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Judicial Watch • De Vries v. California Regents Illegal Alien Tuition Lawsuit B264487

De Vries v. California Regents Illegal Alien Tuition Lawsuit B264487

De Vries v. California Regents Illegal Alien Tuition Lawsuit B264487

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No. B264487 THE COURT APPEAL THE STATE CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
__________
Earl Vries,
Plaintiff and Appellant,
vs.
Regents the University California,
Defendant and Respondent.
__________
Appeal from the Superior Court California, County Los Angeles
The Hon. Gail Feuer; The Hon. Elizabeth Allen White
Superior Court Case No. BC555614
__________
APPELLANT OPENING BRIEF APPEAL
__________
Chris Fedeli (Admitted Pro Hac Vice)
Sterling Norris (SBN 040993)
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5185
Fax: (202) 646-5199
cfedeli@judicialwatch.org
Attorneys for Plaintiff-Appellant Earl Vries
Dated: November 2015
No. B264487
STATEMENT REGARDING CERTIFICATE INTERESTED
ENTITIES PERSONS
Pursuant Rule 8.208(d)(1) the California Rules Court, copy Appellant Certificate Interested Entities Persons filed with this
Court July 13, 2015 being included attachment this brief.
There are interested entities persons required listed.
TABLE CONTENTS
STATEMENT REGARDING CERTIFICATE INTERESTED
ENTITIES PERSONS ........................................................................
TABLE CONTENTS ........................................................................
TABLE AUTHORITIES .................................................................. iii
STATEMENT THE CASE ................................................................
STATEMENT FACTS AND LAW....................................................
STANDARD REVIEW .....................................................................
SUMMARY THE ARGUMENT .......................................................
ARGUMENT ......................................................................................... Federal Law Prohibits State Local Benefits for Unlawfully
Present Aliens Absent Enactment State Statute Affirmatively
Providing Eligibility for Such Benefits .............................................. The California Legislature Has Not Passed Any Statutes
Affirmatively Providing Eligibility for Benefits
Unlawfully Present Alien Students ............................................ The Lower Court Decision Puts the California Constitution Conflict With Federal Law .....................................................
CONCLUSION ....................................................................................
RULE 8.204(c) CERTIFICATION ........................................................
TABLE AUTHORITIES
State Cases
Adelman Associated Int Ins. Co., Cal.App.4th 352 (2001) .....................................
Campbell Regents the Univ. California, Cal.4th 311 (2005) .............. 19, 20,
Garvey Byram, Cal.2d 279 (1941) .............................................................................
Goodman Lozano, Cal.4th 1327 (2010) ................................................................
Green California, Cal.4th 254 (2007) ..................................................................... Estate Barnett, Cal.App. 138 (1929) ................................................................ Ethan C., Cal.4th 610 (2012) .............................................................................. Miller, Cal.2d 191 (1947) ................................................................................... Garcia, Cal.4th 440 (2014) .................................................................................
Kirkwood Bank America Nat Trust Sav. Assoc., Cal.2d 333 (1954) ..........
Lee Hanley, Cal.4th 1225 (2015) ...............................................................................
Lucchesi State Board Equalization, 137 Cal.App. 478 (1934) ..................................
People Arriaga, Cal.4th 950 (2014) ........................................................................
Quarry Doe Cal.4th 945 (2012) .........................................................................
Martinez Regents the Univ. California, Cal.4th 1277 (2010) .........................
Federal Cases
Arizona United States, 132 Ct. 2492 (2012) ....................................................... 20,
Arizona Inter Tribal Council Ariz., Inc., 133 Ct. 2247 (2013) .............................
iii
Connecticut Nat. Bank Germain, 503 U.S. 249 (1992) ................................................
Crosby Nat Foreign Trade Council, 530 U.S. 363 (2000) .........................................
Dean United States, 556 U.S. 568 (2009) ...................................................................... Canas Rica, 424 U.S. 351 (1976) ...........................................................................
Department Homeland Security MacLean, 135 Ct. 913 (2015) ............... 10,
Director, Office Workers Comp. Programs Rasmussen, 440 U.S. (1979) ........
Dodd United States, 545 U.S. 353 (2005) ....................................................................
Elbert Poston, 266 U.S. 548 (1925) ...........................................................................
Exxon Mobil Corp. Allapattah Servs., 545 U.S. 546 (2005) ........................................
Iselin United States, 270 U.S. 245 (1926) ....................................................................
Lowe Securities and Exchange Comm 472 U.S. 181 (1985) ................................
Negusie Holder, 555 U.S. 511 (2009) ............................................................................
PLIVA, Inc. Mensing, 131 Ct. 2567 (2011) ..............................................................
Posters Things United States, 511 U.S. 513 (1994) ...............................................
Sale Haitian Centers Council, Inc., 509 U.S. 155 (1993) .........................................
Univ. Tex. Southwestern Med. Ctr. Nassar, 133 Ct. 2517 (2013) ......................
California Statutes, Rules, and Constitutional Provisions
Const., art. IX, 9(a) ...................................................................................1, 18,
Const., art. IX, 9(f) ........................................................................................................
Civ. Code 3530 .........................................................................................................
Code Civ. Proc. 1858 ................................................................................................
Ed. Code 68130.5(a) ...............................................................................................
Ed. Code 68130.5 .............................................................................................16,
Ed. Code 69508.5(a) ...............................................................................................
Ed. Code 70033(a)(1) .......................................................................................17,
Ed. Code 70033(d) ..................................................................................................
Ed. Code 70037(d) ..................................................................................................
2001 Cal. Stats. ch. 814, 1(b)(1) ....................................................................................
Federal Statutes, Rules, and Constitutional Provisions
U.S. Const. art. cl. ......................................................................................... 20,
U.S. Const., art. VI, cl. .................................................................................................. U.S.C. 1621 ......................................................................................................... passim U.S.C. 1621(a) .............................................................................................................. U.S.C. 1621(d) .................................................................................................... passim U.S.C. 1624 ................................................................................................................ U.S.C. 1625 ................................................................................................................ U.S.C. 1182(a)(2)(A)(i)(II) ........................................................................................... U.S.C. 1227(a)(2)(B)(i) ..........................................................................................
Other Authorities 540 Legislative Counsel Digest, Feb. 21, 2001, available
http://www.leginfo.ca.gov/pub/01-02/bill/asm/ab_0501-0550/ab_540_bill_20011013_
chaptered.html ........................................................................................................... 131 Legislative Counsel Digest, Jan. 11, 2011, available http://www.leginfo.
ca.gov/pub/11-12/bill/asm/ab_0101-0150/ab_131_bill_20110527_amended_
asm_v95.html ............................................................................................................
H.R. Rep. No. 104-725, Sess. (1996), available https://www.congress.gov
/104/crpt/hrpt725/CRPT-104hrpt725.pdf ................................................................... 12,
Personal Responsibility and Work Opportunity Reconciliation Act 1996, Government
Printing Office, available http://www.gpo.gov/fdsys/pkg/BILLS104hr3734enr/pdf/BILLS-104hr3734enr.pdf ...................................................................
STATEMENT THE CASE
This case concerns tuition, financial aid, and student loan benefits provided unlawfully present aliens attending the University California
Federal immigration law makes unlawfully present aliens eligible for state local
public benefits only through the enactment State law which affirmatively
provides for such eligibility. U.S.C. 1621(d) Section 1621 1621
State law affirmatively provides unlawfully present aliens enrolled schools
with eligibility for the benefits issue, and yet Board Regents Regents providing these benefits the students.
Federal law explicit that State law must affirmatively provide
eligibility for benefit unlawfully present alien before the benefit can
extended. Federal law also specifies that only the enactment State law
can affirmatively provide eligibility for benefits unlawfully present aliens
not the adoption state administrative rules, regulations, policies. Under the
California Constitution however, the Legislature lacks authority over and its
Regents. The Regents are subject only such legislative control may
necessary ensure the security its funds and compliance with the terms the
endowments the university and such competitive bidding procedures may
made applicable the university statute. Cal. Const., art. IX, 9(a).
while the Legislature has enacted state laws providing unlawfully present aliens
with tuition, financial aid, and student loan benefits attend California State
University CSU and California Community Colleges CCC did not and
could not with respect students. California chose place and the
Regents beyond ordinary legislative controls. The State cannot now have both
ways. The Regents benefits are illegal.
The lower court opinion errs finding that the Regents may award the
benefits without affirmative enactment the Legislature. The lower court
held that, under California state law, the Regents issue laws equal standing
statutes enacted the Legislature, and therefore the Regents policies must
satisfy Section 1621 Title the federal immigration code. This interpretation California law wrong, but even were not, would put California
Constitution into conflict with federal law, subjecting the former federal
preemption. Congress specified that only State laws, which meant
affirmative enactments State legislatures, can award state local public
benefits unlawfully present aliens. The Court should reverse the ruling the
trial court and remand this case for further proceedings.
STATEMENT FACTS AND LAW
This lawsuit was brought Plaintiff Earl Vries, resident and taxpayer the State California who has paid taxes the State. See Appellant
Appendix AA-12, Plaintiff alleged that the Regents are spending
his tax dollars violation federal law, causing him injury, and requested
declaratory and injunctive relief against the Regents. AA-11 12, AA-19
21, 33, 38, and 43; AA-21 22. The lower court sustained Defendant
demurrer against Plaintiff complaint (AA-565 568) and entered order
judgment and dismissal with prejudice. AA-570 571.
The federal law issue, Section 1621 Title the federal immigration
code, makes unlawfully present aliens ineligible for state local public benefits. U.S.C. 1621(a). The law provides one exception, however: 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. U.S.C. 1621(d).
Congress enacted Section 1621 part the Personal Responsibility and
Work Opportunity Reconciliation Act 1996. enacting Section 1621,
Congress decided allow states extend state local public benefits
unlawfully present aliens, but only the highest and most politically accountable
levels state governments did affirmatively. Section 1621 stand and counted law. does not allow States hide their policy choices behind
administrative bureaucracies, bury them obscure board meetings.
institution like the Regents the vast majority whom are appointed officials
lacks the political accountability and visibility that Congress intended require
and did require when enacted Section 1621. AA-37. enacting Section 1621,
Congress created single, clear standard applicable the entire nation States
wish provide state local public benefits unlawfully present aliens, they
may long they enact State laws affirmatively providing for such
eligibility.
The Legislature has passed three laws extending college-related public
benefits unlawfully present aliens: 540 (in-state tuition benefits), 131
(state-administered financial aid benefits), and 1210 (student loan benefits).
Each these statutes affirmatively makes unlawfully present aliens attending
CSU and CCC schools eligibility for tuition and other public benefits. AA-14.
Under California Constitution, the Regents are not subject legislative control
except the limited matters insolvency, endowment, and the awarding
contracts, none which are relevant this lawsuit. Cal. Const., art. IX, 9(a);
AA-12 13, 6-7. Consequently, the Legislature was constitutionally
prohibited from passing law affirmatively providing eligibility for these same
benefits students.
Following the enactment 540, the Regents adopted Policy 3106.1.C
purportedly making unlawfully present aliens attending schools eligible
apply for and receive the same in-state tuition benefits that 540 extends
CSU and CCC students. AA-16, 19. After Plaintiff filed suit, the Governor
California signed 1210, which purportedly makes unlawfully present aliens
attending CSU and CCC schools eligible for student loan benefits. AA-14, 12.
Plaintiff amended his Complaint challenge these additional benefits. AA-16
17, 20-21. Thereafter, the Regents adopted additional policies purportedly
making unlawfully present aliens attending schools eligible apply for and
participate the same state-administered financial aid programs authorized
131 and 1210. AA-361 363. The Regents are now illegally providing all
three public benefits (in-state tuition, financial aid, and student loans)
unlawfully present aliens attending schools. AA-361 363.
STANDARD REVIEW reviewing trial court decision sustain demurrer, the appellate
court must reverse the factual allegations the complaint state cause action any available legal theory. Adelman Associated Int Ins. Co.,
Cal.App.4th 352, 359 (2001). Moreover, the appellate court must review novo
questions statutory construction. Lee Hanley, Cal.4th 1225, 1232 (2015). doing so, the court role ascertain the intent the lawmakers
effectuate the purpose the statute. Id. The court should begin examining
the statutory language because generally the most reliable indicator
legislative intent. give the language its usual and ordinary meaning, and
there ambiguity, then presume the lawmakers meant what they said, and
the plain meaning the language governs. Lee, Cal.4th 1232-1233
(internal quotes omitted). If, however, the statutory language ambiguous,
may resort extrinsic sources, including the ostensible objects achieved and
the legislative history. Ultimately choose the construction that comports most
closely with the apparent intent the lawmakers, with view promoting rather
than defeating the general purpose the statute. Lee, Cal.4th 1233
(internal quotes omitted).
SUMMARY THE ARGUMENT
This case turns the proper construction federal statute, U.S.C.
1621(d). Accordingly and because the lower court erred incorrectly applying
this statute part this brief begins explaining the statute issue and how
must read under all applicable canons statutory construction. Specifically,
part explains that Section 1621 requires state law making unlawfully present
aliens eligible for state local public benefits explicit its text, and that any
such state law must enactment state legislature not gubernatorial
executive order, administrative regulation policy, local ordinance. Part
demonstrates that the three California statutes extending public benefits CSU
and CCC students not affirmatively provide these same benefits students
and therefore not authorize the Regents actions, making those actions illegal
under Section 1621. Part explains that the lower court decision puts the
California Constitution conflict with federal law, and therefore must
reversed.
ARGUMENT Federal Law Prohibits State Local Benefits for Unlawfully Present
Aliens Absent Enactment State Statute Affirmatively Providing
Eligibility for Such Benefits
Section 1621 allows state local public benefits extended
unlawfully present aliens only through the enactment State law... which
affirmatively provides eligibility for the benefits. U.S.C. 1621(d). This
unambiguous statute sets forth two requirements. First, the state law must make
unlawfully present aliens eligibility for benefits explicit the text the statute.
Second, the law providing the eligibility must statewide legislative enactment,
not executive order governor, rule, regulation, policy state
agency other subdivision. explained this section, not possible for
court find that Section 1621 permits the Regents actions without wholesale
judicial revision the text this federal statute.
Every relevant principle statutory construction confirms both these
requirements Section 1621. First, any interpretation Section 1621 altering
the requirement for explicit authorization benefits would read the words
affirmatively provide out the statute. Quarry Doe Cal.4th 945, 989
(2012) (courts may not read into the statute that which the Legislature has
excluded, read out that which has included (internal citation omitted);
Goodman Lozano, Cal.4th 1327, 1334 (2010) [W]e must give effect
[words statute] according the usual, ordinary import the language
employed. (internal citations and punctuation omitted); Lowe Securities and
Exchange Comm n., 472 U.S. 181, 207 (1985) [W]e must give effect
every word that Congress used the statute.
Second, any judicial interpretation Section 1621 lessening the
requirement that eligibility for benefits established state legislative action
also would read the words only through the enactment State law out
the statute. Kirkwood Bank America Nat Trust Sav. Assoc., Cal.2d
333, 341 (1954) [I]t the function the courts construe and apply the law enacted and not add thereto nor detract therefrom. Lucchesi State
Board Equalization, 137 Cal.App. 478, 482 (1934) courts are not authorized insert omitted provisions read out the statute the language therein
contained. Congress wanted authorize states make unlawfully present
aliens eligible for public benefits issuing administrative rules, regulations,
policies county municipal statutes ordinances, obviously could have
said so. Instead, used the words only through the enactment State law.
The word only indicates Congress intent exclude other governmental actions,
and the words enactment State law indicates Congress meant legislative
action. construe this sentence otherwise would impermissibly omit these
words and change the meaning the statute. See Quarry, Goodman, Lowe,
supra.
Finally, any judicial interpretation Section 1621 disregarding the
requirement that eligibility for benefits established state legislative action
not only would omit the words only through the enactment State law from
the statute, but also would impermissibly add words that are not present the
statute. Garvey Byram, Cal.2d 279, 287 (1941) (The California Supreme
Court has authority write anything into statute which the legislature has
omitted therefrom Dean United States, 556 U.S. 568, 572 (2009) [W]e
ordinarily resist reading words elements into statute that not appear its
face. Negusie Holder, 555 U.S. 511, 518 (2009) (deliberately omitted word
changes meaning statute); Elbert Poston, 266 U.S. 548, 554 (1925) casus
omission does not justify judicial legislation. Estate Barnett,
Cal.App. 138, 142 (1929) Judicial interpretation should never judicial
legislation. may not, therefore, under the guise interpretation, read into
statute matters which have been omitted the legislature particularly where
appears that the omission might have been intentional. This axiom not just
sound canon statutory interpretation, the law California, enacted the
Legislature and binding the courts. Cal. Code. Civ. Proc. 1858 the
construction statute instrument, the office the Judge simply
ascertain and declare what terms substance contained therein, not
insert what has been omitted accord, Cal. Civ. Code 3530 That which does
not appear exist regarded did not exist
Section 1621 does not say state law administrative rule, regulation
policy. says State law. This means enactment the state legislature.
Department Homeland Security MacLean, 135 Ct. 913, 919 (2015) MacLean (if Congress writes law one section the U.S. code and also
uses the phrase law, rule, regulation the same section, the former phrase
must interpreted include only legislative statutes). Just MacLean,
Congress uses the phrase state law and regulation elsewhere Title For
instance, Section 1182 specifies that aliens who violate any law regulation State, the United States, foreign country relating controlled substance
are ineligible for visas. U.S.C. 1182(a)(2)(A)(i)(II) (bold added). Identical
language Section 1227 provides that aliens violating any law regulation
State related controlled substances should deported. U.S.C.
1227(a)(2)(B)(i).
Furthermore, Congress provided that only duly enacted State law can
make aliens eligible for benefits Section 1621, and yet Section 1625
Congress stipulated that State political subdivision state authorized require applicant for public benefits provide proof eligibility.
U.S.C. 1625. Both Section 1621 and Section 1625 are Chapter Title
Aliens and Nationality. Chapter titled Restricting Welfare and Public
Benefits for Aliens. Indeed, both Section 1621 and Section 1625 are the same
subsection Chapter 14, subtitled Eligibility for State and Local Public Benefits
Programs. Section 1625 language demonstrates that the omission any
qualifiers State law Section 1621 was intentional. Similarly, Section 1624,
which also the same chapter and subsection Section 1621, says [A] State political subdivision State authorized prohibit otherwise limit
restrict the eligibility aliens classes aliens for programs general cash
public assistance furnished under the law the State political subdivision
State. U.S.C. 1624. Since Sections 1621, 1624, and 1625 are the same
subsection Title Chapter 14, under MacLean, Congress choice the words
only through the enactment State law and the omission any reference
State agencies subdivisions their rules, regulations, policies must
construed intentional. MacLean, 135 Ct. 919 Congress did not use the
phrase law, rule, regulation the statutory language issue here; used the
word law standing alone. That significant because Congress generally acts
intentionally when uses particular language one section statute but omits another. Because Congress omitted the words State agencies
subdivisions and rules, regulations, policies from Section 1621, the Court
must find that only the enactments state legislature satisfy this provision. settled principle statutory interpretation that statute contains provision
regarding one subject, that provision omission the same another statute
regarding related subject evidence different legislative intent. People
Arriaga, Cal.4th 950, 960 (2014) (italics added); accord, Ethan C.,
Cal.4th 610, 638 (2012); Posters Things United States, 511 U.S. 513, 520
(1994) This omission significant light the fact that the parallel list
contained the Drug Enforcement Administration Model Drug Paraphernalia
Act, which 857 was based, includes [these factors].
Finally, review the Personal Responsibility and Work Opportunity
Reconciliation Act 1996, which enacted Section 1621, shows that Congress
used the phrases State agency and State political subdivision State
multiple times, but not the language that became Section 1621.1 This again
shows that Congress intended Section 1621 require enactments state
legislatures statutes not rules, regulations policies state agencies
subdivisions. Accordingly, Section 1621 may not read include such rules,
Personal Responsibility and Work Opportunity Reconciliation Act 1996,
Government Printing Office, available http://www.gpo.gov/fdsys/pkg/BILLS104hr3734enr/pdf/BILLS-104hr3734enr.pdf
regulations, policies interpreting only through the enactment State law.
See Sale Haitian Centers Council, Inc., 509 U.S. 155, 169 (1993) supply
omissions transcends the judicial function. quoting Iselin United States, 270
U.S. 245, 250 (1926) (Brandeis, J.)); see also Miller, Cal.2d 191, 199
(1947) Words may not inserted statute under the guise interpretation enacting Section 1621, Congress plainly decided allow the states
small measure authority area immigration and naturalization that
otherwise reserved almost entirely the federal government. Specifically,
Congress decided allow states extend eligibility for state and local public
benefits unlawfully present aliens, but only the highest and most visible,
politically accountable levels state government affirmatively. Section
1621 stand and counted law designed ensure politically
accountability should states wish enter area otherwise reserved the federal
government. See H.R. Rep. No. 104-725, Sess., 383 (1996) Only the
affirmative enactment law State legislature and signed the Governor
after the date enactment this Act will meet the requirements [Section
1621]. )2; see also AA-418 419; see also Reporter Transcript 2:25-3:3 Essentially, [Section 1621] standup and counted law. Congress said you
can give state benefits unlawfully-present aliens, but only you out the
public with the General Assembly affirmatively saying, yes, going
H.R. Rep. No. 104-725, available https://www.congress.gov/104/crpt/hrpt725/
CRPT-104hrpt725.pdf.
this, the representatives can held accountable for that decision.
political accountability law.
Congress must presumed mean what says. Univ. Tex.
Southwestern Med. Ctr. Nassar, 133 Ct. 2517, 2529 (2013) Congress
choice words presumed deliberate Dodd United States, 545 U.S.
353, 357 (2005) must presume that [the] legislature says statute what
means and means statute what says there, quoting Connecticut Nat. Bank Germain, 503 U.S. 249, 253-254 (1992)). Section 1621 not ambiguous. And demonstrated above, the statute text, read the context the Personal
Responsibility and Work Opportunity Reconciliation Act 1996 and the other
federal immigration laws Title demonstrates Congress purpose was political
accountability when wrote only through the enactment State law
Section 1621. The statute plain meaning controls the court interpretation
unless its words are ambiguous. Green California, Cal.4th 254, 260 (2007);
Exxon Mobil Corp. Allapattah Servs., 545 U.S. 546, 568 (2005) have
repeatedly held, the authoritative statement the statutory text, not the legislative
history any other extrinsic material.
Nevertheless, Congress intent enacting Section 1621 further
confirmed the provision legislative history. The report accompanying
Section 1621 confirms that Congress intended this section political
accountability law requiring action the people elected representatives
their state legislators and governors. AA-18 28. The Conference Agreement
accompanying the bill describes the effect Section 1621 follows: current State law, State constitutional provision, State executive
order decision any State Federal court shall provide
sufficient basis for State relieved the requirement deny
benefits illegal aliens Only the affirmative enactment law State legislature and signed the Governor after the date
enactment this Act, that references this provision, will meet the
requirements this section.3
This legislative history shows that the omission phrases such administrative
regulation policy, State agency political subdivision State and
executive order from Section 1621 was deliberate. Director, Office Workers
Comp. Programs Rasmussen, 440 U.S. 29, 46-47 (1979) (the legislative history the 1972 Amendments convinces that the omission was intentional.
Congress has put down its pen, and can neither rewrite Congress words nor
call back cancel half Line. Our task interpret what Congress has
said The California Legislature Has Not Passed Any Statutes Affirmatively
Providing Eligibility for Benefits Unlawfully Present Alien Students
Neither 540, 131, nor 1210 make unlawfully present aliens
attending schools eligible for tuition, financial aid, student loan benefits.
The California Supreme Court found much when refused strike down
540 federal preemption grounds. 2010, the California Supreme Court held
that the Legislature enactment 540 was consistent with Section 1621 for
H.R. Rep. No. 104-725, Sess., 383 (1996), available
https://www.congress.gov/104/crpt/hrpt725/CRPT-104hrpt725.pdf
purposes making unlawfully present aliens eligible for in-state tuition CSU
and CCC schools. Martinez Regents the Univ. California, Cal.4th 1277, 1296 (2010). However, the Court expressly declared that, its text, 540
applies only the California State University and California Community
Colleges, and not the University California. Martinez, Cal.4th 1287,
fn. The Court further quoted 540 stating that [n]o provision this part
shall applicable the University California unless the Regents the
University California, resolution, make such provision applicable. Id.
While the Court took note the parties stipulation that the Regents had,
resolution, made 540 applicable UC, the Court never addressed whether the
Regents resolution and actions satisfied Section 1621; only considered whether 540 was preempted Section 1621. Plaintiff brought this suit his capacity taxpayer challenge whether the Regents resolutions and actions satisfied
Section 1621, not challenge the legality 540.
Furthermore, the Legislature language demonstrates that was well
aware Section 1621 requirement affirmatively provide eligibility for state local public benefits. The Legislature affirmatively provided such eligibility,
but only with respect CSU and CCC students the three statutes question.
The Legislature included such eligibility with respect students. The
statutes themselves recognize that the Legislature cannot require the Regents
provide eligibility for the benefits.
Consider the text 540, which expressly extended eligibility for instate tuition benefits unlawfully present aliens attending CSU and CCC schools: student... who meets all the following requirements shall
exempt from paying nonresident tuition the California State
University and the California Community Colleges.
Cal. Ed. Code 68130.5(a) (italics added). mention made students
schools. The only reference the Regents limitation the types
relief available the event the Regents adopt their own version 540 and
litigation results: state court may award only prospective injunctive and declaratory
relief party any lawsuit interpreting Section 68130.5 the
Education Code... any lawsuit interpreting similar requirements
adopted the Regents the University California.
2001 Cal. Stats. ch. 814, 1(b)(1) (italics added). The Legislative Counsel
Digest 540 also notes, These provisions are applicable the University
California only the Regents the University California act make them
applicable. AA-15 15.
Similarly, 131 expressly makes students CSU and CCC schools
eligible for state-administered financial aid they meet the requirements
540:
[A] student who meets the requirements subdivision (a) Section
68130.5 [governing CCC and CSU students] eligible apply
for, and participate in, any student financial aid program 540 Legislative Counsel Digest, Feb. 21, 2001, available
http://www.leginfo.ca.gov/pub/01-02/bill/asm/ab_0501-0550/ab_540_bill_
20011013_chaptered.html.
administered the State California the full extent permitted
federal law.
Cal. Ed. Code 69508.5(a) (italics added). The law even states, The Legislature
finds and declares that this section state law within the meaning Section
1621(d) Title the United States Code. Id. 131 makes clear that its
terms not apply students. expressly states that students eligibility
for state-administered financial aid contingent upon the students meeting
equivalent requirements adopted the Regents the University California.
Id. Like the Legislative Counsel Digest 540, the Legislative Counsel
Digest 131 also states that [t]his provision would apply the University
California only the regents, appropriate resolution, act make
applicable. AA-15 16. 1210, which concerns student loan benefits, contains language similar the language 131. affirmatively provides that students CSU and
CCC schools are eligible for student loans they are exempt from paying
nonresident tuition under Section 68130.5, addition other criteria. Cal. Ed.
Code 70033(a)(1). Like 131, also states, The Legislature finds and
declares that this section state law within the meaning Section 1621(d)
Title the United States Code. Id. 70033(d). Also like 131, 1210
makes clear that does not apply students, instead expressly referencing 131 Legislative Counsel Digest, Jan. 11, 2011, available
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0101-0150/ab_131_bill_
20110527_amended_asm_v95.html.
equivalent requirements adopted the Regents the University California.
Cal. Ed. Code 70033(a)(1). Another provision 1210 states: This section
shall not impose any requirements upon the University California unless the
Regents the University California, resolution, make this section
applicable. Cal. Ed. Code 70037(d).
The three statutes demonstrate that the Legislature fully capable
writing laws that affirmatively provide eligibility for benefits compliance
with Section 1621. See Garcia, Cal.4th 440, 457-58 (2014) state
statute which affirmatively provides benefit explicitly consistent with Section
1621). The Legislature did affirmatively provide benefits for CSU and CCC
students. The Legislature failure affirmatively provide eligibility for those
same benefits students was deliberate. did not provide the benefits
because cannot under the California Constitution. Cal. Const., art. IX,
9(a); see also Reporter Transcript 3:12-27. sum, providing tuition, financial aid, and student loan benefits
unlawfully present aliens schools unlawful regardless whether 540, 131, and 1210 are valid, enforceable statutes. None the statutes
affirmatively provides eligibility for such benefits students. Given
unique status, any act the Legislature that made unlawfully present aliens
attending schools eligible for benefits would violate California Constitution.
And since only the affirmative enactment State law passed the Legislature
can extend eligibility for state local public benefits unlawfully present aliens,
the Regents cannot satisfy this clear federal standard. Since there State
law enacted the California legislature affirmatively providing eligibility for
tuition, financial aid, and student loan benefits unlawfully present aliens
attending schools, the Regents provision such benefits violates Section
1621. The Lower Court Decision Puts the California Constitution Conflict
With Federal Law
The lower court held that the Regents policies themselves (not the statutes)
are the state laws which affirmatively provide the benefits students
satisfaction Section 1621. AA-567 568. However, the Regents not enact
the State laws Congress contemplated enacting Section 1621. While the
lower court makes much certain language Campbell Regents the Univ. California, Cal.4th 311 (2005) hold that Regents polices are the same
statutes, does not focus the parts that decision which the Court observed
that the Regents resemble statewide administrative agency possession
general rule-making policy-making power. Campbell, Cal.4th 321.
issue Campbell was whether former employee was required exhaust
administrative remedies jurisdictional prerequisite filing suit against the
Regents for allegedly retaliatory firing. The case has bearing whether the
Regents policies may should treated enactments State law under any
number various and different circumstances. certainly has bearing the
proper interpretation Section 1621, and any finding otherwise would
contrary the well-established principles statutory construction addressed
herein.
Even Regents policies carry the force statute California, that
not the standard that Congress intended enacting Section 1621. Indeed,
virtually any properly issued administrative agency regulation carries the force
statute, that both statutes and regulations constitute binding, positive law. This
similarity does not make regulations identical statutes. The lower court
therefore erred classifying the Regents policies state laws that satisfy
Section 1621.
Furthermore, even the lower court correct that, under California law,
the Regents policies are the equivalent statutes enacted the Legislature, the
Regents policies still not satisfy Congress express language that eligibility
established only through the enactment State law. Accordingly, the lower
court ruling the extent proper interpretation Campbell and California
law would put California law into direct conflict with federal law. The lower
court decision would therefore result federal preemption the California
constitutional provision relied Campbell.
The federal government has broad powers establish immigration laws
that the states must follow. Arizona United States, 132 Ct. 2492, 2498 (U.S.
2012) 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, Const. art. cl. and its inherent power sovereign control and conduct relations with foreign nations. State laws may not
undermine federal authority generally, nor particularly the area immigration.
Id. 2500; See also Canas Rica, 424 U.S. 351, 358 (1976) The Federal
Government has broad constitutional powers determining what aliens shall
admitted the United States [and] the regulation their conduct before
naturalization Under the Constitution the states are granted such powers;
they can neither add nor take from the conditions lawfully imposed Congress
upon admission, naturalization and residence aliens the United States the
several states. (internal quotes omitted).
Any state law that inconsistent with federal law (and particularly federal
immigration law) preempted. U.S. Const., art. VI, cl. the Supreme Court
recently explained:
[S]tate laws are preempted when they conflict with federal law. This
includes cases where the challenged state law stands
obstacle the accomplishment and execution the full purposes
and objectives Congress.
Arizona, 132 Ct. 2501. Here, the lower court ruling allowed stand
thwarts the precise purpose Congress enacting Section 1621(d). Congress
intended ensure the utmost political accountability when specified that only
the enactment State law would do. The Regents, and the lower court, would
revise this federal statute permit less-politically accountable state entities also
award benefits aliens. The overwhelming majority the members the Board Regents are appointed, not elected. AA-37. constitutional design, the
Regents are heavily insulated from accountability the people California. See
Cal. Const., art. IX, 9(f) (the University California shall entirely
independent all political sectarian influence and kept free therefrom the
appointment its regents and the administration its affairs.
The lower court ruling relies Campbell, which turn relied Article
IX, Section 9(a) the California Constitution. Cal.4th 320. The lower
court decision therefore puts this section the California Constitution
conflict with federal immigration law, making subject preemption.
result, Section Article the California Constitution, far the conflict
extends, ceases operative. Arizona Inter Tribal Council Ariz., Inc., 133 Ct. 2247, 2254 (2013); see also Crosby Nat Foreign Trade Council, 530
U.S. 363, 373 (2000) Preemption will found where ... the challenged state law
stands obstacle the accomplishment and execution the full purposes and
objectives Congress. What sufficient obstacle matter judgement
informed examining the federal statute whole and identifying its purpose
and intended effects .... (internal quotes omitted); PLIVA, Inc. Mensing, 131
Ct. 2567, 2577 (2011) State law naturally preempted the extent any
conflict with federal statute. (internal quotes omitted).
CONCLUSION
The Court should reverse the lower court decision and remand this case for
further proceedings. First, the three California statutes question not
affirmatively provide that unlawfully present aliens attending schools are
eligible for tuition, financial aid, student loan benefits, required Section
1621. Second, Section 1621 requirement that such eligibility established
only through the enactment State law means that the law must passed
the state legislature. Sound policy reasons support Congress decision require
that such eligibility affirmatively provided the highest, most
democratically accountable branches state government. Third, even the
Regents actions have the force statute under California law, Congress intent
was ensure the highest level state political accountability when making
benefits available aliens, not arbitrarily prescribe certain class laws.
Whatever force Regents policies have, the Regents themselves are not
accountable directly the people California. Any interpretation California
Constitution which conflicts with this purpose Section 1621 preempted
matter law.
For all the foregoing reasons, the Regents actions are illegal under
Section 1621. The Court should reverse the lower court ruling and remand this
matter for further proceedings.
Dated: November 2015
Respectfully submitted, Chris Fedeli
Chris Fedeli, Admitted Pro Hac Vice
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 22204
Tel: (202) 646-5172
Fax: (202) 646-5199
cfedeli@judicialwatch.org
Sterling Norris, SBN 040993
JUDICIAL WATCH, INC.
2540 Huntington Drive, Suite 201
San Marino, 91108
Tel: (626) 287-4540
Fax: (626) 237-2003
jw-west@judicialwatch.org
Attorneys for Plaintiff Signed pursuant Cal. Rules Court 8.77(b) and 8.204(b)(9).
CERTIFICATE COMPLIANCE
Pursuant rule 8.204(c) the California Rules Court, hereby certify
that this brief contains 5,962 words, including footnotes. making this
certification, have relied the word count the computer program used
prepare the brief.
Dated: November 2015
s/Chris Fedeli
Chris Fedeli
Attachment FILED THE COURT APPEAL
SECOND
COURT APPEAL,
APPELLATE DISTRICT, DIVISION
APP-008
Court Appeal Case Number:
Pre-Div
B264487
ATIORNEY PARTY WITHOUT ATTO RNEY (Nam Stale Bar number, and address):
Superior Court Case Number:
BC555614 Sterling Norris (SBN 40993)
Judicial Watch, Inc 2540 Huntington Drive, Suite 201
San Marino, 1108
TELEPHONE NO.:
(626) 287-4540
FOR COURT USE ONLY
FAX (Optional):
E-MAIL ADDRESS (Option al):
ATTORNEY FOR fNameJ
Earl Vries
APPELLANT/PETITIONER:
Earl Vries
RESPONDENT/REAL PARTY INTEREST:
Regents the University California
CERTIFICATE INTERESTED ENTITIES PERSONS
(Check one):
[Z] INITIAL CERTIFICATE
SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate appeal when you file your brief prebriefing motion, application, opposition such
motion application the Court Appeal, and when you file petition for extraordinary writ. You may
also use this form supplemental certificate when you learn changed additional information that must disclosed. This form being submitted behalf the following party
(name):___ __e ______________ ar_ _r___
[Z] There are interested entities persons that must listed this certificate under rule 8.208.
Interested entities persons required listed under rule 8.208 are follows
Full name interested
entity person
Nature interest
(Explain):
(2)
(3)
(4)
(5)
Continued attachment
The undersigned certifies that the above-listed persons entities (corporations, partnerships, firms, any other
association, but not including government entities their agencies) have either (1) ownership interest percent
more the party entity; (2) financial other interest the outcome the proceeding that the justices
should consider determining whether disqualify themselves, defined rule 8.208(e)(2).
Date 13/2015
Sterli Norri
(TYPE PRINT NAME)
(SIGNATURE PARTY
Pag 1of1
Form Approved for Optional Use
Judicial Council lifornia
APP-008 [Rev January 2009]
CERTIFICATE INTERESTED ENTITIES PERSONS
Cal Rul Court, rules 208. 488
www courtm gov
PROOF SERVICE employed the City Washington, District Columbia. over the age and not party the within action. business address 425 Third Street SW,
Suite 800, Washington, 20024. July 13, 2015, served the foregoing document described as:
CERTIFICATE INTERESTED ENTITIES PERSONS the parties this action placing true and correct copy thereof sealed
envelope addressed follows:
Counsel for Defendant Earl Vries Regents the University California,
Appeal No. B264487
Benjamin Horwich
Munger, Tolles Olson LLP
560 Mission Street, Twenty-Seventh Floor
San Francisco, 94105-2907
Tel: (415) 512-4000
Fax: (213) 687-3702 delivered said documents authorized courier driver authorized receive
documents, envelope package designated the express service carrier with
delivery fees paid provided for, addressed the person whom served
the next business day. declare under penalty perjury the laws the State California that
employed the office member the bar this Court whose direction the service
was made, that the foregoing true and correct, and that this declaration was executed
July 13, 2015, Washington,
___
~~g
~hris Fedeli
Chris Fedeli
From:
Sent:
To:
Subject:
esub1, 2d1 
Monday, July 13, 2015 3:36
Chris Fedeli
RE: E-File Case B264487, Vries Regents the, Submitted 07-13-2015 12:34
Thank you. have received your Certificate Interested Entities Persons. clerk will contact you there are problems with filing this document.
California Court Appeal
Second Appellate District
PROOF SERVICE employed the City Washington, District Columbia. over the age and not party the within action. business
address 425 Third Street, SW, Suite 800, Washington, 20024.
November 2015, served the foregoing documents:
APPELLANT OPENING BRIEF APPEAL and
APPELLANT APPENDIX the parties this action and the lower court placing true and
correct copies thereof sealed envelopes addressed follows:
Benjamin Horwich
Munger, Tolles Olson LLP
560 Mission Street, Twenty-Seventh Floor
San Francisco, 94105
Tel: (415) 512-4000
The Hon. Gail Feuer, c/o Clerk Court
Superior Court California, Los Angeles County
Stanley Mosk Courthouse
111 North Hill Street
Los Angeles, 90012
Tel: (213) 830-0878 delivered said documents courier driver authorized
receive documents, envelope package designated the express
service carrier with delivery fees paid provided for, addressed the
person whom served the next business day. declare under penalty perjury the laws the State
California that employed along with member the bar this Court whose direction the service was made, that the foregoing true and
correct, and that this declaration was executed November 2015
Washington, DC. Chris Fedeli
___________________________
Chris Fedeli Pursuant Cal. Rules Court 8.77(a), copy the original signed,
printed form this document will kept file.