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Prop. 187 Talks Offered Davis Few Choices

Mediation: Even if he had won, years of appeals would have ensued. And initiative foes felt little need to give in, since a judge had already rejected most of the measure.


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.

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