Judge Holds Off Ruling on Legality of Prop. 187 : Court: State attorneys press argument that some portions of anti-illegal immigration measure can take effect even if others are declared unconstitutional.


The long-delayed legal fate of Proposition 187 was put on hold again Monday when a federal district judge made no immediate ruling after a complex two-hour hearing about whether some portions of the ballot measure could take effect even if others are deemed unconstitutional.

"I'm bound to uphold it to the extent I can," said U.S. District Judge Mariana R. Pfaelzer in Los Angeles near the conclusion of the sometimes legally arcane hearing. "That's my obligation," she added in an apparent reference to court cases directing judges to take care to uphold voter-approved initiatives that can be interpreted to meet constitutional muster.

Perhaps the liveliest moment in the hearing came when a lawyer representing state Supt. of Public Instruction Delaine Eastin urged Pfaelzer to toss out an entire provision aimed at barring illegal immigrants from receiving a public education and requiring school officials to report those suspected of illegal status to federal immigration officials. Janet G. McCormick, deputy general counsel of the state Department of Education, said it would be "morally repugnant" for schoolchildren to report on their parents' right to be in the United States.

Although Eastin has long taken the personal position that Proposition 187 is unconstitutional, the staunch nature of the courtroom argument clearly took state attorneys representing Gov. Pete Wilson and Atty. Gen. Dan Lungren by surprise.

In the past, said Senior Assistant Atty. Gen. John H. Sugiyama later, Eastin's office had "taken a [legal] position of neutrality."

Judge Pfaelzer, who initially had indicated that she would rule during the summer on a summary judgment motion by anti-Proposition 187 lawyers seeking to toss out the initiative without need for a full-blown trial, eventually delayed her decision to give state attorneys a final opportunity to defend the measure.

The precise point of Monday's hearing was to allow representatives of the state attorney general to bolster their contention that some portions of the initiative could stand even if others were ruled legally invalid under federal law. Indeed, Pfaelzer only permitted state attorneys to file written briefs before the hearing on the severability issue.

Sugiyama, speaking for the state, cited a wide range of cases in which state courts have struck down portions of California ballot initiatives--including measures on crime and insurance reform--but allowed others to stand.

"The courts interpret state initiatives all the time," Sugiyama said.

Anti-Proposition 187 lawyers countered that the initiative, approved by a 59%-41% margin by state voters last November, would serve as a complicated regulatory scheme that intrudes on Washington's legal responsibility for immigration matters. If key portions fly in the face of federal laws--such as the categories of non-citizens to be denied government benefits under Proposition 187--then the remainder is unsalvageable, they contended.

Attorney Peter A. Schey of the Center for Human Rights and Constitutional Law said the state, in its arguments, was treating the court as if it were an operating room and Pfaelzer a surgeon.

"And they want to treat Proposition 187 as though it were a patient," Schey concluded.

"We'll see," Pfaelzer mused.

On three separate occasions during the lengthy hearing, Pfaelzer asked Sugiyama whether he agreed that the state was taking an "extreme position" in asserting that even if it was unconstitutional to bar illegal immigrant children from attending school, authorities could still interrogate students and their parents about their legal status.

Pfaelzer concluded the session without giving any indication of when she would issue her decision on the summary judgment motion, which contends that the initiative is, on its face, unconstitutional because it is preempted by federal immigration laws. A full-scale trial on the constitutionality of Proposition 187 had been scheduled for nearly two months ago, but Pfaelzer postponed it indefinitely while weighing the issues presented by the summary judgment request.

Pfaelzer's ruling is bound to have wide-ranging political repercussions in the state and national arenas but is likely to be appealed, no matter what she decides, all the way to the U.S. Supreme Court.

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