BILL ANALYSIS Ó AB 2646 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2646 (Ting) As Amended August 13, 2014 Majority vote ----------------------------------------------------------------- |ASSEMBLY: | |(May 15, 2014) |SENATE: |23-10|(August 19, | | | | | | |2014) | ----------------------------------------------------------------- (vote not relevant) ------------------------------------------------------------------------ |COMMITTEE VOTE: |9-0 |(August 28, 2014) |RECOMMENDATION: |concur | |(Jud.) | | | | | ------------------------------------------------------------------------ Original Committee Reference: JUD. SUMMARY : Generally prohibits a statute, ordinance, or other state or local rule, regulation, or enactment from denying a minority group structural equal protection of the law. The Senate amendments delete the Assembly version of this bill, and instead: 1)Provide that a statute, ordinance, or other state or local rule, regulation, or enactment shall not deny a minority group political structure equal protection of the law by altering, restructuring, or reordering the policy decision-making process in a manner that burdens the ability of members of the minority group to effect the enactment of future legislation, solely with respect to a matter that inures primarily to the benefit of, or is primarily of interest to, one or more minority groups. This bill would authorize a member of a minority group to bring a civil action challenging the validity of a statute, ordinance, or other state or local rule, regulation, or enactment, pursuant to this provision. 2)Provide that a statute, ordinance, or other state or local rule, regulation, or enactment shall be determined valid in an action brought pursuant to this section, only upon a showing by the government that the burden imposed by the statute, ordinance, or other state or local rule, regulation or enactment satisfies both of the following criteria: AB 2646 Page 2 a) The burden is necessary to serve a compelling government interest; and b) The burden is no greater than necessary to serve the compelling government interest. 3)Define "minority group" to mean a group of persons who share in common any race, ethnicity, nationality, or sexual orientation. 4)Include various findings and declarations, including, among others: a) The United States Supreme Court has interpreted the Equal Protection Clause as disfavoring and subjecting to "strict scrutiny" state and local laws that i) target a suspect classification of persons, ii) restrict a fundamental right, or iii) alter the political policymaking process with respect to an issue of primary concern to a minority group or groups. This last doctrine is commonly referred to as "structural equal protection." b) The doctrine of political structure equal protection was established primarily through two United States Supreme Court decisions, Hunter v. Erickson (1969) 393 U.S. 385, and Washington v. Seattle School District No. 1 (1982) 458 U.S. 457. As a result, this doctrine has also been referred to as the "Hunter/Seattle" doctrine. In the recent case of Schuette v. BAMN, et. al. (2014) 134 S. Ct. 1623, the United States Supreme Court has further interpreted the structural equal protection doctrine, although the implications of this new interpretation are not yet clear. c) The Legislature believes that California Constitution Article 1 Section 7, provides broader protection of individual liberties and rights than the Equal Protection Clause of the 14th Amendment of the United States Constitution, and these broader protections should include the political structure equal protection doctrine, as interpreted prior to Schuette v. BAMN. d) Independent of the guarantees afforded by the California Constitution, the Legislature believes that the Hunter/Seattle doctrine provides a prudent and salutary rule for statutory protection against discriminatory statutes, ordinances, or AB 2646 Page 3 other state or local rules, regulations, or enactments. FISCAL EFFECT : None COMMENTS : This bill prohibits a statute, ordinance, or other state or local rule, regulation, or enactment from denying a minority group structural equal protection of the law by altering, restructuring, or reordering the policy decision-making process in a manner that burdens the ability of members of the minority group to effect the enactment of future legislation, solely with respect to a matter that inures primarily to the benefit of, or is primarily of interest to, one or more minority groups. This bill provides that a statute, ordinance, or other state or local rule, regulation, or enactment shall be determined valid in an action brought pursuant to this bill, only upon a showing by the government that the burden imposed by the statute, ordinance, or other state or local rule, regulation or enactment satisfies both of the following criteria: 1) the burden is necessary to serve a compelling government interest; and 2) the burden is no greater than necessary to serve the compelling government interest. The Equal Protection Clause of the 14th Amendment of the United States Constitution provides that no state shall deny to any person within its jurisdiction equal protection of the laws. The clause requires that persons under like circumstances be given equal protection and security in the enjoyment of personal and civil rights, the acquisition and enjoyment of property, the enforcement of contracts, and the prevention and redress of wrongs, and that they be subject to similar taxes and penalties. At the same time, federal equal protection case law allows discrimination or preferential treatment when a court has determined that it is justified by a compelling state interest, and the discrimination or preferential treatment is narrowly tailored to address that interest. (8 Witkin Summary of California Law Constitutional Law Sections 967 (citing Coral Construction Inc. v. City of San Francisco (2010) 50 Cal.4th 315, 327) and 695.) In a series of decisions over the past 45 years, the United States Supreme Court has held that the 14th Amendment reaches a political structure that ostensibly treats all individuals as equals yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation. The first of these is Hunter v. Erickson, wherein the United States Supreme Court declared unconstitutional an Akron, Ohio initiative AB 2646 Page 4 that was adopted by referendum to repeal open housing laws and require voter approval of any such future laws regulating real estate transactions "on the basis of race, color, religion, national origin or ancestry" by a majority of electors on the question at a regular or general election before any such ordinance would be effective. (Id. at 389.) The United States Supreme Court found that this was an "explicitly racial classification treating racial housing matters differently than other racial and housing matters" (as blacks, much more than whites, were obviously harmed by creating obstacles to enactment of open housing laws), and thereby invalidated the ordinance under the 14th Amendment. (Id.) The second of these is the case of Washington v. Seattle School District No. 1, where the United States Supreme Court, in the same vein, invalidated a Washington initiative that provided that no school board could require any student to attend a school other than the school geographically nearest or next nearest to the student's residence. The challenged initiative thereby precluded students from being assigned for the purposes of desegregation, and by purposefully frustrating desegregation efforts, the initiative was held to be in violation of the 14th Amendment. Even though the law nowhere mentioned race and applied it in the same way to all races, because "it uses the racial nature of an issue to define the governmental decision-making structure and thus imposes substantial and unique burdens on racial minorities," the United States Supreme Court found the ordinance to be a type of racial classification. (Id. at 470.) Like in Hunter v. Erickson, the law "remove[d] the authority to address a racial problem - and only a racial problem - from the existing decision making body, in such a way as to burden minority interest." (Id. at 474.) As a result of the Hunter/Seattle cases, courts have come to recognize a "political structure doctrine" (also referred to as "political structure equal protection"). As framed by some constitutional law scholars, a person challenging a law under this doctrine must satisfy a two part test: 1) she must show that the law in question is "racial" or "racial in character" in that it singles out for special treatment, issues that are particularly associated with racial minority interests; and 2) she must show that the law imposes an unfair political process burden by entrenching resolution of such "racial matters" in a political process where minorities are less able to succeed. Strict scrutiny is only triggered if she (the challenger) satisfies both parts of this test. (Vikram Amar and Evan Caminker, the Hunter Doctrine and Proposition 209: A Reply to Thomas Wood (1997) 24 Hastings Constitutional Law Quarterly 1010, p. 1003.) AB 2646 Page 5 Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334 FN: 0005545