BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 560 (Gomez)
Version: April 20, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Civil actions: immigration status
DESCRIPTION
This bill would specify that the immigration status of a minor
child seeking recovery under any applicable law is irrelevant to
the issues of liability or remedy, except for employment-related
prospective injunctive relief that would directly violate
federal law. This bill would generally prohibit discovery or
other inquiry in a civil action or proceeding relating to a
minor child's immigration status except as specified.
This bill would further state that its provisions are
declaratory of existing law and prohibit these provisions from
having any implications for adults.
BACKGROUND
In 2002, the United States Supreme Court, in Hoffman Plastic
Compounds Inc. v. NLRB (2002) 535 U.S. 137, held that the
National Labor Relations Board (NLRB) is precluded from awarding
backpay to undocumented workers because an award to these
specific workers would be beyond the bounds of NLRB's remedial
discretion and run counter to the federal Immigration Reform and
Control Act of 1986 (IRCA). Even though the workers might be
victims of unfair labor practices, the workers were never
legally authorized to work in the United States, and as a
result, the Court held that awarding backpay to undocumented
immigrants would "unduly trench upon explicit statutory
prohibitions critical to federal immigration policy," as
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expressed in IRCA and "would encourage the successful evasion of
apprehension by immigration authorities, condone prior
violations of the immigration laws, and encourage future
violations." (Id. at 151, noting at 152 that NLRB's "lack of
authority to award backpay does not mean that the employer gets
off scot-free. The Board here has already imposed other
significant sanctions against Hoffman - sanctions Hoffman does
not challenge.")
In response to Hoffman, this Legislature enacted an urgency
measure, AB 1818 (Romero, Ch. 1071, Stats. 2002) to limit the
potential effects of that decision on this state's labor and
civil rights laws. The bill codified substantially similar
legislative findings and declarations throughout the Civil Code,
the Government Code, the Labor Code, and the Health and Safety
Code relative to enforcement actions relating to the rights of
immigrants. For example, the following findings and
declarations were codified in Section 3339 of the Civil Code:
(1) all protections, rights, and remedies available under state
law, except any reinstatement remedy prohibited by federal law,
are available to all individuals, regardless of immigration
status, who have applied for employment, or who are or who have
been employed, in this state; (2) for purposes of enforcing
state labor, employment, civil rights, and employee housing
laws, a person's immigration status is irrelevant to the issue
of liability and no inquiry shall be permitted into a person's
immigration status except when necessary to comply with federal
immigration law; and (3) the bill's provisions are declaratory
of existing law.
This bill, sponsored by the Mexican American Legal Defense and
Educational Fund, would codify that the immigration status of
children is irrelevant, except as specified. The bill would
similarly state that such information is generally inadmissible
for purposes of discovery.
CHANGES TO EXISTING LAW
Existing law provides that the Legislature finds and declares
the following:
All protections, rights, and remedies available under state
law, except any reinstatement remedy prohibited by federal
law, are available to all individuals regardless of
immigration status who have applied for employment, or who are
or who have been employed, in this state.
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For purposes of enforcing state labor, employment, civil
rights, and employee housing laws, a person's immigration
status is irrelevant to the issue of liability, and in
proceedings or discovery undertaken to enforce those state
laws no inquiry shall be permitted into a person's immigration
status except where the person seeking to make this inquiry
has shown by clear and convincing evidence that this inquiry
is necessary in order to comply with federal immigration law.
These provisions are declaratory of existing law.
The provisions are severable. If any provision of the above
provisions or their application is held invalid, that
invalidity is prohibited from affecting other provisions or
applications that can be given effect without the invalid
provision or application. (Civ. Code Sec. 3339; see also
similar provisions at Lab. Code Sec. 1171.5, Gov. Code Sec.
7285, Health & Saf. Code Sec. 24000.)
This bill would additionally provide that the immigration status
of a minor child seeking recovery under any applicable law is
irrelevant to the issues of liability or remedy, except for
employment-related prospective injunctive relief that would
directly violate federal law.
This bill would provide that discovery or other inquiry in a
civil action or proceeding relating to a minor child's
immigration status shall not be permitted except where the minor
child's claims place the minor child's immigration status
directly in contention or the person seeking to make this
inquiry has shown by clear and convincing evidence that the
inquiry is necessary in order to comply with federal immigration
law.
This bill would state that its provisions are declaratory of
existing law.
This bill would further provide that the express application of
this act to minors is not intended to address in any way that
adults are not likewise protected by existing law in the same
circumstances.
COMMENT
1. Stated need for the bill
According to the author:
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Existing law specifies a number of situations where
immigration status is not to be considered, but it does not
specifically address protections for minor children or
personal injury matters.
California continues to be a leader in protecting undocumented
children and families. AB 560 seeks to end the legal argument
that immigrant children deserve less, when seeking recovery
under the law, simply because they are undocumented. This is
achieved by declaring that a minor's immigration status is
irrelevant to the issue of liability or remedy and by
prohibiting the discovery into a minor child's immigration
status.
The sponsor of this bill, the Mexican American Legal Defense and
Educational Fund (MALDEF) adds that "a loophole in California
law intended to protect undocumented workers permits
tortfeasors, including intentional violators who choose their
victims, to argue that a child victim's recovery should be
limited because of immigration status. Recently, the Los Angeles
Unified School District asserted such an argument in defending
an action brought by children sexually abused in the classroom.
No intentional tortfeasor should be sent the message that he
can avoid the full consequences of his actions by choosing
undocumented victims. And no child should ever be led to
understand that California courts value her future less than
that of other children. AB 560 would close the loophole in
current law, clarifying that our law treats children equally
regardless of status, and foreclosing any argument to the
contrary."
In support, the California Catholic Conference writes that "AB
560 sends a strong message that predatory behavior toward the
immigrant population will not be tolerated and that the State of
California aims to protect underage individuals from becoming
victims of discrimination, thereby, fulfilling its process to
implement the law and uphold the rights and dignity of all
immigrants."
2. Existing law on admissibility of immigration status
This bill appears to have arisen in part out of a Los Angeles
Unified School District (LAUSD) case wherein LAUSD made an
argument that California law allows for immigration status to be
considered when a jury discusses damages for future potential
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loss of earnings or wages. This engendered much controversy,
and it was claimed that it was a scare tactic intended to
instill fear in the plaintiffs. The school district noted in a
statement that it "has not and does not intend to raise
immigration status in this case unless first raised by the
plaintiffs." (See Klimack, LAUSD Asks Judge to Reveal
Immigration Status of Miramonte Victims (Oct. 8, 2014) NBC Los
Angeles
[as
of Jun. 8, 2015].)
Generally, as a matter of law, the immigration status of a
personal injury plaintiff is inadmissible as evidence for most
purposes. On the other hand, when the plaintiff raises certain
issues, immigration status may become relevant and thereby
admissible. Accordingly, the courts have recognized a
longstanding exception to this rule of inadmissibility where the
plaintiff seeks future earnings damages because those future
earnings are dependent upon whether or not the individual would
likely be subject to deportation under federal law. The rule
was first articulated by a California Court of Appeal in
Rodriguez v. Kline (1986) 186 Cal.App.3d 1145, a case where an
appeal was taken from a personal injury award of $99,000 arising
out of a traffic accident and the court was asked to decide
whether a person who is within this country illegally is
entitled to be compensated for his personal injuries based upon
his projected earning capacity in (1) the United States, or (2)
the country of his lawful citizenship.
The court began by noting that the plaintiff in that case (the
respondent) candidly admitted he was in the country illegally,
writing that "[a]s a consequence, respondent's status
unquestionably bore upon the amount of his anticipated future
earnings. That is to say, if respondent were to return,
voluntarily or involuntarily [pursuant to federal law would make
such an individual subject to deportation], to Mexico, the
income he could expect to receive there would be markedly less
than a figure derived from his earnings during his sojourn here.
To date the California courts that have considered this
proposition at all have recognized its soundness." (Id. at
1148.) Even then, the Court recognized the potential prejudice
that such evidence could pose to the plaintiff, writing that
this could be remedied "by treating any question regarding a
plaintiff's citizenship or lawful place of residence as one of
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law, to be decided exclusively by the trial court outside the
presence of the jury. Resolution of this question is, of course,
prerequisite to any ruling upon the admissibility of evidence
regarding future earnings." (Id.) As held by the court in
Rodriguez:
[W]henever a plaintiff whose citizenship is challenged seeks
to recover for loss of future earnings, his status in this
country shall be decided by the trial court as a preliminary
question of law. (See Evid. Code, [Sec.] 310.) At the hearing
conducted thereon, the defendant will have the initial burden
of producing proof that the plaintiff is an alien who is
subject to deportation. If this effort is successful, then the
burden will shift to the plaintiff to demonstrate to the
court's satisfaction that he has taken steps which will
correct his deportable condition. A contrary rule, of course,
would allow someone who is not lawfully available for future
work in the United States to receive compensation to which he
is not entitled. (Id. at 1149, citing Alonso v. State of
California (1975) 50 Cal.App.3d 242.)
More recently, in Hernandez v. Paicius (2003) 109 Cal.App.4th
452, a California Court of Appeal, relying in part upon the
public policy reflected in the Civil Code, Government Code and
Labor Code with regard to the irrelevance of immigration status
in the enforcement of state labor, employment, civil rights,
and employee housing rights, held:
[The trial] court absolutely should have granted plaintiff's
motion to exclude reference to his residency status. Only
relevant evidence is admissible. (Evid. Code [Sec.] 350.)
The court lacks discretion to admit irrelevant evidence.
[Citations and footnote omitted.] The evidence was irrelevant
to the issue of liability under Rodriguez v. Kline . . . a
decision plaintiff cited to the court below. Plaintiff was
not claiming loss of future earnings. Thus, his potential for
making money did not matter. In fact, plaintiff was not
claiming loss of any earnings, past or future. [Footnote
omitted, emphasis in original.] Not only was the evidence
entirely irrelevant; it was, as the court illustrated only too
early in its comments, highly inflammatory. As the Rodriguez
court observed, '(E)vidence relating to citizenship and
liability to deportation almost surely would be prejudicial to
the party whose status was in question.' (Rodriguez, at p.
1148)." (Id. at 460.)
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3. Bill limits admissibility of children's immigration status
in personal injury cases
Existing law codifies in the Civil, Labor, Government, and
Health and Safety codes, various legislative findings intended
to protect immigrants. In the Civil Code, these codified
findings include, for purposes of enforcing state labor,
employment, civil rights, and employee housing laws, that a
person's immigration status is irrelevant to the issue of
liability, and in proceedings or discovery undertaken to enforce
those state laws no inquiry shall be permitted into a person's
immigration status except where the person seeking to make this
inquiry has shown by clear and convincing evidence that this
inquiry is necessary in order to comply with federal immigration
law. (See Civ. Code Sec. 3339(b).)
While a person could presumably include a child, this bill,
sponsored by the Mexican American Legal Defense and Educational
Fund (MALDEF), seeks to close what is perceived as a loophole.
The bill would codify similar provisions relating to the
immigration status of children and provide that they are
declaratory of existing law. Those provisions would provide
that: (1) the immigration status of a minor child seeking
recovery under any applicable law is irrelevant to the issues of
liability or remedy, except for employment-related prospective
injunctive relief that would directly violate federal law; and
(2) discovery or other inquiry in a civil action or proceeding
relating to a minor child's immigration status shall not be
permitted except where the minor child's claims place the minor
child's immigration status directly in contention or the person
seeking to make this inquiry has shown by clear and convincing
evidence that the inquiry is necessary in order to comply with
federal immigration law.
This bill would appear to be consistent with the general rule,
discussed in Comment 2, above, against the admissibility of
immigration status evidence, but could potentially impact the
longstanding exception to that rule because it would declare
immigration status of a child irrelevant except in regard to
limited employment-related prospective injunctive relief that
would directly violate federal law. At the same time, the bill
would allow discovery or other inquiry in a civil action or
proceeding relating to a minor child's immigration status where
the minor child's claims place the minor child's immigration
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status directly in contention or the person seeking to make this
inquiry has shown by clear and convincing evidence that the
inquiry is necessary in order to comply with federal immigration
law.
Notably, this bill would also codify a statement that its
provisions are "declaratory of existing law." As a matter of
public policy, it is preferable to ensure that bills apply
prospectively, so as not to change the outcome of ongoing
litigation in favor of one party. The sponsor argues this
provision is both appropriate and needed in this bill, because,
"[b]y stating that it is declaratory of existing law, the bill
also ensures that its rule would apply in all future cases,
including those that relate to tortious actions that occurred
prior to passage of this legislation. This is particularly
important in this area because the time between an intentional
tort against a child and when legal action is pursued (often
when the child becomes an adult) can be significant. The bill
thus ensures that courts will apply a uniform rule in this area
of law."
4. Suggested amendments
This bill currently provides that "[t]he express application of
this act to minors is not intended to address in any way that
adults are not likewise protected by existing law in the same
circumstances." To clarify the intended meaning of this
language, the following language is suggested to provide instead
that "[t]he express application of this act to minors is not
intended to imply that adults are not likewise protected by
existing law in the same circumstances."
Suggested amendment :
On page 2, line 17, strike "address in any way" and insert
"imply"
Support : Asian Americans Advancing Justice - Sacramento;
California Communities United Institute California Equity
Leaders Network; California Immigrant Policy Center; California
Labor Federation; California Catholic Conference, Inc.;
California Immigrant Policy Center; California Rural Legal
Assistance Foundation; Consumer Attorneys of California;
Equality California; Latino Coalition for a Healthy California;
Latino Health Alliance; National Association of Social
Workers-California Chapter
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Opposition : None Known
HISTORY
Source : Mexican American Legal Defense and Educational Fund
Related Pending Legislation : None Known
Prior Legislation : SB 1818 (Romero, Ch. 1071, Stats. 2002) See
Background.
Prior Vote :
Assembly Floor (Ayes 54, Noes 22)
Assembly Judiciary Committee (Ayes 8, Noes 2)
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