BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 21, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2253  
          (Grove) - As Amended April 13, 2016


                    PROPOSED CONSENT (As Proposed to be Amended)


          SUBJECT:  SPECIALIZED LICENSE PLATES  


          KEY ISSUE:  SHOULD CALVETS APPLY TO THE DMV TO SPONSOR SEVERAL  
          SPECIALTY LICENSE PLATES THAT INCLUDE A SERIES OF HISTORICAL  
          STATE AND FEDERAL MOTTOS? 

                                      SYNOPSIS


          This bill, as proposed to be amended, requires the Department of  
          Veteran Affairs (CalVet), in consultation with the State  
          Treasurer, to apply to the Department of Motor Vehicles (DMV) to  
          sponsor the following historical state and federal motto license  
          plate programs: (1) E Pluribus Unum; (2) Liberty; (3) In God We  
          Trust; (4) We the People; and (5) Eureka! I have found it!   
          After CalVets has complied with the statutory requirements (e.g.  
          obtaining 7,500 applications), it may collect fees from the  
          applicants of that program which shall be deposited into a new  
          fund, the Veterans Housing and Homelessness Prevention Fund.   
          Proceeds from that fund would be distributed to the Veterans  
          Housing and Homelessness Prevention Program, an existing state  
          program, and used to pay for the development of supportive  








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          services for veterans living in those units that are funded by  
          the Veterans Housing and Homelessness Prevention Program.


          Originally, this bill would have required CalVet to apply only  
          for an In God We Trust specialty license plate.  And before that  
          version, this bill required the DMV to consult with In God We  
          Trust - America, Inc., to develop an In God We Trust license  
          plate.  These prior versions were vulnerable to a number of  
          significant legal concerns, including whether they violated the  
          First Amendment of the United States Constitution -  
          specifically, the Establishment Clause and the Free Speech  
          Clause.  Given that the author has taken several amendments to  
          include other specialty license plate programs and promote a  
          secular purpose, many of those legal concerns have been  
          addressed.  This bill previously passed out of the Assembly  
          Committee on Transportation with a 15-0 vote.  The bill is  
          author-sponsored, and has no opposition on file.


          SUMMARY:  Requires the California Department of Veterans Affairs  
          (CalVet) to apply to the Department of Motor Vehicles (DMV) to  
          sponsor several specialized license plate programs, including: E  
          Pluribus Unum; Liberty; In God We Trust; We the People; and  
          Eureka! I have found it!  Specifically, this bill: 


          1)Requires the Department of Veterans Affairs (CalVet) to apply  
            to the Department of Motor Vehicles (DMV) to sponsor a  
            specialized license plate program for the following programs:


             a)   E Pluribus Unum


             b)   Liberty


             c)   In God We Trust








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             d)   We the People; and


             e)   Eureka! I have found it!


          2)Establishes the Veterans Housing and Homeless Prevention Fund,  
            and provides that fees for these specialized license plates  
            shall be deposited into that fund.


          3)Provides that funds, upon appropriation by the Legislature to  
            the Department of Veteran Affairs, are to support the Veterans  
            Housing and Homeless Prevention Program and the development of  
            supportive services for veterans living in those units funded  
            by the Veterans Housing and Homelessness Prevention Program.


          EXISTING LAW:


          1)Under the United States Constitution, provides that Congress  
            shall make no law respecting an establishment of religion, or  
            prohibiting the free exercise thereof; or abridging the  
            freedom of speech, or of the press; or the right of the people  
            peaceably to assemble, and to petition the government for a  
            redress of grievances.  (U.S. Const., 1st Amend.)


          2)Provides that a specialized license plate shall have a design  
            or contain a message that publicizes or promotes a state  
            agency, or the official policy, mission, or work of a state  
            agency.  (Vehicle Code Section 5154.  Unless otherwise stated,  
            all further statutory references are to the Vehicle Code.)


          3)Requires funds accruing to a sponsoring state agency from the  








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            sale of specialized license plates to be expended exclusively  
            for projects and programs that promote that agency's official  
            policy, mission, or work.  (Section 5157.)


          4)Allows a state agency to sponsor a specialized license plate  
            program if the agency complies with specified requirements.   
            (Section 5156.)


          5)Prohibits DMV from establishing a specialized license plate  
            program for any agency until it has received no less than  
            7,500 paid applications for that agency's specialized license  
            plate.  (Section 5156.)


          6)Requires a state agency authorized to offer specialized  
            license plates to prepare and submit an annual accounting  
            report to the DMV by June 30.  The report shall include an  
            accounting of all revenues and expenditures associated with  
            the specialized license plate program.  (Section 5160.)


          7)Establishes the Veterans Housing and Homeless Prevention Bond  
            Act of 2014.  (Military and Veterans Code Sections 998.540 et  
            seq.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  In support of the bill, the author writes:


            AB 2253 seeks to create an additional specialty license plate  
            option that includes our nation's motto, "In God We Trust.  
            There are currently 16 states that offer "In God We Trust"  
            license plates to their residents and this legislation will  
            add California to the list. "In God We Trust" became the  








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            United States national motto on July 30, 1956, shortly after  
            our nation led the world through the trauma of World War II.  
            These same words have been used on U.S. currency since 1864.  
            In light of these facts, I think it is completely appropriate  
            for Californians to have the option to have our national motto  
            displayed on their license plates if they so choose.


          Given that some of the policy issues regarding license plate  
          programs were discussed in the previous committee in Assembly  
          Transportation Committee, this Committee's primary focus is on  
          the constitutional and legal issues confronting this bill. 


          As a starting point, the bill, as proposed to be amended,  
          requires the Department of Veteran Affairs (CalVet), in  
          consultation with the State Treasurer, to apply to the  
          Department of Motor Vehicles (DMV) to sponsor the following  
          historical state and federal motto license plate programs: (1) E  
          Pluribus Unum; (2) Liberty; (3) In God We Trust; (4) We the  
          People; and (5) Eureka! I have found it!  After CalVets has  
          complied with the statutory requirements (e.g. obtaining 7,500  
          applications), it may collect fees from the applicants of the  
          program which shall be deposited into a new fund, the Veterans  
          Housing and Homelessness Prevention Fund.  Proceeds from that  
          fund are distributed to the Veterans Housing and Homelessness  
          Prevention Program, an existing state program, and will be used  
          to pay for the development of supportive services for veterans  
          living in those units funded by the Veterans Housing and  
          Homelessness Prevention Program.


          The bill, prior to the amendments, was vulnerable to a number of  
          legal concerns, including whether it violated the First  
          Amendment of the United States Constitution - specifically, the  
          Establishment Clause and the Free Speech Clause.  Although the  
          bill, as proposed to be amended, takes significant steps to  
          address those concerns, this Committee reviews those  
          constitutional questions in turn.








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          The Establishment Clause.  The first issue is whether an "In God  
          We Trust" specialty license plate would survive Establishment  
          Clause scrutiny.  The Establishment Clause and the Free Exercise  
          Clause of the First Amendment provides that the government  
          "shall make no law respecting an establishment of religion, or  
          prohibiting the free exercise thereof."  (U.S. Const.,  1st  
          Amend.)  The Supreme Court's treatment of the religion clauses  
          has been "Januslike . . . [where one] face looks toward the  
          strong role played by religion and religious traditions  
          throughout our Nation's history . . . [and] the other [face]  
          looks to the present in demanding a separation between church  
          and state."  (Van Orden v. Perry (2005) 545 U.S. 667, 683.)   
          Ultimately, the Supreme Court has held that in order to  
          reconcile these two faces, it must "neither abdicate [its]  
          responsibility to maintain a division between church and state  
          nor evince hostility to religion."  (Id. at 683-84.)  Thus, a  
          court will uphold government conduct that is situated in-between  
          religion and nonreligion.  In order words, the ultimate  
          touchstone of the religion clauses is neutrality.  (See McCreary  
          County, Kentucky v. American Civil Liberties Union of Kentucky  
          (2005) 545 U.S. 844, 860; County of Allegheny v. American Civil  
          Liberties Union Pittsburgh Chapter (1989) 492 U.S. 573, 593;  
          Epperson v. Arkansas (1968) 393 U.S. 97, 103-04.)


          The Three-Prong Lemon Test.  While the Supreme Court has used a  
          variety of tests to determine whether government conduct amounts  
          to an establishment of religion, the prevailing analytical tool  
          is the Lemon test.  (Lemon v. Kurtzman (1971) 403 U.S. 602,  
          612-13.)  Under a Lemon analysis, the court asks the following  
          questions about government conduct: (1) Does the government have  
          a secular legislative purpose for its conduct? (2) Does the  
          government conduct have no principal or primary effect of  
          advancing or inhibiting religion; and (3) Does the government's  
          conduct foster "an excessive entanglement with religion."  (Id.  
          at 612-13; see Van Orden, supra, at 685; McCreary County, supra,  
          at 859.)  








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          First Prong: Secular Purpose.  To determine whether there is a  
          secular legislative purpose for the government's conduct, the  
          question is whether the government has abandoned neutrality and  
          is "acting with the intent of promoting a particular point of  
          view in religion matters."  (Corporation of Presiding Bishop of  
          Church of Jesus Christ of Latter-day Saints v. Amos (1987) 483  
          U.S. 327, 335.)  In order to examine the legislative purpose,  
          "one takes account of the traditional external signs that show  
          up in the text, legislative history, and implementation of the  
          statute."  (McCreary County, supra, at 862 (citing Santa Fe  
          Independent School District v. Doe (2000) 530 U.S. 290, 308).)   
          That is, one looks at the "plain meaning of the statute's words,  
          enlightened by their context and the contemporaneous legislative  
          history [and] the historical context of the statute, ? and the  
          specific sequence of events leading to [its] passage."  (Edwards  
          v. Aquillard (1986) 482 U.S. 578, 594.)  For example, the court  
          has "inferred [secular legislative] purpose from a change of  
          wording from an earlier statute to a later one" and "the  
          detailed public comments of its sponsor."  (McCreary County,  
          supra, 862-863.)  Additionally, the secular purpose "has to be  
          genuine, not a sham, and not merely secondary to a religious  
          objective."  (Id. at 864.)


          Although earlier versions of this bill do not appear to survive  
          the first prong, the proposed amendments appear to promote a  
          secular legislative purpose.  In earlier versions, the bill  
          required the DMV to consult with In God We Trust - America,  
          Inc., to design and make available special interest license  
          plates.  According to the In God We Trust - America, Inc.  
          website, the organization's mission is to promote patriotism by  
          encouraging elected officials to support the legal display "In  
          God We Trust" in every city, county chamber, and state capitol  
          in America. (  http://www.ingodwetrust-america.org/  ).   
          Additionally, the website states that "[t]he goal of this  
          mission is to keep God's name in America, and acknowledge and  
          affirm the role that faith in God plays in the public lives of  








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          the citizens in this country, and in the core values of our  
          nation."  (Ibid.)  


          It seems safe to say that the earlier version of this bill  
          raised significant constitutional concerns under the  
          Establishment Clause.  In the Assembly Transportation Committee,  
          the author amended the bill to remove In God We Trust - America,  
          Inc., and added amendments to require CalVets to sponsor an "In  
          God We Trust" license plate program, similar to the statutory  
          framework established for other specialty license plate  
          programs.  Although the earlier constitutionally-questionable  
          version was amended out of the bill, it was unclear to this  
          Committee whether the new version of the bill (i.e. CalVets as  
          the sponsor of "In God We Trust" specialty license plate) was in  
          fact advancing a secondary secular legislative purpose that was  
          subject to a primary religious purpose.  To address this  
          Committee's constitutional questions, and to ensure that the  
          author's purpose is secular and not religious, the author has  
          agreed to take amendments aimed at advancing the secular purpose  
          of promoting historical phrases and governmental mottos.  As  
          proposed to be amended, this bill would allow the following  
          specialty license plate programs: E Pluribus Unum; Liberty; In  
          God We Trust; We the People; and Eureka! I have found it!   
          Accordingly, it appears that these amendments satisfy the first  
          prong of the Lemon test.


          Second Prong:  Principal or Primary Effect of Advancing or  
          Inhibiting Religion.  Under the second prong of the Lemon test,  
          the analysis depends on whether, from the eyes of a reasonable  
          objective observer who is informed and familiar with the history  
          of the government practice, the government action has a primary  
          effect of advancing or disapproving of religion; that is, is the  
          government action likely to be perceived by adherents of the  
          controlling denominations as an endorsement of religion, and by  
          nonadherents as a disapproval of their individual religious  
          choices?  (Vasquez v. Los Angeles County (9th Cir. 2007) 487  
          F.3d 1246, 1256.)








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          Although earlier versions of this bill do not appear to survive  
          the second prong, the proposed amendments appear to not have the  
          primary effect of advancing or inhibiting religion.  Similar to  
          discussion above, it was unclear to this Committee whether a  
          reasonable observer would take into account the prior versions  
          of this bill to view the current bill as a disapproval of a  
          nonadherent's religious choices.  As previously stated, the  
          ultimate touchstone of the analysis is neutrality.  The author  
          contends that the only reason she is promoting the "In God We  
          Trust" specialty plate is to promote the national motto.  The  
          author believes that because this phrase is printed on our  
          currency, and was later adopted as the national motto by  
          Congress in 1956, there is no constitutional question.  Although  
          the Supreme Court has never definitively held that the phrase  
          "In God We Trust" survives constitutional muster, a bill that  
          only promotes an "In God We Trust" specialty license plate,  
          particularly in light of this bill's previous versions,  
          potentially sends a signal to nonadherents that it disapproves  
          of their religious choices (as previously discussed).  To  
          address these concerns (consistent with the ultimate touchstone  
          of neutrality), the author has agreed to take amendments that  
          also promote the following historical phrases and mottos,  
          including: E Pluribus Unum; Liberty; We the People; and Eureka!  
          I have found it!  Accordingly, it appears that these amendments  
          satisfy the first prong of the Lemon test.


          Third and Final Prong: Excessive Government Entanglement with  
          Religion.  The last Lemon prong may be violated when the  
          government excessively entangles with a religious institution in  
          such a way that it: (1) interferes with the independence of the  
          government, (2) gives the religious institution access to  
          government or governmental powers not fully shared by  
          nonadherents of the religion, and (3) fosters the creation of  
          political constituencies defined along religious lines.  (Lynch  
          v. Donnelly (1983) 465 U.S. 668, 688 (conc. opn. of O'Conner,  
          J.).)








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          Although the earlier version of this bill would have raised  
          excessive entanglement concerns, the current version of the bill  
          and the bill as proposed to be amended do not appear to violate  
          the third prong of the Lemon test.  As previously mentioned, the  
          prior version of the bill did raise the issue of excessive  
          entanglement.  However, the bill, as proposed to be amended, is  
          unlikely to trigger this issue because CalVets-not In God We  
          Trust - America, Inc.-is tasked with the sole responsibility of  
          sponsoring the specialty license plate. 


          The legal doctrine on the Establishment Clause may not be  
          completely settled.  It should be noted that although the Lemon  
          test has been the primary tool to analyze claims under the  
          Establishment Clause, the Court's jurisprudence on the  
          Establishment Clause appears to be changing.  Indeed, the Court  
          in recent years has invoked a variety of tests, depending on the  
          factual situation.  In certain times, the Court focuses on  
          whether the government conduct discriminates or accommodates  
          religion, while at other times, the Court looks at whether the  
          government's conduct is sufficiently secular, or historically  
          important.  (Van Orden, supra, at 685-87; County of Allegheny,  
          supra, at 657-60 (conc. & dis. opn. of Kennedy, J.); Lynch,  
          supra, at 679.)  However, neutrality still appears to be the  
          touchstone principle - a main feature behind the Lemon test. 


          Free Speech Clause: The Free Speech Clause of the First  
          Amendment provides that the government "shall make no  
          law?abridging the freedom of speech, or of the press; or the  
          right of the people peaceably to assemble, and to petition the  
          government for a redress of grievances."  (U.S. Const., 1st  
          Amend.)  Accordingly, the second issue that this Committee  
          analyzes is whether the Legislature's denial of certain  
          specialty license plates would infringe the speech of those  
          seeking the plate.  









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          Free Speech Clause: Government Speech.  It is well-established  
          that the Free Speech Clause of the First Amendment restricts  
          government's regulation of private speech, and does not regulate  
          government speech.  (Pleasant Grove City v. Summum (2009) 555  
          U.S. 460, 467.)  Indeed, a government entity has "the right to  
          speak for itself?and to select the views that it wants to  
          express."  (Ibid.)  Last year, the Supreme Court extended the  
          government speech doctrine to specialty license plates designs.   
          (Walker v. Texas Division, Sons of Confederate Veterans, Inc.  
          (2015) 576 U.S. ___.)  There, the Supreme Court held that  
          "[with] respect to specialty license plate designs, [a state] is  
          not simply managing government property, but instead is engaging  
          in expressive conduct [in part, because] specialty license plate  
          designs are meant to convey and have the effect of conveying a  
          government message."  (Ibid.)


          In light of the recent Supreme Court decision, it appears that  
          that the Legislature could determine which specialty license  
          plates to authorize without violating the First Amendment.  In  
          other words, the Legislature could deny an "In God We Trust"  
          license plate (and grant other plates) without violating the  
          First Amendment.  


          Free Speech Clause:  Compelled Speech.  The third issue is  
          whether this bill amounts to compelled speech.  Our courts have  
          long held that "the First Amendment stringently limits a State's  
          authority to compel a private party to express a view with which  
          the private party disagrees."  (Ibid.)  In certain instances,  
          compelled speech may be upheld, depending on the nature of the  
          speech and the state's interest in that speech.  (See Riley v.  
          National Federation of Blind (1988) 487 U.S. 781, 796.)  Given  
          that this bill does not compel drivers to carry a specialty  
          license plate, or compel drivers to associate with a message  
          that the driver does not agree with, compelled speech is not at  
          issue.  (Walker, supra, at ___; see also Wooley v. Maynard  
          (1977) 430 U.S. 705, 717.)








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          Final note:  As a final note, the Legislature should consider  
          whether this bill-even as proposed to be amended-might still  
          signal a preference toward a religion or faith, even if that  
          expression has been used historically in this country.  Supreme  
          Court Justice Elena Kagan has expressed the rationale for this  
          fundamental concept and limitation on government conduct, as  
          follows:


               For centuries now, people have come to this country from  
               every corner of the world to share in the blessing of  
               religious freedom.  Our Constitution promises that they may  
               worship in their own way, without fear of penalty or  
               danger, and that in itself is a momentous offering.  Yet  
               our Constitution makes a commitment still more  
               remarkable-that however those individuals worship, they  
               will count as full and equal American citizens.  A  
               Christian, a Jew, a Muslim (and so forth)-each stands in  
                                                                  the same relationship with her country, with her state and  
               local communities, and with every level and body of  
               government.  So that when each person performs the duties  
               or seeks the benefits of citizenship, she does so not as an  
               adherent to one or another religion, but simply as an  
               American."  (See Town of Greece v. Galloway (2014) 572 U.S.  
               ___ (dis. opn. of Kagan, J.) (emphasis added).



          REGISTERED SUPPORT / OPPOSITION:




          Support











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          None on file




          Opposition


          None on file




          Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334