Prop. 187 Talks Offered Davis Few Choices

TIMES STAFF WRITER

The fix was in.

The mediation process billed as a fight between the opponents of Proposition 187 and Gov. Gray Davis turned out to be a largely one-sided affair.

The governor, stuck with the task of defending Proposition 187, had few choices in the negotiations that ended in an agreement Thursday, effectively killing the landmark 1994 ballot initiative, according to interviews with mediation participants and observers, as well as a review of documents and correspondence.

Davis agreed to drop an appeal of an earlier federal court ruling that declared major portions of Proposition 187 unconstitutional. The decision followed several weeks of closed-door negotiations with representatives of civil rights groups fighting the initiative.

On one side, the rights groups were determined that Proposition 187 not survive. On the other, Davis was charged with defending the initiative on behalf of California voters.

Facing the governor, one administration insider said, was a single overriding question: "What if we win?"

Such a victory would have only ensured years of additional legal appeals--and pointed to political disaster. "All toward what?" asked the government attorney. "Toward the objective of kicking these kids out of school," referring to a cornerstone of Proposition 187 that would have blocked illegal immigrants from receiving most government services.

That unpalatable endgame, Davis advisors came to believe, made no sense politically or legally. So mediation--a "middle path," in the governor's words--became convenient political cover for burying the initiative that was approved by nearly 60% of California voters.

In the end, opponents of Proposition 187--the American Civil Liberties Union and its allies--did not have to back down. In their corner was the ruling by U.S. District Judge Mariana R. Pfaelzer. She declared unconstitutional the initiative's core provisions--keeping illegal immigrants from public schools and most other public services.

No smoke-filled room or high-tech teleconference could negotiate away that court decision. Nor were the civil libertarians inclined to budge on the major issues, since they could always fall back on the court ruling. The governor had no such leverage: Reinstating the appeal would have been a political defeat.

Davis and anti-Proposition 187 lawyers both took pains Thursday to paint a picture of tough talks.

"There was a lot of back and forth," said Thomas A. Saenz, regional counsel for the Mexican American Legal Defense and Educational Fund. "Both sides gave up things they came in wanting."

There were, in fact, weeks of meetings, multiple draft settlements, battles over wording, even a potential "deal-buster." The governor, until last week, insisted on maintaining Section 4 of the proposition, requiring that police question people they arrest about their immigration status and inform federal authorities of suspected illegal immigrants, lawyers said.

The anti-Proposition 187 forces accepted only two minor sections of the initiative that make it a crime to produce and use false documents--provisions already in place and largely duplicative of federal law.

The outcome, apparently, was predictable from the start. Weeks after Davis unveiled his mediation plan, Lt. Gov. Cruz Bustamante said common sense pointed to only one solution: The ACLU and its allies agree to the false-document sections in exchange for the state dropping its appeal. That, in essence, was the final settlement filed Thursday.

One government lawyer familiar with the case questioned whether the governor fully grasped the ramifications of mediation. Davis' decision to take that tack, lawyers said, created a momentum for a settlement that wasn't there before. The case had faded from the headlines and was likely to drag on for years without final resolution.

"I really don't think he knew what he asked for," said one lawyer, who like others in the case agreed not to speak publicly, under mediation guidelines. "It was just something that sounded good."

The governor announced his mediation plan at an April 15 news conference without notifying any of the parties. Several anti-Proposition 187 lawyers--skeptical about the idea when it was first raised--complained about being blindsided.

"Everyone was taken by surprise by the announcement referring the case to mediation," said Peter A. Schey, attorney in one of the five cases that successfully challenged the initiative in U.S. District Court.

Among those not expecting Davis' announcement that day was David E. Lombardi, chief circuit mediator for the U.S. 9th Circuit Court of Appeals in San Francisco. He was credited by participants with later moving the talks forward. In particular, he was able to navigate past critical areas that seemed to be nonnegotiable, attorneys said.

"It was certainly an active mediation," said Lombardi, 59, who has worked as a mediator with the circuit since 1992, after a long career in private practice in San Francisco. "There were good lawyers whose clients had different interests. I enjoyed working with them."

But by any measure, the case was an odd one for mediation, observers said. Although mediation is employed in hundreds of federal cases each year in California, there are, typically, opposing sides.

Not here. Davis was ostensibly championing Proposition 187--a position inherited from his predecessor, Pete Wilson. But Davis sought to distance himself politically from the measure and personally opposed it.

This spring, for example, he announced--during a goodwill tour of California by Mexico's president--that he would never "kick kids out of school." Opposing the governor at the negotiating table were the ACLU and other civil rights organizations that agreed completely.

The visit of Mexican President Ernesto Zedillo in May meant that serious talks did not get underway until June, participants said.

Most of the sessions were telephone conferences, with many fax exchanges. All the lawyers involved met only once in person at the 9th Circuit's San Francisco offices .

There was one dispute that illustrated the governor's position.

Davis representatives suggested that the conservative Pacific Legal Foundation, which had been rebuffed in previous efforts to join the case, be invited to the talks.

The anti-Proposition 187 forces said no. "Mediation is not a spectator sport," said Mark Rosenbaum of the ACLU. "This isn't talk radio."

Several lawyers said the talks would have died if Davis had insisted on including the conservative group, which had no legal standing in the case. Davis backed down.

An informal deadline was set for the end of July, in part reflecting the desire of the chief mediator, Lombardi. "I think Lombardi felt the case should not receive special treatment just because of who the parties were," said one attorney.

With the final agreement, Proposition 187 became the first California initiative ever settled by mediation. That didn't sit well with proponents of the measure--or defenders of the initiative process, who fear that a precedent has been established for settling initiative battles.

"This was no compromise," said Ron Prince, coauthor of Proposition 187. "This was thwarting the will of the voters. This is a fraud."

Not so, according to all sides of the mediation agreement.

"Better to settle than to take the risks," said Shirley Hufstedler, a former federal appellate judge and secretary of education in the Jimmy Carter administration who acted as Davis' personal lawyer. "All parties to this action had to make the same assessment. Cases don't settle unless the parties have undertaken an assessment of the risks and decided on balance [that] they're better off to settle."

Staff writers Henry Weinstein in Los Angeles and Dan Morain in Sacramento contributed to this story.

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