BILL ANALYSIS �
AB 2646
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2646 (Ting)
As Amended August 13, 2014
Majority vote
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|ASSEMBLY: | |(May 15, 2014) |SENATE: |23-10|(August 19, |
| | | | | |2014) |
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(vote not relevant)
Original Committee Reference: JUD.
SUMMARY : Generally prohibits a statute, ordinance, or other
state or local rule, regulation, or enactment from denying a
minority group structural equal protection of the law.
The Senate amendments delete the Assembly version of the bill,
and instead:
1)Provide that a statute, ordinance, or other state or local
rule, regulation, or enactment shall not deny a minority group
political structure equal protection of the law by altering,
restructuring, or reordering the policy decision-making
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. This bill would authorize a member of a
minority group to bring a civil action challenging the
validity of a statute, ordinance, or other state or local
rule, regulation, or enactment, pursuant to this provision.
2)Provide that 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, regulation or
enactment satisfies both of the following criteria:
a) The burden is necessary to serve a compelling government
interest; and
b) The burden is no greater than necessary to serve the
compelling government interest.
AB 2646
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3)Define "minority group" to mean a group of persons who share
in common any race, ethnicity, nationality, or sexual
orientation.
4)Include various findings and declarations, including, among
others:
a) The United States Supreme Court has interpreted the
Equal Protection Clause as disfavoring and subjecting to
"strict scrutiny" state and local laws that i) target a
suspect classification of persons, ii) restrict a
fundamental right, or iii) 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 "structural equal protection."
b) The doctrine of political structure equal protection was
established primarily through two United States (U.S.)
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, et. al. (2014) 134 S. Ct.
1623, the United States Supreme Court has further
interpreted the structural equal protection doctrine,
although the implications of this new interpretation are
not yet clear.
c) The Legislature believes that California Constitution
Article 1, Section 7, provides broader protection of
individual liberties and rights than the Equal Protection
Clause of the 14th Amendment of the United States
Constitution, and these broader protections should include
the political structure equal protection doctrine, as
interpreted prior to Schuette v. BAMN.
d) 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.
FISCAL EFFECT : None
AB 2646
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COMMENTS : This bill prohibits a statute, ordinance, or other
state or local rule, regulation, or enactment from denying a
minority group structural equal protection of the law by
altering, restructuring, or reordering the policy
decision-making 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. This bill provides that a statute,
ordinance, or other state or local rule, regulation, or
enactment shall be determined valid in an action brought
pursuant to this bill, only upon a showing by the government
that the burden imposed by the statute, ordinance, or other
state or local rule, regulation or enactment satisfies both of
the following criteria: 1) the burden is necessary to serve a
compelling government interest; and 2) the burden is no greater
than necessary to serve the compelling government interest.
The Equal Protection Clause of the 14th Amendment of the United
States Constitution provides that no state shall deny to any
person within its jurisdiction equal protection of the laws.
The clause requires that persons under like circumstances be
given equal protection and security in the enjoyment of personal
and civil rights, the acquisition and enjoyment of property, the
enforcement of contracts, and the prevention and redress of
wrongs, and that they be subject to similar taxes and penalties.
At the same time, federal equal protection case law allows
discrimination or preferential treatment when a court has
determined that it is justified by a compelling state interest,
and the discrimination or preferential treatment is narrowly
tailored to address that interest. (8 Witkin Summary of
California Law Constitutional Law Sections 967 (citing Coral
Construction Inc. v. City of San Francisco (2010) 50 Cal.4th
315, 327) and 695.)
Of particular importance to this bill are three United States
Supreme Court cases covering a span of approximately 45 years.
The first of these is Hunter v. Erickson, wherein the United
States Supreme Court declared unconstitutional an Akron, Ohio
initiative that was adopted by referendum to repeal open housing
laws and require voter approval of any such future laws
regulating real estate transactions "on the basis of race,
color, religion, national origin or ancestry" by a majority of
electors on the question at a regular or general election before
AB 2646
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any such ordinance would be effective. (Id. at 389.) The
United States Supreme Court found that this was an "explicitly
racial classification treating racial housing matters
differently than other racial and housing matters" (as blacks,
much more than whites, were obviously harmed by creating
obstacles to enactment of open housing laws), and thereby
invalidated the ordinance under the 14th Amendment. (Id.) The
second of these is the case of Washington v. Seattle School
District No. 1, where the United States Supreme Court, in the
same vein, invalidated a Washington initiative that provided
that no school board could require any student to attend a
school other than the school geographically nearest or next
nearest to the student's residence. The challenged initiative
thereby precluded students from being assigned for the purposes
of desegregation, and by purposefully frustrating desegregation
efforts, the initiative was held to be in violation of the 14th
Amendment. Even though the law nowhere mentioned race and
applied it in the same way to all races, because "it uses the
racial nature of an issue to define the governmental
decision-making structure and thus imposes substantial and
unique burdens on racial minorities," the United States Supreme
Court found the ordinance to be a type of racial classification.
(Id. at 470.) Like in Hunter v. Erickson, the law "remove[d]
the authority to address a racial problem - and only a racial
problem - from the existing decision making body, in such a way
as to burden minority interest." (Id. at 474.)
As a result of the Hunter/Seattle cases, courts have come to
recognize a "political structure doctrine" (also referred to as
"political structure equal protection"). "The 'political
structure' doctrine that emerges from these decisions is perhaps
best summarized in the Washinghton v. Seattle School District
No. 1 majority's statement that 'the 14th Amendment ? reaches
'a political structure that treats all individuals as equals,' ?
yet more subtly distorts governmental processes in such a way as
to place special burdens on the ability of minority groups to
achieve beneficial legislation.'" (Coral Construction Inc. v.
City of San Francisco) As framed by some constitutional law
scholars, a person challenging a law under this doctrine (what
these scholars call the Hunter doctrine) must satisfy a two part
test: 1) she must show that the law in question is "racial" or
"racial in character" in that it singles out for special
treatment, issues that are particularly associated with racial
minority interests; and 2) she must show that the law imposes an
unfair political process burden by entrenching resolution of
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such "racial matters" in a political process where minorities
are less able to succeed. Strict scrutiny is only triggered if
she (the challenger) satisfies both parts of this test. (Vikram
Amar and Evan Caminker, the Hunter Doctrine and Proposition 209:
A Reply to Thomas Wood (1997) 24 Hastings Constitutional Law
Quarterly 1010, p. 1003.)
This bill would prohibit a statute, ordinance, or other state or
local rule, regulation, or enactment from denying a minority
group structural equal protection of the law by altering,
restructuring, or reordering the policy decision-making 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. This
bill would provide that 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, regulation, or
enactment satisfies both of the following criteria: 1) the
burden is necessary to serve a compelling government interest;
and 2) the burden is no greater than necessary to serve the
compelling government interest.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN:
0004684