Governor Seeks Mediation To Resolve Prop. 187 Appeal

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Since the election of Gray Davis as governor of California last November, observers have waited to see how the Democrat would handle pending litigation on a sharply divisive 1994 voter-approved measure that seeks to deny illegal immigrants most social services, including a K-12 public education.

Mr. Davis apparently surprised both supporters and opponents of Proposition 187 when he announced this month that he would ask a federal appeals court in San Francisco to mediate a settlement to the legal battles over the law, which has never taken effect.

"I believe this is the most responsible course of action for California, with an excellent chance of success and avoiding protracted, costly legal litigation," Mr. Davis said in a statement. But if the plaintiffs in the case and proponents of Proposition 187 fail to "act responsibly," he added, "I am prepared to knock heads."

The governor's announcement has sparked new debate over the fate of the nationally watched measure; so far, the discussion has produced more questions than answers. His mediation plan has drawn fire from some observers who see the move as gutting the voter-initiative process by moving the debate over Proposition 187 out of an open courtroom and into closed-door mediation sessions.

Immediately following passage of Proposition 187 nearly five years ago, civil rights and education groups filed a flurry of lawsuits to overturn it. Since then, the courts have blocked implementation of most of the law's provisions, and a federal district court judge struck down the K-12 measures as unconstitutional.

While Mr. Davis, along with many education groups, opposed the initiative, his predecessor, Republican Pete Wilson, backed it. Before leaving office in January, Mr. Wilson appealed to the U.S. Court of Appeals for the 9th Circuit to uphold the law. Gov. Davis faced a May 5 deadline from the court to make the next move.

Dueling Pressures

Proposition 187 includes a call for K-12 public schools to verify the immigration status of students and their families and notify federal immigration officials of any student or parent "reasonably suspected" of being in the country illegally. Under the law, those students would be barred from school.

In drafting Proposition 187, the sponsors sought to challenge the U.S. Supreme Court's 1982 ruling in Plyler v. Doe, which said children could not be denied a free K-12 public education on the basis of their immigration status. A federal district court judge last year issued a permanent injunction against the California measure and a final ruling declaring the K-12 provisions unconstitutional.

Since Mr. Davis took office, Proposition 187 supporters have urged him to continue the state's defense of the law, while opponents pressed him to drop the appeal.

The governor earlier this month said the state constitution prohibited him from dropping the appeal, though some legal experts disagree.

"If this were a piece of legislation, I would veto it. But it is not," Mr. Davis said in the statement. "It is an initiative, passed by nearly 60 percent of the people of California. ... While I believe that some of the provisions of Prop 187 are unconstitutional, I'm a governor, not a judge."

He noted that federal laws enacted since 1994 effectively put into law many of the provisions related to the denial of welfare and nonemergency health services to illegal immigrants.

Some observers last week said mediation might allow the governor to satisfy the proposition's proponents and opponents alike by declaring moot under federal law the measure's K-12 provisions but letting stand language that the courts have not objected to, such as criminal penalties for the manufacture, use, or sale of false documents to conceal a person's immigration status.

'Delay Tactic'

Whether the mediation approach produces a resolution or simply postpones a lengthy court battle remains to be seen, said Thomas A. Saenz, a regional counsel for the Mexican-American Legal Defense and Educational Fund in Los Angeles. The group is a plaintiff in one of the numerous court challenges. "We're waiting to hear what the governor's offer is," Mr. Saenz said. "And we'll listen and consider it."

A spokeswoman for the governor said last week she could not offer any specifics that Mr. Davis might raise in mediation, which typically takes place behind closed doors.

But such talks could hinge on what role, if any, the Pacific Legal Foundation, a legal advocacy group that represents the co-authors and sponsors of Proposition 187, may have. The courts have repeatedly rejected the group's attempt to intervene in the litigation to defend the law. And Mr. Saenz and other lawyers challenging it say they would oppose the Sacramento-based group's involvement.

Sharon L. Browne, a Pacific Legal Foundation lawyer, criticized Mr. Davis' proposal as circumventing the voters' will and the opportunity for higher-court consideration in full public view.

"This is a delay tactic," Ms. Browne said. "And here you've got two parties who oppose Prop 187 trying to rewrite it."

Vol. 18, Issue 33, Pages 21-22

Published in Print: April 28, 1999, as Governor Seeks Mediation To Resolve Prop. 187 Appeal
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