The law waits for no one, not even The Complex Litigator (who has just finished a long deposition excursion, interspersed with efforts to encrust his face with powdered sugar as he jams beignets in his pie-hole). In that regard (the law, not the beignets), the Court of Appeal, in Martinez, et al. v. Regents of the University of California, et al. (September 15, 2008, Third Appellate District), essentially held that California Education Code § 68130.5
violates is preempted by United States Code (U.S.C.) section 1623 by allowing certain "illegal immigrants" to pay lower (roughly $17,000 lower) resident tuition rates.
The case was filed as a class action by "United States citizens who pay nonresident tuition for enrollment at California’s public universities/colleges . . . ." (Slip op., at pp. 2-3.) But this case is interesting because it runs squarely into a socio-political minefield that is probably even more contentious a topic than the recent same-sex marriage decision from the California Supreme Court. You know a case is going to be worth a read when a footnote is probably enough to incite public protests:
“Defendants prefer the term “undocumented immigrants.” However, defendants do not cite any authoritative definition of the term and do not support their assertion that the terms “undocumented mmigrant” and “illegal alien” are interchangeable. We consider the term “illegal alien” less ambiguous. Thus, under federal law, an “alien” is “any person not a citizen or national of the United States.” (8 U.S.C. § 1101(a)(3).) A “national of the United States” means a U.S. citizen or a noncitizen who owes permanent allegiance to the United States. (8 U.S.C. § 1101(a)(22).) Under federal law, “immigrant” means every alien except those classified by federal law as nonimmigrant aliens. (8 U.S.C. § 1101(a)(15).) “Nonimmigrant aliens” are, in general, temporary visitors to the United States, such as diplomats and students who have no intention of abandoning their residence in a foreign country. (8 U.S.C. § 1101(a)(15)(F), (G); Elkins v. Moreno (1978) 435 U.S. 647, 664-665 [55 L.Ed.2d 614, 627-628] [under pre-1996 law, held the question whether nonimmigrant aliens could become domiciliaries of Maryland for purposes of in-state college tuition was a matter of state law].) The federal statutes at issue in this appeal refer to “alien[s] who [are] not lawfully present in the United States.” (8 U.S.C. §§ 1621(d), 1623.) In place of the cumbersome phrase “alien[s] who [are] not lawfully present,” we shall use the term “illegal aliens.”
(Slip op., at p. 3.) Having settled on "illegal alien" as the operative nomenclature, the Court moved on to the actual questions at issue. First, the Court of Appeal addressed a number of procedural issue after the defendants argued that plaintiffs had waived or forfeited certain arguments by not raising them in the trial court:
“We reject defendants’ position that plaintiffs cannot raise
new theories on appeal that they did not allege in their
complaint or present in the trial court. When a demurrer is
sustained without leave to amend, the plaintiff may advance on
appeal new legal theories as to why the complaint’s allegations
state, or can be amended to state, a cause of action.
(Slip op., at p. 17.) However, the Court of Appeal concluded that plaintiffs failed to adequate raise an issue in their Opening Brief regarding whether a private right of action exists for violation of title 8 U.S.C. section 1623. (Slip op., at pp. 17-23.) The Court of Appeal then spends almost nine pages addressing arguments about the trial court's failure to grant judicial notice to various materials. In some other post I will comment on what I believe to be the pandemic misuse of requests for judicial notice, but with respect to this opinion, one has the sense that this Court is painfully aware of the potential for much higher levels of scrutiny of this opinion. They seem to be dotting i's and crossing t's that would normally be relegated to footnote commentary, if that.
Finally turning to the merits, the Court of Appeal quickly dismissed an argument by plaintiffs that they could "amend the complaint to allege a viable claim that section 68130.5 constitutes discrimination in violation of section 68062." (Slip op., at p. 33.) The Court noted that any conflict between section 68062 and 68130.5 would not be resolved in plaintiffs' favor, given that section 68130.5 was enacted after 68062, triggering application of the doctrine of implied repeal.
The Court then turned to the question of federal preemption. First, the Court identified De Canas v. Bica (1976) 424 U.S. 351 [47 L.Ed.2d 43] as authority identifying three tests to be used in determining whether a state statute related to immigration is preempted. (Slip op., at p. 35.) "First, the court must determine whether the state statute is a 'regulation of immigration' (i.e., a determination of who should or should not be admitted into the country and the conditions under which a legal entrant may remain)." (Slip op., at p. 35.) "Second, even if the state statute does not regulate immigration, it is preempted if Congress manifested a clear purpose to effect a complete ouster of state power, including state power to promulgate laws not in conflict with federal laws, with respect to the subject matter which the statute attempts to regulate." (Slip op., at pp. 35-36.) "Third, a state law is preempted if it 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" (Slip op., at p. 36.) Applying this test, the Court concluded that plaintiffs stated a cause of action for federal preemption.
In its analysis, the Court determined that in-state tuition is, in fact, a benefit to the recipients of that lower tuition rate:
“Defendants argue the term “benefit” in title 8 U.S.C.
section 1623 is limited, because the federal statute refers to
“amount,” which means monetary payments, and in-state tuition
does not involve the payment of any money to students. However,
defendants cite no authority supporting their illogical
assumption that “amount” must mean monetary payment to the
(Slip op., at p. 38.) The Court then spends nearly 20 pages of its opinion considering whether section 68130.5 constitutes a de facto residency surrogate. (Slip op., at pp. 42-61.) The Court ultimately concludes that section 68130.5 was intended to benefit illegal aliens on the basis of residency in California.
The Court then determined that section 68130.5 was preempted by federal law. In part, the Court determined that section 68130.5 interferes with an important federal policy: "It is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits." (Slip op., at p. 65, citing title 8 U.S.C. section 1601.) Using much of the same analysis, the Court held that "plaintiffs have stated a cause of action that section 68130.5 is preempted by title 8 U.S.C. section 1621," which generally precludes certain public education benefits to illegal aliens.
Several other claims were found insufficient by the Court of Appeal, but because several claims were found to have legal sufficiency, the Court reversed and remanded to the trial court.
I will be curious to see whether this case is reviewed by the California Supreme Court or the United States Supreme Court.