Judge Hints That Prop. 187 May Be Unconstitutional : Immigration: Federal court could issue setback to controversial initiative without going to trial. State lawyers say they would appeal immediately.

In a high-stakes federal court hearing Wednesday in Los Angeles, civil rights attorneys argued that Proposition 187 should be declared unconstitutional immediately because it clearly seeks to usurp the federal government’s sole authority over immigration matters.

U.S. District Judge Mariana R. Pfaelzer, who will decide whether to grant summary judgment or preside over a full-blown trial now scheduled for September, left the bench abruptly after two hours of wide-ranging legal arguments, saying only: “You will hear from me in the very near future.”

But Pfaelzer, who last December blocked most portions of Proposition 187 from taking effect before a trial, indicated repeatedly during the standing-room-only session that she continues to have serious problems with the constitutionality of the controversial illegal immigration initiative.

Although the state is preempted from having its own comprehensive immigration regulation system, Pfaelzer at one point said Proposition 187 tells suspected illegal immigrants: “Go to the border and get out.”

If Pfaelzer rules that Proposition 187 is invalid, state lawyers say they will immediately file an appeal with the U.S. 9th Circuit Court of Appeals. Legal observers say the case will eventually reach the U.S. Supreme Court, a process that would take several years and keep the ballot measure, approved by a nearly 3-2 margin in November, on hold.

After the pretrial hearing, anti-187 lawyers brimmed with confidence that Pfaelzer will rule in their favor on most, if not all, of the initiative. “I believe the judge appreciates our arguments and I feel more optimistic than ever before that we will prevail,” said Peter A. Schey of the Los Angeles-based Center for Human Rights & Constitutional Law.

The center’s co-counsel, Carlos Holguin, argued during the session that Proposition 187 is “a Frankenstein-type piece of legislation” that is designed “to control immigration,” which he said is clearly a federal prerogative.

Deputy Atty. Gen. Donald P. Cole, who argued on behalf of Gov. Pete Wilson and Atty. Gen. Dan Lungren, refused to speculate on Pfaelzer’s upcoming decision. But Cole did concede that “some of her [Pfaelzer’s] questions and comments suggested she was not leaning our way on certain issues.”

In the freewheeling debate, Cole contended that Proposition 187 is meant simply to deny public benefits to illegal immigrants and that any legal problems and ambiguities with its wording could be cleared up by drafting legally sound implementing regulations.

As an example, Cole cited the measure’s provisions directing the state’s law enforcement, health care, social welfare and public education officials to notify people they suspect are illegal immigrants to either obtain legal status or leave the United States. Cole said that rather than ordering deportations, the notices could instead inform people that they must contact federal immigration authorities if they are illegal and want to clear up their status.

Pfaelzer, however, did not seem to buy that argument.

Wording a letter in such a manner, the judge told Cole, would be “a whole lot better than 187--it’s kinder in tone.”

But it would also be “totally in conflict with the major thrust of 187,” Pfaelzer said, emphasizing at another point that neither the court nor the state has the authority to remedy flaws in the initiative by rewriting it.

Proposition 187 “does not say: Go to the INS,” she said. “It says: Go to the border and get out.”

Anti-187 lawyers contended that the measure clearly constitutes a scheme to regulate immigration. Its ballot argument, they noted, reads in boldface: “We can stop illegal aliens,” and its preamble states that Californians have the right to be protected “from any person or persons entering this country unlawfully.”

The initiative, they argued, also uses different standards than those in federal immigration laws for categorizing people who are ineligible for public services or illegally residing in the country.

“California has no business, no business at all, saying who may come in and who may go out,” said Mark D. Rosenbaum, legal director of the American Civil Liberties Union Foundation of Southern California.

Anti-187 lawyers also argued that the initiative is unconstitutional on its face because it preempts federal laws protecting religious rights, public health services and the education of disabled students.

Venice attorney Stephen Yagman, who filed a suit against the initiative but did not speak during the hearing, was less optimistic than some fellow litigants that Pfaelzer would grant summary judgement.

“There are still facts in dispute in the case,” he said. “I bet the family farm that Judge Pfaelzer won’t grant summary judgment before hell freezes over.”

Pfaelzer’s courtroom clerk, Robert J. Flores, said the judge is likely to issue a written ruling within a few days. If she rejects the summary judgment motion, a full trial will address the constitutional questions raised in the anti-187 lawsuits before her.

Proposition 187 bans illegal immigrants from receiving public education, non-emergency health care and most social welfare services.

Since passage of the initiative--and the nearly immediate filing of eight anti-187 lawsuits in federal and state courts across California--state officials seeking to implement it have suffered a long series of legal defeats.

In November, U.S. District Judge W. Matthew Byrne Jr. in Los Angeles issued a temporary restraining order halting implementation of all portions of the initiative except its sanctions on the sale and use of fraudulent citizenship documents.

The next month, Pfaelzer issued a preliminary injunction prohibiting most key provisions of Proposition 187 from taking effect before a full-fledged trial. In her ruling, Pfaelzer declared that the measure’s bans on public services raise serious constitutional questions, in part because some immigrants would be denied benefits they would otherwise be eligible to receive under federal law.

Wilson and Lungren reacted to Pfaelzer’s early ruling by launching a series of unsuccessful efforts to wrest the case from her court or overturn her findings in a higher court.

In March, acting on a motion by state attorneys, Pfaelzer refused a request that she dismiss or abstain from presiding over the case until state courts determined the initiative’s legality.

The next month, a second effort by state attorneys to stage the battle in state court first was rebuffed by U.S. District Judge D. Lowell Jensen in San Francisco.

In a strong blow to the state officials, Jensen, a conservative appointee of former President Reagan, declared that federal courts indeed have jurisdiction over the case. The state’s action, he said, was “an obvious attempt to undercut” the lawsuits being heard by Pfaelzer.

Earlier this month, a federal appeals panel rejected the state’s appeal of Pfaelzer’s preliminary injunction, ruling that the Los Angeles judge had acted appropriately.

Proposition 187’s bans on public school and state higher education for illegal immigrants are also enjoined in three San Francisco Superior Court cases, with full trials scheduled for later this year.