BILL ANALYSIS Ó SB 396 Page 1 SENATE THIRD READING SB 396 (De León) As Amended June 5, 2014 Majority vote SENATE VOTE :Vote not relevant JUDICIARY 8-0 ----------------------------------------------------------------- |Ayes:|Wieckowski, Alejo, Chau, | | | | |Dickinson, Garcia, | | | | |Maienschein, Muratsuchi, | | | | |Stone | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- SUMMARY : Deletes certain statutes found to be unconstitutional. Specifically, this bill deletes the following statutes: Education Code Sections 48215 and 66010.8, Government Code Section 53069.65, Health and Safety Code Chapter 1.3 of Part 1 of Division 1, Penal Code Section 834b, and Welfare and Institutions Code Section 10001.5 which in combination purport to make undocumented immigrants ineligible for specified public social services, public health care services, and public school education at the elementary, secondary, and post-secondary levels and, among other things, require various state and local agencies to report suspected illegal aliens, as specified, and require the Attorney General to perform certain tasks in connection with transmitting and retaining those reports. EXISTING LAW provides for the regulation of immigration exclusively by the federal government. (e.g., LULAC v. Wilson, 908 F. Supp. 755, 786-87 (Central District of California 1995).) FISCAL EFFECT : None COMMENTS : According to the author: In 1994, exactly twenty years ago, the voters of California approved Proposition 187, now considered one of the most mean-spirited measures in California's ballot initiative history. With 59% of voters in favor of the initiative and 41 percent against it, SB 396 Page 2 Proposition 187 [Prop. 187] was a pernicious and unabashed attempt to target and scapegoat immigrants for the economic recession in the mid 1990's. At the time, California had an estimated 1.3 million undocumented immigrants, which included more than 300,000 undocumented children. Proposition 187 would have barred the children of undocumented immigrants from attending public schools and would have required teachers, doctors, social workers, and law enforcement personnel to report and turn in any suspected undocumented immigrant to federal authorities. In short, it turned every teacher, doctor, social worker, and local police officer into an immigration agent for the federal government. Proposition 187 was ultimately struck down by federal courts on the grounds that it violated the U.S. [United States] Constitution by infringing on the federal government's jurisdiction over immigration law. Though never fully implemented, it had a damaging and lasting impact on the immigrant communities because it further stigmatized an already vulnerable population. Still today, the immigrant population fears interacting with government officials and, as a result, is often hesitant to become civically engaged and cooperate with the police. Furthermore, Proposition 187 served as the unfortunate precursor to the draconian anti-immigrant laws recently adopted in Arizona (SB 1070 [of 2010]) and Alabama (HB 56 [of 2011]) that, like Proposition 187, encourage racial profiling and targeting undocumented immigrants. Nevertheless, despite clear findings that Proposition 187 is unconstitutional, its language remains on the books. Undoubtedly, the state has made tremendous progress in recent years by enacting laws that promote the safety and livelihood of immigrant families and that recognize undocumented immigrants as valued members of society. And so, after 20 years, it is fitting that California expressly acknowledge the SB 396 Page 3 detrimental impact of the discriminatory and xenophobic Proposition 187 by removing its stain from the state's statutes. Prop. 187 was an initiative measure approved by the voters to enact certain statutory provisions in order to "establish a system of required notification by and between [state and local agencies and the federal government] to prevent illegal aliens in the United States from receiving benefits or public services in the State of California." (Ballot Pamphlet, General Election (November 8, 1994) text of Prop. 187, Section I, p. 91.) The United States District Court for the Central District of California held that certain provisions of Prop. 187 - those at issue in this bill - relating to verification and notification, and the denial of public social services, publicly funded health care, and education to persons who were not lawfully present in the United States, were unconstitutional on the basis that those provisions were preempted by federal law. The court then issued a permanent injunction prohibiting the enforcement of those provisions. Because these statutes were enacted by initiative, the question arises whether the Legislature may act to strike these provisions from the codes. The California Constitution provides that the Legislature may amend or repeal a statutory initiative "by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (California Constitution, Article II, Section 10, Subdivision (c).) While it may be argued that this bill proposes an improper "repeal," the better view would appear to be reflected in an opinion by Legislative Counsel concluding that the Legislature is within its powers to delete statutes that have been abrogated by the courts. As Legislative Counsel notes, the evident intent of the subdivision (c) is to "protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent." (Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 597.) Accordingly a subsequent statute will "amend" a statutory initiative within the meaning of Subdivision (c) only if it changes the scope or effect of that initiative by adding or taking away from it. (See People v. Kelly (2010) 47 Cal.4th 1008, 1026-1027; see also People v. Cooper (2002) 27 Cal.4th 38, 44.) Because the provisions that would be deleted by this bill have previously been held to be SB 396 Page 4 unenforceable, it seems reasonable to conclude that this bill would not make a substantive change in the law as prohibited by Subdivision (c), and therefore would not unconstitutionally change the scope or effect of Prop. 187. Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334 FN: 0004092