Judge blocks Prop. 200 implementation

GREEN VALLEY--Proposition 200, aimed at restricting services to illegal immigrants, was stopped for at least two weeks when a federal judge on Tuesday issued an order blocking the controversial ballot initiative.

In Tucson, U.S. District Judge David Bury issued a temporary restraining order requested by the Mexican American Legal Defense and Education Fund (MALDEF), saying their lawyers raised "serious questions" about the constitutionality of the initiative.

The order may bring a sigh of relief to local, state and county workers who otherwise would have had to begin enforcing the provisions of the measure on Wednesday, when Gov.. Napolitano certified results of the Nov. 2 election.

The provision of Proposition 200 that was challenged says public employees must check the immigration status of anyone applying for public benefits that are not federally mandated.

Hearing set

Bury's order called for a one-hour hearing on MALDEF's request for a permanent order to be held at 1:30 p.m. on Wednesday, Dec. 22.

Bury wrote "this Court's decision to grant the TRO (temporary restraining order) should not be construed in any way as a comment on the merits or legality of Proposition 200. This Court simply lacks sufficient information at this time to reach any such conclusion."

Proposition 200 supporter Kathy McKee blasted Napolitano and state Attorney General Terry Goddard in a press release.

McKee said Napolitano delayed certifying the election results for about a week to give opponents time to file the lawsuit and Goddard similarly delayed sending the voting section of Proposition 200 to the U.S. Department of Justice for a legal review called a preclearance. The Justice Department must provide preclearance on electoral changes in states with a history of violating the federal Voting Rights Act.

"Their delay was obviously to give our opponents more time to file their lawsuit and get an injunction against Prop 200 that was filed (Tuesday)," McKee said.

"Here we are 29 days after the election, and these two very unabashed opponents to Proposition 200 expect the public to believe there was some kind of valid purpose behind their refusal to do their jobs," McKee said.

"The governor has known of the likelihood of passage of Prop 200 for over a year, yet her excuse for not signing the proclamation 'forthwith' after the secretary of state 's completion of the canvass on Nov. 22, as required by the Arizona Constitution, was that DES (Department of Economic Security), the welfare department, was not ready to implement Prop 200," McKee said.

There has been confusion about which benefits the ballot measure would affect. About 85 percent of the petitions that were filed to put the question on the ballot contained the phrase "public welfare benefits," but the ballot proposition itself contained the phrase "public benefits." The question was approved by 53 percent of voters statewide.

Goddard has ruled that the proposition only covers a narrow range of benefits, including housing and rental assistance.

Bury's ruling read, in part, "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 initiative exempts federally mandated programs, but MALDEF lawyers argued that illegal aliens and citizens, including the U.S.-born children of illegals, might be denied services to which they are entitled if Proposition 200 were enforced.

The initiative says public employees must report illegals seeking services to federal immigration authorities or the employees could face conviction on criminal charges, jail time and fines.

Pima County Administrator Chuck Huckelberry said this aspect of Proposition 200 could present liability problems for the county's nearly 8,000 employees, because the county only provides legal representation for employees in civil cases, but not criminal cases, that arise out or work responsibilities.

The county Health Department is taking a "business as usual" approach until the federal court rules, community relations manger Stanley Levine said, because "we have no definitive interpretation of this (measure). No one's going to guess what it means."

MALDEF argued that the reporting provision would force state and local employees to interpret federal immigration law, a duty for which they are not qualified.

The ballot measure also requires proof of citizenship for those registering to vote and requires voters show photo identification at the polls, provisions that MALDEF did not challenge.

The judge's order in the case, CV 04-649 TUC DCB, can be viewed on the district court Web site, www.azd.uscourts.gov., under the "Cases of Interest" section.

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