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Parts of Prop. 187 May Be Blocked 2 or More Years : Law: Analysts say some portions vulnerable. State will ask for time to draft rules to avoid constitutional pitfalls.

November 16, 1994|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

As the court fight over Proposition 187 resumes today in Los Angeles, many constitutional analysts say the measure's legal flaws could block some provisions for two to three years until the U.S. Supreme Court or the state high court makes a final ruling.

"I think at least a substantial part will be enjoined, and there is a good chance all will be enjoined," said USC law professor Erwin Chemerinsky.

State Atty. Gen. Dan Lungren, a supporter of the initiative who will make a procedural move to keep the legal battle before elected state judges, conceded that parts of Proposition 187 are vulnerable to legal challenge.

"I'll just say this," Lungren said, "I am glad there is a severability clause" that lets the initiative remain law even if certain provisions are struck down.

At an afternoon hearing today in U.S. District Court in Los Angeles, the state will argue that judges should not block enforcement of Proposition 187 until regulations to implement the law are completed. The regulations, Lungren said, may avoid the constitutional pitfalls that a strict reading of the ballot measure could raise.

Opponents of the sweeping measure vow to force the state to defend the initiative itself, not the regulations. They will seek a court order today barring implementation of the law, citing cases of illegal immigrants who already have had problems getting public benefits since voters approved the proposition.

"They know they have serious constitutional problems," complained Mark Rosenbaum, an American Civil Liberties Union attorney who is attempting to invalidate the entire measure, "and they are really trying to write a different statute."

Lawyers and legal scholars are divided over the ultimate fate of Proposition 187 and which Supreme Court--California's, which is dominated by conservatives appointed by Republican governors, or the nation's--would be more likely to uphold more of the measure that seeks to deny most public services to illegal immigrants.

Legal analysts predicted the following twists in the court wrangle over the measure:

* A provision preventing illegal immigrants from attending public schools probably will be blocked by courts pending review by either the state or U.S. Supreme Court. A San Francisco Superior Court judge already has issued a temporary order prohibiting the state from enforcing the provision, which wasn't due to take effect until Jan. 1.

* Arguments that the initiative usurps federal authority over immigration will prove to be a thornier legal question. Although the U.S. Supreme Court in the past has prevented states from passing certain laws aimed at illegal immigrants, the high court could interpret federal law as a floor that states can build upon as long as the final result mirrors national policies.

* Some of the measure's provisions that require reporting of illegal immigrants probably will be struck down, while others will withstand court scrutiny. Careful regulations, however, could save some of the reporting requirements by making them consistent with federal law.

* The state, which is defending Proposition 187, probably will attempt to consolidate the eight federal and state lawsuits against the measure and move the case out of Los Angeles. U.S. District Judge Mariana R. Pfaelzer, who has been selected to hear the four suits filed in Los Angeles, is considered a smart, independent liberal who is more likely to rule in favor of the opponents than the state.

A Carter appointee, Pfaelzer is out of town, and U.S. District Judge Matthew Byrne Jr., considered a moderate liberal, will preside over today's hearing.

Analysts said the provision banning illegal immigrants from attending public schools is the most vulnerable, at least temporarily, because the U.S. Supreme Court struck down a similar Texas law in a 1982 case called Plyler vs. Doe.

"It is about as sure a thing there ever is in a legal question," said Chemerinsky, who predicted that the provision will be blocked by trial and appellate courts pending high court review.

Although the current U.S. Supreme Court probably would have decided Plyler differently, analysts said, the justices may be reluctant to overturn precedent.

"There is a decent chance" the high court will reverse the decision, said UC Berkeley constitutional law professor Jesse Choper, "but any time you challenge a precedent you have an uphill battle. The people who sought to overturn Roe vs. Wade learned that."

The initiative must comply with both the state and the U.S. constitutions. If the California Supreme Court struck down the schools provision on state constitutional grounds, review by the U.S. Supreme Court would be unnecessary, Chemerinsky said.

The California high court has previously interpreted education as a fundamental interest under the state Constitution. This interpretation creates a special legal hurdle that must be crossed by anyone attempting to deny access to public schools.

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