BILL ANALYSIS Ó
SB 396
Page 1
Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 396 (de León) - As Amended: June 5, 2014
SENATE VOTE : Not Relevant
SUBJECT : UNDOCUMENTED IMMIGRANTS: PUBLIC SERVICES
KEY ISSUE : SHOULD CERTAIN STATUTES ENACTED BY PROP. 187 OF 1994
AND LONG AGO INVALIDATED AS UNCONSTITUTIONAL BE DELETED IN ORDER
TO CONFORM THE CODES TO EXISTING LAW AND AVOID POTENTIAL
MISUNDERSTANDING OF THE LAW?
SYNOPSIS
This bill proposes to delete from California codes specified
statutes enacted by Prop. 187 of 1994 regarding the rights of
certain immigrants. These statutes were found to be
unconstitutional shortly after they were enacted, and have never
been in force or effect. Twenty years later, supporters state,
the time has come to strike these provisions from the statute
books in order to avoid confusion and gain a measure of closure
on a difficult and divisive time that California has proudly
transcended. Because these provisions are not enforceable,
their deletion by this bill would appear to be within the
Legislature's discretion. The bill has no known opposition.
SUMMARY : Deletes certain statutes found to be unconstitutional.
Specifically, this bill deletes the following statutes:
Sections 48215 and 66010.8 of the Education Code, Section
53069.65 of the Government Code, Chapter 1.3 of Part 1 of
Division 1 of the Health and Safety Code, Section 834b of the
Penal Code, and Section 10001.5 of the Welfare and Institutions
Code which in combination purport to make undocumented
immigrants ineligible for specified public social services,
public health care services, and public school education at the
elementary, secondary, and post-secondary levels and, among
other things, require various state and local agencies to report
suspected illegal aliens, as specified, and require the Attorney
General to perform certain tasks in connection with transmitting
and retaining those reports.
EXISTING LAW provides for the regulation of immigration
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exclusively by the federal government. (E.g., LULAC v. Wilson,
908 F. Supp. 755, 786-87 (C.D. Cal. 1995).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : In support of the bill, the author states:
In 1994, exactly twenty years ago, the voters of California
approved Proposition 187, now considered one of the most
mean-spirited measures in California's ballot initiative
history. With 59 percent of voters in favor of the
initiative and 41 percent against it, Proposition 187 was a
pernicious and unabashed attempt to target and scapegoat
immigrants for the economic recession in the mid 1990's. At
the time, California had an estimated 1.3 million
undocumented immigrants, which included more than 300,000
undocumented children.
Proposition 187 would have barred the children of
undocumented immigrants from attending public schools and
would have required teachers, doctors, social workers, and
law enforcement personnel to report and turn in any
suspected undocumented immigrant to federal authorities. In
short, it turned every teacher, doctor, social worker, and
local police officer into an immigration agent for the
federal government.
Specifically, Proposition 187 would have done the
following:
Every school district would have had to verify
the legal status of every child and parent enrolled in the
district. If school districts "reasonably suspected" that a
student, parent, or guardian was not legally present in the
U.S. they would have had to report the person to
Immigration and Naturalization Services (INS, now
Immigration and Customs Enforcement), the State
Superintendent of Public Instruction, and the California
Attorney General.
Public colleges and universities would have been
prohibited from accepting students not legally authorized
to be in the United States. Schools would have had to
verify the citizenship or legal status of each student at
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the beginning of every term and report students "reasonably
suspected" of being undocumented to the INS, the State
Superintendent of Public Instruction, the California
Attorney General.
Public agencies and publicly funded health care
facilities would have had to verify a person's immigration
status before providing that person with social
services-including welfare services for troubled youths,
the elderly, and others with special needs-or health care
services-including prenatal and postnatal services. If an
agency or health care facility reasonably suspected that an
applicant was undocumented, it would have had to report it
to INS, the California Attorney General, the State
Department of Social Services, and the Department of Health
Services.
Proposition 187 was ultimately struck down by federal
courts on the grounds that it violated the U.S.
Constitution by infringing on the federal government's
jurisdiction over immigration law. Though never fully
implemented, it had a damaging and lasting impact on the
immigrant communities because it further stigmatized an
already vulnerable population. Still today, the immigrant
population fears interacting with government officials and,
as a result, is often hesitant to become civically engaged
and cooperate with the police.
Furthermore, Proposition 187 served as the unfortunate
precursor to the draconian anti-immigrant laws recently
adopted in Arizona (SB 1070) and Alabama (HB 56) that, like
Proposition 187, encourage racial profiling and targeting
undocumented immigrants.
Nevertheless, despite clear findings that Proposition 187
is unconstitutional, its language remains on the books.
Undoubtedly, the state has made tremendous progress in
recent years by enacting laws that promote the safety and
livelihood of immigrant families and that recognize
undocumented immigrants as valued members of society. And
so, after 20 years, it is fitting that California expressly
acknowledge the detrimental impact of the discriminatory
and xenophobic Proposition 187 by removing its stain from
the state's statutes.
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This Bill Proposes To Strike From The California Codes Certain
Provisions Enacted By Proposition 187 of 1994 And Subsequently
Invalidated By A Federal Court. As the author notes, this bill
proposes to delete from the codes certain statutes enacted by
Prop. 187 and subsequently invalidated by the courts as
unconstitutional.
Prop 187 was an initiative measure approved by the voters to
enact certain statutory provisions in order to "establish a
system of required notification by and between [state and local
agencies and the federal government] to prevent illegal aliens
in the United States from receiving benefits or public services
in the State of California." (Ballot Pamp., Gen. Elec. (Nov. 8,
1994) text of Prop. 187, § I, p. 91.) The United States
District Court for the Central District of California held that
certain provisions of Proposition 187 - those at issue in this
bill - relating to verification and notification, and the denial
of public social services, publicly funded health care, and
education to persons who were not lawfully present in the United
States, were unconstitutional on the basis that those provisions
were preempted by federal law. The court then issued a
permanent injunction prohibiting the enforcement of those
provisions.
Because these statutes were enacted by initiative, the question
arises whether the Legislature may act to strike these
provisions from the codes. The California Constitution provides
that the Legislature may amend or repeal a statutory initiative
"by another statute that becomes effective only when approved by
the electors unless the initiative statute permits amendment or
repeal without their approval." (Cal. Const., art II, § 10,
subd.(c).) While it may be argued that this bill proposes an
improper "repeal," the better view would appear to be reflected
in an opinion by Legislative Counsel concluding that the
Legislature is within its powers to delete statutes that have
been abrogated by the courts. As Counsel notes, the evident
intent of the subdivision (c) is to "protect the people's
initiative powers by precluding the Legislature from undoing
what the people have done, without the electorate's consent."
(Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 597.)
Accordingly a subsequent statute will "amend" a statutory
initiative within the meaning of subdivision (c) only if it
changes the scope or effect of that initiative by adding or
taking away from it. (See People v. Kelly (2010) 47 Cal.4th
1008, 1026-1027; see also People v, Cooper (2002) 27 Cal.4th 38,
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44.) Because the provisions that would be deleted by SB 396
have previously been held to be unenforceable, it seems
reasonable to conclude that this bill would not make a
substantive change in the law as prohibited by subdivision (c),
and therefore would not unconstitutionally change the scope or
effect of Proposition 187.
ARGUMENTS IN SUPPORT : A number of immigrants' rights groups
support the bill. The Mexican American Legal Defense and
Educational Fund's (MALDEF) states:
SB 396 ? would eliminate the unconstitutional and
unenforceable provisions of Proposition 187 that remain in
California statute today. These include provisions
impacting education, health care, social services and law
enforcement. MALDEF's opposition to this statute dates back
over 20 years. MALDEF also litigated the case which was
eventually struck down in federal court as
unconstitutional. The provisions that remain in California
statute are therefore enforceable as a result of the
settlement negotiations, but their continued presence
causes confusion and harmful outcomes for immigrant
Californians. It is long past time for California to erase
the remnants of Proposition 187, and with it the pain, the
harm, and the real danger that it created for community
members across the state.
The American Civil Liberties Union of California adds:
The ACLU's opposition to this statute dates back over 20
years. In 1994, the ACLU of California opposed Proposition
187, which was ultimately passed by the voters. However,
portions were struck down in federal court as
unconstitutional, and the State agreed not to enforce
others in a settlement. Unfortunately, there are provisions
that remain on the books that are therefore enforceable,
but their continued presence causes confusion and harmful
outcomes for immigrant Californians.
For example, Penal Code 834(b), which required law
enforcement to inquire into the immigration status of
individuals they arrested, remains on the books today,
leading to confusion and violations of civil liberties. The
ACLU has seen this provision referenced in jail policies
and legal memos pertaining to law enforcement interactions
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with immigrants. When this statute is wrongly enforced, the
rights of immigrants are violated.
These views are echoed in the letters of the California
Immigrant Policy Center and Coalition for Humane Immigrant
Rights of Los Angeles.
Pending Related Legislation. Like this measure, SB 1306 (Leno)
would strike from the codes an abrogated statute enacted by
initiative (Prop. 22 of 2000) and subsequently found to be
unconstitutional. SB 1306 passed this Committee and is
currently pending on the Assembly floor.
REGISTERED SUPPORT / OPPOSITION :
Support
ACLU of California
California Immigrant Policy Center
Coalition for Humane Immigrant Rights of Los Angeles
Mexican American Legal Defense and Educational Fund
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334