difficult challenge to make,” she said.

One day after the November election, Wilson directed state agencies to begin drafting emergency regulations to implement the initiative as soon as legally possible. In temporarily blocking the measure from taking effect, Pfaelzer told state officials they could continue to prepare regulations privately and submit them to her by April 15 for use in the court case.

In the motions filed with Pfaelzer Monday, the two civil rights groups contended that Proposition 187 is unconstitutional on its face because it serves as a state government scheme to regulate immigration.

“That’s solely a function within the authority of the federal government,” said Peter A. Schey of the Los Angeles-based Center for Human Rights & Constitutional Law. “The federal government has exclusive authority to control our borders. That’s the beginning and end of this case.”

The other motion, filed by the ACLU Foundation of Southern California, focused on the regulations issue, quoting several statements by state attorneys in previous court hearings.

At a January session, the legal papers note, Pfaelzer questioned whether regulations could “stitch up” the legal problems with each section of the measure. Replied Assistant Atty. Gen. Charlton G. Holland: “Your honor, I think you underestimate the surgical powers of the regulatory bodies of the state.”

ACLU legal director Mark D. Rosenbaum said the state’s decision not to file regulations is “tantamount to throwing in the towel.”

“For months, they told the federal courts that they had a secret formula to save this law constitutionally--and that would be the regulations,” Rosenbaum said. “Their refusal to do it indicates they understand this law is not salvageable.”

Lungren spokesman Matt Ross on Monday said his office had no immediate comment on the summary judgment motion since officials had not yet received a copy. He directed any questions on the regulations to the governor’s office.

Berman said state agencies have finished drafting their proposed regulations. “(But) we felt the court had enjoined us from issuing these regulations and we couldn’t publish them, so we chose not to put them forth before the trial,” she said. “(Now) the plaintiffs will have to show there’s no set of circumstances under which any regulation would be considered valid.”

USC constitutional law professor Erwin Chemerinsky termed Wilson’s decision “very puzzling.”

“With some aspects of the law, like due process before cutting off benefits to suspected illegal immigrants, the state’s only hope is to say regulations will deal with it,” Chemerinsky said. “I don’t see how they can answer that issue except to provide for it by regulations.”

A tentative hearing date of May 22 has been set on the summary judgment motions.

Ballot measure proponents said Monday that they believe there should be a full trial, even though they aren’t exactly enamored of Pfaelzer’s previous rulings in the case.

“I just don’t believe the judge, even though she personally doesn’t like 187, can do something (as) outrageous as summary judgment,” said former Immigration and Naturalization Service regional director Harold Ezell, a key proponent of the initiative, which is designed to prohibit illegal immigrants from receiving public education, non-emergency health care and social service benefits.

In recent months, state attorneys have made several strategic moves to wrest the case from Pfaelzer, but none have succeeded.

The state is awaiting a court date for an appeal of her preliminary injunction to the U.S. 9th Circuit Court of Appeals. State attorneys are seeking an expedited appeal, but lawyers fighting the initiative are opposed to that course, saying it is not necessary since Pfaelzer is likely to make a full ruling on the case in the near future.

Last month, Wilson and Lungren suffered a strong legal and political blow when their efforts to have the legality of Proposition 187 tested in state court first were rebuffed by U.S. District Judge D. Lowell Jensen in San Francisco.

For months, Wilson, with increased stridence, has attacked Pfaelzer as an out-of-touch liberal. But the more conservative Jensen, an appointee of President Ronald Reagan, firmly refused the state’s request.

Ruling on a lawsuit filed on behalf of Gov. Wilson, Jensen said “federal courts have jurisdiction over the case.” Jensen, the former No. 3 man in Reagan’s federal Justice Department, added that the state’s action was “an obvious attempt to undercut” the groups whose suits are facing rulings in Pfaelzer’s court.