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Davis Asks Court to Mediate on Prop. 187

Law: Governor takes unusual step to try to resolve constitutionality of controversial immigration measure. Those on both sides of the issue criticize the move.


SACRAMENTO — Gov. Gray Davis, striving to mollify all sides in one of California's most gut-wrenching debates, announced Thursday that he will ask a federal appeals court to resolve Proposition 187's constitutional issues through closed-door mediation.

The governor said he is not surrendering his authority to appeal the controversial measure to end government aid to illegal immigrants--which was found to be largely unconstitutional by a federal judge in Los Angeles last year.

Davis' legal gambit angered many factions--from the most adamant backers of the 1994 initiative to liberals who view the ballot measure as a divisive tool that pitted Californians against one another.

In taking the unusual step, Davis said he will ask the U.S. 9th Circuit Court of Appeals not to decide the case as an actual appeal, but rather to assign a court officer to serve as a mediator to end the litigation.

"If we can resolve this in a responsible way, everyone can come out a winner," said Davis, who repeatedly has proclaimed his opposition to the initiative that passed with nearly 60% of the vote. "Not to avail ourselves of that opportunity would be a big mistake."

Davis said he believes that if Proposition 187 were on the ballot again, it "would probably pass, even though I would once again oppose it."

That aside, he said, "I feel a very strong obligation to reflect the will of the electorate, even though I didn't agree with the action they took."

If mediation fails, Davis can pursue the appeal. It is unclear whether he could drop it.

"I have taken an oath to enforce all the laws of our state and our nation, regardless of my personal views on those laws," he said. "I also firmly believe elected leaders should respect the will of the people when they have spoken."

The administration is expected in coming days to formally ask the appellate court to mediate the case.

In most instances, mediation is used in smaller cases whose facts, not core legal principles, are in dispute. The appellate court accepts about half the mediation requests it gets. Davis administration officials and lawyers involved in the case nonetheless expressed confidence that the court will agree to the request.

Under the process, the court-appointed mediator would confer with attorneys representing the many parties in the Proposition 187 case. Those meetings would be private and could go on for several months.

At the end, the mediator would render binding conclusions about constitutional issues raised by the initiative, such as whether children here illegally may attend public schools.

"It is surprising," USC constitutional law professor Erwin Chemerinsky said. "Mediation is usually used when you are dealing with a dispute where compromise is possible. It is much less often used where the issue is whether this is or isn't constitutional."

Hastings Law School professor Joseph Grodin, a former justice on the California Supreme Court, called the idea a "creative one."

Grodin, who served on a mediation panel for a state court of appeal, said he could not recall any cases before that group "that involved this kind of political ramifications."

Once the process begins, Davis said, he intends to "knock heads" if the parties fail to reach agreement over the highly charged issues related to state services for illegal immigrants.

The parties range from the ACLU to the Mexican American Legal Defense and Educational Fund, which have fought for almost five years to defeat the measure.

In a move that could complicate any accord, Davis said he will consult with the conservative Pacific Legal Foundation, which has tried but failed to gain a legal right to pursue the appeal on its own.

The legal aid group, however, held out little hope that Davis would take its concerns seriously.

"Mediation has its purposes when you have facts in dispute, not when it comes to issues of law," said foundation attorney Sharon Browne. "It's an opportunity for Gov. Davis to delay this case from ever getting before the court of appeals."

Former Gov. Pete Wilson, the most prominent backer of Proposition 187, called Davis' action a "breach of his constitutional duty." Wilson urged Davis to pursue the appeal so the U.S. Supreme Court can decide the matter.

"The obvious interpretation that is going to be given to this is that he is trying to have it both ways," Wilson said.

Several of Davis' allies also were quick to denounce their fellow Democrat, among them Lt. Gov. Cruz Bustamante, who recalled the governor's inaugural speech less than four months ago.

"I saw him proudly say that 'today was the end of an era of wedge issue politics' " Bustamante said. "I didn't know that meant 'pending appeal,' or 'pending mediation,' or 'pending arbitration.' "

State Senate President Pro Tem John Burton (D-San Francisco) stood briefly at the back of the room as Davis held his news conference, then left without answering reporters' questions. State Assembly Speaker Antonio Villaraigosa (D-Los Angeles) was notable for his absence.

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