Bustamante to Try to Block Prop. 187 Mediation Request

Gov. Gray Davis’ desire to turn Proposition 187 over to a mediator ran into more opposition Wednesday, as Lt. Gov. Cruz Bustamante broke further from his fellow Democrat by saying he will ask a federal appellate court to deny the governor’s request.

Bustamante, among the most outspoken critics of Davis’ maneuvering, is calling on the governor to drop the appeal outright, letting stand a federal lower court ruling last year that gutted the measure, which would cut off public services for illegal immigrants.

Davis contends that a state constitutional provision bars him from dropping the case without taking it to the U.S. 9th Circuit Court of Appeals. But in an effort to find middle ground, the new governor is asking the appellate court to appoint a mediator to settle the matter.

Bustamante intends to file a written argument with the circuit court arguing “for dropping the 187 appeal without mediation,” said Phil Garcia, Bustamante’s press secretary.

“This is an issue of principle for the lieutenant governor,” Garcia said.

Bustamante’s stand set off a squabble among aides to Davis and the lieutenant governor. Davis aides contended that the lieutenant governor promised Davis on Tuesday that he would call the attorneys involved and urge them to settle the matter.

“It would appear that the lieutenant governor’s communications director is at odds with what the lieutenant governor imparted to the governor,” said Davis spokesman Michael Bustamante, who is not related to the lieutenant governor.

Replied Garcia: “The lieutenant governor is not participating in, supporting or telling anyone else to support mediation. He is clear that the appeal should be dropped.”

Adding to the confusion, Stephen Yagman of Los Angeles, one of the attorneys challenging the 1994 initiative, said Wednesday that he too is opposing Davis’ plan for mediation.

“They can’t do it without us, and they aren’t going to do it with us, so it isn’t going to happen,” said Yagman, who represents a group of parents worried that the initiative would result in their children being kicked out of public schools.

Though other lawyers involved in the case said the mediation could proceed without Yagman’s consent, Yagman is calling for a definitive ruling from the 9th Circuit that Proposition 187’s provisions related to schools are unconstitutional.

“A precedent needs to be established,” Yagman said. “It is necessary that there be an appellate decision, so a new conservative leadership in the future would not be able to do [a similar initiative] all over again.”

Approved by almost 60% of the electorate, Proposition 187 sought to ban virtually all public aid to illegal immigrants, including public schooling, state college admission, welfare and health care benefits.

U.S. District Judge Mariana Pfaelzer struck down the bulk of the initiative last year, prompting then-Gov. Pete Wilson to appeal. The matter was waiting on Davis’ desk when the new governor took office in January.

In a surprise announcement last week, Davis said that although he opposes Proposition 187, a state constitutional provision bars him from dropping the appeal. Instead, Davis said he would ask a circuit court mediator to settle the case.

“The mediation process is the best way to resolve this emotional issue in short order once and for all,” Davis’ spokesman said.

To buttress his claim that he cannot simply drop the appeal, Davis cites Article 3, Section 3.5 of the state Constitution, which says an “administrative agency” cannot refuse to enforce a law unless an appellate court has struck it down.

Davis’ view of the provision raises the eyebrows of some political experts because the governor is agreeing to limit his own power.

And some legal experts doubt that Davis’ interpretation of the provision is correct. Added to the state Constitution by ballot proposition in 1978, the provision was intended to curb the power of the California Public Utilities Commission.

“That one is really ambiguous,” said San Francisco attorney Joseph Remcho, an expert on political law who long has represented Democrats. “You can read it either way.”

Meanwhile, four other defendants, each of them part of state government, reached opposite conclusions from Davis and have not appealed the decision.

The defendants who didn’t appeal include Supt. of Public Instruction Delaine Eastin, and the University of California, Cal State and community college systems.

In Eastin’s case, the state schools chief stepped out of the case two years ago by settling claims against her, before Pfaelzer rendered her final decision last spring.

“[Eastin] is not critical of Gov. Davis’ interpretation of his own duty to appeal,” said Michael Hersher, general counsel to Eastin’s Department of Education. But Hersher said he doubts that the state constitutional provision was part of the discussion when Eastin settled the claims against her by the ACLU and various immigrants’ rights advocates.

The university and college systems chose not to appeal the parts of Pfaelzer’s decision striking down the measure’s provisions aimed at forcing illegal immigrants out of state colleges and universities.

UC attorney Davis Birnbaum said that while he hasn’t reached a conclusion on whether the state Constitution requires the University of California, a state agency, to appeal, the university is neutral on the litigation.

“What would our position be on appeal?” Birnbaum asked. “We did not urge any position on the trial court level and we are not urging any position on the appellate court level. . . . We have simply looked to the courts to determine what the law is, so we can comply.”