Amended in Senate July 1, 2014

Amended in Senate June 12, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2646

Introduced by Assembly Member Ting

February 21, 2014

An act to add Section 53.7 to the Civil Code, relating to civil rights.

LEGISLATIVE COUNSEL’S DIGEST

AB 2646, as amended, Ting. Civil rights: begin delete structural end delete begin insert political structure end insert equal protection.

The California Constitution prohibits a person from being deprived of life, liberty, or property without due process of law, or from being denied equal protection of the laws. The United States Constitution prohibits a state from denying to any person within its jurisdiction the equal protection of the laws. Existing case law interprets that provision as guaranteeing racial minorities the right to full participation in the political life of the community, and prohibiting racial or ethnic groups from being denied, or precluded from entering into the political process in a reliable and meaningful manner.

Existing law permits individuals whose personal rights have been violated, in certain circumstances, to bring a civil action for damages or other appropriate relief.

This bill would prohibit a statute, ordinance, or other specified enactment from denying a minority group, as defined, begin delete structural end delete begin insert political structure end insert equal protection of the law by altering, restructuring, or reordering the policy decisionmaking process in a manner that burdens the ability of members of the minority group to effect the enactment of future legislation, solely with respect to a matter that inures primarily to the benefit of, or is primarily of interest to, one or more minority groups. The bill would authorize a member of a minority group, as defined, to bring a civil action challenging the validity of a statute or ordinance, or other enactment on that basis. The provision in question would be determined valid only upon a showing by the government that begin insert the end insert burden it imposes is necessary to serve a compelling public interest, and is no greater than necessary to serve that interest. The bill would include supporting legislative findings and declarations.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) The United States Supreme Court has interpreted the Equal
Protection Clause of the Fourteenth Amendment of the United
States Constitution as disfavoring and subjecting to “strict scrutiny”
state and local laws that (1) target a suspect classification of
persons, (2) restrict a fundamental right, or (3) alter the political
policymaking process with respect to an issue of primary concern
to a minority group or groups. This last doctrine is commonly
referred to as begin delete “structural end delete begin insert “political structure end insert equal protection.”

(b) The doctrine of begin delete structural end delete begin insert political structure end insert equal protection
was established primarily through two United States Supreme
Court decisions, Hunter v. Erickson (1969) 393 U.S. 385, and
Washington v. Seattle School District No. 1 (1982) 458 U.S. 457.
As a result, this doctrine has also been referred to as the
“Hunter/Seattle” doctrine. In the recent case of Schuette v. BAMN,
begin delete et. al. end delete begin insert et al. end insert (2014) 134 S. Ct. 1623, the United States Supreme
Court has further interpreted the begin delete structural end delete begin insert political structure end insert equal
protection doctrine, although the implications of this new
interpretation are not yet clear.

(c) Because the Hunter/Seattle doctrine was established as a
part of the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution, there has not been the need or
occasion for the California Supreme Court to determine whether
the California Constitution, through its own guarantee of equal
protection of the laws under Section 7 of Article I, also includes
begin delete structural end delete begin insert political structure end insert equal protection.

(d) Because the California Constitution goes at least as far as
the United States Constitution in protecting rights and liberties,
and in some cases has been interpreted to go beyond the United
States Constitution in providing such protections, the guarantee
of begin delete structural end delete begin insert political structure end insert equal protection that has been part
of the United States Constitution for nearly 50 years should
appropriately be recognized in the California Constitution.
Specifically, the Legislature believes that Section 7 of Article I of
the California Constitution provides broader protection of
individual liberties and rights than the Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution, and
these broader protections include the begin delete structural end delete begin insert political structure end insert
equal protection doctrine, as interpreted prior to Schuette v.
BAMN.

(e) Independent of the guarantees afforded by the California
Constitution, the Legislature believes that the Hunter/Seattle
doctrine provides a prudent and salutary rule for statutory
protection against discriminatory statutes, ordinances, or other
state or local rules, regulations, or enactments.

SEC. 2.  

Section 53.7 is added to the Civil Code, to read:

53.7.  

(a) A statute, ordinance, or other state or local rule,
regulation, or enactment shall not deny a minority group begin delete structural end delete
begin insert political structure end insert equal protection of the law by altering,
restructuring, or reordering the policy decisionmaking process in
a manner that burdens the ability of members of the minority group
to effect the enactment of future legislation, solely with respect to
a matter that inures primarily to the benefit of, or is primarily of
interest to, one or more minority groups.

(b) (1) A member of a minority group, as defined in paragraph
(2), may bring a civil action challenging the validity of a statute,
ordinance, or other state or local rule, regulation, or enactment,
pursuant to subdivision (a).

(2) For purposes of this section, “minority group” means a group
of persons who share in common any race, ethnicity, nationality,
or sexual orientation.

(c) A statute, ordinance, or other state or local rule, regulation,
or enactment shall be determined valid in an action brought
pursuant to this section, only upon a showing by the government
that the burden imposed by the statute, ordinance, or other state
or local rule, begin delete regulation end delete begin insert regulation, end insert or enactment satisfies both of
the following criteria:

(1) The burden is necessary to serve a compelling government
interest.

(2) The burden is no greater than necessary to serve the
compelling government interest.