BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 2159|
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                                   THIRD READING 


          Bill No:  AB 2159
          Author:   Gonzalez (D) and Bonta (D), et al.
          Amended:  3/31/16 in Assembly
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  5-2, 6/14/16
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

           ASSEMBLY FLOOR:  53-20, 4/7/16 - See last page for vote

           SUBJECT:   Evidence:  immigration status


          SOURCE:    Consumer Attorneys of California
                     Mexican American Legal Defense and Educational Fund


          DIGEST:  This bill provides that in a civil action for personal  
          injury or wrongful death, evidence of a person's immigration  
          status shall not be admitted into evidence, nor shall discovery  
          into a person's immigration status be permitted, except as  
          specified.  This bill provides that it does not affect the  
          standards of relevance, admissibility, or discovery under  
          existing law, which recognize that such inquiries can be allowed  
          where the person seeking to make the inquiry has shown by clear  
          and convincing evidence that the inquiry is necessary in order  
          to comply with federal immigration law.  


          ANALYSIS:  


          Existing law: 









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          1)Provides that, except as otherwise provided by statute, all  
            relevant evidence is admissible.  Existing law, however,  
            authorizes a court, in its discretion, to exclude evidence if  
            its probative value is substantially outweighed by the  
            probability that its admission will (a) necessitate undue  
            consumption of time, or (b) create substantial danger of undue  
            prejudice, of confusing the issues, or of misleading the jury.  



          2)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.

                 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 Gov. Code Sec. 7285, Health & Saf.  
               Code Sec. 24000, Lab. Code Sec. 1171.5.)  


          1)Provides that the immigration status of a minor child seeking  








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            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.  Existing law further prohibits discovery or  
            other inquiry in a civil action or proceeding relating to a  
            minor child's immigration status 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.  


          2)Provides in Rodriguez v. Kline (1986) 186 Cal.App.3d 1146,  
            1148-1149 that an individual injured in the United States who  
            is subject to deportation is not entitled to be compensated  
            based upon his or her projected earning capacity in the U.S.,  
            but rather may only recover future lost wages based on  
            projected earning capacity in the country of his or her lawful  
            citizenship.  


          This bill: 


          1)Adds to the Evidence Code that in a civil action for personal  
            injury or wrongful death, evidence of a person's immigration  
            status shall not be admitted into evidence, nor shall  
            discovery into a person's immigration status be permitted.


          2)Provides that this added prohibition against the admissibility  
            of, or discovery into, a person's immigration status does not  
            affect the standards of relevance, admissibility, or discovery  
            prescribed by the Civil, Government, Health and Safety, and  
            Labor Codes, above, as specified. 


          Background


          In 2002, the United States Supreme Court, in Hoffman Plastic  








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          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  
          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, SB 1818 (Romero, Chapter 1071, Statutes of 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.  









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          Additionally, last year, AB 560 (Gomez, Chapter 151, Statutes of  
          2015) codified that the immigration status of children is  
          irrelevant to issues of liability or remedy and is generally  
          inadmissible for purposes of discovery, except as specified.   
          The bill exempted employment-related prospective injunctive  
          relief that would directly violate federal law and also allowed  
          for discovery 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.  (See Civ. Code Sec. 3339.5.)


          This bill, co-sponsored by the Consumer Attorneys of California  
          and the Mexican American Legal Defense and Educational Fund,  
          seeks to now generally provide that evidence of a person's  
          immigration status shall not be admitted into evidence, nor  
          shall discovery into a person's immigration status be permitted,  
          in a civil action for personal injury or wrongful death.  


          Comments


          As stated by the author: 


            Under Rodriguez v Kline (1986) 186 Cal.App.3d 1147,  
            Californians are at a disadvantage because their immigration  
            status is used against them during the process of determining  
            payment of damages solely related to future income loss.  
            Moreover, the precedent set by the case is being unjustly  
            applied to cases involving the recovery of future medical  
            costs.


            The California Legislature has clearly indicated the  
            importance of protecting the rights of undocumented people not  
            only in the employment setting, but in all other respects. The  
            state's Labor Code, Civil Code, and Government Codes all  
            include language expressing protections to all individuals  








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            regardless of immigration status. 


            However, greater protections are needed for individuals  
            seeking recovery of fair compensation for their injuries  
            through our civil justice system. Assembly Bill 2159 will  
            ensure an injured person in [California] receives fair and  
            just compensation for future income loss and future medical  
            cost regardless of their immigration status. 


          Co-sponsor, Consumer Attorneys of California adds that "[o]ver  
          the past 20 years, this Legislature has granted undocumented  
          Californians the right to obtain drivers licenses, qualify for  
          in-state tuition, and obtain law and other professional  
          licenses. They are also expressly protected by California's  
          labor laws.  Further, it is longstanding law that an  
          undocumented worker can receive workers' compensation without  
          any inquiry into immigration status. Despite these advances,  
          many undocumented individuals face efforts to limit their  
          ability to recover money to support their families and seek  
          adequate medical care when they are injured and unable to work.  
          [ . . .  ] This bill would simply state that immigration status  
          is also irrelevant for adults pursuing a personal injury or  
          wrongful death action.  [ . . . ]


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/17/16)


          Consumer Attorneys of California (co-source)
          Mexican American Legal Defense and Educational Fund (co-source)
          American Civil Liberties Union
          Asian Americans Advancing Justice- California
          California Catholic Conference
          California Conference Board of the Amalgamated Transit Union
          California Conference of Machinists
          California Immigrant Policy Center








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          California Teamsters Public Affairs Council
          City of Los Angeles Mayor, Eric Garcetti
          Coalition for Humane Immigrant Rights of Los Angeles
          Congress of California Seniors
          Consumer Federation of California
          Engineer & Scientists of California, Local 20, IFPTE Local 20,  
          AFL-CIO
          Equality California
          International Longshore and Warehouse Union
          Immigrant Legal Resource Center
          Mexican American Bar Association of Los Angeles County
          National Association of Social Workers, California Chapter
          Our Family Coalition
          PolicyLink
          Professional & Technical Engineers, IFPTE Local 21, AFL-CIO
          UNITE-HERE, AFL-CIO
          Southern California Chapter of the American Immigration Lawyers  
          Association
          UNITE HERE Local 30
          Utilities Workers Union of America, Local 132, AFL-CIO



          OPPOSITION:   (Verified6/17/16)


          None received


          ARGUMENTS IN SUPPORT:     In support of the bill, PolicyLink  
          writes that: 


            While state lawmakers have approved many protections for  
            undocumented immigrants, those protections are substantially  
            undermined by one nearly 30-year-old case, Rodriguez v. Kline,  
            186 Cal.App.3d 1147 (1986). [ . . . ] 


            Besides reducing recovery for lost future earnings, evidence  
            regarding a plaintiff's immigration status can cause other  
            harms. Recently, Rodriguez has been used in some lawsuits to  








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            lower the projected cost of an injured immigrant's future  
            medical care, thereby decreasing the amount of compensation  
            plaintiffs in those cases could receive for future medical  
            expenses. Perhaps more alarmingly, calling a person's  
            immigration status into question may prevent recovery  
            altogether. Once an individual's legal status as an immigrant  
            is raised, he or she is faced with a difficult choice: either  
            forego recovery or continue with the case and risk  
            deportation. Unsurprisingly, many may choose the former. 


            An undocumented plaintiff should not be forced to abandon a  
            legitimate civil action or receive less compensation due to  
            his or her immigration status. This sends a message that our  
            courts attach less value to the pain and suffering of  
            undocumented Californians, even though they contribute greatly  
            to the economic and cultural fabric of the state and, thus,  
            deserve equal and fair treatment in the courts.




          ASSEMBLY FLOOR:  53-20, 4/7/16
          AYES:  Alejo, Atkins, Baker, Bloom, Bonilla, Bonta, Brown,  
            Burke, Calderon, Chau, Chiu, Chu, Cooley, Cooper, Dababneh,  
            Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia,  
            Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández,  
            Holden, Irwin, Jones-Sawyer, Linder, Lopez, Low, Maienschein,  
            McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Rendon
          NOES:  Achadjian, Travis Allen, Bigelow, Brough, Dahle, Beth  
            Gaines, Grove, Harper, Jones, Kim, Lackey, Mathis, Mayes,  
            Melendez, Obernolte, Patterson, Steinorth, Wagner, Waldron,  
            Wilk
          NO VOTE RECORDED:  Campos, Chang, Chávez, Gallagher, Hadley,  
            Levine

          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          6/17/16 15:03:46










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