BILL ANALYSIS                                                                                                                                                                                                    Ó



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          SENATE THIRD READING
          SB 396 (De León)
          As Amended June 5, 2014
          Majority vote 

           SENATE VOTE  :Vote not relevant  
           
           JUDICIARY           8-0                                         
           
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          |Ayes:|Wieckowski, Alejo, Chau,  |     |                          |
          |     |Dickinson, Garcia,        |     |                          |
          |     |Maienschein, Muratsuchi,  |     |                          |
          |     |Stone                     |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           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,  








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               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  








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               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  








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          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