BILL ANALYSIS Ó AB 26 Page 1 Date of Hearing: April 5, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 26 (Donnelly) - As Introduced: December 6, 2010 SUBJECT : IMMIGRATION: STATE POLICY AND ENFORCEMENT MECHANISMS KEY ISSUE : Should California adopt a series of measures TO REGULATE IMMIGRATION copied from controversial legislation in arizona that has been found to be of questionable constitutional validity as the result of multiple and costly challenges by business groups, the United states department of justice and civil rights organizations? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This is an author-sponsored measure that copies controversial legislation from Arizona seeking to regulate U.S. immigration. The bill's policy of "attrition by enforcement" is intended to reduce the number of unauthorized immigrants in California. It would enact a sweeping set of new regulations, duties, prohibitions, criminal sanctions, fines and penalties affecting every employer, local government, district attorney, the Attorney General, and other state agencies. This analysis focuses only on the civil matters within the Committee's jurisdiction. Should the bill advance, it will be referred to the Public Safety Committee for consideration of its penal law provisions. Supporters contend that the federal government has failed to properly enforce immigration laws that prohibit people from entering the country illegally. Supporters further allege that undocumented immigrants illegally use valuable resources that are meant for hard-working citizens, legal residents, and taxpayers. The bill is opposed by business and employer advocates, civil rights organizations, law enforcement and other groups who contend that it is unnecessary, unconstitutional and unwise. The Arizona legislation on which this bill is based has been challenged by the United States and a broad array of business associations and civil rights organizations. Part of the Arizona law has been enjoined; another part is currently before the U.S. Supreme Court in a lawsuit brought by the Chamber of Commerce. AB 26 Page 2 SUMMARY : Seeks to regulate immigration and the employment of immigrants. Specifically, this bill : 1)Declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in California, and further declares that the provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. 2)Prohibits public officials and agencies from adopting a policy that limits or restricts the enforcement of federal immigration laws or that restricts the sharing of a person's immigration status, as specified. 3)Allows any person to bring an action in superior court to challenge any official or agency of the state or of a city, county, city and county, or other political subdivision that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. 4)Provides that a prevailing plaintiff shall recover court costs and attorney's fees. 5)Requires that the public entity pay a civil penalty of not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000) for each day that the policy has remained in effect after the filing of an action. 6)Requires that a law enforcement officer shall be indemnified by the law enforcement officer's agency against reasonable costs and expenses, including attorney's fees, incurred by the officer in connection with any action, suit, or proceeding to which the officer may be a party by reason of the officer being or having been a member of the law enforcement agency, except in relation to matters in which the officer is adjudged to have acted in bad faith. 7)Prohibits an employer from either knowingly or intentionally employing an unauthorized alien, as specified. 8)Requires the Attorney General to prescribe a complaint form by which any person wishing to do so may allege a violation of AB 26 Page 3 the prohibition against employing unauthorized aliens, which may be submitted by a complainant anonymously. 9)Establishes a process for persons to file complaints of violations of these provisions with the Attorney General or a district attorney, and makes it a misdemeanor to make a false and frivolous complaint alleging a violation of these provisions by an employer. 10)Requires the investigation of complaints by the Attorney General or relevant district attorney, and requires that if the Attorney General or district attorney determines that the complaint is not "false and frivolous," the Attorney General or district attorney shall do both of the following: (A) Notify the United States Immigration and Customs Enforcement of the unauthorized alien; and (B) Notify the local law enforcement agency of the unauthorized alien. 11)Requires the Attorney General to notify the appropriate district attorney to bring an action against the employer if the complaint is not found to be "false and frivolous" and specifies penalties and other consequences, including the suspension of certain licenses, for employers that violate these provisions. 12)Requires every employer to verify the employment eligibility of employees through the federal E-Verify program and require employers to participate in the federal E-Verify program in order to be eligible for economic development incentives, as specified. 13)Establishes a variety of new crimes and penalties regarding presence, smuggling, hiring persons for work, solicitation or performance of work, operation of motor vehicles, transportation of aliens, concealment or harboring of an alien from detection, inducement of an alien to come to or reside in this state if the person knows or recklessly disregards the fact, that the alien would be entering or residing in this state unlawfully. 14)Would establish the Gang and Immigration Intelligence Team Enforcement Mission Fund to be funded as specified, and administered by the Department of Justice to be used, upon appropriation, for gang and immigration enforcement and for county jail reimbursements relating to illegal immigration. AB 26 Page 4 EXISTING LAW : 1)Provides for the regulation of immigration exclusively by the federal government. (E.g., LULAC v. Wilson, 908 F. Supp. 755, 786-87 (C.D. Cal. 1995).) 2)Prohibits any employer from employing any person whose immigration status makes them ineligible for work and imposes fines ranging from $250 to $10,000 for each undocumented worker, and criminal penalties for habitual violators ranging from a $3,000 fine to six months in prison. Criminal penalties can be assessed on employers who demonstrate "a pattern or practice" of violations, and the Attorney General may seek permanent or temporary injunctive relief against repeat offenders. (8 U.S.C. section 274A.) 3)Expressly preempts any state or local law imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. (8 U.S.C. section 1324a.) 4)Generally regulates employment, including, but not limited to, the wages, hours, and working conditions of employees. (Labor Code section 1 et seq.) COMMENTS : The author has provided the Committee with the following statement regarding the need for this bill, which is reproduced here in its entirety: AB 26 would prohibit public officials or agencies from adopting policies that limit enforcement of Federal immigration laws. This bill would also restrict employers and businesses from knowingly employing unauthorized aliens and require them to verify employment eligibility through the Federal e-verify program. AB 26 would end sanctuary cities by enabling citizens to sue the government if a city operates as a sanctuary for illegal aliens. This bill would establish a process in which people can file complaints of employment violation with the Attorney general or a District Attorney, but would provide for investigation of these complaints and make it a misdemeanor to file a false complaint. This bill would make it a felony to intentionally smuggle people for the profit of commercial purposes and would make it a felony, punishable by life in AB 26 Page 5 prison, to smuggle a minor into or through the State of California for the purposes of sexual slavery. AB 26 would establish the Gang and Immigration Intelligence Team Enforcement Mission Fund for the purposes of gang and immigration enforcement and for county jail reimbursements relating to illegal immigration. This bill would also increase criminal penalties, one being for criminals who traffic minors across the border for the purposes of sexual slavery. As to the nature of the alleged problem, and how the bill would address it, the author's "fact sheet" adds: Federal immigration laws prohibit people from entering the country illegally. Immigrants that come into California illegally use valuable resources that are meant for hard-working citizens, legal residents, and taxpayers. While California is facing a budget deficit of more than $26 billion, the cost of services being rendered to illegal immigrants in California have been estimated to be over $10 billion. The Federal government is not taking their responsibility to deal with this issue in a timely manner seriously and the cost of their apathy is landing on the back of hardworking and law abiding taxpayers and businesses. Stated Purpose of The Bill. The bill declares that "the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in California." It "further declares that the provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." According to the Center for Immigration Studies, which advocates for stricter controls on immigrants, "The purpose of attrition through enforcement is to increase the probability that illegal aliens will return home without the intervention of immigration enforcement agencies. In other words, it encourages voluntary compliance with immigration laws through more robust interior law enforcement." (http://www.cis.org/articles/2006/back406.html). "Elements of the attrition through enforcement strategy include: mandatory workplace verification of immigration status; measures to curb AB 26 Page 6 misuse of Social Security and IRS identification numbers; partnerships with state and local law enforcement officials; expanded entry-exit recording under US-VISIT; increased non-criminal removals; and state and local laws to discourage illegal settlement." (Id.) The "attrition through enforcement" policy is said to "Shrink the illegal population through consistent, across-the-board enforcement of the immigration law. By deterring the settlement of new illegals, by increasing deportations to the extent possible, and, most importantly, by increasing the number of illegals already here who give up and deport themselves, the United States can bring about an annual decrease in the illegal-alien population, rather than allowing it to continually increase. The point, in other words, is not merely to curtail illegal immigration, but rather to bring about a steady reduction in the total number of illegal immigrants who are living in the United States. The result would be a shrinking of the illegal population to a manageable nuisance, rather than today's looming crisis." (http://www.cis.org/ReducingIllegalImmigration-Attrition-Enforcem ent.) As discussed below, this provision has a corollary in a recent Arizona measure that has been blocked by the courts in United States v. Arizona, a legal challenge brought by the Department of Justice. The DOJ alleges that Arizona's focus on "attrition" disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety. According to the United States, a mandatory enforcement scheme would undermine the federal government's careful balance of priorities and enforcements, diverting resources from dangerous aliens and potentially harassing of authorized visitors, immigrants, and citizens. Related Legislation In Other States. This bill appears to be part of a multi-state effort following the enactment of highly controversial similar measures in Arizona. According to the author, similar legislation has been proposed (but not enacted) in the following states: Kentucky, South Carolina, Texas, South Dakota, Georgia, Maine, Utah, Florida, Missouri, North Carolina, Minnesota, Mississippi, Colorado, Maryland, Nebraska, Indiana, Oregon, and Virginia. Utah last month took a different approach by adopting a package AB 26 Page 7 of bills dealing with enforcement but also providing state work permits and a path to legal residence to undocumented immigrants and their families. (See G. Lopez, "Business Beats Bigotry," Los Angeles Times (March 28, 2011).) Media reports indicate that the initial flurry of legislation has not generated widespread support. "A year ago, a revolution on immigration enforcement seemed underway, with legislators in at least 20 states vowing to follow the lead of Arizona's tough new law targeting illegal immigrants. These days, the momentum has shifted. In at least six states, the proposals have been voted down or have simply died. Many of the other proposals have not even made it past one legislative chamber. ?. The main factor behind the retreat is skittishness about costs, said Ann Morse, who tracks immigration legislation for the National Conference of State Legislatures." ("On immigration, momentum shifts away from Arizona," Los Angeles Times (March 6, 2011).) According to one report, "Proposed legislation in Alabama, Georgia and South Carolina, where Republicans control the legislatures and the governors' mansions, have moved further than similar proposals in many other states, where concerns about the legality and financial impact of aggressive immigration legislation have stopped lawmakers." ("Southern Lawmakers Focus on Illegal Immigrants," New York Times, March 25, 2011.) The New York Times recently commented: In dozens of states considering such crackdowns - including Nebraska, Indiana, Oklahoma, Georgia, Kentucky, Mississippi, South Carolina and Texas - elected officials, law enforcers, business owners, religious leaders and regular citizens are providing the calm voices and cool judgment that are lacking in the shimmering heat of Phoenix. They are reminding their representatives that replacing federal immigration policy with a crazy quilt of state-led enforcement schemes is only a recipe for more lawlessness and social disruption, for expensive lawsuits and busted budgets, lost jobs and boycotts. And all without fixing the problem. This isn't just an immigrants' cause. Business owners in AB 26 Page 8 places like Kansas and Texas, the attorney general in Indiana, Catholic and Protestant bishops in Mississippi - these and hundreds of other community leaders have been sending a contrary message. The businesses say bills to force employers to check workers' legal status are redundant, costly and anticompetitive. The clergy members have denounced bills to criminalize acts of charity, like driving an undocumented immigrant to church or the doctor. Lawyers have said new layers of enforcement paperwork would heavily burden legitimate business and overwhelm state bureaucracies. Police chiefs and sheriffs are leading the skeptical resistance to the bills, which frequently involve having local police checking the immigration status of people they stop. A report released on Thursday by a national police research group looked at cities where police officials had been drawn into heated immigration debates. Its conclusions: federal enforcement is no job for local officers, who should be forbidden to arrest or detain people solely because of their immigration status. The reasons: it costs too much, prompts false-arrest lawsuits and frightens law-abiding immigrants. "I have a responsibility to provide service to the entire community - no matter how they got here," said Chief Charlie Deane of the Prince William County Police Department in Virginia. "It is in the best interest of our community to trust the police." The chiefs of Nebraska's two largest police departments - in Lincoln and Omaha - recently told the State Legislature basically the same thing. A peculiar mix of nativism and immigration panic has pushed the immigration debate far out into the desert of extremism. It's going to take a serious effort by saner voices to ensure that what happens in Arizona stays there." ("The Anti-Arizonans," New York Times (March 4, 2011).) The Washington Post recently added: "Thanks largely to a backlash from business, state legislatures elsewhere have balked at adopting Arizona-style laws, though a few, particularly in the South, have passed bills designed to deny opportunities to AB 26 Page 9 illegal immigrants and keep them in the shadows. The business backlash is motivated partly by fears that other states could suffer Arizona's fate: boycotts and cancellations that have meant tens of millions of dollars in lost revenue for hotels, restaurants and other businesses that rely on visitors. But businesses also fear the potential economic damage from mass deportation." ("Arizona Demonstrates The Lunacy Of Mass Deportations," Washington Post (March 28, 2010).) According to the author, "AB 26 differs from the 'Arizona Law' in two important ways: Due to the epidemic of minors being trafficked into our State, with children being prostituted out on our city streets in San Diego, San Francisco, Los Angeles and Sacramento, we have added an enhancement of life in prison for anyone caught trafficking minors into California for the purposes of sexual slavery. This will apply to anyone who is engaged in this evil trade, whether they traffic the minors across our Southern border or bring them in by plane, boat, car, or simply pick them up on our streets and transport them within our state. AB26 will add 10 years to the sentence of any "coyote" (smuggler) who smuggles a woman into California and rapes her on California soil as part of the cost of passage. This is a common practice that must be exposed and stopped, and AB 26 does that." Pending Litigation Regarding Arizona Legislation. AB 26 appears to be substantially identical to the language of two bills from Arizona - last year's high-profile SB 1070, and a preceding measure dating from 2007. Both Arizona laws have been the subject of multiple and ongoing legal challenges, apparently unbeknownst to the author, who indicated on the Committee's background information worksheet that the issues addressed in the bill are the subject of no pending litigation. The State of Arizona was sued by the United States to enjoin implementation of SB 1070. The Unites States was immediately granted a preliminary injunction blocking the measure. The United States has argued that the measure is unconstitutional because the regulation of immigration is the exclusive role of the federal government under the U.S. Constitution, and that Arizona's law conflicts with and burdens federal immigration and AB 26 Page 10 foreign policy as established by Congress. The case is now before the federal court of appeal where it has been argued and is awaiting decision. (See United States v. State of Arizona, No. 10-01413 (D. Ariz.), appeal docketed, No. 10-16645 (9th Cir.) 2011 WL 460253.) Related law suits have been filed by civil rights, business and religious organizations including MALDEF, ACLU and NAACP, who likewise argue that the Arizona bill intrudes on federal immigration interests , promotes racial profiling and threatens minority communities, interferes with community law enforcement efforts, and violates constitutional guarantees of equal protection, free speech, due process, unreasonable search and seizure, among others provisions. (See Friendly House v. Whiting, No. 10-1061 (D. Ariz.) 2010 WL 4219867.) The part of AB 26 derived from 2007-08 Arizona legislation has likewise been challenged. This provision is found in section 4 of the AB 26 regarding employment, discussed in more detail below. (See Arizona Rev. Stats. sections 23-212, 23-212.01, enacted by HB 2779 (2007) and HB 2745 (2008) (further amended by SB 1070 of 2010 to require employers to prove entrapment by clear and convincing evidence).) These provisions have been challenged by businesses and civil rights organizations, and the case is now pending before the United States Supreme Court. (See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert granted sub nom., Chamber of Commerce of the United States v. Candelaria, 130 S. Ct. 3498 (2010).) See also Lozano v. City of Hazleton, 620 F.3d 170, 210 (3d Cir. 2010)(striking down city ordinance that prohibited the employment of undocumented aliens and penalized businesses by suspending business licenses).) A decision is expected to be issued by June. One of the principal issues in the Chamber of Commerce case is whether states have the authority to impose rules on employers that differ from those established by federal law. An array of prominent Arizona employer and trade associations had asked the Court to decide: Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preemptİs] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized AB 26 Page 11 aliens." 8 U.S.C. § 1324a(h)(2). Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Under the Supremacy Clause of the United States Constitution (Article VI, Clause 2), federal law may either expressly or implicitly preempt state or local law. (See Hillsborough County v. Auomated Med. Labs., 471 U.S. 707, 713 (1985). In cases of express preemption, Congress "maİkes] its intent known through explicit statutory language. English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990). Implied preemption, on the other hand, arises in one of two circumstances. Field preemption occurs when a state or municipality purports to "regulate conduct in a field that Congress intended the Federal Government to occupy exclusively." Id. Conflict preemption can occur "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Id.) Federal preemption carries particular force in the context of immigration because regulation of immigration and immigrants, legal and illegal, is "unquestionably exclusively a federal power." (De Cana v. Bica, 424 U.S. 351, 354 (1976).) Federal Immigration Enforcement Efforts . Recent media reports indicated that fortification of the U.S.-Mexico border has reached an all-time peak. The ranks of Border Patrol agents top 17,600. Nearly 650 miles of additional fencing is up. Four unmanned drones patrol from California to the Gulf of Mexico. Twelve hundred National Guard soldiers are on the ground. Camera systems numbering 467 sweep the perimeter and 10,800 ground sensors lie in wait. Given this unprecedented expansion in resources during the past decade, U.S. government officials said the southwest border is the tightest it has ever been. AB 26 Page 12 Last week, congressional Republicans announced that they're drafting legislation to further bolster border security - add more customs officers, anti-narcotics teams and surveillance equipment. Janet Napolitano, head of the Homeland Security department, said Friday that her agency has and will continue to strengthen enforcement of the southwest border. Customs and Border Protection Commissioner Alan Bersin credits the cascade of money, staffing and technology flowing into the southwest border region for causing a drop in apprehensions and leading to the lowest rates of illegal entry from Mexico into the U.S. The number of apprehensions fell 62 percent from 2005 through last year - to a total of 447,731 in 2010. It's unclear how much the Great Recession, which dried up many jobs north of the border, deterred would-be illegal migrants. Bersin said a good portion of people who try to cross the border illegally are detained. He cited a rate of 90 percent for the San Diego sector and nearly 100 percent for El Paso. ("Is U.S.-Mexico Border Secure Enough?," San Diego Union-Tribune (April 2, 2011).) In addition to stepped-up border security, the federal government has also increased enforcement of existing prohibitions against hiring immigrants who lack work authorization. According to published report, Secretary of Homeland Security Janet Napolitano in 2009 directed immigration officials to focus their worksite enforcement resources on the criminal prosecution of employers who knowingly hire illegal immigrants. In fiscal year 2010, a record 180 business owners, employers and managers were charged with illegal hiring, up from 114 in fiscal 2009 and 135 the previous year. Also in fiscal 2010, immigration officials conducted more than 2,200 employer audits, up from more than 1,400 in fiscal 2009. From 2008 through July 31, 2010, ICE levied more than $4 million in fines nationally. (See "Firm's Owner Gets 10 Months For Hiring Illegal Immigrants, Los Angeles Times (March 9, 2011); "Federal Immigration Crackdown May Cost California Nursery," Sacramento Bee (Mar. 30, 2011).) These articles report on two recent examples in California demonstrating this effort. AB 26 Page 13 This Bill Proposes Many New Crimes and Obligations For Local Law Enforcement Agencies, Which Are Not Within This Committee's Jurisdiction And Would Need Further Examination By the Public Safety Committee. In addition to the employer and government mandates and penalties discussed below, this bill would add many new crimes and law enforcement obligations. These provisions are within the jurisdiction of the Committee on Public Safety, to which the bill has been double-referred, and are therefore not analyzed here. In summary, the criminal provisions would: Require a peace officer to cause the removal and either immobilization or impoundment of a vehicle if the peace officer determines that a person is driving the vehicle while the person is engaged in certain acts involving an alien unlawfully in the United States, as specified. Make it a misdemeanor for a person to be present on any public or private land while at the same time the person is in violation of specified federal immigration laws. The bill would make it a felony to be in violation of this provision if the person is in possession of specified drugs, weapons, or property, as specified. The bill would make it a felony for a person to intentionally engage in the smuggling of a human being for profit or commercial purposes, as specified, and would provide differing penalties depending on the circumstances of the offense. Notwithstanding any law to the contrary, permit a peace officer to lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and the provisions regarding smuggling. The bill would make it a misdemeanor for an occupant of a motor vehicle to attempt to hire persons for work if the motor vehicle blocks or impedes the normal movement of traffic. The bill would also make it a misdemeanor to enter a motor vehicle in order to be hired by an occupant if the motor vehicle blocks or impedes the normal movement of traffic. AB 26 Page 14 The bill would make it a misdemeanor for a person who is unlawfully present in the United States and who is an unauthorized alien, as defined, to knowingly apply for or solicit work or perform work as an employee or independent contractor. The bill would make it a misdemeanor to transport or move or attempt to transport or move an alien when the person knows, or recklessly disregards the fact, that the alien is in the United States unlawfully, as specified. The bill would make it a misdemeanor to conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection if the person knows, or recklessly disregards the fact, that the alien is in the United States unlawfully, as specified. The bill would make it a misdemeanor to encourage or induce an alien to come to, or reside in, this state if the person knows, or recklessly disregards the fact, that the alien would be entering or residing in this state unlawfully. The bill would make a violation of these provisions a felony if the violation involves 10 or more illegal aliens. Employer Mandates And Sanctions - To Be Enforced By The Attorney General And Local District Attorneys - Complaints To Be Filed By Any Person Regardless of Relationship Or Alleged Harm. The bill has a number of provisions directed at employers. Specifically it: Prohibits an employer from either knowingly or intentionally employing an unauthorized alien, as specified. Requires the Attorney General to prescribe a complaint form by which any person wishing to do so may allege a violation of the prohibition against employing unauthorized aliens, which may be submitted by a complainant anonymously. Establishes a process for persons to file complaints of violations of these provisions with the Attorney General or a district attorney, and makes it a misdemeanor to make a false and frivolous complaint alleging a violation of these provisions by an employer. AB 26 Page 15 Requires the investigation of complaints by the Attorney General or relevant district attorney, and requires that if the Attorney General or district attorney determines that the complaint is not "false and frivolous," the Attorney General or district attorney shall do both of the following: (A) Notify the United States Immigration and Customs Enforcement of the unauthorized alien; and (B) Notify the local law enforcement agency of the unauthorized alien. Requires the Attorney General to notify the appropriate district attorney to bring an action against the employer if the complaint is not found to be both "false and frivolous" and specifies penalties and other consequences, including the suspension of certain licenses, for employers that violate these provisions. Requires every employer to verify the employment eligibility of employees through the federal E-Verify program and require employers to participate in the federal E-Verify program in order to be eligible for economic development incentives, as specified. These provisions appear to apply to every employer regardless of the size of the business. While the employer opposition to this bill is focused on private businesses, it appears that the bill is not limited to the private sector. The bill uses the term "employer" without limitation or definition, suggesting that its obligations do not depend on whether the employer is private or public. By contrast, other provisions of the Labor Code that are not intended to apply to public entities expressly exclude them. (See, e.g., sections 220, 432.2.) Other statutes that do not specifically exempt governmental employers have been held to cover them. (See Sheppard v. North Orange County Regional Occupational Program, 191 Cal. App. 4th 289 (2010).) Concerns Regarding Reliability of Federal E-Verify Program. Critics in the business community and elsewhere have complained about the reliability of the E-Verify program. Touted by some as an essential tool for stopping illegal immigration, an independent research firm recently found the E-Verify system flags less than half the number of illegal AB 26 Page 16 workers it checks. According to the study, E-Verify, fails to catch 54 percent of the illegal workers run through the system because it cannot detect identity fraud, the report states. The report was based on research conducted by Westat, a Maryland-based company under contract to U.S. Citizenship and Immigration Service. (See "Report: E-Verify Misses A Lot Of Illegal Workers," Inland Valley Daily Bulletin (February 25, 2010).) The Los Angeles Times commented: We thought the reason to distrust the program was its tendency to get things wrong, ensnaring legal, permanent residents and citizens in red tape, halting their legitimate employment. Now it turns out that E-Verify is not misidentifying legitimate workers in troubling numbers but clearing undocumented immigrants. According to a recent report by Westat, a research company that evaluated the program for the Department of Homeland Security, E-Verify fails to flag illegal workers 54% of the time. The problem is identity fraud. The online program checks a worker's information against Homeland Security and Social Security databases. And if a valid Social Security number is presented, even if it's already in use, the program often recognizes it as legitimate. Before employers can be held accountable, they need a tool that works. ("E-Verify: 'E' is For Error," Los Angeles Times (March 8, 2010).) These problems have apparently not yet been corrected. Another report in December 2010 from the Government Accountability Office noted that legal workers were sometimes wrongly identified. Those who are mistakenly red-flagged tend to be foreign-born, creating "the appearance of discrimination," according to the December report, and they can face bureaucratic AB 26 Page 17 nightmares to clear their record. (See "Conservative Inland Empire Cities Crack Down On Illegal Workers," Los Angeles Times (February 14, 2011).) Additional Governmental Obligations And Broad Private Right of Action Against All State and Local Governments. Section 3 of the bill would add new obligations on and restrictions against local governments and their policies, whether the result of individual action or voter approval. This section provides: No official or agency of the state or a city, county or other political subdivision may adopt a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. Except as otherwise provided in federal law, officials or agencies of İstate or local government] may not be prohibited or in any way restricted from: sending, receiving, or maintaining information relating to the immigration status of any individual or exchanging that information with any other federal, state, or local governmental entity for any of the following purposes: (1) Determining eligibility for any public benefit, service, or license provided by any federal, state, city, county, city and county, or other political subdivision; (2) Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of the state or a judicial order issued pursuant to a civil or criminal proceeding; (3) Confirming the identity of any person who is detained; (4) If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by Title II of Chapter 7 of the Federal Immigration and Nationality Act. Under the bill, any person may bring an action in superior court to challenge any official or agency of the state or of a city, county, city and county, or other political subdivision that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. AB 26 Page 18 When a court finds a violation, it shall order any of the following: (1) that the person who brought the action recover court costs and attorney's fees (prevailing defendants would not be entitled to recover their fees); (2) a civil penalty of not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000) for each day that the policy has remained in effect after the filing of an action pursuant to this subdivision. Law enforcement officers (but apparently only those officers) are required to be indemnified by their agency against reasonable costs and expenses, including attorney's fees, incurred by the officer in connection with any action, suit, or proceeding brought pursuant to this section to which the officer may be a party by reason of the officer being or having been a member of the law enforcement agency, except in relation to matters in which the officer is adjudged to have acted in bad faith. Section 3 has drawn the concern of the Civil Justice Association of California, which states: "İP]art of the bill statutorily creates a private right of action that is unnecessary. (See page 4, lines 31-36) While federal law discourages taxpayer standing in bringing lawsuits against government entities or officers, under California's Code of Civil Procedure section 526a, a taxpayer is permitted to bring an action to restrain or prevent waste or an illegal expenditure of public money. No showing of special damage to a particular taxpayer is required. Taxpayer suits already provide a general citizen a remedy for controlling illegal governmental activity (County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119). Additionally, under existing law civil grand juries already may be convened to investigate wrongful activity by government officials and enforcement action is appropriately vested in government attorneys." CJAC adds, "Additionally, we are concerned that other provisions in the bill will encourage abusive lawsuits. This bill would specifically provide for a private right of action to challenge any "policy" that limits or restricts the enforcement of federal laws and award attorney's fees and costs to these plaintiffs. (See page 4, lines 38-39) It is unclear how infringing a policy has to be to spark litigation and with generous cost awards, for formal a policy would be stretched." AB 26 Page 19 A Prior Effort To Regulate Local Government Policies Regarding Immigration Was Invalidated. Proposition 187 of 1994 prohibited any city, county, or other legally authorized local governmental entity from preventing or limiting the cooperation of any law enforcement agency with federal authorities regarding persons arrested and suspected of being present in the United States in violation of federal immigration laws, as specified. This provision was held unenforceable as preempted by federal law in League of United Latin American Citizens v. Wilson (1997) 997 F.Supp. 1244. Similarly, Prop. 187 required every law enforcement agency, with respect to any person who is arrested and suspected of being present in the United States in violation of federal immigration laws, to, among other things, attempt to verify the legal status of such person and notify the Attorney General and federal authorities of any apparent illegal status. This provision was likewise invalidated as preempted by federal law in League of United Latin American Citizens v. Wilson (1997) 977 F.Supp. 1244. Would This Bill Potentially Exacerbate California's Historic Budget Crisis? A complete analysis of the bill's fiscal consequences will be conducted by the Appropriations Committee if the bill advances through this Committee and the Public Safety Committee. However, it cannot escape notice at this juncture that the bill imposes substantial and potentially costly new obligations on both state and local government at a time when members of the Legislature of both parties have decried recent budget cuts and there appears to be little prospect of additional state or local income. The bill provides no new revenue to fund these additional government obligations (although such penalties as may be collected from employers who are found to have violated the law would be set aside for "gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration.") The author has not provided the Committee with an estimate of financial penalties that might be collected, but appears to contend that the state will save money by diminished provision of services to undocumented immigrants. ARGUMENTS IN SUPPORT: California Federation of Republican Women states: "AB 26 would allow our law enforcement agencies to implement and actually execute immigration laws in ways our federal government fails to take responsibility and enforce. The State of California is in disrepair - we have a $26 billion AB 26 Page 20 budget deficit, a growing prison population wen can't afford, and lawmakers that refuse to address the issues. State services afforded to illegal immigrants cost California an estimated $10 billion a year. AB 26 seeks to repair some of these problems by administering tough immigration laws while protecting hardworking, law-abiding taxpayers and business owners." Concerned Women For America of California argues, "The U.S. Government's Bureau of Labor Statistics reported that only Nevada, at 14.2 percent, exceeded California's 12.4 percent unemployment rate for January 2011. Assemblyman Donnelly's bill aims to ensure that California jobs would be held by legal workers." CWF adds, "California families have borne the burden of providing state benefits to people who enter our state illegally for too long. Taxpayers deserve to have their hard-earned funds working to benefit legal citizens of the state." Capitol Resource Family Impact comments, "In 2007, then San Francisco Mayor Gavin Newsom vowed to ignore federal immigration law and in fact said he would do everything he could discourage federal authorities from enforcing the law. ?. Rogue politicians like Newsom continue to wreak havoc between the federal government and local entities that refuse enforcement of immigration laws and vow defiance. AB 26 would codify Newsom's behavior as prohibited, and if passed, against California law. ? Federal law supersedes the personal opinion or political inclination of public officials or agencies. If we continue to allow politicians to selectively choose what law they favor and which one they do not and therefore which one they will enforce and which one they will not, them our system of governance including our laws is rendered irrelevant." ARGUMENTS IN OPPOSITION: The Civil Justice Association of California opposes the portions of the bill with which this Committee is concerned, "parts of which appear unnecessary and parts of which are troubling." CJAC contends that these provisions would increase the likelihood of potentially abusive lawsuits. " CJAC opposes the private right of action in the bill, noting that it "grants an individual the right to sue on behalf of the general public, whether the individual has suffered harm or not." This provision, CJAC argues, "is not only dangerous public policy, it is also unnecessary." In addition, CJAC expresses opposition to the provision of the bill allowing attorney's fees and expert witness costs. AB 26 Page 21 The California Employment Law Council also opposes the bill, noting that it is particularly concerned about the provisions proposed by Section 4. The language begins with a mandatory requirement that the Attorney General or district attorney investigate all allegations of employment of unauthorized workers. If the investigation reveals that the allegation is not frivolous, the bill contains another mandatory requirement that an action be filed by the district attorney. Thereafter, for even one violation, the bill requires that employers be placed on a three-year probationary program, requiring extensive new reporting to the district attorney on each new employee hired by the employer. For large employers, this means that if a rogue human resources employee hires even one unauthorized worker, the company could be forced to send reports to the district attorney on every new employee hired for three years. The penalties for a second violation are far more draconian. Under proposed section 1550 (f)(2), a second violation carries a mandatory penalty of permanent revocation of all licensees necessary to carry on the business at that particular location. This appears to suggest that for hiring as few as two unauthorized workers, an employer could be permanently out of business at that location, potentially jeopardizing millions of dollars of investment in buildings, equipment, training, and more. CELC has a consistent history of opposing measures relating to unauthorized workers that essentially propose the "death penalty" for businesses committing relatively small violations. Many CELC member companies employ thousands of people in California, helping to sustain the economy, and the entire existence of a company should not be at risk for two violations by a rogue hiring manager. We appreciate the seriousness of the issue identified by the author of AB 26, but believe that the bill will impose enormous costs on the state and local governments, require potentially enormous reporting to already overburdened prosecutors, and threaten the existence of responsible employers. AB 26 Page 22 The California Association of Health Facilities (CAHF) states in opposition: Immigration has become a "hot button" issue for California employers. Immigrant workers, while admittedly some are in this country illegally, are essential to the state's economic well-being and to the future of thousands of California businesses. Moreover, as the Baby Boom generation retires over the next two decades, California faces a shrinking workforce which will require employers to have access to immigrant workers to perform work that most Americans won't do but are in high demand by businesses and consumers. CAHF does not condone employers who knowingly hire persons who are not eligible to work within the United States. However, CAHF is opposed to AB 26 because it imposes an additional penalty - by creating a cause of action to be prosecuted by the Attorney General or district attorney - for employers who are already regulated under federal law with regard to the verification and submission of social security numbers. AB 26 adds new penalties on employers and will result in increased costs due to the new layer of liability related to hiring practices. AB 26 would create new opportunities for disgruntled employees, dissatisfied customers, jealous competitors, or just plain troublemakers to file specious criminal allegations against business owners. For these reasons, CAHF must oppose AB 26. The California Landscape Contractors Association also writes in opposition, stating: "Where we differ is on the question of what level of government bears responsibility for immigration law enforcement, and the extent to which employer conduct should be made subject to state level civil and criminal sanctions as part of any enforcement mechanism. It has long been CLCA's position that immigration enforcement is a federal responsibility and that the President and the United States Congress should act expeditiously to: (1) secure our nation's borders; (2) create a pathway to legal status for unauthorized immigrants currently working within the United States; (3) assure a future flow of immigrant temporary workers as needed to meet the workforce needs of agriculture and other service industries; and (4) create fair and reasonable requirements on employers to hire only persons legally permitted to work in this country." AB 26 Page 23 Los Angeles County District Attorney Steve Cooley states: İO]ur office is opposed to the provision of AB 26 that would require a district attorney's office to investigate and prosecute any complaint that is filed alleging an employer has knowingly employed an unauthorized alien. Under existing law a district attorney has the autonomy to investigate and prosecute those crimes deemed most critical and important in their communities. However, under the provisions of AB 26 this discretion is eliminated. Furthermore, because the penalty proposed for knowingly employing an unauthorized alien is only a misdemeanor the statute of limitations for this crime is only one year. Because of this short window for the running of the statute of limitations, not only would a district attorney's office have to investigate the allegation it would have to do so immediately in order to file a case within the statutorily allowable timeframe. District attorney's offices typically only employee a limited number of district attorney investigators. In Los Angeles County, our Bureau of Investigation has seen a significant reduction of its operational budget due to the ongoing economic crisis. Even with a reduced budget, our investigators still conduct some of the most unique, sensitive, and complex criminal investigations in law enforcement today. Our investigators are involved in a variety of operations ranging from dealing with violent street gangs, high profile political corruption cases, and organized crime activities such as vehicle theft and insurance and workers' compensation fraud. However if AB 26 were to pass we would have to divert investigators from murder cases, gang cases, political corruption cases like the one involving the City of Bell, and fraud cases committed by international organized crime entities, felony domestic violence cases, stalking and hate crimes, consumer fraud, and other high impact crimes to investigate what amounts to a misdemeanor employment law case. This is not the best use of the valuable and limited time of our district attorney investigators. An array of civil rights and labor organizations also opposes the bill. Among others, the Mexican American Legal Defense and AB 26 Page 24 Educational Fund (MALDEF) describes the bill a "a misguided effort at state regulation and enforcement of immigration and federal laws" that "also poses a significant threat to the general welfare and fundamental freedoms of all Californians. While MALDEF argues against many of the criminal provisions in the bill on public safety grounds, it also attacks the bill more broadly as preempted by the U.S. Constitution which grants Congress the exclusive power to establish a uniform rule of Naturalization and to regulate Commerce with foreign Nations (U.S. Const. Art. I § 8, cl.4 and cl.3), and because Congress has created a comprehensive immigration scheme through the Immigration and Nationality Act (INA) and its many modifications and amendments. The bill's provisions are at odds with this constitutional scheme by encroaching on and conflicting with federal and immigration law, MALDEF argues. "If adopted, AB 26 would create a constitutionally impermissible state immigration regulation scheme." Public Advocates likewise opposes the bill "because of its objective to regulate and enforce immigration and federal laws. Such an objective by a state to regulate immigration is Constitutionally preempted. If adopted, AB 26 would create a constitutionally impermissible state immigration regulation scheme." In addition, Public Advocates argues: AB 26 conflicts with the rights of students in California's public elementary and secondary education systems. The U.S. Supreme Court held in Plyler v. Doe that undocumented children have a constitutional right to receive a free public K-12 education. This right is reinforced in federal immigration law, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, U.S. Code, Title 8, Section 1643İa]İ2]) and in California case law, League of United Latin American Citizens v. Wilson (CD Cal. 1997) 997 F.Supp. 1,244.), holding Proposition. 187 unconstitutional and unenforceable, based on the Plyler decision. See Education Code Section 48215. The Family Educational Rights and Privacy Act (FERPA) generally prohibits schools from providing personally identifiable information from students' records to third parties. To the extent AB 26 does not apply to free public education, it should be noted that California's education system also provides state and federal benefits such as child care, day care, meal and nutrition programs. Child AB 26 Page 25 and Adult Care Food Program (CACFP). If adopted, AB 26 would place a huge financial burden on our already underfunded school system simply for the cost of training public employees about immigration law enforcement in the context of FERPA, not to mention the likely litigation. 20 U.S.C. § 1232g (2003). AB 26 also conflicts with the rights of students in California's public colleges and universities, immigrants and U.S. citizens alike, that are eligible for out-of-state tuition waivers. The student information obtained in this waiver process is confidential. Education Code Section 68130.5(d). The Assembly has recently reinforced its support of this policy by its failure to approve AB 63 (Donnelly), which sought to repeal it. REGISTERED SUPPORT / OPPOSITION : Support California Federation of Republican Women Capitol Resource Family Impact Concerned Women for America of California Jim Maher, Escondido Police Chief We the People California's Crusade Several individuals Opposition American Civil Liberties Union Anti-Defamation League Asian Americans for Civil Rights and Equality Asian Pacific American Legal Center Attorney General of California California Association of Health Facilities California Chapter of the American Fence Association California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Employment Law Council California Fence Contractors Association California Federation of Teachers California Immigrant Policy Center California Labor Federation California Landscape Contractors Association California Official Court Reporters Association California Teamsters Public Affairs Council AB 26 Page 26 Civil Justice Association of California Coalition for Humane Immigrant Rights of Los Angeles Colombo Americans in Action Colombian Alliance in the United States of America Common Counsel Foundation Council of Mexican Federations County of Santa Clara, Board of Supervisors Dioceses of San Bernardino Engineers and Scientists of California Engineering Contractors Association Flasher Barricade Association Hispanic Association of Colleges and Universities Immigrant Legal Resource Center International Longshore and Warehouse Union Japanese American Citizens League Los Angeles County District Attorney's Office Los Angeles County Sheriff Lee Baca Marin Builders Association Mexican American Legal Defense and Educational Fund (MALDEF) National Association of Social Workers (NASW) Professional and Technical Engineers, Local 21 San Francisco Japanese American Citizens League Service Employees International Union (SEIU) Services, Immigrant Rights and Education Network (SIREN) UNITE HERE United Food and Commercial Workers-Western States Conference Utility Workers Union of America, Local 132 Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334