- The Washington Times - Sunday, December 26, 2004

The Mexican American Legal Defense and Educational Fund, whose attempt to block implementation of an Arizona initiative prohibiting illegal aliens from receiving public benefits was denied by a federal judge, will appeal the decision this week to the 9th U.S. Circuit Court of Appeals in San Francisco.

The initiative, known as Proposition 200, passed Nov. 2 with 56 percent of the vote. It requires state and local government employees to verify the immigration status of those seeking public benefits and to report to federal immigration authorities any applicant who is in violation of U.S. immigration law. It also subjects the employees to criminal charges if they fail to report illegals.

On Wednesday, U.S. District Judge David C. Bury in Tucson lifted a temporary restraining order that he had imposed in November and denied a MALDEF request for an injunction, clearing the way for Arizona Gov. Janet Napolitano, a Democrat, to allow enforcement of the initiative.

MALDEF lawyer Hector Villagra said the organization has been reviewing the judge’s decision and thought there were grounds for appeal, although he declined to elaborate. MALDEF had argued in court papers that unless the initiative was overturned, it would “jeopardize the health and well-being of families and children who depend on public benefits for their basic necessities.”

In seeking a retraining order, MALDEF said Proposition 200 would “cut off all state services, including education, medical care and police and fire services, to all individuals who are unable to immediately provide adequate proof of their U.S. citizenship or residence.”

MALDEF President and General Counsel Ann Marie Tallman called the initiative “an illegal, impermissible, unconstitutional state attempt to regulate immigration policy, which is a fundamental function and responsibility of our federal government.” She said it “denies basic services to hardworking, contributing members of our community while forcing public servants to become de facto federal immigration officers.”

But Judge Bury ruled that MALDEF attorneys had failed to prove potential harm from enforcement of the initiative, and Jeanine L’Ecuyer, a spokeswoman for Mrs. Napolitano, said that Proposition 200 was the law of Arizona and that the governor expects agencies to comply with its provisions.

Still on the table is a lawsuit filed by the Federation for American Immigration Reform, which seeks to expand the definition of Proposition 200 to include myriad public benefits such as housing, food assistance, college education and employment benefits.

FAIR argued that Arizona Attorney General Terry Goddard erred in concluding last month that the “state and local public benefits” affected by Proposition 200 were limited to those defined under the welfare section of Arizona law and already subject to federal eligibility restrictions.

“We are asking the judge to accept our interpretation of what public benefits mean,” FAIR’s attorney, Michael Hethmon, told reporters after filing the suit in Maricopa County Superior Court in Phoenix.

Judge Bury, in ordering that the restraining order be lifted and the law enforced, said Mr. Goddard correctly had concluded that the initiative pertained to only welfare programs.

“Before the passage of Proposition 200, under both federal and state law, undocumented aliens were not eligible to receive public benefits, with certain enumerated exceptions,” Judge Bury said in a 28-page ruling, adding that Mr. Goddard had issued “a reasoned opinion” limiting its application.

“Furthermore, by its express terms, Proposition 200 applies only to ‘state and local benefits that are not federally mandated,’ ” he wrote.

In deciding the issue, Judge Bury noted in court papers that he found himself in “an extremely undesirable position.”

“On the one hand, a majority of Arizona voters cast their ballots in favor of Proposition 200, and this court is loath to disregard their decision. On the other hand, this court is obligated to uphold the Constitution of the United States, even when to do so stands in opposition to popular opinion,” he wrote.

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