Debate Rises on Mediation of Proposition 187

Gov. Gray Davis’ decision to turn Proposition 187 over to a mediator will move one of the most emotional debates of the decade from the courtroom to the back room, critics say.

First Amendment advocates and defenders of the initiative process say Davis is robbing Californians of the right to have a final public decision on a measure that would cut state aid to illegal immigrants and could force their children out of schools.

Initiative defenders believe that by seeking to have the voter-approved 1994 measure disposed of by a mediator, the new governor is circumventing one of the system’s key aspects: the final one, in which courts determine the legality of ballot propositions.

“Either [Proposition 187] is constitutional or it is not. This is nonnegotiable,” said Thomas Hiltacht, a Sacramento lawyer who specializes in political law and initiatives. “[Mediation] tramples on every citizen’s right to have it enforced, or to know why it isn’t being enforced. Could you imagine Common Cause and the Democrats negotiating campaign finance law?”

The measure’s most adamant foes argue that Davis should drop the appeal and let stand a federal court ruling last year that gutted it. Davis, searching for a middle ground between his fellow Proposition 187 opponents and the voters who passed it, put on hold an appeal filed by his predecessor, Pete Wilson. Instead, he wants the U.S. 9th Circuit Court of Appeals to serve as mediator.

The court’s mediation service has never handled an initiative, although it takes roughly 800 cases a year, most of them civil disputes. And circuit court rules place a high premium on confidentiality, as does the court’s chief mediator David Lombardi.

“Once we get going, everything is confidential,” Lombardi said in an interview. “You’re not going to hear anything from me.”

Proposition 187 garnered almost 60% of the vote in 1994. Proponents fret over a process in which Davis and his aides will sit in closed-door sessions with others who opposed the measure, including attorneys for the ACLU and other immigrant-rights champions.

“We’re considering our different options, which would include letting the court know this is not an appropriate vehicle for mediation,” said attorney Sharon Browne of the conservative Pacific Legal Foundation, which unsuccessfully tried to gain the legal right to defend Proposition 187. “All these initiative measures deserve some respect. This is not a method that shows the people respect.”

Davis’ aides contend that the case has already been well debated.

“Proposition 187,” said Davis spokesman Michael Bustamante, “has pitted community against community, neighbor against neighbor for five years. It is time to end this. The mediation process does that in a way that respects the public’s right to legislate by initiative.”

After lengthy arguments held in open court, U.S. District Judge Mariana Pfaelzer struck down the bulk of the measure in a published opinion last spring. But a trial court’s ruling does not have the weight of a 9th Circuit decision, whose opinions are law in the Western states. And the final word on such matters belongs to the U.S. Supreme Court.

Mediator Overseen by Appellate Court

Former Gov. Wilson, Proposition 187’s most prominent backer, appealed Pfaelzer’s decision to the circuit court. Davis inherited the appeal when he took office Jan. 4.

Given that Davis opposes the initiative, he was in a bind. But he believes a state constitutional provision requires that he not take the word of a trial court that an initiative is unconstitutional. Such matters must be decided by the appellate court, he contends.

Mediation offers him a process overseen by the appellate court that would affirm the mediator’s findings. If mediation fails, he retains the option to jump-start the appeal.

Politicians who oppose the initiative say Davis is under no obligation to pursue the appeal: He could simply drop it, allowing Pfaelzer’s decision to stand.

And, they argue, if the initiative’s proponents want to force the issue, they could sue, allowing courts to render a decision on the state constitutional provision Davis cites--one that has never been applied to a governor.

“He could have . . . just dropped the appeal,” said Joel Fox, president emeritus of the Howard Jarvis Taxpayers Assn. “But he is taking this third road, which I don’t think exists. Mediation should be taken off the board as far as initiatives are concerned.”

The initiative system was created at the turn of the century by the Progressive Party to bypass powerful lobbies that controlled the governor and legislators. But though initiative promoters take their case directly to the electorate, courts have always been the final arbiter, often striking initiatives down--but doing so in full public view.

“All laws face that challenge,” Fox said. “There is no other game in town. If it is challenged, the courts have the right to decide it, with the full power of the court. Here, we’re seeing the governor looking to blaze a new trail.”

For all the initiative system’s problems, direct democracy is California’s most public way of making laws.

Voters can each take a hand in deciding the fate of the weighty issues pushed before them via ballot propositions. These measures generate more public debate than any bill carried by legislators. Those that pass often have the most lasting impact on how California operates.

most lasting impact on how California operates.

Over the decades, initiatives have determined everything from how property is taxed and schools are financed to whether mountain lions can be hunted. Targets have ranged from entrenched politicians to the nuclear power industry, coastal developers and health care providers.

Tony Miller, a former acting secretary of state who has pushed one campaign finance reform initiative, pointed out that Proposition 187, like many initiatives, contained provisions intended to directly challenge the U.S. Supreme Court to reconsider previous decisions.

Proposition 187’s most explosive provision--the one aimed at schoolchildren--contradicted a high court ruling from the 1980s that protected schoolchildren regardless of immigration status.

“It may be in the public interest to have an up-or-down and very public decision on that,” Miller said.

If the U.S. 9th Circuit Court of Appeals agrees to mediate the case, Davis won’t have to file briefs publicly stating his views on the initiative’s legality.

Nor will deputies to Davis and Atty. Gen. Bill Lockyer, another foe of Proposition 187, be required to stand before a panel of judges in a public hearing and defend their legal reasoning. All of that discussion will happen behind closed doors.

ACLU attorney Mark Rosenbaum, while maintaining that Davis is not required to press the appeal, discounted concerns about a lack of public access to the mediation.

“The public . . . won’t know every back and forth, but that’s not unusual,” Rosenbaum said.

Attorney Terry Francke of the nonprofit 1st Amendment Coalition, however, called public access “an authentic issue.”

“It’s going to be an exercise in political horse trading,” Francke said, “comparable to the governor’s private meetings with [legislative leaders] on the budget.”

That interchange is not public, Francke continued. “The question is, ‘Should it be?’ This is an extremely consequential bit of political negotiation which is outside the open meeting laws.”

As for the question of public access, Bustamante was flip. “We’ll make sure we leak it to you,” he quipped.