AOL File Library: 9,300 to 9,399/9300.zip/AOLDLs/Legal Documents/CA Proposition 187 Ruling/187.txt

Text File | 2014-12-11 | 135KB | 2,577 lines

EDITOR'S NOTE: The following U.S. District Court decision
strikes down portions of California's Proposition 187, which would
have denied certain public services from undocumented
immigrants. The state cannot supplement federal immigration law,
Central District of California Judge Mariana Pfaelzer ruled.

This document is posted in the Court TV Law enter:
http://www.courttv.com]


UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA


LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.,

Plaintiffs,

v.

PETE WILSON, et al.,

Defendants.


CASE NO. CV 94-7569 MRP

OPINION


*****


CHILDREN WHO WANT AN EDUCATION, et al.,

Plaintiffs,

v.

PETE WILSON, et al.,

Defendants.


CASE NO. CV 94-7570 MRP


*****


BARBARA AYALA, et al.,

Plaintiffs,

v.

PETE B. WILSON, et al.,

Defendants.


CASE NO. CV 94-7571 MRP


*****


GREGORIO T., by and through his guardian ad litem, JOSE T.; et
al.,

Plaintiffs,

v.

PETE WILSON, in his capacity as  Governor of the State of
California; et al.,

Defendants.


CASE NO. CV 94-7652 MRP


*****


CARLOS P., et al.,

Plaintiffs,

v.

PETE B. WILSON, et al.,

Defendants.


CASE NO. CV 94-0187 MRP




Proposition 187 is an initiative measure which was submitted to
the voters of the State of California in the November 8, 1994
general election. It was passed by a vote of 59% to 41% and
became effective the following day. The stated purpose of
Proposition 187 is to "provide for cooperation between [the]
agencies of state and local government with the federal
government, and to establish a system of required notification by
and between such agencies to prevent illegal aliens in the United
States from receiving benefits or public services in the State of
California." Prop. 187, Section 1. The initiative's provisions
require law enforcement, social services, health care and public
education personnel to (i) verify the immigration status of persons
with whom they come in contact; (ii) notify certain defined persons
of their immigration status; (iii) report those persons to state and
federal officials; and (iv) deny those persons social services, health
care, and education.

After the initiative was passed, several actions challenging the
constitutionality of Proposition 187 were commenced in state and
federal courts in California. Ultimately, five actions filed in the
United States District Court were consolidated in this Court for
purposes of motions, hearings, petitions and trial (collectively, the
"consolidated actions").[FN1] [FN2]

The plaintiffs in the consolidated actions have brought suit for
declaratory and injunctive relief seeking to bar California Governor
Pete Wilson ("Wilson"), Attorney General Dan Lungren
("Lungren"), and other state actors[FN3] (collectively, defendants)
from enforcing the provisions of Proposition 187.[FN4

On November 16, 1994, the Court entered a temporary restraining
order enjoining the implementation of sections 4, 5, 6, 7 2nd 9 of
the initiative. On December 14, 1995, the Court granted plaintiffs'
motions for preliminary injunction, enjoining the implementation
and enforcement of those sections.

On May 1, 1995, the League of United Latin American Citizens
("LULAC") and Gregorio T. plaintiffs brought motions for
5ummary judgment in which they contend that Proposition 187 is
unconstitutional on the sole ground that the initiative is preempted
by the federal government's exclusive constitutional authority over
the regulation of immigration, Congress' exercise of that power
through the Immigration and Nationality Act ("INA"), and other
federal statutes.[FN5] [FN6] Defendants[FN7] oppose the LULAC
and Gregorio T. motions on the grounds that Proposition 187 is not
preempted and, alternatively, that if any portion of the initiative is
preempted, the remaining portions are valid and must be upheld.
The Court grants in part and denies in part the motions for
summary judgment in accordance with the conclusions reached
below. Because the Court's ruling with respect to these motions
does not dispose of this case in its entirety, the preliminary
injunction shall remain in effect until further order of the Court.

I. Purpose and Effect of Proposition 187

Proposition 187 consists of ten sections: a preamble (section 1), a
section pertaining to the amendment and severability of the
initiative (section 10) and eight substantive sections (sections 2-
9).[FN8] Within the eight substantive sections of the initiative,
there are the following five types of provisions:

(1) provisions which require state officials to verify or determine
the immigration status of arrestees, applicants for social services
and health care, and public school students and their parents, by
either classifying persons based on state-created categories of
immigration status (the "classification" provisions) or verifying
immigration status by reference to federal immigration laws (the
"remaining verification" provisions) (Prop. 187 Sections 4(b);
5(b),(c); 6(b),(c); 7(a)-(e); 8(a)-(c) )[FN9];

(2) provisions which require state officials to notify individuals
that they are apparently present in the United States unlawfully and
that they must "either obtain legal status or leave the United
States"(the "notification" provisions) (Prop. 187 Sections 4(b)(2); 5
(c)(2); 6(c)(2));

(3) provisions which require "state agencies to report immigration
status information to state and federal authorities, and to cooperate
with the INS regarding persons whose immigration status is
suspect (contained in Sections 4-9) (the "cooperation/reporting"
provisions) (Prop. 187 Sections 4(b)(3); 5(c)(3); 6(c)(3); 7(e); 8(c);
9);

(4) provisions which require facilities to deny social services,
health care services and public education to individuals based on
immigration status (the "benefit denial" provisions) (Prop. 187
Sections 5(b), (c)(1); 6(b), (c)(l); 7(a)(c); 8(a)-(b)); and

(5) criminal penalties for falsifying immigration documents (Prop
187 Sections 2, 3).

The full text of the initiative is set forth in Appendix A.

The initiative has a dual purpose and effect. The classification,
notification and cooperation/reporting provisions taken together
constitute a regulatory scheme designed to deter illegal aliens from
entering or remaining in the United States by (1) detecting those
persons present in the United States in violation of either state-
created criteria for lawful immigration status or federal
immigration laws; (2) notifying those persons of their purported
unlawful status and ordering them to obtain legal status or leave
the country; and (3) maintaining a system of reporting and
cooperation between state and federal agencies to effect the
removal of those persons. These provisions cannot be read except"
as a regulatory scheme; and indeed, defendants have not seriously
urged Any other reading. While the benefits denial provisions also
have the purpose of deterring illegal aliens from entering or
remaining in the United States, and arguably may be viewed As
part of the same regulatory scheme, they have the additional
purpose of forbidding the use of public funds to provide social
services, health care and education to persons deemed to be present
in the United States illegally.

II. Severability of the Initiative

In determining the validity of Proposition 187, the Court is mindful
of its obligation to uphold the initiative to the fullest extent
possible. California law holds that "all presumptions favor the
validity of initiative measures and mere doubts as to validity are
insufficient." Legislature v. Eu, 54 Cal. 3d 492, 501, 286 Cal. Rptr.
283, 287 (1991). Initiatives "must be upheld unless their
unconstitutionality clearly, positively, and unmistakably appears."
Id. A finding that a section, subsection or subpart of Proposition
187 is preempted by federal law does not end the Court's inquiry
with respect to the validity of the initiative. Rather, a finding that
any provision is preempted requires the Court to determine
whether that provision is severable from the balance of the
initiative so that the remainder may take effect. See Calfarm Ins.
Co. v. Deukmejian, 48 Cal. 3d 805, 821, 258 Cal. Rptr. 161, 170
(1989) (a holding that a subdivision of an initiative is invalid under
the state and federal Constitutions requires a determination as to
whether the invalid provision is severable from the initiative).
Whether any preempted provision of Proposition 187 is severable
from the remainder of the initiative is determined pursuant to
California law. National Broiler Council v. Voss, 44 F.3d 740, 748
n.l2 (9th Cir. 1994).

Section 10 of Proposition 187 provides:

In the event that any portion of this act or the application thereof to
any person or circumstance is held invalid, that invalidity shall not
affect any other provision or application of the act, which can be
given effect without the invalid provision or application, and to
that end the provisions of this act are severable.

"Although not conclusive, a severability clause normally calls for
sustaining the valid part of the enactment, especially when the
invalid part is mechanically severable . . . [citation]'" Calfarm, 48
Cal. 3d at 821, 258 Cal. Rptr. at 170 (citation omitted). The
existence of a severability clause does not conclusively resolve the
severability inquiry, however. Rather, "[t]he final determination
depends on whether 'the remainder . . . is complete in itself and
would have been adopted by the legislative body had the latter
foreseen the partial invalidity of the statute . . .' and 'is not so
connected with the rest of the statute as to be inseparable.'" Santa
Barbara Sch. Dist. v. Superior Court, 13 Cal. 3d 315, 331, 118 Cal.
Rptr. 637, 650 (1975) (citations omitted).

California courts have prescribed three criteria by which a
reviewing court must assess the severability of invalid provisions
of statutes. In order to be severable, "the invalid provision must be
grammatically, functionally, and volitionally separable." Calfarm,
48 Cal. 3d at 821, 258 Cal. Rptr. at 170. A provision is
grammatically severable if "it constitutes a distinct and separate
provision . . . which can be removed as a whole without affecting
the wording of any other provision," 48 Cal. 3d at 822, 2S8 Cal.
Rptr. at 170, or "where the valid and invalid parts can be separated
by paragraph, sentence, clause, phrase or even single words." Santa
Barbara Sch. Dist., 13 Cal. 3d at 330, 118 Cal. Rptr. at 649.
However, where "the defect cannot be cured by excising any word
or group of words, the problem is quite different," and severance is
inappropriate. Santa Barbara Sch. Dist., 13 Cal. 3d at 331, 118 Cal.
Rptr. at 649.

A provision is functionally severable if the remaining provisions
can "stand on their own,- are capable of "separate enforcement,
People's Advocate. Inc. v. Superior Court, 181 Cal. App. 3d 316,
33132, 226 Cal. Rptr. 640, 649 (1986), can be "given effect,"
Raven v. Deukmejian, S2 Cal. 3d 336, 355, 276 Cal. Rptr. 326,
338 (1990), or can operate . . . independently" of the invalid
provisions. EU, 54 Cal. 3d at 535, 286 Cal. Rptr. at 310. The
remaining provisions must neither be "rendered vague" by the
absence of the invalid provisions nor "inextricably connected to
them by policy considerations.People's Advocate, 181 Cal. App. 3d
at 332, 226 Cal. Rptr. at 649.

Finally, an invalid provision is volitionally severable if the
remaining provisions "would likely have been adopted by the
people had they foreseen the invalidity" of the challenged
provision, or if the provision was not "so critical to the enactment
of [the initiative] that the measure would not have been enacted in
its absence.Calfarm, 48 Cal. 3d at 822, 258 Cal. Rptr. at 170.
Stated differently, "[t]he test [for volitional severability] is whether
it ; can be said with confidence that the electorate's attention was
sufficiently focused upon the parts to be severed so that it would
have separately considered and adopted them in the absence of the
invalid portions." People's Advocate, 181 Cal. App. 3d at 333, 226
Cal. Rptr. at 650. Under the volitional severability test, even if the
"'heart of [the] [p]roposition'" is found invalid, if some
"'substantive provisions remain,'" the invalid part should be
severed to enforce the valid provisions and achieve at least "some
substantial portion of [the voters'] purpose." Gerken v. Fair
Political Practices Co., 6 Cal. 4th 707, 714-15, 25 Cal. Rptr. 2d
449, 457 (1993) (quoting City of Woodlake v. Logan, 230 Cal.
App. 3d 1058, 1070, 282 Cal. Rptr. 27 (1991); Santa Barbara Sch.
Dist., 13 Cal. 3d At 332, 118 Cal. Rptr. at 650).

Plaintiffs contend that Proposition 187 is not severable because its
"pervasive unconstitutionality" leaves nothing to salvage. In
addition, they argue that the provisions of the initiative fail to meet
the three criteria for severability. They contend, for example, that
the classification provisions are not grammatically severable
because their absence would render the remaining verification
provisions unintelligible. They argue that none of the verification
provisions are functionally severable because their absence would
render the denial of benefits provisions inoperable. Finally, they
argue that the notification and reporting provisions are not
volitionally severable from the benefits denial provisions because
the intention of the electorate in passing the initiative was to enact
a comprehensive scheme to "stop illegal aliens," and severing the
notification and reporting provisions to salvage the benefits denial
provisions would frustrate the electorate's intent.

Defendants counter that the initiative meets all three severability
tests. That is, defendants argue that the initiative is volitionally
severable because the severability clause reflects the electorate's
intent to accept the implementation of any valid provisions
notwithstanding the invalidation of others, grammatically severable
because each section, subsection and subpart of the initiative can
be severed from the others without rendering remaining sections
unintelligible and functionally severable because each section,
subsection and subpart is capable of operating independently from
the others.

Before analyzing the severability of each of the challenged
provisions of Proposition 187, two general comments on the
grammatical and volitional severability of the initiative as a whole
are warranted. First, defendants are correct that each of Proposition
187's ten sections, and their respective subsections, is a distinct
grammatical unit and thus is capable of being "severed from the
other sections and subsections without affecting the wording of any
other section or rendering what remains unintelligible.
Accordingly, any section or subsection within Proposition 187
which is found to be invalid is grammatically severable from the
remainder of the initiative.

Second, defendants are also correct that the initiative is volitionally
severable. Plaintiffs' contention to the contrary -- that, for example,
the denial of benefits or criminal penalties provisions would not
have been adopted had the people foreseen the success of
challenges to the reporting and notification provisions -- is
unavailing. Proposition 187's declaration of intent explicitly states
that a substantial purpose of the initiative is to "prevent illegal
aliens in the United States from receiving benefit or public services
in the State of California. Section 1. Elsewhere in the initiative it is
stated that it is 'the intention of the People of California that only
citizens of the United States and aliens lawfully admitted . . . may
receive the benefits" of public social services, health care, and
education. Sections 5(a); 6(a); 7(a); 8(a). Further, "[e]ven though ...
the full purpose of [the initiative] cannot be realized, it seems
eminently reasonable to suppose that those who favor the
proposition would be happy to achieve at least some substantial
portion of their purpose." Santa Barbara Sch. Dist., 13 Cal. 3d at
331-32, 118 Cal. Rptr. at 650. It cannot be disputed that the denial
of benefits to "illegal aliens" (in sections 5 through 8) and the
criminalization of the manufacture and use of false immigration
documents (in sections 2 and 3) serve a significant part of the
initiative's purpose. The Court is therefore convinced that if the
voters had known that some of the initiative's provisions would be
held invalid, they would have preferred the implementation of the
remaining portions, rather than the invalidation of the entire
initiative. Any provisions of Proposition 187 found to be invalid
are volitionally severable from the remainder.

Thus, the provisions of Proposition 187 which are preempted must
be severed from the initiative. A copy of the initiative as severed in
accordance with this Opinion follows in Appendix B. The Court's
preemption analysis follows.

III. Whether Proposition 187 is Preempted Under Federal Law

The question of whether provisions of Proposition 187 are
preempted by federal law is governed by the Supreme Court's
decision in De Canas v. Bica, 424 U.S. 351 (1976) (California
statute prohibiting an employer from knowingly employing an
alien who is not entitled to lawful residence in the United States
held not preempted under federal law). In De Canas, the Supreme
Court set forth three tests to be used in determining whether a state
statute related to immigration is preempted. Pursuant to De Canas,
if a statute fails any one of the three tests, it is preempted by
federal law.

Under the first test, the Court must determine whether a state
statute is a "regulation of immigration." Since the "[p]ower to
regulate immigration is unquestionably exclusively a federal
power,id. at 354, any state statute which regulates immigration is
"constitutionally proscribed." Id. at 356.

Under the second test, even if the state law is not an impermissible
regulation of immigration, it may still be preempted if there is a
showing that it was the "clear and manifest purpose of Congress"
to effect a "complete ouster of state power -- including state power
to promulgate laws not in conflict with federal laws" with respect
to the subject matter which the statute attempts to regulate. Id. at
357. In other words, under the second test, a statute is preempted
where Congress intended to "occupy the field" which the statute
attempts to regulate.

Under the third test, a state law is preempted if it "stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress." Id. at 363 (citing Hines v.
Davidowitz, U.S. 52, 67 (1941)). Stated differently, a statute is
preempted under the third test if it conflicts with federal law
making compliance with both state and federal law impossible.
Michigan Canners & Freezers v. Agricultural Marketing and
Bargaining Board, 467 U.S. 461, 469 (1984); Florida Lime &
Avocado Growers v. Paul, 373 U.S. 132, 142-43 (1963).

A. Whether Proposition 187 Constitutes an Impermissible
Regulation of Immigration.

The federal government possesses the exclusive power to regulate
immigration. De Canas, 424 U.S. at 354-355 ("Power to regulate
immigration is unquestionably exclusively a federal power.") That
power derives from the Constitution's grant to the federal
government of the power to "establish a uniform Rule of
Naturalization," U.S. Const. art. I, Section 8, cl. 4., And to
"regulate Commerce with foreign Nations." Id., cl. 3. In addition,
the Supreme Court has held that the federal government's power to
control immigration is inherent in the nation's sovereignty. See,
e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)
(recognizing inherent power of sovereign nation to control its
borders); Plyler v. Doe, 457 U.S. 202, 225 (1982) ("Drawing upon
[its Article I, section 8] power, upon its plenary authority with
respect to foreign relations and international commerce, and upon
the inherent power of a sovereign to close its borders, Congress has
developed a complex scheme governing admission to our Nation
and status within our borders"); Fiallo v. Bell, 430 U.S. 787, 792
(1977) ("Our cases 'have long recognized the power to expel or
exclude aliens as a fundamental sovereign attribute exercised by
the Government's political departments . . .'" (citation omitted)).

Congress has exercised its power over immigration in the
Immigration and Naturalization Act, 8 U.S.C. Section 1101 et seq.
(the "INA"). The INA is a comprehensive regulatory scheme which
regulates the authorized entry, length of stay, residence status and
deportation of aliens. See Gonzales v. City of Peoria, 722 F.2d
468, 474-75 (9th Cir. 1983) (recognizing that the regulatory
scheme created by the INA is so pervasive as to be consistent with
the exclusive federal power over immigration). The INA delegates
enforcement duties to the Immigration and Naturalization Service
("INS").

Because the federal government bears the exclusive responsibility
for immigration matters, the states "can neither" add to nor take
from the conditions lawfully imposed by Congress upon
admission, naturalization and residence of aliens in the United
States or the several states." Takahashi v. Fish & Game Comm'n,
334 U.S. 410, 419 (1948). See also Plyler v. Doe, 42S U.S. 202 at
225 (1982) ("The States enjoy no power with respect to the
classification of aliens.(citing Hines v. Davidowitz, 312 U.S. 52
(1941))).

In De Canas, in reasserting the rule that "[p]ower to regulate
immigration is unquestionably exclusively a federal power," the
Supreme Court emphasized that the mere fact that a state statute
pertains to aliens does not require a finding that it is preempted:
"the Court has never held that every state enactment which in any
way deals with aliens is a regulation of immigration and thus per se
preempted by this constitutional power . . ." 424 U.S. at 355. The
Court stressed that "the fact that aliens are the subject of a state
statute does not render it a regulation of immigration, which is
essentially a determination of who should or should not be
admitted into the country, and the conditions under which a legal
entrant may remain." 424 U.S. at 355.

In this case, plaintiffs urge that the entirety of Proposition 187
constitutes a scheme to regulate immigration and is therefore
preempted. They assert that the initiative as a whole is a regulation
of immigration because it forces state employees to make judgment
as to an individual's immigration status, gives them the power to
effectuate removal of immigrants from the country and thereby
establishes California's own INS. Defendants counter that pursuant
to De Canas, "regulation of immigration" has a "narrow, technical
meaning"; that a facial challenge to this statute requires a
"painstaking line-by-line analysis" of the statute; and that such
analysis reveals that, standing alone, none of Proposition 187's
individual sections or subsections is "essentially a determination of
who should or should not be admitted into the country and on what
terms those lawfully admitted can remain here." De Canas, 424
U.S. at 355.

In De Canas, the statute at issue provided that "[n]o employer shall
knowingly employ an alien who is not entitled to lawful residence
in the United States if such employment would have an adverse
effect on lawful resident workers." Id. at 352 n. 1; Cal. Lab. Code
Section 2805. Noting that in that case, California had "sought to
strengthen its economy by adopting federal standards in imposing
criminal sanctions against state employers who knowingly employ
aliens who have no federal right to employment within the
country," the Supreme Court found that the statute did not
constitute an immigration regulation, but rather, had only "some
purely speculative and indirect impact on immigration." Id. at 355.

Unlike the statute at issue in De Canas, various of Proposition
187's provisions have much more than a "purely speculative and
indirect impact on immigration." Indeed, Proposition 187's
verification, notification and cooperation/reporting requirements
directly regulate immigration by creating a comprehensive scheme
to detect and report the presence and effect the removal of illegal
aliens. The scheme requires state agents to question all arrestees,
applicants for medical and social services, students, and parents of
students about their immigration status; to obtain and examine
documents relating to the immigration status of such persons; to
identify "suspected" "illegal" immigrants present in California; to
report suspected "illegal" immigrants to state and federal
authorities; and to instruct people suspected of being in the United
States illegally to obtain "illegal status" or "leave the country."
Thus, Proposition 187's scheme has a direct and substantial impact
on immigration.

Further, certain of Proposition 187's provisions require state agents
to make independent determinations of who is subject to the
initiative's benefits denial, notification and cooperation/reporting
provisions and who may lawfully remain in the United States.
Unlike the statute at issue in De Canas, which adopted federal
standards to determine whether an individual's immigration status
subjected an employer to liability, Proposition 187's classification
provisions create an entirely independent set of criteria by which to
classify individuals based on immigration status. See, e.g., Prop.
187 Sections 5(b); 6(b); 7(d).

On the other hand, the benefits denial provisions of sections 5
through 8 may be likened to the statute at issue in De Canas. While
the denial of benefits to persons not lawfully present in the United
States may indirectly or incidentally affect immigration by causing
such persons to leave the state or deterring them from entering
California in the first place, such a denial does not amount to a
"determination of who should or should not be admitted into the
country." De Canas, 424 U.S. at 355. Accordingly, the benefits
denials provisions are not impermissible regulations of
immigration and thus are not preempted under the first De Canas
test.

It is true, as plaintiffs argue, that benefits denial can only occur
after an applicant"s legal status has been "determined." That is,
absent some verification process, eligibility for benefits based on
immigration status would be impossible. Moreover, state agents
are unqualified -- and also unauthorized -- to make independent
determinations of immigration status. Congress has exclusively
reserved that power to the INS and to immigration judges pursuant
to the INA. See 8 U.S.C. Section 1252(b); 8 C.F.R. Section
242.1(a). Indeed, determinations of immigration status by state
agents amounts to immigration regulation whether made for the
purposes of notifying aliens of their unlawful status and reporting
their presence to the INS or for the limited purpose of denying
benefits.

Defendants contend that because state agents are required to and do
make determinations of immigration status in administering
benefits under certain federal-state cooperative programs,
eligibility for which Congress has conditioned on lawful
immigration status, such determinations may also be made by state
agents for purposes of denying benefits under Proposition 187.
Indeed, the Systematic Alien Verification for Entitlements program
("SAVE"), 42 U.S.C. Section 1320b-7, is an existing federal
eligibility system used to verify status for various federal-state
cooperative programs such as the Aid to Families with Dependent
Children ("AFDC"), Food Stamps, Medicaid and Unemployment
Compensation programs under which eligibility is dependent on
lawful immigration status. See 42 U.S.C. Section 1320b-7(b)(l)
and 45 C.F.R. Section 233.50 (AFDC); 42 U.S.C. 55 1320b-
7(b)(2) and 1356b(v)(1) (Medicaid); 7 U.S.C. Section 2015(f) and
42 U.S.C. Section 1320b7(b)(4) (Food Stamps). These benefits
programs require state agents to verify immigration status by
accessing federal immigration status information through SAVE.
In administering state-federal cooperative benefits programs,
however, state agents perform a ministerial rather than a
discretionary function in verifying immigration status. That is,
state agents merely access INS information to verify an applicant's
immigration status -- no independent determinations are made and
no state-created criteria are applied. A requirement that state agents
merely verify immigration status by referring to INS information is
much different from a requirement that state agents actually make
determinations as to who is, and who is not, deportable under
federal law. Permitting state agents, who are untrained -- and
unauthorized -- under federal law to make immigration status
decisions, incurs the risk that inconsistent and inaccurate
judgments will be made. On the other hand, requiring state agents
simply to verify a person's status with the INS involves no
independent judgment on the part of state officials and ensures
uniform results consistent with federal determinations of
immigration status.

The benefits denial provisions of Proposition 187 may therefore be
implemented without impermissibly regulating immigration if state
agencies, in verifying eligibility for services and benefits, rely on
federal determinations of status made by the INS and accessible
through SAVE. Because state regulations implementing
Proposition 187 could require state agencies to verify immigration
status through reference to INS information and could deny state
actors discretion to apply non-federal criteria for benefits
eligibility, Proposition 187"s benefits denial provisions are not an
impermissible regulation of immigration and therefore withstand
scrutiny under the first De Canas test.

Accordingly, the classification, notification and
cooperation/reporting provisions of the initiative, contained in
sections 4 through 9 and in the preamble, which are aimed solely at
regulating immigration, are preempted. The provisions which have
the permissible purpose and effect of denying state-funded benefits
to persons who are unlawfully present in the United States are not
a regulation of immigration and therefore survive the first De
Canas test.

1. Section 4

Section 4, entitled "Law Enforcement Cooperation with the INS,"
requires law enforcement agencies to verify the legal status of
every arrestee who is "suspected of being present in the United
States in violation of federal immigration laws" by "questioning
the person" and "demanding documentation." Section 4(b)(1).
Section 4 requires law enforcement agencies to "[n]otify the person
of his or her apparent status as an alien who is present in the
United States in violation of federal immigration laws and inform
him or her that . . . he or she must either obtain legal status or leave
the United States. Section 4(b)(2). In addition, section 4 requires
the agency to "[n]otify the Attorney General . 4(b)(3). Finally,
section 4 requires law enforcement agencies to "fully cooperate
with the [INS] regarding any person who is arrested if he or she is
suspected" of being in the United States illegally and prohibits any
local governmental agency from limiting such cooperation in any
way. Section 4(a), (c).

Under the first De Canas test, a state may not require its agents to
(i) make independent determinations of who is and who is not in
this country "in violation of immigration laws;" (ii) report such
determinations to state and federal authorities; or (iii) "cooperate"
with the INS, solely for the purpose of ensuring that such persons
leave the-country. The sole stated purpose and the role effect of
section 4 is to impermissibly regulate immigration. Accordingly,
section 4 is entirely preempted by federal law under the first De
Canas test.

2. Sections 5 and 6

Section 5, entitled "Exclusion of Illegal Aliens from Public Social
Services," And section 6, entitled, "Exclusion of Illegal Aliens
from Publicly Funded Health Care," differ from section 4 in that
their stated purpose and effect is not solely to ensure the ouster of
persons suspected of being in this country unlawfully. Rather, they
have the additional purpose and effect of excluding persons from
obtaining public social and health care services. To the extent that
state actors deny benefits to persons based on determinations by
federal authorities that those individuals are deportable pursuant to
federal law, benefits denial is not a direct regulation of
immigration, but rather, has only the possible indirect effect of
deterring "illegal" aliens from coming to California or causing
them to leave.

Sections 5 and 6 do not merely deny benefits, however. Both
sections contain classification, notification and cooperation/
reporting provisions which are roughly parallel to those contained
in section 4. See Sections 5(b), (c)(l), (c)(2); 6(b), (c)(1), (c)(2).
These provisions are entirely unnecessary to the implementation of
the benefits denial provisions. That is, without those three sets of
provisions, both sections S and 6 still require public entities and
publicly-funded health care facilities to deny benefits to persons
who are determined to be in the United States in violation of
federal law. See Sections 5(c)(1), 6(c)(1).[FN10]

The classification, notification and cooperation/reporting
provisions in Sections 5 and 6 add nothing to the statute except that
they expand Proposition 187's impermissible scheme of
immigration regulation -- by requiring agents of the state (i) to
make independent determinations of who is and who is not
"lawfully admitted" in this country, based on state-created criteria
(subsection (b)); and (ii) to report such determinations to state and
federal authorities solely for the purpose of ensuring that such
persons leave the country (subsections (c)(l) and (c)(2)).

In addition, subsection (b) is an impermissible immigration
regulation because, unlike the statute at issue in De Canas, the
classification of persons as (1) citizens; (2) lawfully admitted as a
permanent resident or (3) lawfully admitted for a temporary period
is not in any way tied to federal standards. Thus, the state has
created its own scheme setting forth who is, and who is not,
entitled to be in the United States. As discussed below, the INS's
standards for who is and who is not deportable are entirely
different from those set forth in subsection (b). See, e.g., 8 U.S.C.
Section 1251(a). As the Supreme Court held in De Canas, a state
cannot, on its own, determine who is or is not entitled to be present
in the United States. See De Canas, 424 U.S. at 355.

Defendants contend that the Court should construe the term
"lawfully admitted" in subsections (b)(l) And (b)(2) as applying "to
persons who are present in the United States unlawfully, not to
those who entered unlawfully." They argue that such a construction
avoids preemption, because "lawfully present" is an immigration
status standard applied under the INA, and thus the classification
of persons required under subsection (b) of Sections 5 and 6 would
be tied to federal standards, rather than to state-created criteria.
This argument is not persuasive. As plaintiffs point out, the term
"lawfully admitted" has its own established meaning under the
INA. See 8 U.S.C. Section 1182.[FN11] Thus, there is no basis for
the Court to replace the word "admitted," with the word "present."
Moreover, even if the Court were to do so, the statute still would
not be tied to federal standards.

The impermissible classification, notification, and
cooperation/reporting requirements of sections 5 and 6, subsections
(b), (c)(2), and (c)(3), are therefore preempted.

In the absence of the scheme created by those sections, the
remaining substantive provisions of sections 5 and 6 are contained
in subsections 5(c)(1) and 6(c)(1). Those provisions, standing
alone, require that state agents deny benefits to persons who are
determined or suspected to be "in the United States in violation of
federal law." Defendants contend that (c)(l) is not an immigration
regulation because, absent the classification, notification, and
reporting provisions, (c)(1)'s effect is solely to deny benefits -- not
to determine who should or should not be permitted to remain in
the United States.

Indeed, in the absence of subsections (b), (c)(2) and (c)(3),
subsection (c)'s verification component is utilized solely for the
purpose of denying benefits. Unlike subsection (b), subsection
(c)(1)'s verification component is tied to federal immigration
standards, so that under subsection (c)(1), benefits are denied based
on an individual's federally-determined immigration status and not
on any independent criteria developed by the state.

Plaintiffs counter that (c)(1) is not tied to any federal or state
immigration standards and is therefore preempted because, on its
face, subsection (c)(1) would deny benefits not only to aliens who
are deportable under federal immigration law but also to aliens
who have, for example, failed to file their tax returns, because
technically such persons would be "alien[s] in the United States in
violation of federal law." This is a tortured reading of the
provision. The Court is obliged to uphold subsection (c)(1) if there
is any construction of the provision which is constitutional. Clearly
(c)(1) can, and should, be understood to require denial of benefits
solely to deportable aliens (i.e., those aliens whose presence in the
United States is in violation of federal immigration law). The
Court must conclude that subsection (c)(1) denies benefits based
on federal determinations of immigration status and is not an
impermissible regulation of immigration. Such benefits denial is
not preempted under the first De Canas test.

One additional problem remains. Subsection (c)(1) requires state
agents to deny benefits to any individual who is "determine[d] or
"reasonably suspect[ed]" to be present in the United States in
violation of federal law. Thus, on its face, (c)(1) requires state
actors to make independent determinations as to whether a person
is deportable under federal law. As discussed above, under the first
De Canas test, state actors may not make independent
determinations as to persons' immigration status. Only the INS can
make such determinations, and so (c)(1) may survive only if
benefits are denied only to those persons determined to be
deportable by the INS. This problem is not irremediable, however.
If the words "or reasonably suspects, based on the information
provided to it," are severed from the subsection (c), sections 5 and
6 no longer would deny benefits to persons who are merely
suspected by a state agent, rather than determined by the INS, to be
deportable. And those words indeed are grammatically,
functionally, and volitionally severable. The language "or
reasonably suspects, based on the information provided to it," is
grammatically severable, since when it is omitted, the remaining
language makes sense. The offending language is also functionally
severable, because denial of benefits can be implemented in its
absence. That is, a person can be denied benefits if the
administrating agent "determines," rather than merely "reasonably
suspects . . ." that the person is present in the country in violation
of federal laws. Finally, the "reasonably suspects" language is
volitionally severable because the severability clause evidences the
intent of the electorate to permit the severance of offending
portions, and because it cannot be argued that the language was
crucial to the passage of the initiative

Even in the absence of the "reasonably suspects" language,
however, it is still possible that under subsection (c)(l) state actors
could be required to deny benefits based on their own independent
determinations as to persons' immigration status. To avoid this
result, the state could implement n regulation requiring officials to
verify eligibility for services and benefits by accessing INS
determinations of individuals' immigration status through the
SAVE system. If the "reasonably suspects" language is omitted,
And a regulation implementing the benefits denial provisions
required state agencies to utilize INS determinations in denying
benefits, subsection (c)(1) would not impermissibly regulate
immigration. It would then withstand scrutiny under the first De
Canas test.

The question remains whether the invalid provisions of sections 5
and 6 are severable from the remainder of the initiative. Plaintiffs
contend that subsections (b), (c)(2) and (3) are not functionally
severable from the remaining provisions in sections 5 and 6 and
that a finding that subsections (b), (c)(2) and (c)(3) are preempted
requires a finding that all of sections 5 and 6 are preempted.
However, as set forth above, subsection (c)(l) can operate
independently as a benefits denial provision absent the
impermissible immigration regulation scheme. Therefore,
subsections (b), (c)(2) and (c)(3) are functionally severable from
the initiative. Because it is reasonable to conclude that the
electorate would have preferred the implementation of the benefits
denial provisions rather than the invalidation of the entire initiative
had they foreseen the invalidity of the classification, notification
and cooperation/reporting provisions, subsections (b), (c)(2) and
(c)(3) are volitionally severable. Finally, subsection (c)(1) makes
grammatical sense absent the severed provisions. Accordingly,
subsections (b), (c)(2) and (c)(3) are severable.

3. Section 7

Section 7 is entitled "Exclusion of Illegal Aliens From Public
Elementary and Secondary Schools." Like sections 5 and 6, section
7 contains classification, notification and cooperation/reporting
requirements that, taken together, serve only to further the scheme
to regulate immigration and are unnecessary to the denial of public
education.

In section 7, subsections (a) through (c) require schools to verify
the immigration status of children for the purposes of denying
access to public elementary and secondary education. Subsection
(d) requires verification of the immigration status of parents of
school children. Subsection (e) requires school districts to report
the "illegal" status of any parent, guardian, enrollee or pupil to
state agencies and the INS. Subsection (f) requires school districts
to "fully cooperate" in "accomplish[ing] an orderly transition to a
school in the child's country of origin."

Subsections (a), (b) and (c), together, assure that undocumented
children will be denied access to public education. Subsection (d)
is wholly unnecessary to implementing the denial of education
mandated by section 7, because the state has no need to know the
immigration status of parents in order to deny benefits to children.
Like subsection (b) in sections 5 and 6, the only purpose and effect
of subsections (d), (e), and (f) is to ensure that persons determined
by the state to be in the United States unlawfully are "transitioned"
to the "country of their origin." Subsections (d), (e) and (f) are part
of an impermissible scheme to regulate immigration and are
therefore preempted under the first De Canas test.

In any event, an analysis of section 7 under the rigors of the first
De Canas test is not necessary to sustain the Court's ruling on these
motions. In light of the United States Supreme Court's decision in
Plyler v. Doe, 457 U.S. 202 (1982), in which the Court held that
the Equal Protection Clause of the Fourteenth Amendment
prohibits states from excluding undocumented alien children from
public schools, section 7 in its entirety conflicts with and is
therefore preempted by federal law.

4. Section 8

Subsection (a) of Section 8 prohibits public postsecondary
educational institutions from providing education to persons who
are not "authorized under federal law" to be in the United States.
Subsection (b) requires such institutions to verify the immigration
status of each person enrolled or attending to ensure that education
is provided only to persons who are "authorized under federal law"
to be in the United States. Subsection (c) requires admissions
officers to report any persons who are "determined to be, or . . .
under reasonable suspicion of being in the United States in
violation of federal immigration laws" to state and federal
authorities.

Subsection 8(c), like the reporting requirements in sections 5 and
6, cannot survive because it has no purpose other than to regulate
immigration. On the other hand, subsections (a) and (b), like the
denial of benefits in sections 5 and 6, are not regulations of
immigration since they do not amount to determinations of who
may and may not remain in this country. In the absence of
subsection (c)'s reporting requirements, the verification
components of subsections (a) and (b) are permissible because
their only purpose is to determine who may and who may not
receive postsecondary education. Also, the verification components
of subsections (a) and (b) are tied to federal standards rather than to
an impermissible state classification scheme. Because subsections
(a) and (b) may be implemented by requiring state actors to rely on
federal determinations rather than their own independent
determinations of immigration status to deny public postsecondary
education, subsections (a) and (b) are not preempted under the first
De Canas test.

The final question is whether subsection (c) is functionally,
volitionally and grammatically severable from the remaining
provisions of section 8. Since the absence of the impermissible
reporting requirements does not impair the state's ability to deny
public postsecondary education, subsection (c) is functionally
severable. Subsection (c) is grammatically severable because the
removal of subsection (c) does not render the remaining provisions
of section 8 unintelligible. Finally, because it is reasonable to
conclude that the electorate would have preferred the
implementation of the remaining provisions rather than the
invalidation of the entire section had they foreseen the invalidity of
the cooperation/reporting provision, subsection (c) is volitionally
severable.

5. Section 9

Section 9, entitled, "Attorney General cooperation with the INS,"
requires the state attorney general to maintain records of, and to
transmit to the INS, all reports received from state agencies
pertaining to persons who are "suspected of being present in the
United States in violation of federal immigration laws." This
section is preempted under the first De Canas test because it has no
purpose or effect except to further Proposition 187's impermissible
immigration regulation scheme.

Section 9 is a separate and distinct section of Proposition 187, the
severance of which does not impair the meaning of any remaining
sections. It is, therefore, grammatically severable from the
remainder of the initiative. Section 9 i5 functionally severable
because it merely imposes additional reporting and record-keeping
requirements beyond those required by the other sections of the
initiative and eliminating these additional requirements does not
impair the operation of the remaining sections. Finally, because the
initiative's remaining benefits denial and criminal penalty
provisions serve a substantial purpose of the electorate and would
have been approved even absent the invalid provisions, section 9 is
volitionally severable.[FN12]

6. Sections 2 and 3

Sections 2 and 3 criminalize making and using false documents "to
conceal" the "true citizenship or resident alien status" of a person.
These provisions, though they may indirectly affect immigration in
some way,[FN13] can hardly be said to be a "determination of who
should or should not be admitted in to the country. n Like the
benefit denial provisions, the criminal penalties, criminalizing
conduct that is dishonest and deceptive, are a legitimate exercise of
the police power of the state.

Plaintiffs contend that criminal penalties are part of the overall
immigration regulation scheme. Absent the verification,
notification and cooperation/reporting elements of the initiative,
however, the criminal penalties do not serve the impermissible
goal of ensuring that "illegal" aliens leave the country.
Accordingly, sections 2 and 3 are not preempted under the first De
Canas test.

B. Whether Proposition 187 Is Preempted Because Congress
Intended to Occupy the Field.

Under the second De Canas test, even if a statute is not an
impermissible regulation of immigration, it may still be preempted
if there is a showing that Congress intended to "occupy the field"
which the statute attempts to regulate. De Canas, 424 U.S. at 357.


As discussed above, the Constitution commits the power to
regulate immigration exclusively to the federal government. De
Canas, 424 U.S. at 354, 356. Congress has fully occupied the field
of immigration regulation through enactment and implementation
of the INA. See, e.g., Gonzalez v. City of Peoria, 722 F.2d 468 (9th
Cir. 1983) ("We assume that the civil provisions of the [INA]
regulating authorized entry, length of stay, residence status, and
deportation, constitute such a pervasive regulatory scheme, as
would be consistent with the exclusive federal power over
immigration."). Since the classification, notification and
cooperation/reporting requirements contained in sections 1 and 4
through 9 constitute a scheme to regulate immigration, those
provisions are necessarily preempted under the second De Canas
test as well.

Because the Court has determined that the benefits denial and
criminal provisions in sections 2 and 3 are not impermissible
regulations of immigration, the question remains whether these
provisions are nevertheless preempted because Congress has
intended to occupy the field on which they touch. Under the
second De Canas test, the benefits denial provisions of sections 5
through 8 are preempted only if they regulate a field in which
Congress intended a "complete ouster" of state power, even if a
state regulation in that field is not in conflict with federal law. See
De Canas, 424 U.S. at 356, 357. In De Canas, the Supreme Court
defined the field on which the statute in question touched not as the
broad field of immigration regulation, but, rather, the more narrow
field of employment of illegal aliens. Id. Finding nothing in the
INA which indicated Congressional intent to preclude state
regulation touching on the employment of illegal aliens, the Court
refused to "presume that Congress . . . intended to oust state
authority to regulate the employment relationship covered by the
[statute]," and held that the-statute was not preempted. Id. at 357.

Similarly, the field on which Proposition 187's benefits denial
provisions touch is not the broad field of immigration regulation
but, rather, the public benefits field, specifically alien eligibility for
public benefits. Since nothing in the wording or legislative history
of the INA "unmistakably confirms" an intent to oust state
authority to regulate in the public benefits field, and because, As in
De Canas, such an intent cannot be "derived from the scope and
detail of the INA . . . governing entry and stay of aliens," id. at
359, Proposition 187's benefits denial provisions are not preempted
under the second De Canas test.[FN14]


Likewise, the criminal provisions set forth in sections 2 and 3 are
not preempted under the second De Canas test. Plaintiffs have
made no showing whatsoever that Congress intended to effect a
"complete ouster of state power -- including state power to
promulgate laws not in conflict with federal laws" with respect to
criminalizing the falsification and use of forged identification
documents. 424 U.S. at 357. -The field on which sections 2 and 3
touch is not the broad field of immigration regulation but, rather,
the field of the criminal law as it relates to false documents. Since
nothing in the legislative history of the INA, or in the INA itself,
reveals an intent to oust state authority to criminalize the
production or use of false identification, sections 2 and 3 are not
preempted under the second De Canas test.


C. Whether Proposition 187 Is Preempted Because It Directly
Conflicts With Federal Law

The final inquiry under De Canas is whether, "although the INA
contemplates some room for state legislation" De Canas, 424 U.S.
at 363, Proposition 187 is preempted in whole or in part because it
"stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress." Id. (citing Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)). Stated differently, the
provisions of Proposition 187 may be preempted because they
conflict with federal law making compliance with both state and
federal law impossible. Michigan Canners & Freezers, 467 U.S. at
469.

1. Classification, Notification, and Reporting Provisions

As set forth above, Proposition 187's classification, notification
and cooperation/reporting provisions are preempted under the first
and second De Canas tests because taken together, they constitute
an impermissible scheme for the regulation of immigration. Those
same provisions also violate the third De Canas test, because they
are in conflict with federal laws governing the deportation of
aliens.

The INA specifies an exclusive list of grounds for deportation, 8
U.S.C. 1251(a), and provides that that procedure shall be the "sole
and exclusive procedure for determining the deportability of an
alien." 8 U.S.C. Section 1252(b) (emphasis added). The procedure
requires, among other things, that only a "special inquiry officer"
(an immigration judge) may conduct deportation proceedings. Id.
The INA's accompanying regulations require "[e]very proceeding
to determine the deportability of an alien in the United States [to
be] commenced by the filing of an order to show cause with the
Office of the Immigration Judge." 8 C.F.R. Section 242.1(a); 8
U.S.C. 1252a. The authority to issue such orders is delegated to a
discrete list of federal officers. Id. Only specified federal officials
can commence deportation proceedings, and only an immigration
judge in deportation proceedings can determine that an alien is
deportable and order the alien to leave the United States. Id.; 8
U.S.C. Sections 1252(a), 1252(b). Then, after a "final order" of
deportation issues, only the Attorney General may "effect the
alien's departure from the United States." 8 U.S.C. Section 1252(c).

Proposition 187's classification, notification and
cooperation/reporting provisions directly contradict the INA's
mandate that the procedure outlined in the INA "shall be the sole
and exclusive procedure for determining the deportability of an
alien." These provisions create a new, wholly independent
procedure, pursuant to which state law enforcement, welfare,
health care, and education officials -- rather than federal officials
and immigration judges -- are required to determine the
deportability of aliens and effect their deportation. The
classification, notification and cooperation/ reporting provisions
delegate to state agents tasks which federal law delegates
exclusively to federal agents. These provisions are in direct conflict
with and are preempted by federal law.

2. Denial of Benefits Provisions

a. Conflicts based on classification and remaining verification
provisions

Proposition 187 requires, for the implementation of its benefits
denial provisions, that public social service agencies, public health
care facility personnel, public school districts and postsecondary
educational institutions classify or verify the immigration status of
applicants for benefits and services.

Plaintiffs argue that because the classification provisions define
legal immigration status more narrowly than federal law, and
because the remaining verification provisions require state agents
to classify persons' immigration status based-on "suspicion," those
provisions will result in the denial of benefits to persons who fail
to meet state criteria but are nevertheless lawfully present in the
United States under federal law. The plaintiffs contend that both
types of verification provisions are preempted under the third De
Canas test.

Defendants argue that the initiative "does not set up a classification
system" at all and that the classification provisions, like the
remaining verification provisions which are tied to federal
standards, should be construed as applying only to persons who are
present in the United States in violation of federal immigration
laws.

(1) The classification provisions

As discussed above, Proposition 187 establishes three state-created
categories of lawful immigration status on which the denial of
benefits is based. These categories define persons as "legal" and
entitled to receive benefits if they are citizens of the United States,
aliens lawfully admitted as permanent residents and aliens lawfully
admitted for a temporary period of time. See Section5 5(b)(1)-(3),
6(b)(1)-(3), 7(d)(1)-(3). These three categories, however, fail to
recognize several federal categories of persons who are not
citizens, not admitted as permanent residents and not admitted for a
temporary period of time but who are nevertheless present in the
United States, authorized to remain here and eligible for certain
benefits in accordance with federal law. For example, federal law
authorizes certain refugees,[FN15] asylees,[FN16] persons granted
withholding of deportation,[FN17] parolees,[FN18] persons
protected by "family unity" status,[FN19] persons present under
temporary protected status,[FN20] persons granted deferred
enforced departure ("DED"),[FN21] persons eligible for
suspension or stay of deportation[FN22] and battered immigrant
women and children[FN23] to remain in the United States
permanently, indefinitely or temporarily. None of these categories
of lawful immigration status is accounted for by Proposition 187's
classification scheme.

Sections 5, 6 and 7 utilize this underinclusive classification scheme
to deny benefits and services to persons who fail to meet state
criteria for lawful immigration status but are lawfully present in the
United States and entitled to receive benefits and services under
federal law. Congress has conditioned eligibility for some federal-
state cooperative benefits programs covered by sections 5 and 6 on
lawful immigration status under federal immigration laws. For
example, eligibility for the Medicaid, Aid to Families with
Dependent Children ("AFDC") and Food Stamps programs
depends on verification of immigration status through the SAVE
system. In Administering these programs, state agencies verify
recipient immigration status by accessing INS information. Since
some persons otherwise eligible for benefits under federal
standards would be excluded by Proposition 187's underinclusive
classification scheme, denying services based on the classification
scheme conflicts with the existing federal eligibility system for
programs administered under SAVE. This classification scheme,
preempted under the first and second De Canas tests, is also
preempted under the third De Canas test as used to deny social and
health services under sections 5 and 6 and education under section
7.

The question remains whether the impermissible classification
scheme in subsection (b) of sections 5 and 6 and subsection (d) of
section 7 is severable from the remainder of the initiative. The
subsections are grammatically severable because their absence
does not render the remaining subsections unintelligible. The
subsections are functionally severable because the benefits denial
provisions may be implemented by utilizing the remaining
verification provisions in subsection (c) of sections 5 and 6 and
subsections (b) and (c) of section 7 which bases denial of benefits
and services on federal immigration standards. Finally, the
subsections are volitionally severable because it cannot be said that
voter approval of the initiative was dependent on any particular
classification scheme as long as the effect was the denial of
benefits and services to illegal aliens. Thus; subsection (b) of
section 5 and 6 and subsection (d) of section 7 are preempted by
federal law but may be severed from the remainder of the initiative.

(2) The remaining verification provisions

Subsection (c) of sections 5 And 6 provides that if any public
entity "determines or reasonably suspects, based or the information
provided to it," that an applicant for benefits or services is an "alien
in the United States in violation of federal law," the entity shall
deny the benefits or services. Sections 5(c), 6(c). Subsection (b) of
sections 7 and 8 likewise calls for verification of status based on
federal immigration standards by requiring school districts and
postsecondary educational institutions to verify that students
and/or parents are "authorized under federal law to be present in
the United States." 5Section 7(b), 8(b). Because these provisions
require verification by reference to federal immigration standards,
conflict with that law is not readily apparent. Because Congress
conditions eligibility for benefits under the AFDC, Food Stamps
and Medicaid programs on lawful immigration status and requires
state agents to verify applicant eligibility by accessing INS
information through the SAVE system, section 5's denial of
benefits to persons "in the United States in violation of federal
law" does not conflict with or impede the objectives of federal law.
Section 5 is not preempted to the extent that it applies to federally
funded programs for which Congress has conditioned benefit
eligibility on lawful immigration status.

Plaintiffs contend, however, that the verification procedure
required by subsection (c) of sections 5 and 6, based on the
reasonable suspicion of state agents, cannot be constitutionally
implemented because denying benefits to those merely suspected
of being present in violation of federal laws conflicts with federal
law which entitles those lawfully present in the United States to the
receipt of certain benefits. In other words, because benefits may be
denied under Proposition 187 to individuals who are in fact
lawfully present in the United States if the administering agent
merely reasonably suspects they are present in violation of federal
law, the verification procedure conflicts with and impedes the
objective of federal law with respect to immigrant benefit
eligibility.

Plaintiffs are correct. Because the only constitutional
implementation of Proposition 187's benefits denial provisions
would require state agents to utilize federal determinations of
immigration status, and because a state agent's "reasonable
suspicion" of unlawful immigrant status is not the same as a
federal determination of immigration status, the "reasonably
suspects" language conflicts with federal law. It is therefore
preempted under the third De Canas test The "reasonably suspects"
language in subsection (c) may be severed from the remainder of
subsection (c).

The remaining verification provisions in sections 7 and 8
pertaining to the denial of public education do not suffer from the
same defect as their counterparts in sections 5 and 6 because public
school authorities are merely-required to verify a student's
immigration status as lawful under federal law. No "reasonable
suspicions" are involved. Because verification of immigration
status by reference to INS information is permissible through
programs such as SAVE, the remaining verification provisions of
sections 724 and 8 are not in conflict with federal law and are not
preempted under the third De Canas test.

b. Conflicts based on benefits denial provisions

As applied to federally-funded programs and federally-funded
health care facilities, the benefits denial provisions of sections 5
and 6, even if implemented to deny benefits and services only to
persons present in the United States in violation of federal
immigration laws, appear to conflict with various federal laws. It is
unclear, however, from the showing made here whether, under Ray
v. Atlantic Richfield Co.. 435 U.S. 151, 158-160 (1978), these
apparent conflicts render the denial of benefits provisions
completely preempted or preempted only to the extent that they
apply to federally-funded benefits. Moreover, even if the Court
were to hold that the apparent conflicts with federal laws do not
completely defeat the denial of benefits provisions, the defendants
have made only a general representation to the Court that there are
purely state-funded benefits and services to which the initiative
could apply. Because the implications of Ray are unclear and
because the Court is not convinced that there actually are any such
wholly state-funded benefits programs and health care facilities,
the Court declines to rule on whether the denial of benefits
provisions are preempted. Nevertheless the Court sees several
apparent conflicts between the operation of the benefits denial
provisions and various federal laws.

(1) Section 5

The remaining benefits denial provision of section 5 provides that
"any public entity" shall not provide benefits or services to persons
determined to be "alien[s] in the United States in violation of
federal law." Section 5(c)(1). my its plain language, section 5
applies to "any public entity" in the state of California and covers
"public social services" or "benefits and services" administered by
those entities. Id. "Public social services" is broadly defined under
California law to include:

those activities and functions of state and local government
administered or supervised by the department [of Social Services]
or the State Department of Health Services and involved in
providing aid or services or both . . . to those people of the state
who, because of their economic circumstances or social condition,
are in need thereof and may benefit thereby.

Cal. Welf. & Inst. Code Section 10051. The Court concludes that
Section 5 broadly denies any and all aid, services And programs
administered or supervised by the state departments of social and
health services to persons without lawful immigration status under
federal law. Accordingly, to the extent that section 5 would deny
public social services to persons entitled to receive them under
federal law, section S conflicts with federal law. Plaintiffs argue
that section 5's denial of public social services conflicts with
federal law regardless of whether eligibility is based on the
impermissible underinclusive classification scheme in subsection
(b), or on federal immigration standards referenced in subsection
(c), because Proposition 187 conditions eligibility for some
federal-state cooperative programs on lawful immigration status
where the federal legislation authorizing such programs imposes
no such requirements. Specifically, plaintiffs contend that there is a
conflict between section 5 and the Women, Infants, and Children
program[FN25] and child welfare services[FN26] because benefits
are available under these federally-funded programs regardless of
immigration status.

The Women, Infants and Children program is a federally- funded
program administered by California through the Department of
Health Services. Welf. & Inst. Code Section 15500 et seq. The
federal statutes governing the program do not condition eligibility
on lawful immigration status. See 42 U.S.C. Section 1786.
Defendants concede, as they must, that if the Women, Infants And
Children program is a "public social service" within the meaning
of section 5, conditioning eligibility for benefits under the program
on lawful immigration status conflicts with the federal law which
makes those benefits available regardless of immigration status.
Given California's broad definition of "public social service,"
Section 5's denial of public social services clearly applies to the
Women, Infants and Children program. Therefore, section 5's
denial of social services as applied to the program conflicts with
federal law.

Qualified child welfare services programs Administered by states
receive grants of federal funding under various federal laws.[FN27]
Defendants do not dispute that section 5 conflicts with these laws if
construed to apply to federally-funded child welfare programs for
which federal law does not condition eligibility on immigration
status. Rather, defendants argue that child welfare services are
entirely outside the scope of section 5 as a matter of statutory
construction. Defendants contend that subsection 5(C)(1) applies
only to public social service programs to which persons voluntarily
and affirmatively apply. They argue that because child welfare
services are generally extended to children who are involuntarily
placed in the protective custody of the state and are not benefits for
which a person voluntarily applies, section 5 is inapplicable to
child welfare services. This distinction is specious. Section 5
applies broadly to deny "public social services" and "benefits and
services" to persons present in the United States in violation of
federal law. Section 5(c)(1). Child welfare services fall squarely
within California's definition of public social services. See Cal.
Welf. & Inst. Code Section 16500.

Moreover, some children do affirmatively seek state intervention
(either personally or through a representative). Thus, defendants'
construction of section 5 would deny benefits to children who
actively seek placement with child welfare services, while granting
the same services to children who wait for the state to intervene.
Because this absurd result could not have been contemplated by
the voters and because child welfare services full squarely within
California's definition of public social services, child welfare
services are not excluded from section 5's coverage.


The question remains, however, whether the application of section
5 to child welfare services conflicts with federal law. Plaintiffs
identify several federal provisions allocating money to and
governing child welfare services[FN28] that are available to
children regardless of immigration status. Section 5 conditions
receipt of child welfare services on lawful immigration status.
Therefore, section 5, as applied to child welfare services, conflicts
with federal law.

Finally, section 5 may serve to deny state-administered public
social services that are not part of any federal-state cooperative
program and do not receive any federal funding. As noted above,
the Court is unable to conclude that such wholly state-funded
programs in fact exist.[FN29] If such programs do exist, it does not
Appear that section 5's denial of wholly state-funded benefits
would conflict with and be preempted by federal law. That the
state's denial of such benefits may be unconstitutional on other
grounds is not a question before the Court at this time.

In sum, section 5's benefits denial provisions conflict with federal
law as applied to public social services funded in any part by the
federal government and made available to persons under the
authorizing federal statutes regardless of immigration status.
Section 5, to the extent that it denies benefits under wholly state-
funded programs and under federal-state cooperative programs
such as Medicaid, Food Stamps and AFDC, eligibility for which
Congress has already conditioned on lawful immigration status,
does not appear to conflict with federal law. The Court makes no
determination, however, as to whether section 5's benefits denial
provision is wholly preempted. A further showing would be
required to reach this conclusion.

(2) Section 6

The remaining benefits denial provision of section 6 requires "any
publicly funded health care facility" in California to deny services
"other than emergency medical care as required by federal law" to
persons determined to be "alien[s] in the United States in violation
of federal law." Sections 6(c), 6(c)(1).

Plaintiffs contend that subsection (c)(1) of section 6, as applied to
health care facilities which receive any federal funding, conflicts
with and is preempted by federal laws, specifically the Hill-Burton
Act,[FN30] the Public Health Services Act ("PHSA"),[FN31] and
the Emergency Medical Treatment and Active Labor Act
("EMTALA"),[FN32] which require the provision of emergency
and other health care services regardless of immigration status.

Defendants respond that because the goal of section 6 is to prevent
the use of public funds to provide health care services to persons
not lawfully in the country, Hill-Burton and PHSA facilities are
not prevented from providing all services to unlawful immigrants
but, rather, are merely denied public reimbursement for the
services so provided. Further, defendants contend that emergency
medical care required by EMTALA is explicitly excluded from the
scope of section 6.

(a) The Hill-Burton Act

The Hill-Burton Act, 42 U.S.C. Section 291 et seq., provides for
allocation of federal funds to states for the rehabilitation,
construction or modernization of public and nonprofit hospitals.
See 42 U.S.C. Section 291c. In an application for funds under the
Act, the applicant state and institution must make assurances that:

(1) the facility or portion thereof to be constructed or modernized
will be made available to all persons residing in the territorial area
of the applicant; and

(2) there will be made available in the facility or portion thereof to
be constructed or modernized a reasonable volume of services to
persons unable to pay therefor . . . .

42 U.S.C. Section 291c(e). The regulations promulgated pursuant
to the Act interpret the assurance that the facilities will be made
available to "all persons" to mean that services be provided

to all persons residing . . . in the facility's service area, without
discrimination on the ground of race, color, national origin, creed
or any other around unrelated to an individual's need for the service
or the availability of the needed service in the facility.

42 C.F.R. Section 124.603(a)(1) (emphasis added). Plaintiffs argue
that section 6 conflicts with federal law because it requires Hill-
Burton facilities to deny health services based on immigration
status, a ground unrelated to the individual's need or the
availability of needed services. Plaintiffs contend that section 6
must be read to prohibit the provision of all health services to
undocumented persons, even services to be self-paid by the patient
or funded by private charity, and therefore cannot be construed to
avoid conflict with the Hill-Burton Act.

Defendants argue that Hill-Burton facilities are not prohibited from
providing all services to undocumented persons but, rather, are
merely prohibited from providing publicly-funded services to such
persons. In other words, relying on language in the preamble of
section 6 evidencing an intent to deny publicly-funded health caret
to persons present in violation of federal immigration laws,
defendants argue that Hill-Burton facilities may provide self-paid
or charitable services to undocumented persons, and therefore no
conflict with federal law exists. See Section 6(a).

The plain language of subsection 6(c)(1) broadly prohibits Zany
publicly-funded health care facility"[FN33] from providing "health
care services" or "services" other than emergency services required
by federal law. Section 6(c)(1). Despite the language in subsection
6(a) evidencing an intent to deny undocumented persons "the
benefits of publicly-funded health care" and to "protect public
funds from misuse," subsection (c) contains no such limiting
language, and proscribes the provision of "services," generally, by
publicly-funded health care facilities to persons unlawfully present
in the United States. Sections 6(a), (c). Further, health care
facilities do not, as a practical matter, at the service provider level,
make distinctions between services that are "publicly-funded" and
services that are funded by other sources. It is difficult for the
Court to conceive of a manner in which section 6 could operate
under the construction urged by the defendants. The Court thus
declines to eschew the plain language of the statute in favor of
defendant's interpretation. Section 6 must be construed to require
publicly-funded health care facilities to deny all services other than
emergency medical care required by federal law. Because Hill-
Burton facilities must make their services available to all persons
without regard to immigration status, the operation of Section 6
conflicts with the requirements of the Hill-Burton Act.

Even if section 6's denial of health care services is construed to
apply only to publicly-funded services, denying "free" services
based on immigration status nevertheless conflicts with the Hill-
Burton Act's requirement that each recipient facility provide a
"reasonable volume of services to persons unable to pay therefor,"
42 U.S.c. Section 291c(e)(2), without discrimination based on any
ground "unrelated to an individual's need for the service or the
availability of the needed service in the facility Hill-Burton facility
is required to treat any person, regardless of his or her ability to
pay, who appears at the doors simply because the person resides in
the facility s area. Rather, Hill-Burton facilities are required to
provide a "reasonable volume of services" to persons unable to pay
without discriminating between these persons on any basis
unrelated to patient need or service availability. That is, Hill-
Burton facilities may not close the door on a person based merely
on immigration status. Section 6's denial of health care services, to
the extent it applies to Hill-Burton facilities, conflicts with federal
law.

(b) Public Health Service Act

Under the Public Health Service Act, 42 U.s.C. 5 201 et sea.,
grants of federal funds are available to public and nonprofit private
entities for projects to plan and develop "community health
centers" to serve medically underserved populations. 42 U.S.C.
Section 254c(c). The Public Health Services Act defines
"community health center" as an entity which, "through its staff .
private entities" provides health and health-related information and
referral services to residents of the area it serves (the "catchment
area"). 42 U.S.C. S 254c(a). The Act provides for grants of federal
funds to community health centers serving areas designated as
having a shortage of personal health services. 42 U.S.C. Sections
254c(c); 254(b)(3). Any hospital or other facility receiving grants
under this section for the purpose of serving a medically
underserved population is a "community health facility" within the
meaning of the Public Health Services Act. Community health
centers funded under section 254c(c) must be administered to
ensure that services are made available and Accessible in a manner
"assuring continuity of service to the residents of the center's
catchment area." 42 C.F.R. 5 51c.303(a).

Plaintiffs argue that section 6, which prohibits community health
centers from providing any services to catchment area residents in
the United States unlawfully, conflicts with and is preempted by
the Act which requires such facilities to make services available to
catchment area residents regardless of those persons' immigration
status. Defendants respond that facilities deemed "community
health centers" by virtue of their receipt of federal funding under
the Act are only prohibited from providing publicly-funded health
services and may provide self-raid or privately-funded services to
undocumented persons. However, because section 6 requires all
"publicly-funded health care facilities" to deny "health care
services" and "services" other than emergency medical services,
and does not by its language limit such denial to services for which
reimbursements with public money are made, section 6 conflicts
with the Public Health Service Act provisions pertaining to
federally-funded community health centers.

(c) Emergency Medical Treatment and Active Labor Act

EMTALA, 42 U.S.C. Section 1395dd, requires hospitals under
Medicare provider agreements with the federal government to
provide "an appropriate medical screening examination" to "any
individual" requesting medical treatment from hospital emergency
departments regardless of the person's ability to pay. 42 U.S.C.
Section 1395dd(a). The screening must include all routinely
available ancillary services, and, if the patient is found to have an
"emergency condition," the hospital is required to provide the care
necessary to stabilize the patient's condition. 42 U.S.C. S
1395dd(b). The hospital may not delay in providing a screening or
treatment required to stabilize an emergency condition in order to
inquire about an individual's insurance or ability to pay for
services. 42 U.S.C. Section 1395dd(h).

Plaintiffs contend that section 6 conflicts with EMTALA because it
precludes health care facilities from providing the required
screening to persons whose conditions do not appear to require
"emergency medical care," the only services exempted from
section 6. Sections 6(a), 6(c) .[FN34] Defendants argue that
subsections (a) and (c), by creating an exception for "emergency
medical care as required by federal law," exempt all of EMTALA's
screening, stabilization and treatment requirements and therefore
do not conflict with federal law. Id. Because the clear intent of the
enacting body was to exempt "emergency medical care as required
by federal law," and it is reasonable to interpret this exemption to
include all of EMTALA's screening, stabilization and treatment
requirements, the Court concludes that Section 6's denial of health
services does not conflict with but, rather, is entirely consistent
with, federal law pertaining to emergency medical services.

In sum, section 6 must be construed to require all publicly-funded
health care facilities to deny all medical services, except
emergency screening and treatment procedures required by federal
law, to persons not lawfully present in the United States under
federal law. To the extent that section 6 applies to facilities that
receive federal funding under programs such as the Hill-Burton
and Public Health Services Act and requires denial of non-
emergency medical services to persons unlawfully present where
the federal legislation enabling the programs is silent with respect
to the immigration status of medical care recipients, section 6
conflicts with federal law. However, to the extent that section 6
applies to wholly state-funded health care facilities, if in fact such
facilities exist[FN35], the denial of non-emergency health services
to persons unlawfully present in the United States does not appear
to conflict with any federal law. While recognizing these conflicts,
the Court cannot determine on the record before it whether section
6's denial of benefits provision is entirely preempted or preempted
only to the extent that it applies to federal grant recipient health
care facilities.


(3) Section 7

Section 7 denies public elementary and secondary education to (i)
children who are in the United States in violation of federal law,
and (ii) children who are citizens or otherwise legally present, but
whose parents or guardians are in the United States unlawfully. See
Sections 7(a), 7(e), 7(f). This denial of public education directly
conflicts with federal law As announced in the Supreme Court's
decision in Plyler v. Doe, 457 U.S. 202 (1982).[FN36] In Plyler,
the Supreme Court held that the Equal Protection Clause of the
Fourteenth Amendment prohibits a state from denying "to
undocumented school-age children the free public education that it
provides to children who are citizens of the United States or legally
admitted aliens." Plyler, 457 U.S. at 205. The Supreme Court
rejected each of the state's proffered justifications for denying
education to undocumented children, including the desire "to
protect itself from an influx of illegal immigrants," to "preserv[e] .
. . the state's limited resources for the education of its lawful
residents," and to remove the alleged "special burdens
[undocumented children] impose on the State's ability to provide
high-quality public education -- as constitutionally insufficient to
deny children access to a basic education and noted the conflict
that would result if the state were to deny education to "a child
enjoying an inchoate federal permission to remain." Id. at 226-230.
Clearly, then, section 7's denial of a public education based on the
immigration status of the child or the child's parent or guardian
conflicts with and is preempted by federal law as announced by the
Supreme Court in Plyler.[FN37]

The remaining provisions of section 7, subsections (b), (c), (d) and
(e), require school districts to verify the immigration status of
prospective and current students and their parents or guardians, to
notify students and parents or guardians of their suspected
unlawful status and to report such information to state and federal
officials. These provisions, aimed at regulating immigration or
effecting a denial of public education that is prohibited by federal
law, have no permissible purpose. Section 7 is preempted in its
entirety.[FN38]

(4) Section 8

Section 8 prohibits public postsecondary educational institutions
from admitting, enrolling or permitting the attendance of persons
who are not "authorized under federal law to be present in the
United States." Section 8(a).

Plaintiffs do not identify any provision of federal law that conflicts
with section 8's denial of education. On its face, subsection (a) is
consistent with the INS statement permitting aliens "considered to
be residing permanently in the United States under color of law" to
study in the country. Section 8's denial of education to persons who
are not "authorized under federal law to be present in the United
States," does not appear to conflict with any federal law.
Subsection (a) of section 8 is not preempted under the third De
Canas test.

3. Criminal Penalty Provisions

Sections 2 and 3 of Proposition 187 make it a crime to
manufacture, distribute, sell or use false documents to conceal true
citizenship or immigration status. Violations of these statutes are
punishable by imprisonment for up to five years or, in the case of
manufacturing, distributing or selling false documents, a fine of up
to $75,000 and for use of such documents, a fine of up to $25,000.
Sections 2, 3. Plaintiffs argue that by imposing different penalties
than those already imposed under federal laws regulating the
production or use of false citizenship, naturalization and alien
registration papers and the misuse or forgery of passports and
visas[FN39] sections 2 and 3 conflict with federal law. There has
been no showing that the criminal penalties contemplated by
Sections 2 and 3 conflict with or impede the objectives of federal
law. Sections 2 and 3 Are not preempted under the third De Canas
test.

IV. Conclusion

The California voters' overwhelming approval of Proposition 187
reflects their justifiable frustration with the federal government's
inability to enforce the immigration laws effectively. No matter
how serious the problem may be, however, the authority to
regulate immigration belongs exclusively to the federal
government and state agencies are not permitted to assume that
authority. The State is powerless to enact its own scheme to
regulate immigration or to devise immigration regulations which
run parallel to or purport to supplement the federal immigration
laws.

The classification, notification and cooperation/reporting
provisions in sections 4 through 9 of the initiative, taken together,
constitute a regulatory scheme (l) to detect persons present in
California in violation of state-created categories of lawful
immigration status; (2) to notify state and federal officials of their
purportedly unlawful status; and (3) to effect their-removal from
the United States. These provisions create an impermissible state
scheme to regulate immigration and are preempted under she first
and second De Canas tests. Plaintiffs' motions for summary
judgment are granted with respect to these provisions.

The benefits denial provisions of the initiative -- if implemented by
state regulations which would require verification of immigration
status by reference to federal determinations of status -- have only
an incidental impact on immigration and thus do not violate the
first De Canas test. Nor do those provisions violate the second De
Canas test. Plaintiffs have failed to direct the Court to any
authority for the proposition that Congress intended to completely
oust state authority to legislate in the area of benefits denial.
Consequently, the Court must conclude that those provisions are
preempted only if their operation conflicts with or impedes the
objectives of federal laws.

Section 7's denial of primary and secondary education conflicts
with federal law as announced by the Supreme Court in Plyler v.
Doe and is therefore preempted. Section 8's denial of
postsecondary education does not appear to conflict with any
federal law and thus is not preempted. With respect to the benefits
denial provisions in sections 5 and 6, to the extent that they deny
federally-funded benefits and services, those provisions conflict
with federal laws authorizing such benefits and services without
reference to immigration status. It is unclear from the showing
made whether the existence of such conflicts render sections 5 and
6 wholly preempted or preempted only to the extent that they
conflict with federal law. Moreover, the Court may not need to
reach that issue, for while it appears that the state could
permissibly deny wholly state-funded benefits and services without
impeding the objectives of federal law, it is unclear from the record
whether any such purely state-funded programs or health care
facilities in fact exist. The showing made on these motions is
inadequate to permit the Court to resolve the issue of whether the
provisions are wholly preempted or whether they are preempted
only to a limited extent. For these reasons, plaintiffs' motions with
respect to the denial of benefits provisions in sections 5 and 6 are
denied.

Finally, for the reasons set forth above, sections 2 and 3 are not
preempted. Plaintiffs motions with respect to those sections are
denied.

The preliminary injunction entered by the Court on December 14,
1995, shall remain in effect until further order of the Court.

DATED: November 20, 1995

/s/ Mariana R. Pfaelzer

United States District Judge


**********


Appendix A

PROPOSITION 187

TEXT

SECTION l. Findings and Declaration.

The People of California find and declare as follows:

That they have suffered and are suffering economic hardship
caused by the presence of illegal aliens in this state.

That they have suffered and are suffering personal injury and
damage by the criminal conduct of illegal aliens in this state.

That they have a right to the protection of their government from
any person or persons entering this country unlawfully.

Therefore, the People of California declare their intention to
provide for cooperation between their agencies of state and local
government with the federal government, and to establish a system
of required notification by and between such agencies to prevent
illegal aliens in the United States from receiving benefits or public
services in the State of California.

SECTION 2. Manufacture, Distribution or Sale of False
Citizenship or Resident Alien Documents: Crime and Punishment.

Section 113. is added to the Penal Code, to read:

Section 113. Any person who manufactures, distributes or sells
false documents to conceal the true citizenship or resident alien
status of another person is guilty of a felony, and shall be punished
by imprisonment in the state prison for five years or by a fine of
seventy-five thousand dollars (S75,000).

SECTION 3. Use of False Citizenship or Resident Alien
Documents: Crime and Punishment.

Section 114. is added to the Penal Code, to read:

Section 114. Any person who uses false documents to conceal his
or her true citizenship or resident alien status is guilty of a felony,
and shall be punished by imprisonment in the state prison for five
years or by a fine of twenty-five thousand dollars ($25,000).

SECTION 4. Law Enforcement Cooperation with INS.

Section 834b is added to the Penal Code, to read:

Section 834b. (a) Every law enforcement agency in California shall
fully cooperate with the United States Immigration and
Naturalization Service regarding any person who is arrested if he
or she is suspected of being present in the United States in
violation of federal immigration laws.

(b) With respect to any such person who is arrested, and suspected
of being present in the United States in violation of federal
immigration laws, every law enforcement agency shall do the
following:

(1). Attempt to verify the legal status of such person as a citizen of
the United States, an alien lawfully admitted as a permanent
resident, an alien lawfully admitted for a temporary period of time
or as an Alien who is present in the United States in violation of
immigration laws. The verification process may include, but shall
not be limited to, questioning the person regarding his or her date
and place of birth and entry into the United States, and demanding
documentation to indicate his or her legal status.

(2). Notify the person of his or her apparent status as an alien who
is present in the United States in violation of federal immigration
laws and inform him or her that, apart from any criminal justice
proceedings [sic], he or she must either obtain legal status or leave
the United States.

(3). Notify the Attorney General of California and the United
States Immigration and Naturalization Service of the apparent
illegal status and provide any additional information that may be
requested by any other public entity.

(c) Any legislative, administrative, or other action by a city,
county, or other legally authorized local governmental entity with
jurisdictional boundaries, or by a law enforcement agency, to
prevent or limit the cooperation required by subdivision (a) is
expressly prohibited.

SECTION 5. Exclusion of Illegal Aliens from Public Social
Services.

Section 10001.5. is added to the Welfare and Institutions Code, to
read:

Section 10001.5. (a) In order to carry out the intention of the
People of California that only citizens of the United States and
aliens lawfully admitted to the United States may receive the
benefits of public social services and to ensure that all persons
employed in the providing of those-services shall diligently protect
public funds from misuse, the provisions of this section are
adopted.

(b) A person shall not receive any public social services to which
he or she may be otherwise entitled until the legal status of that
person has been verified as one of the following:

(1). A citizen of the United States.

(2). An alien lawfully admitted as a permanent resident.

(3). An alien lawfully admitted for a temporary period of time.

(c) If any public entity in this state to whom a person has applied
for public social services determines or reasonably suspects, based
upon the information provided to it, that the person is an alien in
the United States in violation of federal law, the following
procedures shall be followed by the public entity:

(1). The entity shall not provide the person with benefits or
services.

(2). The entity shall, in writing, notify the person of his or her
apparent illegal immigration status, and that the person must either
obtain legal status or leave the United States.

(3). The entity shall also notify the State Director of Social
Services, the Attorney General of California and the United States
Immigration and Naturalization Service of the apparent illegal
status, and shall provide any additional information that may be
requested by any other public entity.

SECTION 6. Exclusion of Illegal Aliens from Publicly Funded
Health care.

Chapter 1.3 (commencing with Section 130) is added to Part 1 of
Division 1 of the Health and Safety Code, to read:

CHAPTER 1.3. PUBLICLY-FUNDED HEALTH CARE
SERVICES

Section 130. (a) In order to carry out the intention of the People of
California that, excepting emergency medical care as required by
federal law, only citizens of the United States and aliens lawfully
admitted to the United States may receive the benefits of publicly-
funded health care, and to ensure that all persons employed in the
providing of those services shall diligently protect public funds
from misuse, the provisions of this section are adopted.

(b) A person shall not receive any health care services from a
publicly-funded health care facility, to which he or she is otherwise
entitled until the legal status of that person has been verified as one
of the following:

(1). A citizen of the United States.

(2). An alien lawfully admitted as a permanent resident.

(3). An alien lawfully admitted for a temporary period of time.

(c) If any publicly-funded health care facility in this state from
whom a person seeks health care services, other than emergency
medical care as required by federal law, determines or reasonably
suspects, based upon the information provided to it, that the person
is an alien in the United States in violation of federal law, the
following procedures shall be followed by the facility:

(1). The facility shall not provide the person with services.

(2). The facility shall, in writing, notify the person of his or her
apparent illegal immigration status, and that the person must either
obtain legal status or leave the United States.

(3). The facility shall also notify the State Director of Social
Services, the Attorney General of California and the United States
Immigration and Naturalization Service of the apparent illegal
status, and shall provide any additional information that may be
requested by any other public entity.

(d) For purposes of this section "publicly-funded health care
facility" shall be defined as specified in Section 1200 and 1250 of
the Health and Safety Code as of January 1, 1993.

SECTION 7. Exclusion of Illegal Aliens From Public Elementary
and Secondary Schools.

Section 48215. is added to the Education Code to read:

Section 48215. (a) No public elementary or secondary school shall
admit, or permit the Attendance of, any child who is not a citizen
of the United States, an alien lawfully admitted as a permanent
resident, or a person who is otherwise authorized under federal law
to be present in the United States.

(b) Commencing January 1, 1995, each school district shall verify
the legal status of each child enrolling in the school district for the
first time in order-to ensure the enrollment or attendance only of
citizens, aliens lawfully admitted as permanent residents, or
persons who are otherwise authorized to be present in the United
States.

(c) By January 1, 1996, each school district shall have verified the
legal status of each child already enrolled and in attendance in the
school district in order to ensure the enrollment or attendance only
of citizens, aliens lawfully admitted as permanent residents, or
persons who are otherwise authorized under federal law to be
present in the United States.

(d) By January 1, 1996, each school district shall also have verified
the legal status of each parent or guardian of each child referred to
in subdivision (b) and (c) above, to determine whether such parent
or guardian is one of the following:

(1). A citizen of the United States.

(2). An alien lawfully admitted as a permanent resident.

(3). An alien admitted lawfully for a temporary period of time.

(e) Each school district shall provide information to the State
Superintendent of Public Instruction, the Attorney General of
California and the United States Immigration and Naturalization
Service regarding any enrollee or pupil, or parent or guardian,
attending a public elementary or secondary school in the school
district determined or reasonably suspected to be in violation of
federal immigration laws within forty five days after becoming
aware of an apparent violation. The notice shall also be provided to
the parent or legal guardian of the enrollee or pupil, and shall state
that an existing pupil may not continue to attend the school after
ninety calendar days from the date of the notice, unless legal status
is established.

(f) For each child who cannot establish legal status in the United
States, each school district shall continue to provide education for a
period of ninety days from the date of the notice. Such ninety day
period shall be utilized to accomplish an orderly transition to a
school in the child's; country of origin. Each school district shall
fully cooperate in this transition effort to ensure that the
educational needs of the child are best served for that period of
time.

SECTION 8. Exclusion of Illegal Aliens from Public
Postsecondary Educational Institutions.

Section 66010.8. is added to the Education Code, to read:

Section 66010.8. (a) No public institution of postsecondary
education shall admit, enroll, or permit the attendance of any
person who is not a citizen of the United States, an alien lawfully
admitted as a permanent resident, in the United States, or a person
who is otherwise authorized under federal law to be present in the
United States.

(b) Commencing with the first term or semester that begins after
January 1, 1995, and at the commencement of each term or
semester thereafter, each public postsecondary educational
institution shall verify the status of each person enrolled or in
Attendance at that institution in order to ensure the enrollment or
attendance only of United States citizens, aliens lawfully admitted
as permanent residents in the United States, and persons who are
otherwise authorized under federal law to be present in the United
States.

(c) No later than 45 days after the admissions officer of a public
postsecondary educational institution becomes aware of the
application, enrollment, or attendance of a person determined to be,
or who is under reasonable suspicion of being, in the United States
in violation of federal immigration laws, that officer shall provide
that information to the State Superintendent of Public Instruction,
the Attorney General of California and the United States
Immigration and Naturalization Service. The information shall also
be provided to the applicant, enrollee, or person admitted.

SECTION 9. Attorney General cooperation with the INS.

Section 53069.65. is added to the Government Code, to read:

53069.65. Whenever the state or a city, or a county, or any other
legally authorized local governmental entity with jurisdictional
boundaries reports the presence of a person who is suspected of
being present in the United States in violation of federal
immigration laws to the Attorney General of California, that report
shall be transmitted to the United States Immigration and
Naturalization Service. The Attorney General shall be responsible
for maintaining on-going and accurate records of such reports, and
shall provide any additional information that may be requested by
any other government entity.

SECTION 10. Amendment and Severability.

The statutory provisions contained in this measure may not be
amended by the Legislature except to further its purposes by
statute passed in each house by roll call vote entered in the journal,
two-thirds of the membership concurring, or by a statute that
becomes effective only when approved by the voters.

In the event that any portion of this act on the application thereof to
any person or circumstance is held invalid, that invalidity shall not
affect any other provision or application of the act, which can be
given effect without the invalid provision or application, and to
that end the provisions of this act are severable.


*********


Appendix B

PROPOSITION 187

TEXT

SECTION 1. Findings and Declaration.

The People of California find and declare as follows:

That they have suffered and are suffering economic hardship
caused by the presence of illegal aliens in this state.

That they have suffered and are suffering personal injury and
damage by the criminal conduct of illegal aliens in this state.

That they have a right to the protection of their government from
any person or persons entering this country unlawfully.

Therefore, the People of California declare their intention to
provide for cooperation between their agencies of state and local
government with the federal government, and to establish a system
of required notification by and between such agencies to prevent
illegal aliens in the United States from receiving benefits or public
services in the State of California.

SECTION 2. Manufacture, Distribution or Sale of False
Citizenship or Resident Alien Documents: Crime and Punishment.

Section 113. is added to the Penal Code, to read:

Section 113. Any person who manufactures, distributes or sells
false documents to conceal the true citizenship or resident alien
status of another person is guilty of a felony, and shall be punished
by imprisonment in the state prison for five years or by a fine of
seventy-five thousand dollars ($75,000)

SECTION 3. Use of False Citizenship or Resident Alien
Documents: Crime and Punishment.

Section 114. is added to the Penal Code, to read:

Section 114. Any person who uses false documents to conceal his
or her true citizenship or resident alien status is guilty of a felony,
and shall be punished by imprisonment in the state prison for five
years or by a fine of twenty-five thousand dollars ($25,000).

SECTION 5. Exclusion of Illegal Aliens from Public Social
Services.

Section 10001.5. is added to the Welfare and Institutions Code, to
read:

Section 10001.5. (a) In order to carry out the intention of the
People of California that only citizens of the United States and
aliens lawfully admitted to the United States may receive the
benefits of public social services and to ensure that all persons
employed in the providing of those-services shall diligently protect
public funds from misuse, the provisions of this section are
adopted.

(c) If any public entity in this state to whom a person has applied
for public social services determines that the person is an alien in
the United States in violation of federal law.

SECTION 6. Exclusion of Illegal Aliens from Publicly Funded
Health Care.

Chapter 1.3 (commencing with Section 130) is added to Part 1 of
Division 1 of the Health and Safety Code, to read:

CHAPTER 1.3. PUBLICLY-FUNDED HEALTH CARE
SERVICES

Section 130. (a) In order to carry out the intention of the People of
California that, excepting emergency medical care as required by
federal law, only citizens of the United States and aliens lawfully
admitted to the United States may receive the benefits of publicly-
funded health care, and to ensure that all persons employed in the
providing of those services shall diligently protect public funds
from misuse, the provisions of this section are adopted.

(c) If any publicly-funded health care facility in this state from
whom a person seeks health care services, other than emergency
medical care as required by federal law, determines that the person
is an alien in the United States in violation of federal law.

(1). The facility shall not provide the person with services.

(d) For purposes of this section "publicly-funded health care
facility" shall be defined as specified in Section 1200 and 1250 of
the Health and Safety Code as of January 1, 1993.

SECTION 8. Exclusion of Illegal Aliens from Public
Postsecondary Educational Institutions.

Section 66010.8. is added to the Education Code, to read:

Section 66010.8. (a) No public institution of postsecondary
education shall admit, enroll, or permit the attendance of any
person who is not a citizen of the United States, an alien lawfully
admitted as a permanent resident, in the United States, or a person
who is otherwise authorized under federal law to be present in the
United States.

(b) Commencing with the first term or semester that begins after
January 1, 1995, and at the commencement of each term or
semester thereafter, each public postsecondary educational
institution shall verify the status of each person enrolled or in
attendance at that institution in order to ensure the enrollment or
attendance only of United States citizens, aliens lawfully admitted
as permanent residents in the United States, and persons who are
otherwise authorized under federal law to be present in the United
States.

SECTION 10. Amendment and Severability.

The statutory provisions contained in this measure may not be
mended by the Legislature except to further its purposes by statute
passed in each house by roll call vote entered in the journal, two-
thirds of the membership concurring, or by a statute that becomes
effective only when approved by the voters.

In the event that any portion of this act or the application thereof to
any person or circumstance is held invalid, that invalidity shall not
affect any other provision or application of the act, which can be
given effect without the invalid provision or application, and to
that end the provisions of this act are severable.


==========FOOTNOTES==========

(1) Those cases are as follows: (1) League of United Latin
American Citizens v. Wilson, Case No. CV 94-7569 MRP (the
"LULAC Action"). The LULAC Action is a class action on behalf
of all persons who: (a) are required to be questioned regarding their
citizenship or federal immigration status, or required to produce
documentation of their citizenship or federal immigration status,
pursuant to Sections 4, 5, 6, 7 and 9 of Proposition 187; (b) are
rendered ineligible for public social services, health care, or
education pursuant to Sections 5, 6 and 7 of Proposition 187; or are
required to be reported as not having legal status or notified either
to obtain legal status or leave the United States pursuant to
Sections 4, 5, 6, 7, or 9 of Proposition 187. (2) Children Who Want
an Education v. Wilson, Case No. CV 94-7570 MRP. (3) Ayala v.
Pete B. Wilson, Case No. CV 94-7571 MRP. (4) Gregorio T. v.
Wilson, Case No. CV 94-7652 MRP. (5) Carlos P. v. Wilson, Case
No. CV 95-0187 MRP.


(2) The Court has permitted the following parties to intervene as
plaintiffs: (1) the City of Los Angeles; (2) the California
Association of Catholic Hospitals and the Catholic Health
Association of the United States (collectively "Catholic
Hospitals"); (3) California Teachers Association, California
Faculty Association, American Federation of State, County and
Municipal Employees AFL-CIO, and Service Employees
International Union AFL-CIO (collectively "CTA"); and (4)
Islamic Center of Southern California, Muslim Public Affairs
Council and California Council of Churches (collectively "Islamic
Center").


(3) All plaintiffs have sued Governor Pete Wilson and Attorney
General Dan Lungren.

In addition, LULAC plaintiffs named Acting State Superintendent
of Public Instruction William Dawson ("Dawson") (Dawson has
been replaced by the current Superintendent Delaine Eastin
("Eastin")); Director of Department of Social Services Eloise
Anderson ("Anderson"); Director of Department of Health
Kimberly Belshe ("Belshe"); California State Board of Education;
Department of Education; Orange Unified School District; Tustin
Unified School District; and San Diego Unified School District.

Children plaintiffs also named Los Angeles Unified School District
and the State of California.

Ayala plaintiffs also named Dawson; Alhambra Unified School
District; and Superintendent of the Alhambra Unified School
District Heber Meeks.

Gregorio T. plaintiffs also named Dawson (who was replaced by
Eastin); Anderson; Belshe; individuals who are the members of the
California State Board of Education, in their official capacities;
individuals who are the Regents of the University of California, in
their official capacities; Jack Peltason, president of the University
of California; individuals who are the Trustees of the California
State University, in their official capacities; Barry Munitz, the
Chancellor of the California State University, individuals who are
the members of the Board of Governors of the California
Community Colleges, and David Mertes, Chancellor of the
California Community Colleges.

Catholic Hospitals, Islamic Center, and CTA, plaintiffs-in-
intervention, each filed a complaint against the same persons who
were named as defendants by the Gregorio T. plaintiffs.


(4) In February 1995, Defendants Wilson, Belshe and Anderson
brought a motion for abstention, or in the alternative, to dismiss for
failure to state a claim. Lungren joined in the motion for abstention
and also moved to dismiss. In March 1995 the Court denied these
motions and set this case for trial.


(5) The following parties joined in LULAC's motion: Defendant
San Diego Unified School District; defendant and amicus curiae
Los Angeles Unified School District; and plaintiffs-intervenors
Catholic Hospitals and Islamic Center.

The following parties joined in Gregorio T.'s motion: Carlos P. and
Ayala plaintiffs; plaintiffs-intervenors City of Los Angeles, CTA,
Catholic Hospitals, and Islamic Center; and defendant and amicus
curiae Los Angeles Unified School District.


(6) Catholic Hospitals and Islamic Center brought independent
motions for summary judgment motions based on preemption as
well, on May 12, 1995 and May 16, 1995, respectively. Catholic
Hospitals and Islamic Center each joined in the other's motion.

To the extent that those motions are brought on grounds other than
those raised in the LULAC and Gregorio T. motions, they are
denied. To the extent that those motions rely on the same
arguments raised in the LULAC and Gregorio T. motions, those
motions are granted in part and denied in part in accordance with
the ruling set forth in this Opinion.


(7) For the purposes of this Opinion, "defendants" means all named
defendants except for the following, who do not oppose the
plaintiffs' motions: (1) the defendants who joined in the motions
for summary judgment (listed in footnote 5); (2) the Regents of the
University of California, who filed a notice of nonopposition to all
motions for summary judgment filed herein; (3) Eastin, who
stipulated to the entry of summary judgment against her on July
28, 1995; and (4) the State Board of Education, which adopted a
resolution declaring neutrality in this litigation on November 21,
1994.


(8) The eight substantive sections of the statute are codified as
follows: Section 2 is codified at Cal. Penal Code Section 113.
Section 3 is codified at Cal Penal. Code Section 114. Section 4 is
codified at Cal. Penal Code Section 834b. Section 5 is codified at
Cal. Welf. & Inst. Code Section 10001.5. Section 6 is codified at
Cal. Health & Safety Code Section 130. Section 7 is codified at
Cal. Educ. Code Section 48215. Section 8 is codified at Cal. Educ.
Code Section 66010.8.

For the purposes of this Opinion, the initiative's provisions are
referred to by their initiative section numbers rather than by their
California code section numbers (i.e., Cal. Penal Code Section
834b(a) is referred to as "section 4(a)").


(9) The verification provisions are of two types. The first type
requires state agents to classify persons based on three state-
created categories of "legal status" without any reference to federal
immigration laws. Specifically, state agents must determine who is
a "citizen" and who is "lawfully admitted" as a permanent resident
or for a temporary period of time. Sections 5(b); 6(b); 7(d). These
provisions are referred to collectively as "classification"
provisions. The remaining verification provisions contain a "catch-
all" category exempting from Proposition 187's denial of benefits,
notification and reporting provisions persons who are otherwise
lawfully present in the United States under federal law. Sections
4(b)(1); 5(c); 6(c); 7(b), (c); 8(b). These provisions are referred to
collectively as the "remaining verification" provisions.


(10) As explained above, the benefits denial provisions in
subsection (c) of sections 5 and 6 may be constitutionally
implemented only through a regulation whereby state agents do not
themselves determine a whether a person is lawfully present in the
United States and only verify a person's immigration status for
benefits denial purposes by relying on determinations made by the
INS and accessible through SAVE.


(11) Those lawfully "admitted" under federal immigration law are
those who an immigration officer determines to satisfy
admissibility criteria at the time of entry. 8 U.S.C. Section 1182.
Thus, it is likely that there are aliens who are lawfully present in
the United States, but who were never lawfully "admitted" as
federal law defines that term. These include, for example, persons
who entered illegally but then were granted asylum under 8 U.s.C.
Section 1158. Conversely, some aliens who were lawfully
"admitted" under the INA, but have overstayed their visas, may no
longer be lawfully present. The plain language of subsection (b)(3)
would include these aliens while the construction urged by
defendants would exclude them.


(12) Section 1, entitled "Findings and Declaration," contains the
following conclusion:

Therefore, the People of California declare their intention to
provide for cooperation between their agencies of state and local
government with the federal government, and to establish a system
of required notification by and between such agencies to prevent
illegal aliens in the United States from receiving benefits or public
services in the State of California.

(emphasis added). Since Proposition 187's cooperation/reporting
requirements are preempted, the underlined portion of the
preamble states an impermissible purpose. However, because the
preamble has no practical effect absent the invalid substantive
provisions, it is not subject to the preemption inquiry.


(13) Plaintiffs have not provided the Court with any example of
how such criminal penalties would even indirectly regulate
immigration -- and the Court is hard pressed to come up with any
such examples on its own.


(14) The Court in De Canas also recognized that because certain
federal legislation pertaining to farm labor contractor registration
explicitly contemplated supplementary and consistent "appropriate
State law and regulation," 7 U.S.C. Section 2051, the INA could
"not be taken as legislation by Congress expressing its judgment to
have uniform federal regulations in matters affecting employment
of illegal aliens, and therefore barring state legislation" such as the
statute at issue. De Canas, 424 U.S. at 361-62. Likewise in this
case, the public benefits scheme in this country is predominantly a
cooperative federal-state effort based on voluntary state
participation in federally-funded public benefits programs such as
AFDC, Medicaid and Food Stamps and the states optional
provision of state funded public benefits not within the federal
scheme. Thus, it cannot be said that the INA was unmistakably
intended to preclude states from regulating, to the extent consistent
with federal law, the provision of public benefits and services.


(15) 8 U.S.C. Section5 1101(a)(42), 1157. Refugees are persons
determined by the INS to have been persecuted or to have a well
founded fear of persecution based on race, religion, nationality,
membership in a particular social group of political opinion.


(16) 8 U.S.C. Section 1101(a)(42)(A), 1158. Persons who meet the
statutory definition of refugee are eligible for asylum and may
apply for permanent residency after one year. Asylees are entitled
to remain in the United States on an indefinite basis unless asylee
status is revoked by the INS.


(17) 8 U.S.C. Section 1253(h). A person is eligible for withholding
of deportation if her "life or freedom would be threatened in [the
home] country on account of race, religion, nationality,
membership in a particular social group, or political opinion.


(18) 8 U.S.C. Section 1182(d)(5). Persons paroled by the INS into
the United States based on humanitarian or public interest
considerations may be authorized for indefinite stays.


(19) 8 C.F.R. Section 242.6. The spouses and children of aliens
legalized under the Immigration Reform and Control Act's
("IRCA") amnesty provisions are protected from deportation by
family unity status.


(20) 8 U.S.C. Section 12S4a. Aliens living in the United States
may be granted temporary protected status where unsafe conditions
in their countries of origin make it a hardship to return.


(21) 57 Fed. Reg. 28700-28701 (1992). Salvadorans granted DED
status that officially expired at the end of 1994 remain in the
United States with the permission of the INS on the basis of family
relationships, continuing eligibility for work authorization and
other grounds.


(22) 8 V.S.C. Sections 1105a(a)(3) (stay), 1254(a) (suspension).
An alien found deportable and ordered deported by an immigration
judge may be eligible for suspension or stay of deportation for
emergent or humanitarian reasons.


(23) 8 U.S.C. Section 1154. The Violence Against Women Act of
1994 (Title IV of the Violent Crime Control and Law Enforcement
Act of 1994) provides that battered immigrant women and children
may become legalized by self-petition for immediate relative or
second preference status under the INA or by application for
suspension of deportation on the basis of abuse.


(24) Because all of Section 7 is necessarily preempted by the
Supreme Court's decision in Plyler v. Doe as discussed below, that
Section 7's verification provision does not conflict with federal law
cannot save it from preemption on other grounds.


(25) 42 U.S.C. Section 1786; 7 C.F.R. S 246 (providing
supplemental food, nutrition, counseling and health care referral
for low-income pregnant women, new mothers, infants and
children who are at "nutritional risk").


(26) Child welfare services are defined under federal law as public
social services directed toward child well-being, including
programs to protect and promote child welfare generally, to
prevent or remedy neglect, abuse, exploitation and delinquency of
children, to restore children to their families after protective
removals and to place children and assure adequate care in suitable
adoptive or other homes. See 42 U.S.C Section 625. Federal grants
are made to qualified state child welfare service programs. See 42
U.S.C. Sections 601 et seq.; 42 U.S.C. Sections 620 et seq.; 42
U.S.C. Sections 670 et seq.; 42 U.S.C. Section 5101 (providing
emergency response, family reunification and other benefits and
services to children or needy families with children regardless of
immigration status).


(27) See supra n.26.


(28) See supra n.26.


(29) Defendants assert generally that such programs exist.
However, they have not specifically identified any such program.


(30) 42 U.S.C. Section 291c(e); 42 C.F.R. Section 124.603(a)(1)
(requiring Hill-Burton funding recipient facilities to make services
"available to all persons residing in the territorial area" of the
facilities regardless of immigration status).


(31) 42 U.S.C. Section 254c; 42 C.F.R. Section 51c.303(v) (federal
grant recipient public and nonprofit private "community health
centers" serving "medically underserved populations" to provide
health care regardless of immigration status).


(32) 42 U.S.C. Section 1395dd (requiring hospitals that receive
Medicare reimbursements to screen and stabilize emergency
patient regardless of patient's immigration status).


(33) Subsection (d) of section 6 provides that the term "publicly-
funded health care facility" is to be defined as specified in Sections
1200 and 1250 of the California Health and Safety Code. Section
1250 defines "health facility" as:

any facility, place or building which is organized, maintained, and
operated for the diagnosis, care, prevention, and treatment of
human illness, physical or mental, including convalescence and
rehabilitation and including care during and after pregnancy, or for
any one or more of these puroses, for one or more persons, to
which the persons are admitted for a 24-hour stay or longer . . .

Cal. Health & Safety Code Section 1250. Section 1200 defines
"clinic" as follows:

an organized outpatient health facility which provides direct
medical, surgical, dental, optometric, or podiatric advice, services
or treatment to patients who remain less than 24 hours, and which
may also provide diagnostic or therapeutic services to patients in
the home as an incident to care provided at the clinic facility.

Cal. Health & Safety Code 5 1200. While these sections define
"health care facility," they fail to explain what is intended by the
term "publicly-funded." Under these broad definitions, section 6
must be construed to apply to all hospitals that receive any "public"
funding, state or federal.


(34) Plaintiffs also argue that subsection (b) of section 6 conflicts
with EMTALA by delaying the provision of care until the patient's
immigration status is determined. Since subsection (b) is
preempted under both the first and third De Canas tests, this
argument merits no further discussion here.


(35) Defendants have not identified any wholly state-funded health
care facilities.


(36) Although plaintiffs did not assert Plyler as a basis for conflict
preemption of-section 7 in their motions for summary judgment,
the Court is nevertheless constrained to consider the irreconcilable
conflict between section 7 And federal law as announced by the
Supreme Court in that case. The Ayala plaintiffs have also alleged
that section 7 directly conflicts with the Individuals With
Disabilities Education Act, 20 U.S.C. Section 1400 et seq. (the
"IDEA"), because the IDEA specifically guarantees a free
appropriate public education to all disabled children, regardless of
immigration status. Since the Court finds here that section 7 is
preempted in its entirety as applied to all children, this separate
ground for summary judgment need not be considered.


(37) In finding the state's reasons for attempting to withhold public
education from undocumented children constitutionally
"insubstantial," the Supreme Court in Plyler was particularly
concerned with the state statute because it was directed at children,
persons the Court deemed "special members" of the "underclass"
of undocumented Aliens present in this country. Plyler, 457 U.S. at
219. Distinguishing undocumented children, who are capable of
affecting "'neither their parents' conduct nor their own status,'"
from their adult parents, who are willingly present in violation of
federal immigration laws, the Court concluded that it is "difficult
to conceive of a rational justification for penalizing these children
for their presence within the United States." Id. at 219-220 (citing
Trimble v. Gordon, 430 U.S. 762, 770 (1977)). While
"[p]ersuasive arguments support the view that a State may
withhold its beneficence from those whose very presence within
the United States is the product of their own unlawful conduct," the
"arguments do not apply with the same force to classifications
imposing disabilities on the minor children of such illegal
entrants." Id. Recognizing the costs the state statute imposed on
"the innocent children who [were] its victims, the Court concluded
that the statute failed equal protection scrutiny, despite the fact that
classifications based on undocumented alien status are not suspect
and education is not a fundamental right, because it failed to
further "some substantial goal of the State." Id. at 224. The
Supreme Court's reasoning and ruling in Plyler appears to compel a
finding that section 6's denial of health care services, as applied to
undocumented children, is equally without "rational justification"
and offensive to the principles of equal protection. Id. at 220.
Although the Court declines at this time to rule on this extension of
Plyler, it does note that section 6, to the extent it denies health care
services to undocumented children, appears to be in direct conflict
with federal law.


(38) Because severing section 7 in its entirety does not impede the
functioning of the remainder of the initiative, does not render the
remainder unintelligible, and cannot be said to be so crucial to the
passage of the initiative that the initiative would have failed in its
absence, section 7 is functionally, grammatically, and volitionally
severable from the remaining sections.


(39) See 8 U.S.C. Section 1306(d) (false alien registration cards);
18 U.S.C. Sections 1424, 1425 (false papers in naturalization
proceedings); 18 U.S.C. Section 1028 (production, possession or
use of false identification documents); 18 U.S.C. Section 1426
(false naturalization, citizenship or alien registration papers); 18
U.S.C. Sections 1542-1543 (forgery or false use of passport); 18
U.S.C. Section 1544 (misuse of passport); 18 U.S.C. Section 1546
(fraud and misuse of visas); 18 U.S.C. Section 911 (false claim to
citizenship).