Dec. 1, 2004
By Howard Fischer and Lourdes Medrano
A federal judge in Tucson blocked the state
Tuesday from enforcing Proposition 200, at least
for the next three weeks.
U.S. District Judge David Bury granted a
temporary restraining order after concluding
that lawyers hired by the Mexican American Legal
Defense and Education Fund raised "serious
questions" about the measure's legality.
"It seems likely that if Proposition 200 were to
become law, it would have a dramatic chilling
effect upon undocumented aliens who would
otherwise be eligible for public benefits under
federal law," the judge wrote, although the
language of the initiative specifically exempts
programs mandated by federal law.
Tuesday's decision is not the end of the matter.
Bury scheduled a full-blown hearing for Dec. 22
to determine whether to enjoin enforcement of
the law until its merits and legality can be
fully litigated - a process that could take
months, if not longer.
The judge stressed that Tuesday's ruling does
not mean he accepts arguments by initiative foes
that it is illegal. He said it shows only that
he "lacks sufficient information at this time"
to decide its constitutionality.
Bury's ruling bars the state from enforcing the
part of Proposition 200 that requires applicants
for "public benefits" to prove they are in this
country legally. The same section also says
government workers must report illegal entrants
to federal immigration authorities or face
possible jail time and fines.
The measure, approved by Arizona voters by 56-43
percent Nov. 2, was supposed to take effect
today after Gov. Janet Napolitano signs a formal
proclamation of election results.
The Mexican American Legal Defense and Education
Fund, or MALDEF, chose to file its challenge in
Tucson because of its significant Hispanic
population, the fact that Pima County voters
rejected the initiative and the escalating
number of people reporting that they are being
denied some services, said attorney Steve Reyes.
The Tucson human-rights group Coalición de
Derechos Humanos has documented more than 120
complaints from U.S. citizens and illegal
immigrants saying they've been denied services
or fear they will be because of Proposition 200,
said co-chairwoman Isabel Garcia. She declined
to identify them because of the pending legal
"There's been misapplications of Prop. 200
already," Garcia said. "And there is also an
incredible amount of fear on behalf of the state
providers as well as the people who need those
The plaintiffs include some "undocumented"
residents, who are listed only by first name and
last initial. Attorney Hector Villagra, who
argued for the restraining order, said they fear
trouble if they send their undocumented children
to school. Federal law specifies that legal
presence in this country is not necessary for
Villagra said other plaintiffs are here
illegally but have children who are U.S.
citizens who might not apply for health and
welfare benefits, or even get emergency care,
for which those children are eligible.
There also are two public employees, one who
works for the Department of Economic Security in
Pima County and the other a Phoenix firefighter,
both of whom say they are unsure what services
they can and cannot provide under Proposition
Villagra said the Los Angeles-based MALDEF -
which helped defeat California's similar
Proposition 187 about a decade ago - was pleased
with the judge's decision. "It will help ease
some of the confusion that seems to be rampant
out there," he said.
Villagra argued that the initiative illegally
forces state eligibility workers to screen for
illegal entrants, "and not for the purpose of
"We know that because there is this reporting
provision that has absolutely nothing to do with
eligibility for benefits," he said. "State
employees will be, on their own, making
determinations of whether federal law has been
violated and reporting those violations to the
He said that's something state workers are not
trained to do.
"This shows the purpose is to detect, report and
effect the deportation of people in this
country," which is solely the purpose of federal
immigration officials, Villagra told the judge.
Attorneys for the state argued unsuccessfully
that a restraining order is legally
inappropriate. "We have a law that voters
approved," said Assistant Attorney General Mary
O'Grady. "The state ought to be able to
O'Grady said there is no real potential for
harm. She pointed out that Attorney General
Terry Goddard concluded last month that
Proposition 200 is limited to a handful of
benefits such as rental and housing assistance.
O'Grady said people who would be denied those
services under the initiative already are
ineligible under U.S. law.
Villagra, however, said Goddard's opinion is not
Randy Pullen, chairman of the Yes on 200
Committee, said he was not surprised by
Tuesday's order. He said judges often want time
to explore the legality of complex issues before
letting new laws take effect.
But Pullen, who intends to try to intervene in
the Dec. 22 hearing, said the law eventually
will be upheld. "I'm pretty comfortable where we
are in constitutional law, and I still think
we'll prevail," he said.
Left untouched in Tuesday's ruling are sections
of Proposition 200 that mandate proof of
citizenship to register to vote and presenting
identification when casting a ballot.
Anti-200 attorney Daniel Ortega said there was
no need to seek a restraining order for that
part of the law because it cannot take effect
until it is reviewed by the U.S. Justice
In a separate development Tuesday, a group led
by state Rep. Ben Miranda, D-Phoenix, set up a
toll-free number for people to report, in
Spanish or English, problems due to Proposition
200. The number is 1-877-252-7555.
Miranda, a foe of the initiative, said the
information gathered could be used to file legal
briefs in this case to convince a judge of the
detrimental effects of the initiative.