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Uncertain Fate of Prop. 187 Tests Patience : Immigration: Negative passions stirred by legal delays raise questions about concepts of judicial review and majority versus minority rights. But some experts say court system is working as it should.

March 28, 1995|PAUL FELDMAN | TIMES STAFF WRITER

With the fate of Proposition 187 up in the air, supporters of the anti-illegal immigration initiative are up in arms.

A Los Angeles Times poll this month showed that 77% of those who voted for the popular but divisive ballot measure believe it inappropriate that lawsuits are delaying its implementation.

Gov. Pete Wilson, meanwhile, has taken to firing potshots at U.S. District Judge Mariana R. Pfaelzer, who has scheduled a full-blown trial on Proposition 187's legality in September. "The patience of Californians will soon wear thin," the governor asserted, "if their will is not carried out."

To many constitutional law professors, however, the legal proceedings are moving ahead just fine, thank you.

"This is exactly how the court system should function," said USC law professor Erwin Chemerinsky. "When a law is adopted of questionable constitutionality--whether by the Legislature or by initiative--courts have to resolve the issue."

In a fast-food, quick-fix culture, frustrations over the legal delays are hardly surprising--nor is the impulse of politicians to seize on grass-roots emotions.

But the strength of the negative passions--particularly at a time when ballot measures often pit ethnic, racial, sexual or economic groups against one another--raises provocative questions about the concepts of judicial review and majority versus minority rights.

At one end of the spectrum, leading supporters of Proposition 187 have launched or threatened recall efforts against elected officials challenging the initiative in court. Indeed, some question whether opponents should even be allowed to fight a state ballot measure in federal court.

"These people have no right to negate the will of the people," declared initiative co-sponsor Barbara Coe, who heads the California Coalition for Immigration Reform. "That is how our nation is structured--it is by the people, for the people and of the people.

"In an ideal world," Coe added, "when the people spoke, that would be the end of the subject--it would be the law."

This month, the initial legislative salvo from the pro-187 forces has come in the form of the first bill introduced in Congress by freshman Rep. Sonny Bono (R-Palm Springs). Bono's bill would require approval of three federal judges, rather than one, to block implementation of a ballot measure. It would also expedite legal challenges.

Harold Ezell, a former federal immigration official who co-sponsored Proposition 187, said the legislation would provide much-needed checks and balances. "The people are ticked, and there needs to be some way to stop the kind of things this woman judge is trying to do," he said. "Even old Sonny Bono doesn't have a bad idea."

On the other side of the coin, Mark D. Rosenbaum, legal director of the American Civil Liberties Union of Southern California, said the Bono bill raises nearly as many legal issues as Proposition 187 itself, which, according to an ACLU lawsuit, flies in the face of such constitutional rights as due process and equal protection for individuals.

"That bill," said Rosenbaum, "has as much chance of being declared constitutional as Sonny Bono has of being asked to join the Three Tenors."

As eight anti-187 lawsuits wend through the courts, some political thinkers suggest that the electoral process itself be revised to make it tougher for initiatives to win approval in the first place.

"We ought to be seeking a need for super majorities for passage of initiatives or referendums," said Curtis Gans, director of the Committee for the Study of the American Electorate in Washington, D.C.

Gans recommends requiring a 60% majority for passage of voter initiatives and 55% for referendums. "This would help get rid of trivial partisan referendum issues and would force representative government to do what it's supposed to do and not hand off every controversial issue to the voters," he said.

UCLA constitutional law professor Julian Eule, meanwhile, suggests that federal courts become more involved in examining voter initiatives, because state judges, unlike federal judges, face reelection pressures.

Eule also says initiatives tend to be confusing and fail to include the give-and-take deliberations and compromises of laws approved by legislatures. "Plebiscites offer only (two) choices," he wrote in the Yale Law Journal, "but the set of solutions to a given problem is seldom so limited."

In a recent interview, Eule reflected: "People don't realize the enormous danger these initiatives pose. The Constitution is a rejection of pure majoritarianism and creates a system of checks and balances and filters, and these initiatives don't have it. It's what the framers worried about--the rights of minorities."

In recent years, as the number of initiatives on ballots across the nation has skyrocketed, those eliciting the strongest emotions have been wedge issues aimed at winning majority support for limits on the rights of minority groups.

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