Prop. 187 Backers Accuse Davis of Ignoring Voters

As a federal court Thursday ratified Gov. Gray Davis’ agreement ending official efforts to preserve Proposition 187, the governor faced the threat of a new legal challenge and the outrage of critics who said he has “set himself up as a monarch” by ignoring voters.

Davis said the accord, which drops the state’s legal defense of the 1994 measure to end public benefits for illegal immigrants, will implement the “spirit of Proposition 187” because federal law already blocks many health and welfare benefits the initiative would have banned. The only other major provision of the initiative--access to public schools for illegal immigrant children--was declared unconstitutional in a 1982 U.S. Supreme Court decision, he said.

“Is [Proposition] 187 technically struck down by this agreement? Yes,” Davis said at a news conference in his Los Angeles office Thursday. “But it is supplanted by federal legislation that is faithful to the will of the voters who passed 187 and [it] will require the state to deny virtually all of the benefits that would be denied under the terms of 187. The notable exception is [elementary and high school] education, which all of the lawyers I consulted believe is unconstitutional.”

Thursday’s accord came after four months of closed-door bargaining--monitored by federal court authorities--in which Davis and several civil rights groups sought “common ground” to settle a legal challenge to the ballot measure filed after its passage in 1994. Davis represented voters, who passed the measure, in discussions with the plaintiffs who filed the lawsuit to halt Proposition 187.

The deal ends a high-wire attempt by Davis to navigate a conflict between two of his most fundamental public promises: to heal the wounds in race relations he has attributed to Proposition 187’s divisive campaign, and to uphold the will of the voters even on issues in which he disagrees with their ballot box decision.

But it does not end a debate about whether Davis accomplished that difficult, if not impossible, goal.

Political observers were uncertain about the effect on Davis--whether voters will treat the agreement as a landmark compromise or agree with critics that it is a political sham used to kill the measure.

“This is not mediation, this is like negotiating with yourself,” said former Gov. Pete Wilson, who championed the ballot measure during his 1994 reelection campaign. “I don’t think it’s fair; I don’t think it’s right. But I think that by virtue of the fact the [appellate court] has concurred in this abuse of judicial discretion that it has not left [initiative supporters] much to pursue.”

The U.S. 9th Circuit Court of Appeals, which ratified the agreement Thursday, directed that further challenges or comments on the agreement be considered before Sept. 30 by the same district court judge who found the initiative’s major provisions unconstitutional last year--essentially the same finding as Davis’ agreement. The judge, Mariana R. Pfaelzer, rebuffed an attempt by sponsors of the proposition to join the lawsuit last year.

Now, legal experts said, her role in finalizing the accord makes it extremely difficult for the sponsors of the proposition to make a court challenge.

Still, John H. Findley, an attorney with the Pacific Legal Foundation, which represents the Alan C. Nelson Foundation of Americans for Responsible Immigration, said he will try anyway, using an ancient legal doctrine called “case and controversy.”

The doctrine stands for the principle that federal courts will only consider a case when there is a real controversy between two parties who have opposing legal interests. The purpose of the doctrine is to avoid collusion in legal actions.

Several experts consider Findley’s attempt a longshot. But Findley contends that because Davis opposed Proposition 187, his interest was aligned with that of the challengers and thus there was no legitimate controversy and the settlement should be voided.

One other option for sponsors of the ballot measure is to place another version of the initiative on next year’s ballot.

A Los Angeles Times poll taken early last month shows that 60% of California voters still favor a law to bar illegal immigrants from public services--almost the same level of support that the measure garnered when it was passed by voters almost five years ago.

But even if the support is the same, a sequel ballot measure would be difficult politically because the Republican Party has stepped away from such divisive issues after signs that their efforts have driven the increasingly influential Latino community toward Democrats.

“There will be discussions going on, but I don’t know where they are going to go,” said state Sen. Richard Mountjoy (R-Arcadia), an original sponsor of the ballot measure. “I think [Davis] set himself up as a monarch. . . . The process has been taken away from the people of California.”

Davis inherited the task of defending Proposition 187 in court when he became governor last January. Previously, Wilson and Atty. Gen. Dan Lungren--both Republican supporters of the initiative --were responsible for protecting the measure in court.

Davis allies pressured the Democratic governor to simply drop the state’s defense of the measure, probably ending any chance that it could be implemented, legal experts said. But Davis raised the stakes, saying he took an oath to enforce the law passed by voters although he disagreed.

As a result, last March he announced his plan to negotiate a compromise settlement intended to mollify both sides. At first he suggested that sponsors of the initiative would play a role in the negotiations, but their involvement was later relegated to a single meeting with a lone Davis aide.

The agreement announced Thursday is almost identical to the ruling last year of the U.S. District Court, which found the major provisions of Proposition 187 unconstitutional because they are superseded by federal law or court precedent.

At the headquarters of the Mexican American Legal Defense and Educational Fund, where key players in the fight against Proposition 187 gathered for a news conference, the mood was congratulatory. Several speakers said the agreement upholds the Constitution and marks the end of an era of divisiveness and hate politics in California.

“We’re closing a chapter today,” said Assembly Speaker Antonio Villaraigosa (D-Los Angeles). “We can now say Proposition 187 is behind us and California can come together again.”

But even amid the celebration, the governor’s refusal to drop the lawsuit, as some had pressed him to do, was not forgotten.

“Some of us, and . . . I was one of them, [were] not keen on mediation,” Villaraigosa said. “I thought we should immediately drop the appeal. But once we went in, we supported it and I thank the governor for his leadership, for his tenacity, for his determination in seeing this through.”

Mark Rosenbaum of the American Civil Liberties Union said the governor and his attorneys “fought us on every issue, tooth and nail. As recently as several days ago, it was unclear to every lawyer involved whether or not there would be an agreement.”

The agreement provided a resolution to the legal battle without the expense that would have come with a court fight, said the Mexican American Legal Defense and Educational Fund’s Thomas Saenz, a lead attorney on the case.

“What we’ve avoided is continuing to debate these issues and costly litigation,” Saenz said.

Under the agreement, the state may enforce any restrictions adopted under federal laws, including portions of the 1996 welfare overhaul that, among other things, made illegal immigrants ineligible for most nonemergency aid.

Antonia Hernandez, MALDEF president and general counsel expressed concern about the restrictions.

“Even though we’re not happy with what federal law says, the battle is now in the appropriate arena,” she said. “Issues relating to immigration control and regulation should logically and constitutionally be resolved at the federal level.”

Times staff writer Jocelyn Stewart contributed to this story.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

What Remains of Prop. 187

Gov. Gray Davis and groups opposed to Proposition 187 have reached an agreement that should end the protracted legal case.

WHAT IS RETAINED

Fraudulent documents: New state laws imposing penalties for the manufacture, distribution and use of false documents for immigration purposes.

WHAT IS VOIDED

Education: Provision to bar illegal immigrants from attending public schools, colleges and universities.

Health care: Provision to deny all nonemergency public care, including prenatal services, to illegal immigrants.

Social services: Ineligibility of illegal immigrants for several state and locally funded programs for youths, the elderly, the blind and others.

Law enforcement: Requirement that police question everyone arrested about their immigration status.

Reporting: Obligation of police, school administrators, social service providers and health care aides to report suspected illegal immigrants to the Immigration and Naturalization Service and the California attorney general.