BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2159| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: AB 2159 Page 2 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 AB 2159 Page 3 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 AB 2159 Page 4 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. AB 2159 Page 5 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 AB 2159 Page 6 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 AB 2159 Page 7 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 AB 2159 Page 8 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 AB 2159 Page 9 **** END ****