December 1, 2004
TUCSON - A federal judge on Tuesday blocked the state from implementing Proposition 200, at least for the next three weeks.
Judge David Bury granted a temporary restraining order after concluding that lawyers hired by the Mexican American Legal Defense and Education Fund raised questions about the legality of the initiative.
"It seems likely that if Proposition 200 were to become law, it would have a dramatic chilling effect upon undocumented aliens who would otherwise be eligible for public benefits under federal law,’’ the judge wrote, even though the language of the initiative specifically exempts programs mandated by federal law.
Tuesday’s decision is not the end of the matter. Bury has scheduled a full hearing for Dec. 22 to determine whether to enjoin enforcement of the law until the merits and legality of Proposition 200 can be fully litigated — a process that could take months, if not longer.
The judge stressed that Tuesday’s ruling does not mean he accepts arguments by initiative foes that it is illegal. He said it shows only that he "lacks sufficient information at this time’’ to decide the constitutionality of the measure.
Bury’s ruling bars the state from enforcing the part of Proposition 200 that requires applicants for "public benefits’’ to prove they are in this country legally. The same section also says government workers must report illegal entrants to federal immigration authorities or face possible jail time and fines.
The measure, approved by voters by a 56 percent to 43 percent, was supposed to take effect later today after Gov. Janet Napolitano signs a formal proclamation of the election results.
Randy Pullen, chairman of the Yes on 200 Committee, said he was not surprised by Tuesday’s order. He said judges often want time to explore the legality of complex issues before letting new laws take effect.
But Pullen, who intends to try to intervene in the Dec. 22 hearing, said the law eventually will be upheld. "I’m pretty comfortable where we are in constitutional law and I still think we’ll prevail,’’ he said.
On Tuesday, legal defense fund attorney Hector Villagra argued the initiative illegally forces state eligibility workers to screen for illegal entrants, "and not for the purpose of benefits eligibility.’’
"We know that because there is this reporting provision that has absolutely nothing to do with eligibility for benefits,’’ he said. "State employees will be, on their own, making determinations of whether federal law has been violated and reporting those violations to the federal government.’’ Villagra said state workers are not trained to perform that task.
"This shows the purpose is to detect, report and effect the deportation of people in this country,’’ Villagra said, which is solely the purpose of federal immigration officials.
Attorneys for the state argued that a restraining order is legally inappropriate.
"We have a law that voters approved,’’ said assistant attorney general Mary O’Grady. "The state ought to be able to implement that.’’
O’Grady pointed out that Attorney General Terry Goddard, in a formal legal opinion issued last month, concluded Proposition 200 is limited solely to a handful of benefits such as rental and housing assistance.
O’Grady said the people who would be denied those services under the initiative already are ineligible under federal law.
Villagra, however, said Goddard’s legal opinion is not binding.
The plaintiffs include some "undocumented’’ residents — who are listed only by first name and last initial — who Villagra said fear they will get in trouble if they send their undocumented children to school. Federal law specifies that legal status in this country is not necessary for education. Others are here illegally but have children who are U.S. citizens who, according to Villagra, might not apply for health and welfare benefits, or even get emergency care, for which those children are eligible.
There also are two public employees, one who works for the Department of Economic Security and the other a Phoenix firefighter, both of whom say they are unsure what services they can and cannot provide under Proposition 200.
Left untouched in Tuesday’s ruling are sections that mandate proof of citizenship to register to vote and presenting identification when casting a ballot.