BILL ANALYSIS �
AB 2646
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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)
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|COMMITTEE VOTE: |9-0 |(August 28, 2014) |RECOMMENDATION: |concur |
|(Jud.) | | | | |
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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 this 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:
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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.
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 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
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other state or local rules, regulations, or enactments.
FISCAL EFFECT : None
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.)
In a series of decisions over the past 45 years, the United States
Supreme Court has held that
the 14th Amendment reaches a political structure that ostensibly
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.
The first of these is Hunter v. Erickson, wherein the United States
Supreme Court declared unconstitutional an Akron, Ohio initiative
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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 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"). As framed by some
constitutional law scholars, a person challenging a law under this
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 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.)
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0005545