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Cert Petition De Vries v. Regents Court Filing

Cert Petition De Vries v. Regents Court Filing

Page 1: Cert Petition De Vries v. Regents Court Filing

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Date Created:May 22, 2017

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No. ______ THE
Supreme Court the United States
_________
EARL VRIES,
Petitioner,
REGENTS THE UNIVERSITY CALIFORNIA,
Respondent.
_________ Petition for Writ Certiorari the California Court Appeal,
Second Appellate District
_________
PETITION FOR WRIT CERTIORARI
_________
Paul Orfanedes
Counsel Record
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
porfanedes@judicialwatch.org
Counsel for Petitioner
Dated: May 23, 2017
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
QUESTIONS PRESENTED
Title Section 1621(d) prohibits states from
giving public benefits unlawfully present aliens
absent the enactment State law ... which
affirmatively provides for such eligibility. The
California Legislature enacted three State laws that
deferred the Regents the University
California whether extend taxpayer-funded
education benefits unlawfully present aliens.
the benefits violate Title Section 1621(d)?
TABLE CONTENTS
QUESTION PRESENTED .........................................
TABLE CONTENTS ............................................
TABLE AUTHORITIES .....................................
INTRODUCTION .......................................................1
DECISIONS AND PARTIES BELOW .......................3
JURISDICTION ..........................................................3
STATUTORY PROVISIONS ......................................3
STATEMENT THE CASE ....................................4
Background .......................................................4
Proceedings Below ............................................6
REASONS FOR GRANTING THE PETITION .........9
The California Court Appeal Erred, and
Created Conflict with the States Florida,
Illinois, and New York, Weakening
Federal Immigration Statute ........................11
II.
This Case Presents Several Important Issues
Affecting National Immigration Policy .........17
CONCLUSION ..........................................................23
iii
APPENDIX
California Supreme Court Order Denying
Review, dated February 22, 2017 .......................1a
California Court Appeal, Second Appellate
District Opinion Affirming Superior Court
Judgment, dated December 2016 ....................2a
Los Angeles County Superior Court Ruling
Sustaining Demurrer, dated March 13,
2015 ....................................................................43a
TABLE AUTHORITIES
CASES
Arizona United States,
132 Ct. 2492 (2012) .............................21,
Auto Equity Sales, Inc. Superior Ct.,
369 P.2d 937 (Cal. 1962) ...............................15
DirecTV, Inc. Imburgia, 136 Ct. 463 (2015) .......1
Florida Bd. Bar Exam rs, 134 So. 432
(Fla. 2014) ................................................12,
INS St. Cyr, 533 U.S. 289 (2001) .........................14
Kaider Hamos, 975 N.E.2d 667
(Ill. App.Ct. 2012) ....................................12,
League United Latin American Citizens
Wilson, 997 Supp. 1244 (C.D. Cal. 1997) ..16
Maine Mun. Ass Maine HHS, 2015 Me. Super.
Lexis 197 (Me. Super. Ct. June 2015) .......15
Martinez Regents the Univ. California, Cal. 4th 1277 (Cal. 2010) .............................5
Matter Application Vargas, 131 A.D.3d
(N.Y. App. Div. 2015) ..............................13,
Minnesota Mille Lacs Band Chippewa Indians,
526 U.S. 172 (1999) ........................................14
Mountain View Coach Lines, Inc. Storms,
102 A.D.2d 663 (N.Y. App. Div. 1984) ..........15
People Harris, 526 N.E.2d 335
(Ill. App. Ct. 1988) .........................................15
Regents Univ. Cal. Superior Court
Alameda Cty., Cal. 533 (Cal. 1976) ........6
Texas United States, 809 F.3d 134
(5th Cir. 2015).................................................21
Washington Trump, 847 F.3d 1151
(9th Cir. 2017).................................................21
CONSTITUTIONAL PROVISIONS
U.S. Const. art. cl. ........................................22
U.S. Const. art. VI, cl. ..............................................7
U.S. Const. amend. ................................................13
Cal. Const. art. IX, ................................................5
STATUTES U.S.C. 1601 ....................................................14, U.S.C. 1621 .................................................. passim U.S.C. 1621(a) ................................. 12, 14, U.S.C. 1621(d) ............................................. passim U.S.C. 1257(a) .....................................................3
Cal. Educ. Code 69508.5(a) .....................................8
Cal. Educ. Code 70033(a)(1) .....................................8
Cal. Stats. 2001, ch. 814 1(b)(1) ...............................8
MISCELLANEOUS AUTHORITIES
104 Rept. 725, 104th Cong., Sess. (July 30,
1996), available https://www.congress.gov/
congressional-report/104th-congress/housereport/725/1...............................................18,
BLACK LAW DICTIONARY, Sixth Ed. .........................1
OXFORD AMERICAN DICTIONARY, entry for
positively, available http://plusdict.com/
definition/positively ..........................................1
INTRODUCTION
The error below was simple one:
upholding education benefits provided the
Regents the University California Regents
unlawfully present aliens, the California Court
Appeal read the words affirmatively provides for
such eligibility out Title Section 1621(d). This
Court should grant certiorari and reverse, because
the Supremacy Clause forbids state courts
dissociate themselves from federal law because
disagreement with its content DirecTV, Inc.
Imburgia, 136 Ct. 463, 468 (2015) (reversing
prior decision the California Court Appeal,
Second Appellate District).
Specifically, the Court Appeal assigned
meaning language deliberately chosen
Congress. The court could not have ruled did
otherwise.
The word affirmatively Section
1621(d) means with certainty.
Black Law
Dictionary defines affirmative that which
declares positively, BLACK LAW DICTIONARY, Sixth
Ed., and the word positively means with certainty; leave room for doubt. Accordingly,
state law that affirmatively provides for such
eligibility one that positively declares eligibility
with certainty. None the three California statutes
examined the Court Appeal satisfies this
standard.
Instead, the statutes say unlawfully
present students attending University California schools might eligible for benefits, the
OXFORD AMERICAN DICTIONARY, entry for positively,
available http://plusdict.com/definition/positively.
Regents decide make them eligible, and the
Regents take administrative steps establish the
students eligibility. The statutes are far cry from affirmative, positive declaration eligibility.
Instead, the Court Appeal focused the
difference between the words eligible and
entitled. App. 24a 29a. The distinction
irrelevant. Whatever eligible means Section
1621,
the
California
Legislature
did
not
affirmatively provide eligibility for the benefits.
merely deferred the governing body the
Regents. asked the Regents decide whether
make unlawfully present aliens eligible for the
benefits. The Legislature actions are exactly the
kind delegation Section 1621 was intended
prevent. other words: the state statutes are not
affirmative provisions eligibility.
The Legislature did not affirmatively provide
eligibility for the benefits because the State
Constitution prohibits from doing so. Specifically,
the California constitution vests virtually all
governing authority over the system the
Regents. result, the Legislature lacks authority enact state law affirmatively providing
eligibility for the benefits.
Faced with this dilemma, the Court Appeal
chose rewrite federal law. App. 32a, 40a. Its
decision read inconvenient words out Section
1621(d) undermines federal immigration law,
conflicts with the law three other states, and has
led fragmentation national immigration policy.
This Court should accept review and reverse.
DECISIONS AND PARTIES BELOW
The California Supreme Court decision deny
the petition for review published Vries
Regents the Univ. Cal., No. S239558, 2017 Cal.
Lexis 1387 (Cal. Feb. 22, 2017) and reprinted
the Appendix (App.) 1a. The opinion the
California Court Appeal published Vries Regents Univ. Cal., Cal. App. 5th 574 (Cal.
Ct. App. 2016) and reprinted App. 2a. The
unreported decision the Los Angeles County
Superior Court reprinted App. 43a. Petitioner
Earl Vries Vries and respondent Regents the University California Regents were the
only parties these proceedings.
JURISDICTION
The California Court Appeal, Second
Appellate District issued its opinion December
2016. App. 2a. Petitioner filed timely petition for
review the California Supreme Court, which that
court denied February 22, 2017. App. 1a. This
Court has jurisdiction under U.S.C. 1257(a).
STATUTORY PROVISIONS U.S.C. 1621(a) provides, relevant part:
Notwithstanding any other provision
law and except provided
subsections (b) and (d), alien ... not
eligible for any State local public
benefit... U.S.C. 1621(d) provides, relevant part: State may provide that alien who not lawfully present the United
States eligible for any State local
public benefit for which such alien
would otherwise ineligible under
subsection (a) only through the
enactment State law which
affirmatively
provides
for
such
eligibility.
STATEMENT THE CASE Background
This case concerns federal limitations
States power give public benefits unlawfully
present aliens. Title Section 1621 contains two
relevant provisions. First, Section 1621(a) generally
prohibits giving unlawfully present aliens state
local public benefits. U.S.C. 1621(a). Second,
Section 1621 creates narrow exception this
prohibition, allowing States make unlawfully
present aliens eligible for state local benefits only
through the enactment State law ... which
affirmatively provides for such eligibility. U.S.C.
1621(d); see also App. 4a. Most courts have held
that Section 1621(d) requires passage state
statute that explicitly makes unlawfully present
aliens eligible receive the benefit question.
Congress enacted Section 1621 part the
Personal Responsibility and Work Opportunity
Reconciliation Act 1996 PRWORA signed into
law President Bill Clinton August 22, 1996.
App. 4a. enacting Section 1621, Congress
determined that unlawfully present aliens should
only eligible for state local public benefit
state highest and most politically accountable
branch government elects opt out the general
prohibition such benefits. Specifically, the state
legislature must decide whether extend eligibility
for benefit unlawfully present aliens. so,
the legislature must enact state law that positively
and unequivocally establishes unlawfully present
aliens eligibility for the benefit. Absent clear and
specific state law, benefit may not provided.
Through series three statutes, the
California Legislature made unlawfully present
aliens attending California State University CSU
schools and California Community College CCC
eligible receive in-state tuition, state funded
administered financial aid, and state funded
administered student loans. App. 5a, 21a 23a;
see also Martinez Regents the Univ.
California, Cal. 4th 1277 (Cal. 2010). Because
the Regents constitutionally independent status,
however, the Legislature lacks authority over tuition
and student aid policies schools. Cal. Const.,
art. IX, see also App. 6a, 11a 14a. The
power the Regents operate, control and
administer the University virtually exclusive.
Regents the Univ. Cal. Superior Court
Alameda Cty., Cal. 533, 537 (Cal. 1976); see
also App. 6a, 11a 14a. result, the
California Legislature constitutionally powerless enact state law affirmatively providing that
unlawfully present aliens attending schools are
eligible apply for public education benefits.
Nonetheless, the Regents adopted policies
purportedly making unlawfully present aliens
attending schools eligible apply for the same
public education benefits unlawfully present
aliens attending CSU and CCC schools. App. Because its constitutional autonomy, the
Regents (rather than the Legislature) adopted three
policies provide the benefits identified A.B. 540,
A.B. 131, and S.B. 1210 qualified undocumented
immigrant students attending the University
California. see also App. 19a 20a. The
Regents currently provide all three types public
benefits unlawfully present aliens attending
schools. App. 6a, 47a. Proceedings Below
Earl Vries, California resident and
taxpayer, filed lawsuit the Los Angeles County
Superior Court alleging that the Regents were
spending his tax dollars illegally providing instate tuition and other public, financial aid benefits unlawfully present aliens attending schools.
App. 8a, 46a 47a. Vries lawsuit
alleges that state law affirmatively makes
unlawfully present aliens attending schools
eligible apply for such benefits, and, therefore, the
benefits are illegal under Title Section 1621. Id.
The Regents argue that three state laws, A.B. 540,
A.B. 131, and S.B. 1210, provide eligibility for the
benefits, the alternative, that the Regents
policies themselves are state laws. App. 7a.
The Los Angeles County Superior Court
sustained the Regents demurrer Vries
Amended Complaint. App. 7a, 49a. The Superior
Court held that the Regents policies themselves
were state laws equivalent acts the California
Legislature under the California Constitution, and
therefore the Regents policies standing alone satisfy
Section 1621(d). App. 46a 49a. The Superior
Court holding put California state law into direct
conflict with federal law, Section 1621 specifies
that only state legislative enactments may make
unlawfully present aliens eligible for benefits. See
U.S. Const. art. VI, cl. appeal, the California Court Appeal
declined adopt the Superior Court reasoning.
App. 23a (the Regents argued 1621(d) satisfied measures such the quasi-legislative acts the
Regents. need not decide whether the Regents
broader view correct Instead, the Court
Appeal found that A.B. 540, A.B. 131, and S.B. 1210
satisfy Section 1621(d). App. 29a 42a. The
Court Appeal recognized that the language used the three California statutes make CSU and
CCC students eligible apply for public benefits
was very different from the language regarding the
UC. App. 6a, 11a 14a. The Court
Appeal also recognized that the three statutes used
passive language when referencing the because
the Legislature lacks authority under the California
Constitution affirmatively establish tuition and
student aide policies for students.2 App.
6a, 11a 14a.
The Court never found that A.B. 540, A.B.
131, and S.B. 1210 provide eligibility for
students affirmatively. only found that the
statutes provide eligibility. App. 32a Section
1621(d) only requires that the Legislature provide
eligibility for public benefits, which the Legislature
has done through A.B. 540 App. 40a Indeed, specifically referencing the University
California and its students, those measures provide
eligibility for the specified benefits those students,
regardless whether the University ultimately
confers such benefits them. (italics added).
Following the Court Appeal decision, Vries
filed timely petition for review with the California
Supreme Court, which was denied. App. 1a.
Indeed, the three California statutes acknowledge that only
the Regents can make students eligible apply for
benefits, and that the Legislature powerless so. Cal.
Stats. 2001, ch. 814, 1(b)(1) (referencing, relation A.B.
540, requirements adopted the Regents the University
California pursuant Section 68134 the Education Code
Cal. Ed. Code 69508.5(a) (referencing, relation A.B. 131,
equivalent requirements adopted the Regents the
University California Cal. Ed. Code 70033(a)(1)
(referencing, relation S.B. 1210, equivalent requirements
adopted the Regents the University California
REASONS FOR GRANTING THE PETITION
The Court Appeal decision conflicts with
the express language Section 1621(d) and the
decisions several other state and federal courts
interpreting that language. Until this conflict
resolved, will remain open question whether
unlawfully present aliens can receive public benefits
without the enactment state law state
legislature positively and explicitly making such
aliens eligible apply for the benefits. Decisions
applying Section 1621(d) have not been entirely
consistent. 2015, New York appellate court held
that the Tenth Amendment allows New York
Judiciary, not just its Legislature, establish
unlawfully present aliens eligibility become
members the New York State Bar.
The Court Appeal ruling has greatly
exacerbated inconsistencies Section 1621(d)
application. The largest state the nation has now
determined that its Legislature need not
affirmatively provide that unlawfully present
aliens are eligibility for public benefits, but can defer
that determination other state entities. The Court Appeal decision misreads Section 1621 and
odds with rulings Florida, Illinois, and New York.3
The proper interpretation Section 1621(d) ripe
for this Court resolution.
The issue important because, unless
resolved this Court, the result patchwork
Indeed, the conflicting interpretations run even deeper. See
infra 15, note and 16, note
rules establishing how unlawfully present aliens can made eligible for public benefits. Not only does
the U.S. Constitution grant Congress the power
establish uniform Rule Naturalization, but
immigration law and policy bear directly foreign
relations and diplomacy, which also are the exclusive
domain the federal government. finding that
entities other than state legislatures can establish
unlawfully present aliens eligibility for public
benefits, the Court Appeal decision weakened
the federal government powers over national
immigration law and policy, foreign relations, and
diplomacy. The decision also creates further
fracturing immigration policy, transforming law
that allows state legislatures participate
immigration decisions into one that could allow 500 5,000 state agencies and local governments
participate these decisions.
The question also important because benefit
programs can costly. Without final, definitive
interpretation Section 1621(d) this Court, state
agencies local officials may claim the power
extend public benefits unlawfully present aliens
based only the vaguest, most tenuous expressions
(or purported expressions) state legislature
intent.
The California Court Appeal Erred, and
Created Conflict with the States
Florida, Illinois, and New York,
Weakening Federal Immigration Statute
Most courts applying Section 1621(d) have held
that affirmatively provide eligibility means
state statute enacted the legislature must
establish unlawfully present aliens eligibility
apply for public benefit terms that are
unequivocal, non-passive, and leave room for
doubt. The Court Appeal decision conflicts with
this precedent. ignores the word affirmatively
the text Section 1621(d) and the effect that
word inclusion the statute. found that A.B.
540, A.B. 131, and S.B. 1210 made students
eligible for the benefits despite the fact that the
statutes themselves expressly require the Regents
decide eligibility status before the students may
apply. The Court Appeal also made this finding
despite the indisputable fact that the California
Legislature lacks the power establish tuition and
student aid policies for the UC. Because the Court
Appeal decision odds with how this Court and
other courts have read Section 1621, review should granted secure uniformity law.
The Court Appeal decision has created
conflict nationally, between the law the states
California, Florida, Illinois, and New York. 2014,
the Supreme Court Florida held that Section 1621
requires state legislative act affirmatively
providing that unlawfully present aliens seeking
admission the Florida Bar are eligible apply for
law licenses. Florida Bd. Bar Exam rs, 134 So.
432 (Fla. 2014). The Florida court explained: the Florida Legislature were ...
affirmatively provide that such
unauthorized immigrants are eligible
for professional licenses qualified
individuals would eligible
Id. 440 (emphasis added). Illinois appellate court also reached
conclusion contrary the California Court
Appeal ruling, holding that affirmatively provide
for eligibility means the opposite passively
providing, where legislature delegates the
decision eligibility another entity:
[T]he better understanding the
requirement that the state law
affirmatively provides for eligibility
undocumented aliens that Congress
wanted prevent the passive
inadvertent override section 1621(a).
Kaider Hamos, 975 N.E.2d 667, 673 (Ill. App. Ct.
2012), review denied, 981 N.E.2d 997 (Ill. 2012).
The Illinois court made clear that the
dividing line for state compliance with the
affirmatively provides language Section 1621(d) whether the legislative statute delegates
implementation the legislature eligibility
decision, whether the statute delegates the
eligibility decision itself:
[N]othing section 1621(d) prevents
state legislatures from delegating the
implementation the opt-out
administrative
agencies
once
affirmatively provides for the state
statute.
Kaider, 975 N.E.2d 677 (italics added).
Finally, New York appellate court also
agreed with Florida and Illinois interpretation
Section 1621. The New York court stated that
Section 1621 prohibits benefits unlawfully present
aliens unless individual state has enacted
legislation affirmatively authorizing the benefits.
Matter Application Vargas, 131 A.D.3d
(N.Y. App. Div. 2015). However, the split between
New York and California even more compelling.
The New York appellate court went find that,
even though the New York legislature had not
affirmatively provided eligibility for the state public
benefit question (law licenses), Section 1621(d)
legislative enactment requirement conflicted with
the Tenth Amendment because 1621(d) unlawfully
intrudes into the organization state governments.
Matter Application Vargas, 131 A.D.3d 25-27;
U.S. Const. amend. The California Court
Appeal did not reach this question, which the
Regents nevertheless argued all stages the
proceedings.
Additionally, even the New York appellate
court were correct finding that Section 1621(d)
conflicts with the Tenth Amendment, the doctrine
severability would not allow the Court invalidate
half Section 1621(d), the New York court did.
Rather, would require Section 1621(d) stricken its entirety. Striking the words only and the
enactment from 1621(d) gets the severability
analysis wrong, doing would nullify both
1621(a) and 1621(d) eviscerating Congress intent create general prohibition unlawfully present
aliens receiving state local public benefits unless
certain conditions are satisfied. See Minnesota
Mille Lacs Band Chippewa Indians, 526 U.S. 172,
191 (1999) The inquiry into whether statute
severable essentially inquiry into legislative
intent. Accordingly, Section 1621(d) conflicts
with the Tenth Amendment, Section 1621(a)
general prohibition benefits would remain intact
and states would lose all powers extend benefits unlawfully present aliens. This would the only
result consistent with Congress explicit policy
statement adopted PRWORA, and any reasonable
reading the text 1621(a) and (d). See U.S.C.
1601 (it the immigration policy the United
States that aliens within the Nation borders not
depend public resources meet their needs
Should this Court accept review and find favor
the Regents interpretation Section 1621(d), the
Court should also strike all Section 1621(d) based conflict with the Tenth Amendment.4
This potential constitutional conflict further reason for the
Court find that Petitioner reading Section 1621
correct. INS St. Cyr, 533 U.S. 289, 299-300 (2001) [I]f
The California Court Appeal holding,
combined with the California Supreme Court
denial review, creates split California,
Florida, Illinois, and New York whether Section
1621(d) requires state legislatures affirmatively
provide eligibility any meaningful way.5 The
California Court Appeal decision now binding
precedent throughout California. Auto Equity Sales,
Inc. Superior Ct., 369 P.2d 937, 940 (Cal. 1962) Decisions every division the District Courts
Appeal are binding upon all the superior courts
this state. Florida court last resort has
already spoken, and the appellate decisions
Illinois and New York are also binding their
respective states. See People Harris, 526 N.E.2d
335, 340 (Ill. App. Ct. 1988) fundamental
Illinois that the decisions appellate court are
binding precedent all circuit courts regardless
locale. Mountain View Coach Lines, Inc. Storms,
otherwise acceptable construction statute would raise
serious constitutional problems, and where alternative
interpretation the statute fairly possible, are obligated construe the statute avoid such problems. (internal
citations omitted).
Although not binding throughout its state, recent Maine
Superior Court decision also conflicts with the California Court Appeal, holding that Section 1621(d) requires state statute
that affirmatively and positively makes unlawfully present
aliens eligible apply for public benefits. Maine Mun. Ass
Maine HHS, 2015 Me. Super. Lexis 197 (Me. Super. Ct. June
2015). The Maine court also reached conclusion contrary
the New York appellate court, holding that the Tenth
Amendment could not operate bar against Section 1621(d)
because the U.S. Constitution explicitly reserves all
immigration powers the federal government. Id. *22.
102 A.D.2d 663, 664, (N.Y. App. Div. 1984) The
Appellate Division single State-wide court
and, therefore, the doctrine stare decisis requires
trial courts this department follow precedents
set the Appellate Division another department
The Court should grant review resolve this
conflict and should not allow these states highest
courts evade further review themselves
refusing review their intermediate state appellate
courts decisions.6
These appellate decisions
particularly from California and New York
essentially create conflict among state courts
last resort that satisfies Supreme Court Rule 10(b).7 the New York case, bar committee presented the case matter directly the intermediate appellate court
with adverse party. Matter Application Vargas, 131
A.D.3d federal court California while not addressing the
affirmatively provides language held that Section 1621
required state legislative action, not actions state agency,
board, executive order. League United Latin American
Citizens Wilson, 997 Supp. 1244, 1253 (C.D. Cal. 1997)
(Section 1621(d) provides description state legislative
options the area immigrant eligibility for state local
benefits This conflicts with the decision the trial court
this case, which held that either state legislative action
actions independent state board like the Regents satisfy
Section 1621(d). App. 49a. The Court Appeal determined
that need not decide this issue and did not address it,
leaving the conflict place. App. 23a.
II.
This Case Presents Several Important
Issues Affecting National Immigration
Policy
Certiorari also warranted under Supreme
Court Rule 10(c) as, given the widening split among
the states over the proper application Section
1621(d), only review this Court can provide
single, national, uniform, and authoritative
interpretation this important question federal
law. The question important for least three
reasons. First, the cost the challenged benefits
substantial least $27 million taxpayer dollars 2015. Second, the decision effectively eliminates
Section 1621 bright line rule the enactment
state law affirmatively providing for eligibility and
replaces with ambiguous standard that
undermines the political accountability intended
Congress. also opens the door state, county,
local officials and other public entities usurping state
legislative authority offer benefits based vague generalized language statute. Third, the
decision
undermines
cohesive
national
immigration policy, potentially turning law that
allows state legislatures make decisions into
law that allows 500 5,000 state and local
institutions weakening the federal
government ability conduct unified diplomacy for
the entire nation.
The $27 million annual cost the benefits
could increase the future, and, without redress
this Court, other state agencies municipalities
could soon decide spend additional millions
dollars public money for unlawfully present aliens ways never intended nor approved Congress
the state legislatures. Not only such result
plainly not what Congress intended enacting
Section 1621, but also raises the specter
substantial increases public spending result state, county, local officials and other public
entities pursuing their own political agendas free
from state legislative control. These fiscal issues
alone demonstrate the importance the issue and
justify review.
Second, the California Court Appeal
decision replaces strict bright-line rule one that
required law enacted the state legislature
affirmatively and explicitly opting out the general
prohibition benefits with rule that vague
and has little fixed meaning. enacting Section
1621, Congress chose authorize only the highest
and most politically accountable level state
government opt out the general prohibition
giving public monies unlawfully present aliens.
Congress further directed that, the extent state
elects opt out this prohibition, the state
legislature must assume full political responsibility
for that decision affirmatively and clear terms.
Section 1621 stand and counted law
designed ensure political accountability should
states wish act contrary federal policy. See 104 Rept. 725, 104th Cong., Sess. (July 30, 1996) Only the affirmative enactment law State
legislature and signed the Governor after the date enactment this Act will meet the
requirements [Section 1621]. ).8 The law prohibits
political buck-passing anonymous state officials
(such the Board Regents). The Court
Appeal decision undermines this congressional
purpose finding legislative authorization based
far less than state law affirmatively providing
eligibility.
Under the Court Appeal decision, even
contradictory language suffices authorize
government benefits for unlawfully present aliens.
Indeed, upheld the Regent benefits program
the face clear language showing that A.B. 540,
A.B. 131, and S.B. 1210 did not apply the Regents,
and despite longstanding case law holding that the
California
Legislature
cannot
enact
policy
affirmatively binding the Regents the UC. The
decision turns Section 1621 its head.
Significantly, finding that A.B. 540, A.B.
131, and S.B. 1210 satisfy Section 1621 for
students, the Court Appeal decision broadens
when and how unlawfully present aliens may
become eligible apply for public benefits. State,
county, and local officials may now claim legislative
authorization offer benefits based vague
generalized language statute that only hints
104 Rept. 725, available https://www.congress.gov/
congressional-report/104th-congress/house-report/725/1. suggests such benefits. This defeats the purpose
and function Section 1621.9
And finally, the Court Appeal decision
interferes with Congress carefully crafted plan
keep the state governments short leash with
respect public benefits for unlawfully present
aliens. Since the power award public benefits
foreign nationals essentially the power make
decisions affecting foreign affairs and international
diplomacy, Congress very specific decision allow state governments share that federal power certain, express terms must respected. Recall
that, Section 1621(a), Congress preempted all
state power make decisions about public benefits aliens. Section 1621(d), Congress gave back
limited power the states, but only under very
narrow and explicit condition Congress only gave
this power the state legislatures, that only entities could share the immigration policy
powers the federal government. bears consideration that strict adherence Section
1621(d) express language not only required, but also
satisfies one the purposes PRWORA. PRWORA was
welfare reform bill enacted part reduce the availability
benefits for immigrant aliens generally. U.S.C. 1601 Selfsufficiency has been basic principle United States
immigration law since this country earliest immigration
statutes. continues the immigration policy the
United States that aliens within the Nation borders not
depend public resources meet their needs, but rather rely their own capabilities and the resources their families,
their sponsors, and private organizations, and [that] the
availability public benefits not constitute incentive for
immigration the United States.... (internal headings and
punctuation omitted).
The Court Appeal decision undermines
Congress carefully crafted compromise allowing
state agencies extend benefits unlawfully
present aliens based something less than state
law affirmatively providing eligibility. Local officials state agencies could begin use the Court
Appeal reasoning usurp state legislative powers
and make eligibility determinations themselves.
This turn will open Pandora box state and
local bureaucrats using their authority advance
their own immigration policy preferences ways
Congress has expressly prohibited.
The danger this kind fragmentation
federal immigration policy the California Court Appeal decision has wrought matter
obvious national importance. two federal
appellate courts have recently held, fragmented
immigration policy would run afoul the
constitutional and statutory requirement for uniform
immigration law and policy. Washington Trump,
847 F.3d 1151, 1166-1167 (9th Cir. 2017), citing
Texas United States 809 F.3d 134, 187-88, (5th
Cir. 2015), aff 136 Ct. 2271 (2016). the Florida Supreme Court further
explained: [t]he federal statute issue here,
U.S.C. 1621, was adopted pursuant Congress
constitutional power establish uniform Rule
Naturalization due, part, its inherent power
sovereign control and conduct relations with
foreign nations. Florida Bd. Bar Exam rs, 134
So. 434, citing Arizona U.S., 132 Ct. 2492,
2498 (2012) (internal punctuation omitted). This
need for uniformity immigration policy explains
the compromise Congress reached when decided
give state legislatures the power determine
unlawfully present aliens eligibility for state local
benefits.
While different policies state
legislatures may have been tolerable level
divergence eligibility determinations, different
determinations hundreds not thousands
state, county, and local officials and other public
entities are not. patchwork immigration policy
that devolves into thousands different
jurisdictions essentially conducting their own foreign
policy with respect foreign nationals within their
boundaries undermines the federal government
broad constitutional power establish national
immigration policy. And immigration policy one
fundamental piece the federal government broad
powers conduct unified diplomacy with foreign
nations behalf the United States. this Court
recently explained:
The Government the United States
has broad, undoubted power over the
subject immigration and the status
aliens. This authority rests, part,
the
National
Government
constitutional power establish
uniform Rule Naturalization, U.S.
Const. art. cl. and its inherent
power sovereign control and
conduct relations with foreign nations.
Arizona, 132 Ct. 2498.
CONCLUSION
For the foregoing reasons, the petition for writ certiorari should granted.
Respectfully submitted,
Paul Orfanedes
Counsel Record
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
porfanedes@judicialwatch.org
Counsel for Petitioner Earl Vries
Dated: May 23, 2017
Court Appeal, Second Appellate District, Division
Seven No. B264489
S239558 THE SUPREME COURT CALIFORNIA Banc
_________________________________________________
EARL VRIES, Plaintiff and Appellant,
REGENTS THE UNIVERSITY
CALIFORNIA, Defendant and Respondent.
_________________________________________________
The request appear counsel pro hac vice granted.
The petition for review denied.
Supreme Court
FILED
FEB 2017
Jorge Navarrete Clerk
___________________
Deputy
CANTIL-SAKAUYE
___________________
Chief Justice
Filed 12/9/16
CERTIFIED FOR PUBLICATION THE COURT APPEAL THE
STATE CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
Court Appeal Second Dist.
Dec 09, 2016
Joseph Lane, Clerk
Derrick L.Sanders Deputy Clerk
EARL VRIES, B264487
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC555614)
REGENTS THE
UNIVERSITY
CALIFORNIA,
Defendant and Respondent.
___________________________)
APPEAL from judgment the Superior
Court Los Angeles County, Elizabeth Allen White,
Judge. Affirmed.
Judicial Watch, Inc., Sterling Norris and
Chris Fedeli (admitted pro hac vice) for Plaintiff and
Appellant.
Office the General Counsel University
California, Charles Robinson, Karen Petrulakis
and Margaret Wu; Munger, Tolles Olson,
Bradley Phillips (Los Angeles) and Benjamin
Horwich (San Francisco) for Defendant and
Respondent.
_______________
INTRODUCTION
Federal law makes undocumented immigrants
ineligible for state and local public benefits, but
allows state affirmatively provide[] for such
eligibility through the enactment State law.
U.S.C. 1621(d).) The California Constitution
generally gives the Regents the University
California plenary authority establish rules and
policies govern the internal affairs the
University California. The issue this appeal
whether three California legislative enactments
affirmatively provide eligibility under federal law
for postsecondary education benefits qualified
undocumented immigrants who attend the
University California, even though the statutes
require only the California State University and
California community colleges provide such
benefits. conclude that, even though the
California
Constitution
may
preclude
the
Legislature from actually conferring postsecondary
education benefits undocumented immigrants
attending the University California, the
Legislature has made these students eligible for
such benefits within the meaning the federal
statute. Therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND 1996 Congress passed the Personal
Responsibility and Work Opportunity Reconciliation
Act 1996, which, among many other things, made
undocumented immigrants1 ineligible for certain
state and local public benefits, including benefits
related postsecondary education. U.S.C. 1621
(section 1621).) The same law, however, gives states
authority make undocumented immigrants
The Personal Responsibility and Work Opportunity
Reconciliation Act refers undocumented immigrants
alien[s] who are not qualified for public benefits under
various federal laws. (See U.S.C. 1621(a).) use the term
undocumented immigrant refer non-United States
citizen who the United States but who lacks the
immigration status required federal law lawfully
present this country and who has not been admitted
temporary basis nonimmigrant (In Garcia (2014)
Cal.4th 440, 446, fn. 1), which encompasses the category
persons referred unqualified aliens title United
States Code section 1621. Assembly Bill No. 540 (A.B. 540),
one the California statutes issue this case, used both
undocumented immigrant and nonimmigrant alien refer the same class people. (See Stats. 2001, ch. 814, subd.
(a)(4), subd. (a).) The current version Education Code
section 68130.5, which A.B. 540 added, refers the same class people nonimmigrant foreign national[s] within the
meaning paragraph (15) subsection (a) Section 1101
Title the United States Code. (Educ. Code, 68130.5,
subd. (a).)
eligible for any State local public benefit for
which such [undocumented immigrant] would
otherwise ineligible under [section 1621] only
through the enactment State law after August
22, 1996, which affirmatively provides for such
eligibility. (Id., 1621(d) (section 1621(d)).)
The California Legislature subsequently
enacted three laws addressing postsecondary
education
benefits
for
certain
qualified
undocumented immigrants. These laws include (1)
Assembly Bill No. 540 (2001-2002 Reg. Sess.) (A.B.
540), which makes qualified undocumented
immigrants eligible for exemption from nonresident
tuition (Stats. 2001, ch. 814, 1-2); (2) Assembly
Bill No. 131 (2011-2012 Reg. Sess.) (A.B. 131), which
makes qualified undocumented immigrants eligible
for student financial aid programs (Stats. 2011, ch.
604, 3); and (3) Senate Bill No. 1210 (2013-2014
Reg. Sess.) (S.B. 1210), which makes qualified
undocumented immigrants eligible for student loan
benefits (Stats. 2014, ch. 754, 3).
The California Constitution limits the
Legislature power regulate the University
California (UC) and the Regents the University
California (the Regents),2 which administers the
University California. (Cal. Const., art. IX, refer the Regents the singular because the
California Constitution created corporation known The
Regents the University California, singular noun. (Cal.
Const., art. IX, subd. (a).) Some decisions, statutes, and
legislative materials quote this opinion refer the
Regents plural noun.
subd. (a).) Those limits traditionally extend
matters involving internal university affairs, with few exceptions. (San Francisco Labor Council
Regents University California (1980) Cal.3d
785, 789 (Labor Council); People Lofchie (2014)
Because its
229 Cal.App.4th 240, 250.)3
constitutional autonomy, the Regents (rather than
the Legislature) adopted three policies provide the
benefits identified A.B. 540, A.B. 131, and S.B.
1210 qualified undocumented immigrant students
attending the University California. (Regents
U.C., Policy 3106.1.C; Policy 3202.2; Policy 3202.3.)
Earl Vries, California taxpayer, filed this
action against the Regents, alleging that none its
policies qualifies under section 1621(d) State
law making undocumented immigrants eligible for
postsecondary education benefits. Vries further
alleged that the Legislature has not enacted any
statute that affirmatively provid[es] eligibility for
the benefits the University California now gives
undocumented immigrants, required section
1621(d). Indeed, Vries alleged that the
Legislature could never confer such eligibility
because the Constitution prohibits the Legislature
from regulating the University California.
Vries sought enjoin the Regents from expending causing the expenditure taxpayer funds and
taxpayer-financed resources exempt unlawfully
present
aliens
from
paying
nonresident
supplemental tuition and allow unlawfully
Neither party contends that any these exceptions
apply here.
present aliens apply for and participate stateadministered financial aid programs.
The Regents demurred. argued that the
California Supreme Court decision Martinez
Regents the University California (2010)
Cal.4th 1277 (Martinez), which held the exemption A.B. 540 from nonresident tuition complies with
the affirmatively provides requirement section
1621(d), forecloses Vries current challenge, and
that the analysis Martinez applies equally the
financial aid program A.B. 131 and the student
loan program S.B. 1210. Alternatively, the
Regents argued that the laws enacting A.B. 540,
A.B. 131, and S.B. 1210 nevertheless satisfy the
requirements section 1621(d) with respect
students and, even they did not, the policies the
Regents satisfy section 1621(d) because they have
the force and effect state law. opposition
the demurrer, Vries argued that the Supreme
Court Martinez did not address the University
California unique, constitutionally independent
status, nor did the Supreme Court determine
whether the Regents resolution purportedly
making 540 applicable [the University]
satisfies Section 1621 because the parties that
case stipulated that A.B. 540 applied the
University California.
The trial court sustained the demurrer with
leave amend, concluding that the Regents
policies satisfy section 1621(d). The court cited
California and United States Supreme Court
authorities stating that policies established the
Regents matters internal regulation may enjoy status equivalent that state statutes.
(Emphasis deleted.) (See, e.g., Hamilton Regents
the University California (1934) 293 U.S. 245, 258;
Kim Regents University California (2000)
Cal.App.4th 160, 164-165; Regents University
California City Santa Monica (1978)
Cal.App.3d 130, 135.) Thus, the trial court ruled that
the Regents policies adopting the exemption
codified AB540, the eligibility for stateadministered financial aid programs codified
AB131 and eligibility for the student loan program
codified SB1210 would qualify State law
which affirmatively provides for such eligibility
State local benefit for purposes U.S.C.
1621(d).
After Vries failed file amended
complaint, the trial court dismissed the action with
prejudice and entered judgment for the Regents.
Vries timely appealed.
DISCUSSION Vries makes two principal arguments.
First, argues that the Legislature has not passed
any statutes affirmatively providing eligibility for
benefits students who are undocumented
immigrants. Second, contends the trial court
erred concluding that the Regents policies
constitute state laws that comply with section
1621(d). review from order sustaining
demurrer, examine the complaint novo
determine whether alleges facts sufficient state cause action under any legal theory, such facts
being assumed true for this purpose. (Committee for
Green Foothills Santa Clara County Bd.
Supervisors (2010) Cal.4th 32, 42; accord, McCall PacifiCare Cal., Inc. (2001) Cal.4th 412, 415.) also review novo questions statutory
construction. (Lee Hanley (2015) Cal.4th 1225,
1232; Davis Fresno Unified School District (2015)
237 Cal.App.4th 261, 275.) affirm any ground
offered support the demurrer was well taken
but find error the plaintiff has stated cause
action under any possible legal theory. [Citations.] are not bound the trial court stated reasons, any, supporting its ruling; review the ruling,
not its rationale. (Walgreen Co. City and County San Francisco (2010) 185 Cal.App.4th 424, 433;
accord, Acuna San Diego Gas Electric Co. (2013)
217 Cal.App.4th 1402, 1411.) Statutory and Constitutional Framework Title United States Code Section 1621
Congress enacted section 1621 part the
Personal Responsibility and Work Opportunity
Reconciliation Act. (Pub.L. No. 104-193 (Aug. 22,
1996) 110 Stat. 2105.) The Act has over 900 sections,
including section 1621, which appears chapter
entitled Restricting Welfare and Public Benefits for
Aliens.
10a
Section 1621(a) provides: Notwithstanding
any other provision law and except provided
subsections (b) and (d) this section, alien who
not (1) qualified alien (as defined section
1641 this title),4 (2) nonimmigrant under the
Immigration and Nationality Act U.S.C. 1101
seq.], (3) alien who paroled into the
United States under section 212(d)(5) such Act
U.S.C. 1182(d)(5)] for less than one year, not
eligible for any State local public benefit (as
defined subsection (c) this section). This case
concerns undocumented immigrants who not fall
within any the exempt categories aliens listed section 1621(a).
Section 1621(c) defines State local public
benefit include, among other things, any
postsecondary education benefit for which
Title United States Code section 1641 defines the
term qualified alien (1) alien who lawfully admitted
for permanent residence under the Immigration and
Nationality Act U.S.C. 1101 seq.], (2) alien who
granted asylum under section 208 such Act U.S.C. 1158], (3) refugee who admitted the United States under
section 207 such Act U.S.C. 1157], (4) alien who
paroled into the United States under section 212(d)(5) such
Act U.S.C. 1182(d)(5)] for period least year, (5) alien whose deportation being withheld under section
243(h) such Act U.S.C. 1253] section 241(b)(3)
such Act U.S.C. 1251(b)(3)] (6) alien who
granted conditional entry pursuant section 203(a)(7) such
Act U.S.C. 1153(a)(7)] effect prior April 1980; (7) alien who Cuban [or] Haitian entrant (as defined section 501(e) the Refugee Education Assistance Act
1980). (Fn. omitted.)
11a
payments assistance are provided
individual, household, family eligibility unit
agency State local government
appropriated funds State local government.
The parties not dispute that the resident tuition
exemption A.B. 540, the financial aid programs
A.B. 131, and the student loan programs S.B.
1210 are State local public benefits within the
meaning section 1621(c).
Section 1621(d) states: State may provide
that alien who not lawfully present the
United States eligible for any State local public
benefit for which such alien would otherwise
ineligible under subsection (a) this section only
through the enactment State law after August
22, 1996, which affirmatively provides for such
eligibility. (Italics added.) noted, Vries
contends that neither A.B. 540, nor A.B. 131, nor
S.B. 1210 affirmatively provides for such eligibility
for students, and that policies the Regents
adopted implement A.B. 540, A.B. 131, and S.B.
1210 are not enactments State law within the
meaning section 1621(d). The University Status Under the California
Constitution
The University California public trust
established pursuant article IX, section the
California Constitution follows: (a) The
University California shall constitute public
trust, administered the existing corporation
known The Regents the University
12a
California, with full powers organization and
government, subject only such legislative control may necessary insure the security its
funds and compliance with the terms the
endowments the university and such competitive
bidding procedures may made applicable the
university statute for the letting construction
contracts, sales real property, and purchasing
materials, goods, and services. Article IX, section
9(f), further provides, part: The university shall entirely independent all political sectarian
influence and kept free there from the
appointment its regents and the administration its affairs.
The California Supreme Court has recognized
that [a]rticle IX, section grants the regents broad
powers organize and govern the university and
limits the Legislature power regulate either the
university the regents. [Citation.] This
constitutional grant power the Regents includes
both quasi-judicial and quasi-legislative powers,
according [the Regents] virtual autonomy selfgovernance. [Citation.] The Regents have the
general rule-making policy-making power
regard the University and are fully
empowered with respect the organization and
government the University. (People Lofchie,
supra, 229 Cal.App.4th pp. 248-249, fn. omitted,
quoting Regents University California
Superior Court (1970) Cal.3d 529, 540, and Regents University California City Santa Monica
(1978) Cal.App.3d 130, 135.)
13a result, [t]he Regents may exercise
quasilegislative powers, subject legislative
regulation. Indeed, [p]olicies established the
Regents matters internal regulation may enjoy status equivalent that state statutes.
(Campbell Regents University California
(2005) Cal.4th 311, 320, quoting Regents
University California City Santa Monica,
supra, Cal.App.3d 135; see, e.g., Hamilton
Regents the University California (1934) 293
U.S. 245, 258 Regents order making military
instruction compulsory statute the state
within the meaning statute establishing federal
jurisdiction] Campbell Regents University
California, 321 Regents policy for handling
whistleblower claims under its power govern and
organize the University treated statute
order determine whether the exhaustion doctrine
applies]; see also Lachtman Regents University California (2007) 158 Cal.App.4th 187, 207; Kim Regents University California, supra,
Cal.App.4th 165.) some circumstances, state legislation
concerning matters outside those specifically
enumerated the Constitution may apply the
University California. The Supreme Court has
deemed some such laws matters statewide
concern and has considered whether the law
question
would
infringe
upon
sovereign
governmental powers. (Regents University
California Superior Court (1976) Cal.3d 533,
536; see Labor Council, supra, Cal.3d 789 legislation regulating public agency activity not
14a
generally applicable the public may made
applicable the university when the legislation
regulates matters statewide concern not involving
internal university affairs Regents University
California Superior Court, 536.) Neither side
argues that A.B. 540, A.B. 131, S.B. 1210
addresses matters statewide concern. State Enactments Making Undocumented
Immigrants Eligible for Postsecondary
Education Benefits A.B. 540 and nonresident tuition
Education Code section 68040 provides,5
Each student shall classified resident
nonresident the University California, the
California State University, the California
Maritime Academy California community
college. Section 68050 provides, student
classified nonresident shall required, except otherwise provided this part, pay, addition other fees required the institution, nonresident
tuition. Thus, nonresidents must generally pay
nonresident tuition public universities and
colleges California. (Martinez, supra, Cal.4th 1286.) 2001 the Legislature enacted A.B. 540.
Section A.B. 540 states relevant part: The
people the State California enact follows: (a) The Legislature hereby finds and declares all
Statutory references are the Education Code unless
otherwise indicated.
15a the following: (1) There are high school pupils
who have attended elementary and secondary
schools this state for most their lives and who
are likely remain, but are precluded from
obtaining affordable college education because
they are required pay nonresident tuition rates.
(Stats. 2001, ch. 814, subd. (a)(1).) Section
subdivision (a)(4), states: This act allows all
persons,
including
undocumented
immigrant
students who meet the requirements set forth
Section 68130.5 the Education Code, exempt
from nonresident tuition California colleges and
universities. (Stats. 2001, ch. 814, subd. (a)(4).)
Section A.B. 540 added section 68130.5
Part 41, article the Education Code. Section
68130.5, amended, provides:
(a) student, other than nonimmigrant foreign
national within the meaning paragraph (15)
subsection (a) section 1101 Title the United
States Code, who meets all the following
requirements shall exempt from paying
nonresident tuition the California State
University and the California Community Colleges:
(1) Satisfaction either the following:
(A) High school attendance California
for three more years.
(B) Attainment credits earned
California from California high school equivalent three more years full-time high school
coursework and total three more years
attendance California elementary schools,
16a
California secondary schools, combination
those schools.
(2) Graduation from California high school attainment the equivalent thereof.
(3) Registration entering student at,
current enrollment at, accredited institution
higher education California not earlier than the
fall semester quarter the 2001-02 academic
year.
(4) the case person without lawful
immigration status, the filing affidavit with the
institution higher education stating that the
student has filed application legalize his her
immigration status, will file application
soon she eligible so.
(b) student exempt from nonresident tuition
under this section may reported community
college district fulltime equivalent student for
apportionment purposes.
(c) The Board Governors the California
Community Colleges and the Trustees the
California State University shall prescribe rules and
regulations for the implementation this section.
(d) Student information obtained the
implementation this section confidential.
Section 68134 part Part 41, Chapter
article the Education Code. Section 68134,
which predates the enactment A.B. 540, provides: provision this part shall applicable the
University California unless the Regents the
University California, resolution, make such
provision applicable.
17a A.B. 131 and financial aid programs 2011 the Legislature enacted A.B. 131.
(Stats. 2011, ch. 604.) The bill separately addressed
financial aid programs administered the
University California (commonly referred Grants and those administered the State
California (commonly referred Cal Grants
Section A.B. 131 added section 66021.6
regarding eligibility for Grants. provides
relevant part: Notwithstanding any other law, and
except provided for subdivision (b), the
Trustees the California State University and the
Board Governors the California Community
Colleges shall, and the Regents the University
California are requested to, establish procedures and
forms that enable persons who are exempt from
paying nonresident tuition under Section 68130.5,
who meet equivalent requirements adopted the
regents, apply for, and participate in, all student
aid programs administered these [schools] the
full extent permitted federal law. The Legislature
finds and declares that this section state law
within the meaning Section 1621(d) Title
the United States Code.
Section A.B. 131 added section 69508.5
regarding eligibility for Cal Grants. provides
relevant part: Notwithstanding any other law, and
except provided for subdivision (c), student
who meets the requirements subdivision (a)
Section 68130.5, who meets equivalent
requirements adopted the Regents the
University California, eligible apply for, and
18a
participate in, any student financial aid program
administered the State California the full
extent permitted federal law. The Legislature
finds and declares that this section state law
within the meaning [section 1621(d)] Title
the United States Code. S.B. 1210 and student loan programs
Most recently, 2014, the Legislature
enacted S.B. 1210 (referred the California
DREAM Loan Act) make undocumented
immigrants eligible for certain student loan
programs. (Stats. 2014, ch. 754.) Section S.B.
1210 states: Since 2002, students have been exempt
from paying nonresident tuition and fees the
California Community Colleges, the California State
University, and the University California
pursuant Section 68130.5. Commencing 2011,
these students were eligible for state financial aid
financial aid offered these public institutions.
Nevertheless, many these students remain
ineligible for federal student aid for reasons beyond
their control. Lack access federal student loans
presents substantial barrier for these students
obtain baccalaureate degree from the California
State University the University California.
(Stats. 2014, ch. 754, subd. (b).) The California
DREAM Loan Act addresses this barrier
providing access additional state aid students
may take full advantage the educational
opportunities offered the California State
University and the University California.
subd. (c).)
19a
Section S.B. 1210 added several
provisions the Education Code, including sections
70032 and 70033. Section 70032, subdivision (i),
defines Participating institution include any
campus the University California that elects participate the DREAM Program pursuant
the requirements specified for qualifying
institution. Section 70033, subdivisions (a) and
(a)(1), provide, Commencing with the 2015-16
academic year, student attending participating
institution may receive loan under the DREAM
Program the student satisfies all the following
requirements, including that the student exempt
from paying nonresident tuition under Section
68130.5, meets equivalent requirements adopted the Regents the University California. The Regents Policies Making Undocumented
Immigrants Eligible for Postsecondary
Education Benefits
The Regents adopts standing orders and
policies for the University California. (Regents
U.C., Policy 1000.) Following the Legislature
enactments A.B. 540, A.B. 131, and S.B. 1210, the
Regents adopted corresponding policies for
students. Regents Policy 3106.1.C addresses
nonresident tuition and provides: The University
California shall exempt students from tuition and/or
fees waive tuition and/or fees, set forth below. provided [Education Code] Section
68130.5 (AB 540). (Regents U.C., Policy
3106.1.C.)
20a
Regents Policy Nos. 3202.2 and 3202.3
address financial aid and student loan programs for
students who qualify under A.B. 540 for nonresident
tuition. Policy 3202.2 provides part: The
University California shall extend financial aid
any student exempt from paying nonresident tuition
under California Education Code Section 68130.5
and Regents Policy 3106. (Regents U.C., Policy
3202.2.) Policy Nos. 3202.2 and 3202.3 identify the
statutory programs through which eligible students
may receive financial aid and student loans,
including the programs established under section
66021.6 and the California DREAM Loan Program.
(Regents U.C., Policy Nos. 3202.2, 3202.3.) Enactments and Eligibility Under Section 1621(d) noted, section 1621(d) allows state
make undocumented immigrants eligible for
postsecondary education benefits through the
enactment State law which affirmatively
provides for such eligibility. Vries argues that
A.B. 540, A.B. 131, and S.B. 1210 not provide
eligibility for students because those measures
apply only students California State University
and California community colleges. ~(AOB 15)~ doing, Vries suggests that the requirement
section 1621(d) that state laws provide eligibility
for state local public benefits means that such
laws must actually confer benefits qualified
undocumented immigrants. Vries further argues
that, because the University California
constitutional status precludes the Legislature from
21a
making students eligible for benefits under
section 1621(d), legislative enactment can ever
comply with section 1621(d) with respect
students.
The Regents contends that Martinez controls
this case because the Supreme Court opinion
Martinez directly addressed and upheld the
nonresident tuition exemption that [De Vries]
challenges here. The Regents further contends that,
because the legislative enactments making
undocumented immigrants eligible for the financial
aid and student loan programs Vries challenges
are
materially
indistinguishable
from
the
nonresident tuition exemption, Martinez dictates
that those parallel authorizations also satisfy
section 1621(d). the alternative, the Regents
argues that its policies are state law within the
meaning section 1621(d) and that, minimum,
the acts the Legislature combination with
Regents policies satisfy federal law. Martinez Not Controlling
Preliminarily, agree with Vries that
Martinez not controlling. Martinez the Supreme
Court considered challenge A.B. 540 under
section 1621 and another provision the Personal
Responsibility and Work Opportunity Reconciliation
Act that prohibits undocumented immigrants from
receiving postsecondary education benefits the
basis their residence. (Martinez, supra, Cal.4th pp. 1284, 1294; see U.S.C. 1623).) With respect section 1621, the plaintiffs alleged the defendants,
22a
including the Regents, the Board Trustees the
California
State
University,
the
California
Community Colleges, and officials representing
those entities, unlawfully exempted undocumented
immigrant students from nonresident tuition
because A.B. 540 did not affirmatively provide
eligibility for that benefit. (Martinez, 1294.) The
parties stipulated that the Regents have,
resolution, made [A.B. 540] applicable
undocumented immigrants. (Martinez, 1287, fn.
1.)
The Supreme Court held that A.B. 540
satisfies the requirement section 1621(d) that
state law affirmatively provide eligibility for
undocumented immigrants receive State local
public benefits.6 (Martinez, supra, Cal.4th
1295.) The court, however, did not define interpret
the term eligibility. Moreover, unlike Vries, the
plaintiffs Martinez did not argue that the
Legislature could not make students eligible for
public benefits because the University
California constitutional status. The Supreme
Court Martinez did not address that specific
question connection with A.B. 540, and did not
The Supreme Court Martinez also held that state
statute does not comply with section 1621(d) unless
expressly state[s] that applies undocumented aliens,
rather than conferring benefit generally without specifying
that its beneficiaries may include undocumented aliens.
(Martinez, supra, Cal.4th 1296; see Garcia, supra,
Cal.4th 458.) Vries does not argue that either A.B. 131 S.B. 1210 fails comply with this standard; indeed,
appears concede that each statute does comply.
23a
decide that any other issue connection with
A.B. 131 S.B. 1210. Martinez, therefore, does not
control the outcome this case. A.B. 540, A.B. 131, and S.B. 1210 Are
Enactments State Law
The Personal Responsibility and Work
Opportunity Reconciliation Act does not define the
phrase enactment State law section 1621(d). Vries argues that these words require
enactment the state legislature, while the
Regents argues that the phrase broader and
includes measures such the quasi-legislative acts the Regents. need not decide whether the
Regents broader view correct because, even
under Vries narrower standard, A.B. 540, A.B.
131, and S.B. 1210 are enactments State law.
The Legislature enacted A.B. 540, A.B. 131,
and S.B. 1210, and the Governor signed all three
measures into law. (Stats. 2001, ch. 814 [approved the Governor Oct. 12, 2001]; Stats. 2011, ch. 604
[approved the Governor Oct. 2011]; Stats. 2014,
ch. 754 [approved the Governor Sept. 27, 2014].)
Even under Vries theory, they qualify
enactments under section 1621(d), and Vries does
not contend otherwise. Indeed, each the three
measures contains the prefatory language, The
people the State California enact follows,
confirming that enactment State law.
(See Branch Smith (2003) 538 U.S. 254, 264 [a]n
enactment the product legislation, not
adjudication, citing the definition enact
24a
Webster New Internat. Dict. (2d ed. 1949) 841
[t]o make into act law; esp., perform the
legislative act with reference bill) which gives
the validity law see also Grinzi San Diego
Hospice Corp. (2004) 120 Cal.App.4th 72, [an
uncodified section act fully part the law
and must read together with provisions
codes ].) The Meaning Eligibility Under Section
1621(d)
The Personal Responsibility and Work
Opportunity Reconciliation Act also does not define interpret the word eligibility section 1621(d).
When term goes undefined statute, give
the term its ordinary meaning. (Taniguchi Kan
Pacific Saipan, Ltd. (2012) U.S., [132 S.Ct. 1997,
2002] (Taniguchi); see Crawford Metropolitan
Government Nashville and Davidson County,
Tenn. (2009) 555 U.S. 271, 276 [t]he term oppose,
being left undefined the statute, carries its
ordinary meaning Hardt Reliance Standard Life
Ins. Co. (2010) 560 U.S. 242, 251 [we assume that
the ordinary meaning statute language
accurately expresses the legislative purpose see
also People Barros (2012) 209 Cal.App.4th 1581,
1593 [using [t]he plain meaning the word
proceeding where the phrase was not defined
the statute Arnall Superior Court (2010) 190
Cal.App.4th 360, 369 look first the term
plain meaning for guidance when the statute does
not define the term]; Eureka Reporter (2008)
165 Cal.App.4th 891, 897 [turning the plain and
25a
commonsense meaning term not defined the
statute].) divining term ordinary meaning,
courts regularly turn general and legal
dictionaries. (See, e.g., Freeman Quicken Loans,
Inc. (2012) U.S. ___, 132 S.Ct. 2034, 2041-2042;
Taniguchi, supra, U.S. 132 S.Ct. 2002;
Lopez Gonzales (2006) 549 U.S. 47, 53-54; MCI
Telecommunications Corp. American Tel. Tel.
Co.
(1994)
512
U.S.
218,
225
(MCI
Telecommunications); see also Outfitter Properties,
LLC Wildlife Conservation Bd. (2012) 207
Cal.App.4th 237, 244 [w]e use the ordinary
dictionary meaning terms when terms are not
defined the statute County Sacramento
State Water Resources Control Bd. (2007) 153
Cal.App.4th 1579, 1592 [a] dictionary proper
source determine the usual and ordinary meaning word phrase statute Stamm Theatres,
Inc. Hartford Casualty Ins. Co. (2001)
Cal.App.4th 531, 539 courts turn general
dictionaries when they seek ascertain the
ordinary meaning words used statute ].)
Merriam-Webster Collegiate Dictionary defines
eligible (the adjective form the noun eligibility qualified participate chosen. (MerriamWebster Collegiate Dict. (11th ed. 2014) 404; see
American Heritage Dict. (2d ed. 1985) 446 eligible means [q]ualified, for office
position Oxford English Dict. (2d ed. 1989) 140 eligibility means [f]itness chosen
preferred ].) Black Law Dictionary similarly
defines eligible [f]it and proper selected
26a receive benefit; legally qualified for office,
privilege, status. (Black Law Dict. (10th ed.
2014) 634, col. see also Ballentine Law
Dictionary (3d ed. 1969) 396 eligibility means
[f]itness for selection ].)
Thus, the ordinary
meaning eligibility connotes qualification for
benefit, not entitlement that benefit.7
Webster New International Dictionary and its abridged
version published Webster New Collegiate Dictionary
include entitled among several meanings eligible,
including qualified chosen and permitted under football
rules catch forward pass. (Webster Third New
International Dictionary (2002) 736; Webster Ninth New
Collegiate Dict. (1984) 404; see MCI Telecommunications,
supra, 512 U.S. 226, fn. Webster New Collegiate
Dictionaries are essentially abridgments that company
Webster New International Dictionaries ].) That definition broad enough encompass one sense word does not
establish that the word ordinarily understood that sense.
(Taniguchi, supra, U.S. [132 S.Ct. 2003]; see Mallard United States Dist. Court for Southern Dist. Iowa (1989)
490 U.S. 296, 301 [relying the most common meaning and
the ordinary and natural signification the word request,
even though may sometimes double for demand
command ].) other common legal dictionary
consulted defines eligible entitled. (See Taniguchi, supra,
U.S. [132 S.Ct. 2004] [b]ased our survey the
relevant dictionaries, conclude that the ordinary common
meaning interpreter does not include those who translate
writings [as suggested Webster Third] ].) Thus, reject
the definition eligible Webster Third New International
and New Collegiate Dictionaries including entitled. (See
ibid.; MCI Telecommunications, 227 [rejecting the
suggested meaning word one dictionary and its progeny
where that definition contradicts one the meanings
contained virtually all other dictionaries, italics omitted].)
27a
Another
provision
the
Personal
Responsibility and Work Opportunity Reconciliation
Act enacted the same time section 1621
confirms this interpretation the word eligibility used section 1621(d). (See Taniguchi, supra,
U.S. ___ [132 S.Ct. pp. 2004-2005]
[considered together, other provisions the same
act provide strong contextual clue[s] term
ordinary meaning]; Dyna-Med, Inc. Fair
Employment Housing Com. (1987) Cal.3d 1379,
1387 [t]he words the statute must construed context, keeping mind the statutory purpose,
and statutes statutory sections relating the
same subject must harmonized, both internally
and with each other, the extent possible Sutter
Health Superior Court (2014) 227 Cal.App.4th
1546, 1555 [looking the context and ordinary
meaning term not defined the statute ].)
Section 1621 contained United States Code title chapter 14, which consists four subchapters.
One subchapter includes provision entitled
Statutory construction, which states: Nothing
this chapter may construed entitlement
determination individual eligibility
fulfillment the requisite requirements for any
Federal, State, local governmental program,
assistance, benefits. For purposes this chapter,
eligibility relates only the general issue
eligibility ineligibility the basis alienage.
U.S.C. 1643(a)(1), italics added.)
The juxtaposition entitlement and
eligibility makes clear that these words are not
synonymous they are used title United States
28a
Code section 1643(a)(1). Indeed, that provision
indicates that eligibility broader than
entitlement and describes person who may
qualify receive benefit but has legal right
it. (See Immigration and Naturalization Service
Cardoza-Fonseca (1987) 480 U.S. 421, 444 those
who can only show well-founded fear persecution
are not entitled anything, but are eligible for the
discretionary relief asylum Jarecha
Immigration and Naturalization Service (5th Cir.
1969) 417 F.2d 220, 223 [as U.S.C. 1255 now
construed, applicant who meets the objective
prerequisites merely eligible for adjustment
status, way entitled such relief ].)
Because identical words used different parts
the same act are intended have the same
meaning, construe eligibility section
1621(d) mean qualified receive benefit
that term used title United States Code
section 1643(a)(1). (See Taniguchi, supra, U.S.
___ [132 S.Ct. pp. 2004-2005] interpreter
used U.S.C. 1920 has the same meaning
used U.S.C. 1827]; accord, Gustafson
Alloyd Co. (1995) 513 U.S. 561, 570; Department
Revenue Ore. ACF Industries, Inc. (1994) 510
U.S. 332, 342; see also Gustafson Alloyd Co.,
568 [a] term should construed, possible,
give consistent meaning throughout [an] Act ].) Vries suggests that section 1621(d)
requires state laws actually confer benefits
qualified undocumented immigrants. ~(AOB 15, 18;
ARB 1)~ That not what section 1621(d) says.
Section 1621(d) requires only that state laws make
29a
undocumented
benefits.
immigrants
eligible
for
public A.B. 540, A.B. 131, and S.B. 1210 Provide
Eligibility for Students Receive
Postsecondary Education Benefits construing statute, our fundamental
task ascertain the intent the lawmakers effectuate the purpose the statute.
begin examining the statutory language because generally the most reliable indicator
legislative intent. give the language its usual
and ordinary meaning, and [i]f there
ambiguity, then presume the lawmakers meant
what they said, and the plain meaning the
language governs. If, however, the statutory
language ambiguous, may resort extrinsic
sources, including the ostensible objects
achieved and the legislative history. (Lee
Hanley, supra, Cal.4th pp. 1232-1233; accord,
Committee for Green Foothills Santa Clara County
Bd. Supervisors, supra, Cal.4th 45; Mays City Los Angeles (2008) Cal.4th 313, 321.)
Extrinsic sources include the statutory scheme, the
apparent purposes underlying the statute and the
presence (or absence) instructive legislative
history. (County San Diego Alcoholic Beverage
Control Appeals Bd. (2010) 184 Cal.App.4th 396,
401; see Mt. Hawley Insurance Company Lopez
(2013) 215 Cal.App.4th 1385, 1400 (Mt. Hawley).)
Ultimately choose the construction that
comports most closely with the apparent intent
the lawmakers, with view promoting rather
30a
than defeating the general purpose the statute.
(Lee Hanley, 1233; accord, Mays City Los
Angeles, 321.) A.B. 540 The language A.B. 540 unambiguous statute language ambiguous when
subject more than one reasonable interpretation.
(See Bruns Commerce Exchange, Inc. (2011)
Cal.4th 717, 724; Jones Lodge Torrey Pines
Partnership (2008) Cal.4th 1158, 1162-1163;
Coalition Concerned Communities, Inc. City
Los Angeles (2004) Cal.4th 733, 737.) Here, the
language A.B. 540 broadly applies make all
persons attending any accredited institution
higher education California eligible for
exemption from nonresident tuition, including
undocumented immigrant students who meet the
requirements set forth Section 68130.5. (See
Martinez, Cal.4th 1295.) All persons means
all persons, including students. Nothing A.B.
540, including the requirements set forth section
68130.5, can reasonably interpreted limit
restrict students from eligibility for the
exemption from nonresident tuition. The language
unambiguous. Vries contends that A.B. 540 does not
make students eligible for the exemption from
nonresident tuition because does not apply the
University California. support his argument, Vries cites section 68134, which states:
31a
provision this part shall applicable the
University California unless the Regents the
University California, resolution, make such
provision applicable. Vries notes that the
Supreme Court Martinez cited section 68134
observing that, [b]y its terms, [A.B. 540] applies
only the California State University and
California Community Colleges, and not the
University California. (Martinez, supra,
Cal.4th 1287, fn. 1.)
Section 68134, however, does not negate
students eligibility for the exemption from
nonresident tuition under A.B. 540, nor does
render the language A.B. 540 ambiguous. the
Regents argued its demurrer, A.B. 540 makes all
qualified students eligible for the exemption from
nonresident tuition. Pursuant section 68134,
students are not entitled that benefit unless the
University California elects provide it. Indeed,
section 68134 and the Supreme Court reference
that statute Martinez address whether A.B. 540
applies the University California, not whether applies students makes them eligible
for certain benefits.
Whether A.B. 540 applies the University California not relevant whether A.B. 540
makes students eligible for the exemption from
nonresident tuition. noted, section 1621(d)
requires only that state law provide eligibility for
undocumented immigrants receive public benefits. does not require that state law confer such
32a
benefits eligible persons mandate that any
other entity so. Vries also argues that, because section
68130.5, subdivision (a), which provides that
qualified undocumented immigrants shall
exempt from paying nonresident tuition the
California State University and the California
Community Colleges, makes mention the
University California, A.B. 540 must exclude
students from eligibility for the exemption from
nonresident tuition. The absence language
section 68130.5 referring the University
California, however, does not eliminate students
from eligibility for that benefit.
Section 68130.5, subdivision (a), merely
requires California State University and California
community colleges exempt their qualifying
students from paying nonresident tuition. (See
68130.5, subd. (c) [t]he Board Governors the
California Community Colleges and the Trustees
the California State University shall prescribe rules
and regulations for the implementation this
section, italics added].) may be, Vries
argues, that A.B. 540 (and A.B. 131 and S.B. 1210)
cannot require the Regents provide eligibility for students. But section 1621(d) does not place that
burden the Legislature. only requires that the
Legislature provide eligibility for public benefits,
which the Legislature has done through A.B. 540. Garcia, supra, Cal.4th 440 presented analogous, though not identical, scenario. That
33a
case involved state statute making undocumented
immigrants eligible for membership the State
Bar. Although the California Constitution gives the
Supreme Court ultimate authority for establishing
policies relating admission the Bar,8 the
Legislature enacted Business and Professions Code
section 6064, subdivision (b), which provides that
the Supreme Court may admit [an] applicant [who not lawfully present the United States]
attorney law all the courts this state and
may direct order entered upon its records
that effect. (Garcia, 451, fn. italics added.)
Garcia held that Business and Professions Code
section 6064 satisfied the requirements section
1621(d) because the former section explicitly
authoriz[es] bar applicant who not lawfully
present the United States obtain law license.
(Garcia, 458.)
Business and Professions Code section 6064,
however, merely made undocumented immigrants
eligible for admission the Bar. The Supreme Court
retained authority confer deny membership matter state law for reasons specific the
applicant. (Garcia, supra, Cal.4th 459.)
Garcia explained: Although both the Legislature and this
court possess the authority establish rules regulating
admission the State Bar, under the California Constitution
this court bears the ultimate responsibility and authority for
determining the issue admission. (Garcia, Cal.4th
451; see id. 452, fn. 11.) Thus, the Legislature arguably
exercises more authority over policies affecting admission
the State Bar than does over policies affecting tuition rates
the University.
34a
Thus, Business and Professions Code section 6064
remov[ed] any federal statutory barrier
admitting undocumented immigrants the State
Bar, and the Supreme Court ultimately conferred
that benefit qualified applicants. (Ibid.)
Similarly, A.B. 540 removed the federal
barrier making undocumented immigrants
eligible for the exemption from nonresident tuition,
and the Regents conferred that benefit qualified students. Nothing section 1621(d), California
Constitution, A.B. 540 requires more. short,
legislative
deference
the
University
constitutional status does not affect the Legislature
express intent make students eligible for the
exemption from nonresident tuition. Vries
suggestion that A.B. 540 does not provide
eligibility for students within the meaning
that term under section 1621(d) not reasonable
and does not cast doubt the clarity A.B. 540.
(See Coalition Concerned Communities, Inc.
City Los Angeles, supra, Cal.4th 737
[language unambiguous unless subject
more than one reasonable interpretation ].) The legislative history A.B. 540 confirms
that students are eligible for the
exemption from nonresident tuition
Although not necessary look
legislative history and other extrinsic sources
because A.B. 540 unambiguous, the legislative
history and subsequent legislative enactments
confirm our interpretation. (See Goodman Lozano
35a
(2010) Cal.4th 1327, 1335 [although the meaning language statute plain, helpful look [the statute legislative history Hughes Pair
(2009) Cal.4th 1035, 1046 [may] look
legislative history confirm our plain-meaning
construction statutory language Kulshrestha
First Union Commercial Corp. (2004) Cal.4th 601,
613, fn. courts may always test their construction disputed statutory language against extrinsic aids
bearing the drafters intent United Health
Centers San Joaquin Valley, Inc. Superior Court
(2014) 229 Cal.App.4th 63, [r]eviewing courts
may turn the legislative history behind even
unambiguous statutes when confirms bolsters
their interpretation ].) look the Legislative
Counsel digest and other summaries and reports
indicating the Legislature intent. (Mt. Hawley,
supra, 215 Cal.App.4th 1401; see Committee for
Green Foothills Santa Clara County Bd.
Supervisors, supra, Cal.4th 56, fn. [w]e
have routinely found enrolled bill reports, prepared responsible agency contemporaneous with
passage and before signing, instructive matters
legislative intent Valley Vista Services, Inc. City Monterey Park (2004) 118 Cal.App.4th 881, 889 [w]hen construing statute, may consider its
legislative history, including committee and bill
reports, and other legislative records ].)
Several enrolled bill reports for A.B. 540 refer
repeatedly tuition and eligibility rates for
students assessing the impact A.B. 540 the
state and its student population. For example, the
Enrolled Bill Report the Office the Secretary
36a
Education notes that the estimated percentage the
student population who may qualify for
nonresident tuition exemption under provisions
[the] bill less than the total student
population the three public higher education
institutions, the UC, the CSU [California State
University], and the CCC [California community
colleges]. (Off. the Sect. for Educ., Rep. Assem.
Bill. No. 540 (2001-2002 Reg. Sess.) Oct. 2001,
5.) The Enrolled Bill Report goes state, The and the CSU estimate minor, absorbable costs
based the low number students who would
qualify for nonresident tuition exemption under
the provisions this bill. (Id. see also Dept. Finance, Rep. Assem. Bill No. 540 (2001-2002
Reg. Sess.) Oct. 10, 2001, pp. 2-3; Dept. Finance,
Rep. Assem. Bill No. 540 (2001-2002 Reg. Sess.)
July 2001, pp. 1-3; Assem. Republican Bill
Analysis, Higher Educ. Com., Rep. Assem. Bill
No. 540 (2001-2002 Reg. Sess.) Sept. 13, 2001, 2.) A.B. 540 did not provide eligibility for students benefit from the nonresident tuition exemption,
there would need for the Legislature
consider the impact A.B. 540 the University
California and its students. Vries argues that sentence the
Legislative Counsel Digest A.B. 540 supports his
contention that A.B. 540 provides eligibility only
students California State University and
California community colleges. points
language stating, These provisions are applicable
the University California only the Regents the
University California act make them
37a
applicable. (Legis. Counsel Dig., Assem. Bill No.
540 (2001-2002 Reg. Sess.) 2001 Stats. ch. 814,
93.) discussed with respect the almost identical
language section 68134, however, the fact that
A.B. 540 does not apply the University
California does not affect students eligibility
for the nonresident tuition exemption.
Moreover, the sentence Vries cites from
the Legislative Counsel Digest refers not A.B.
540, but language section 68062, described
the Legislative Counsel Digest existing law,
which provided that alien may establish
residence California unless precluded federal
law. 68062, subd. (h).) Regents University
California Superior Court (1990) 225 Cal.App.3d
972 (Regents Superior Court) the court held that
federal law prohibited California colleges and
universities (including the University California)
from classifying undocumented immigrants
residents under section 68062. (Id. 980.) The
court that case acknowledged that section 68134
made section 68062 applicable the University
California only the extent its Regents adopt
(Regents Superior Court, supra, 976, fn.1),
meaning that the Regents could, but was not
required to, classify qualified aliens residents
under section 68062. A.B. 540 now allows California
colleges and universities make undocumented
immigrants eligible for the exemption from
nonresident tuition based factors other than their
residence, thus complying with federal law.
(Martinez, supra, Cal.4th 1290; see U.S.C.
1623 [prohibiting alien who not lawfully
38a
present the United States from eligibility for
postsecondary education benefits the basis
residence ].) was the case with section 68062,
section 68134 allows the Regents adopt the
nonresident tuition exemption provided A.B. 540 chooses so. assume the Legislature knew section
68134 and its effect other provisions the
Education Code when the Legislature enacted
section A.B. 540, which added section 68130.5.
(See People Scott (2014) Cal.4th 1415, 1424 the Legislature deemed aware statutes
and judicial decisions already existence, and
have enacted amended statute light
thereof ].) also assume the Legislature intended
section 68134 have the same effect section
68130.5 that had section 68062. (See People
Scott, 1424 [c]ourts may assume that the
Legislature intended maintain consistent body rules and adopt the meaning statutory terms
already construed ].) That effect acknowledge
the University California special status under
the California Constitution and allow the
University decide whether confer its
students the benefits for which they are eligible
under state law.9
Other Education Code statutes follow similar pattern.
For example, section 68075.5, subdivision (a), exempts certain
members the Armed Forces stationed California from
paying nonresident tuition the California State University
and California community colleges. Even though that provision
does not reference the University California, another
subdivision section 68075.5, subdivision (c), asks the
39a
Finally, S.B. 1210, which the Legislature
enacted 2014, acknowledges that A.B. 540 applies students even does not apply the
University. S.B. 1210 states, Since 2002, students
have been exempt from paying nonresident tuition
and fees the California Community Colleges, the
California State University, and the University
California pursuant Section 68130.5. 1010 (Stats.
2014, ch. 754, subd. (b).) While not binding,
declaration later Legislature what
earlier Legislature intended entitled
consideration. (Carter California Dept.
Veterans Affairs (2006) Cal.4th 914, 922; see
People rel. Lockyer R.J. Reynolds Tobacco Co.
(2005) Cal.4th 707, 724 [w]hile subsequent
legislation interpreting [a] statute [cannot]
change the meaning [of the earlier enactment,]
[does supply] indication the legislative intent
which may considered together with other factors arriving the true intent existing the time the
legislation was enacted ].) Here, S.B. 1210 confirms
that A.B. 540 makes students eligible for the
nonresident tuition exemption.
University California adopt policies regarding tuition
rates for eligible veterans that conform the requirements
section 68075.5, subdivision (a). Thus, through section 68075.5,
subdivision (c), the Legislature intended make veterans
attending school eligible for the benefit in-state tuition.
The same provision also acknowledges that A.B. 131
makes students eligible for state financial aid financial
aid offered [that] public institution. (Stats. 2014, ch. 754, subd. (b).)
40a A.B. 131 and S.B. 1210
A.B. 131 and S.B. 1210, like A.B. 540, make
undocumented immigrants attending the University California eligible for financial aid and student
loan programs and rely the Regents confer
these benefits qualified students. The language
A.B. 131 and S.B. 1210, like the language A.B.
540, does not exclude from eligibility any qualified
students the basis the institution they attend.
Indeed, specifically referencing the University
California and its students, those measures provide
eligibility for the specified benefits those students,
regardless whether the University ultimately
confers such benefits them.
For example, section A.B. 131, which
added section 69508.5, addresses eligibility for Cal
Grants and states that student who meets the
requirements subdivision (a) Section 68130.5,
who meets equivalent requirements adopted the
Regents the University California, eligible
apply for, and participate in, any student financial
aid program administered the State California the full extent permitted federal law. The
plain language this provision makes clear that
students are eligible participate the Cal Grant
program.11 Section A.B. 131, which added
section 66021.6, applies Grants and states
that the Regents the University California are
requested establish procedures and forms that
The Regents notes that plays role conferring
Cal Grants any students, including students.
41a
enable persons who are exempt from paying
nonresident tuition under Section 68130.5, who
meet equivalent requirements adopted the
[R]egents, apply for, and participate in, all
student aid programs administered these
[schools] the full extent permitted federal law.
Thus, section A.B. 131 makes undocumented
students eligible participate the Grant
program. Vries argues that the reference A.B. 131 requirements adopted the Regents the
University California means that its terms
not apply students. Putting aside the fact
that the Regents not involved the Cal Grants
program, Vries argument lacks merit. Section
1621(d) does not require enactment state law
specify the terms under which eligible beneficiaries
may receive certain benefits. Section 1621(d) merely
requires the enactment state law make
undocumented immigrants eligible for those
benefits, and A.B. 131 satisfies that requirement,
regardless whether, Vries argues,
students eligibility for Grants requires them
meet certain conditions adopted the Regents. terms even plainer than A.B. 540 and A.B.
131, S.B. 1210 provides eligibility qualified
students benefit from certain student loan
programs. Section S.B. 1210, which added
section
70033,
subdivision
(a)(1),
states:
Commencing with the 2015-16 academic year,
student attending participating institution may
receive loan under the DREAM Program the
42a
student satisfies all the following requirements: (1) The student exempt from paying
nonresident tuition under Section 68130.5, meets
equivalent requirements adopted the Regents
the University California. (Italics added.)
participating institution defined any campus the University California that elects
participate the DREAM Program pursuant the
requirements specified for qualifying institution 70032, subd. (i).) Thus, students are
eligible participate the DREAM Program
established S.B. 1210.
DISPOSITION
The judgment affirmed. The Regents
recover its costs appeal.
SEGAL, concur:
PERLUSS,
KEENY, J.* Judge the Los Angeles Superior Court, assigned the
Chief Justice pursuant article VI, section the California
Constitution.
43a
RULING
_________________________________________________
HEARING DATE: March 13, 2015
TRIAL DATE:
Not Set
CASE:
Earl Vries Regents
the University California
CASE NO.:
BC555614
Opposed:
Yes.
_________________________________________________
FILED
Superior Court California
County Los Angeles
MAR 2015
Sherri Carter, Executive
Officer/Clerk Deputy Barton
(1) APPLICATION APPEAR PRO HAC
VICE;
(2) DEMURRER FIRST AMENDED
COMPLAINT
____________________________________
MOVING PARTY: (1) Plaintiff behalf
Attorney Chris Fedeli;
(2) Defendant The Regents the
University California
44a
RESPONDING PARTY(S): (1) opposition filed.
(2) Plaintiff Earl Vries
PROOF SERVICE:
Correct Address: (1) Yes; (2) Yes.
16/21 (CCP 1005(b)): (1) OK. Served mail October 2014; continued this date per
November 2014 minute order; (2) OK.
Served mail November 25, 2014.
GRANT application appear pro
hac vice;
SUSTAIN demurrer entire
Complaint with leave amend.
ANALYSIS
Application Appear Pro Hac Vice
Attorney: Chris Fedeli The application verified. Id. .40(c)(1). The application accompanied proof
service mail accordance with CCP 1013a.
CRC Rule 9.40(c)(1). Notice hearing has been given the time
prescribed CCP 1005. CRC Rule 9.40(c)(1). n/a The application was served prescribed.
CRC Rule 9.40(c)(1). The application shows service all parties
who have appeared and the State Bar
45a
California its San Francisco office. CRC Rule
9.40(c)(1). Proof that applicant paid reasonable fee not
exceeding $50 the State Bar California with
the copy the application and the notice
hearing. CRC Rule 9.40(e). The applicant not resident the State
California. Id. 9.40(a)(1). The applicant not regularly employed the
State California. Id. 9.40(a)(2). The applicant not regularly engaged
substantial business, professional, other
activities the State California. Id.
9.40(a)(3).
10. The application states the applicant residence
and office address. Id. 9.40(d)(1).
11. The application states the courts which the
applicant has been admitted practice and the
dates admission. Id. 9.40(d)(2).
12. The application states that the applicant
member good standing the courts which
the applicant has been admitted practice. Id.
9.40(d)(3).
13. The application states that the applicant not
currently suspended disbarred any court. Id. 9.40(d)(4).
14. n/a The application states the title court and
cause which the applicant has filed
application appear counsel pro hac vice
this state the preceding two years, the date
each application, and whether not was
granted. CRC Rule 9.40(d)(5).
15. The applicant has not made repeated
appearances pursuant CRCR 9.40(b).
46a
16. n/a Any special circumstances for repeated
appearances pursuant CRC rule 9.40(b).
Absent
special
circumstances,
repeated
appearances any person under this rule
cause for denial application. CRC Rule
9.40(b).
17. The application states the name, address, and
telephone number the active member the
State Bar California who attorney record.
CRC Rule 9.40(d)(6).
The application for the admission Chris
Fedeli appear pro hac vice behalf Plaintiff
GRANTED.
Demurrer initial matter, the Court acknowledges
that has granted the parties permission file
oversized briefs (30/30/15). September 30, 2014
Stipulation and Order.
Plaintiffs lawsuit premised the following
language U.S.C. 1621(d): State may provide
that alien who not lawfully present the
United States eligible for any State local public
benefit ... only through the enactment State law
... which affirmatively provides for such eligibility.
1AC,
Defendant demurrer that the Regents the
University California (hereinafter Regents
actions alone satisfy U.S.C. 1621(d) well-taken.
The central premise Plaintiffs lawsuit,
47a
articulated his opposition, follows: Because
the California Legislature does not have legislative
authority over the constitutionally independent
Regents1, despite the Legislature enactment
540 (in-state tuition benefits), 131 (stateadministered financial aid benefits) and 1210
(student loan benefits), state law exists
required U.S.C. 1621(d) for the tuition,
financial aid and student loan benefits the
Regents are providing students, and such
benefits are unlawful.
However, Plaintiffs premise fails recognize
that the policies and procedures the Regents
have the force and effect statute:
The University statewide administrative
agency with constitutionally derived powers.
(Cal. Const., art. IX, subd. (a); Regents
University California City Santa
Monica (1978) Cal. App. 130, 135 [143
Cal. Rptr. 276] (Santa Monica).) Its
employees are public employees. (See
Ishimatsu Regents University
California (1968) 266 Cal. App. 854, 860861 [72 Cal. Rptr. 756].) The University
administered the Regents. (Cal. Const.,
art. IX, subd. (a).) Regents have
rulemaking and policymaking power
regard the University; their policies
and procedures have the force and
effect statute. (Santa Monica, supra,
____________________________________
Cal. Const., art. IX, 9(a).
48a
Cal. App. 135.)
Kim Regents University California (2000)
Cal.App.4th 160, 164-65 (bold emphasis and
underlining added).
The Regents have been characterized
branch the state itself (Pennington
Bonelli (1936) Cal.App.2d 316,321 [59
P.2d 448]) statewide administrative
agency (Ishimatsu Regents University California (1968) 266 Cal.App.2d 854, 864
[72 Cal.Rptr. 756]). apparent that the
Regents constitutionally created arm
the state have virtual autonomy selfgovernance (Cal. Const., art. IX, 9). The
corporation known the Board Regents
constitutes the highest administrative
authority the University California.
The Regents have the general rule-making policy-making power regard the
University ... and are ... fully empowered
with respect the organization and
government the University ... (Goldberg Regents University California (1967)
248 Cal.App.2d 867, 874 [57 Cal.Rptr. 563];
Newmarker Regents Univ. Cal., ...
160 Cal.App.2d 640, 645 [325 P.2d 558].)
[The] power the Regents operate,
control, and administer the University
virtually exclusive. (30 Ops.Cal.Atty.Gen.
162, 166; Cal. Const., art. IX, 9.) ...
49a
(Regents University California
Superior Court (1970) Cal.3d 529, 540, fn.
omitted [91 Cal.Rptr. 57, 476 P.2d 457].)
consequence, policies established the
Regents
matters
internal
regulation
may
enjoy
status
equivalent that state statutes
(Hamilton Regents (1934) 293 U.S. 245 [79
L.Ed. 343, S.Ct. 197]).
Regents University California City Santa
Monica (1978) Cal.App.3d 130, 135 (bold
emphasis added).
The Court finds that, this regard, the
Regents policies adopting the exemption codified
AB540, the eligibility for state administered
financial aid programs codified AB131 and
eligibility for the student loan program codified
SB1210 would qualify State law ... which
affirmatively provides for such eligibility State
local benefit for purposes U.S.C. 1621(d).
The demurrer the entire Complaint
SUSTAINED with leave amend. Plaintiff will only given one more opportunity amend.