BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                AB 2646
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        CONCURRENCE IN SENATE AMENDMENTS
        AB 2646 (Ting)
        As Amended August 13, 2014
        Majority vote
         
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        |ASSEMBLY:  |     |(May 15, 2014)  |SENATE: |23-10|(August 19,    |
        |           |     |                |        |     |2014)          |
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             (vote not relevant)


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        |COMMITTEE VOTE:  |9-0  |(August 28, 2014)   |RECOMMENDATION: |concur    |
        |(Jud.)           |     |                    |                |          |
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        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: 








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           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  








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             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  








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        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.)








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         Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 


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