De Vries v. Regents of UC

Filed 12/9/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
EARL DE VRIES, B264487
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC555614)
v.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Elizabeth Allen White, Judge. Affirmed.
Judicial Watch, Inc., Sterling E. Norris and Chris Fedeli
(admitted pro hac vice) for Plaintiff and Appellant.
Office of the General Counsel University of California,
Charles F. Robinson, Karen J. Petrulakis and Margaret L. Wu;
Munger, Tolles & Olson, Bradley S. Phillips (Los Angeles) and
Benjamin J. Horwich (San Francisco) for Defendant and
Respondent.
INTRODUCTION
Federal law makes undocumented immigrants ineligible for
state and local public benefits, but allows a state to “affirmatively
provide[] for such eligibility” through “the enactment of a State
law.” (8 U.S.C. § 1621(d).) The California Constitution generally
gives the Regents of the University of California plenary
authority to establish rules and policies to govern the internal
affairs of the University of California. The issue in this appeal is
whether three California legislative “enactments” affirmatively
provide “eligibility” under federal law for postsecondary
education benefits to qualified undocumented immigrants who
attend the University of California, even though the statutes
require only the California State University and California
community colleges to provide such benefits. We conclude that,
even though the California Constitution may preclude the
Legislature from actually conferring postsecondary education
benefits on undocumented immigrants attending the University
of California, the Legislature has made these students “eligible”
for such benefits within the meaning of the federal statute.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996 Congress passed the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, which, among
many other things, made undocumented immigrants1 ineligible
1 The Personal Responsibility and Work Opportunity
Reconciliation Act refers to undocumented immigrants as
2
for certain state and local public benefits, including benefits
related to postsecondary education. (8 U.S.C. § 1621 (section
1621).) The same law, however, gives states authority to make
undocumented immigrants “eligible for any State or local public
benefit for which such [undocumented immigrant] would
otherwise be ineligible under [section 1621] only through the
enactment of a 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
“alien[s]” who are not qualified for public benefits under various
federal laws. (See 8 U.S.C. § 1621(a).) We use the term
“undocumented immigrant” to refer to “a non-United States
citizen who is in the United States but who lacks the immigration
status required by federal law to be lawfully present in this
country and who has not been admitted on a temporary basis as a
nonimmigrant” (In re Garcia (2014) 58 Cal. 4th 440, 446, fn. 1),
which encompasses the category of persons referred to as
unqualified “aliens” in title 8 United States Code section 1621.
Assembly Bill No. 540 (A.B. 540), one of the California statutes at
issue in this case, used both “undocumented immigrant” and
“nonimmigrant alien” to refer to the same class of people. (See
Stats. 2001, ch. 814, §§ 1, subd. (a)(4), 2, subd. (a).) The current
version of Education Code section 68130.5, which A.B. 540 added,
refers to the same class of people as “nonimmigrant foreign
national[s] within the meaning of paragraph (15) of subsection (a)
of Section 1101 of Title 8 of the United States Code.”
(Educ. Code, § 68130.5, subd. (a).)
3
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’s power
to regulate the University of California (UC) and the Regents of
the University of California (the Regents),2 which administers
the University of California. (Cal. Const., art. IX, § 9, subd. (a).)
Those limits traditionally extend to matters “involving internal
university affairs,” with a few exceptions. (San Francisco
Labor Council v. Regents of University of California (1980)
26 Cal. 3d 785, 789 (Labor Council); People v. Lofchie (2014)
229 Cal. App. 4th 240, 250.)3 Because of its constitutional
autonomy, the Regents (rather than the Legislature) adopted
three policies to provide the benefits identified in A.B. 540,
A.B. 131, and S.B. 1210 to qualified undocumented immigrant
students attending the University of California. (Regents of U.C.,
Policy 3106.1.C; Policy 3202.2; Policy 3202.3.)
2 We refer to “the Regents” in the singular because the
California Constitution created a “corporation known as ‘The
Regents of the University of California,”’ a singular noun.
(Cal. Const., art. IX, § 9, subd. (a).) Some decisions, statutes,
and legislative materials we quote in this opinion refer to “the
Regents” as a plural noun.
3 Neither party contends that any of these exceptions apply
here.
4
Earl De Vries, a California taxpayer, filed this action
against the Regents, alleging that none of its policies qualifies
under section 1621(d) as a “State law” making undocumented
immigrants eligible for postsecondary education benefits.
De Vries further alleged that the Legislature has not enacted any
statute that “affirmatively provid[es]” eligibility for the benefits
the University of California now gives to undocumented
immigrants, as required by section 1621(d). Indeed, De Vries
alleged that the Legislature could never confer such eligibility
because the Constitution prohibits the Legislature from
regulating the University of California. De Vries sought to enjoin
the Regents “from expending or causing the expenditure of
taxpayer funds and taxpayer-financed resources to exempt
unlawfully present aliens from paying nonresident supplemental
tuition and to allow unlawfully present aliens to apply for and
participate in state-administered financial aid programs.”
The Regents demurred. It argued that the California
Supreme Court’s decision in Martinez v. Regents of the University
of California (2010) 50 Cal. 4th 1277 (Martinez), which held the
exemption in A.B. 540 from nonresident tuition complies with the
“affirmatively provides” requirement of section 1621(d), forecloses
De Vries’s current challenge, and that the analysis in Martinez
applies equally to the financial aid program in A.B. 131 and the
student loan program in 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 of section 1621(d) with
respect to UC students and, even if they did not, the policies of
the Regents satisfy section 1621(d) because they have the force
and effect of “state law.” In opposition to the demurrer, De Vries
argued that the Supreme Court in Martinez did not address the
5
University of California’s “unique, constitutionally independent
status,” nor did the Supreme Court determine “whether the
Regents’s resolution purportedly making AB 540 applicable to
[the University] satisfies Section 1621” because the parties in
that case stipulated that A.B. 540 applied to the University of
California.
The trial court sustained the demurrer with leave to
amend, concluding that the Regents’s policies satisfy section
1621(d). The court cited California and United States Supreme
Court authorities stating that “‘policies established by the
Regents as matters of internal regulation may enjoy a status
equivalent to that of state statutes.’” (Emphasis deleted.)
(See, e.g., Hamilton v. Regents of the University of California
(1934) 293 U.S. 245, 258; Kim v. Regents of University of
California (2000) 80 Cal. App. 4th 160, 164-165; Regents of
University of California v. City of Santa Monica (1978)
77 Cal. App. 3d 130, 135.) Thus, the trial court ruled that the
Regents’s policies “adopting the exemption codified in AB540, the
eligibility for state-administered financial aid programs codified
in AB131 and eligibility for the student loan program codified in
SB1210 would qualify as a ‘State law . . . which affirmatively
provides for such eligibility’ of State or local benefit for purposes
of 8 U.S.C. § 1621(d).”
After De Vries failed to file an amended complaint, the trial
court dismissed the action with prejudice and entered judgment
for the Regents. De Vries timely appealed.
6
DISCUSSION
De Vries makes two principal arguments. First, he argues
that the Legislature has not passed any statutes affirmatively
providing eligibility for benefits to UC students who are
undocumented immigrants. Second, he contends the trial court
erred by concluding that the Regents’s policies constitute “state
laws” that comply with section 1621(d).
“On review from an order sustaining a demurrer, ‘we
examine the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory,
such facts being assumed true for this purpose.’” (Committee for
Green Foothills v. Santa Clara County Bd. of Supervisors (2010)
48 Cal. 4th 32, 42; accord, McCall v. PacifiCare of Cal., Inc. (2001)
25 Cal. 4th 412, 415.) We also review de novo questions of
statutory construction. (Lee v. Hanley (2015) 61 Cal. 4th 1225,
1232; Davis v. Fresno Unified School District (2015) 237
Cal. App. 4th 261, 275.) “‘We affirm if any ground offered in
support of the demurrer was well taken but find error if the
plaintiff has stated a cause of action under any possible legal
theory. [Citations.] We are not bound by the trial court’s stated
reasons, if any, supporting its ruling; we review the ruling, not its
rationale.’” (Walgreen Co. v. City and County of San Francisco
(2010) 185 Cal. App. 4th 424, 433; accord, Acuna v. San Diego Gas
& Electric Co. (2013) 217 Cal. App. 4th 1402, 1411.)
7
A. Statutory and Constitutional Framework
1. Title 28 United States Code Section 1621
Congress enacted section 1621 as part of 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 in a
chapter entitled “Restricting Welfare and Public Benefits for
Aliens.”
Section 1621(a) provides: “Notwithstanding any other
provision of law and except as provided in subsections (b) and (d)
of this section, an alien who is not— [¶] (1) a qualified alien (as
defined in section 1641 of this title),[4] [¶] (2) a nonimmigrant
under the Immigration and Nationality Act [8 U.S.C. § 1101
et seq.], or [¶] (3) an alien who is paroled into the United States
under section 212(d)(5) of such Act [8 U.S.C. § 1182(d)(5)] for less
4 Title 8 United States Code section 1641 defines the term
“qualified alien” as “(1) an alien who is lawfully admitted for
permanent residence under the Immigration and Nationality Act
[8 U.S.C. § 1101 et seq.], [¶] (2) an alien who is granted asylum
under section 208 of such Act [8 U.S.C. § 1158], [¶] (3) a refugee
who is admitted to the United States under section 207 of such
Act [8 U.S.C. § 1157], [¶] (4) an alien who is paroled into the
United States under section 212(d)(5) of such Act [8 U.S.C.
§ 1182(d)(5)] for a period of at least 1 year, [¶] (5) an alien whose
deportation is being withheld under section 243(h) of such Act
[8 U.S.C. § 1253] . . . or section 241(b)(3) of such Act [8 U.S.C.
§ 1251(b)(3)] . . . , [¶] (6) an alien who is granted conditional entry
pursuant to section 203(a)(7) of such Act [8 U.S.C. § 1153(a)(7)]
as in effect prior to April 1, 1980; or [¶] (7) an alien who is a
Cuban [or] Haitian entrant (as defined in section 501(e) of the
Refugee Education Assistance Act of 1980).” (Fn. omitted.)
8
than one year, [¶] is not eligible for any State or local public
benefit (as defined in subsection (c) of this section).” This case
concerns undocumented immigrants who do not fall within any of
the exempt categories of “aliens” listed in section 1621(a).
Section 1621(c) defines “State or local public benefit” to
include, among other things, “any . . . postsecondary
education . . . benefit for which payments or assistance are
provided to an individual, household, or family eligibility unit by
an agency of a State or local government or by appropriated
funds of a State or local government.” The parties do not
dispute that the resident tuition exemption in A.B. 540, the
financial aid programs in A.B. 131, and the student loan
programs in S.B. 1210 are “State or local public benefits” within
the meaning of section 1621(c).
Section 1621(d) states: “A State may provide that an alien
who is not lawfully present in the United States is eligible for any
State or local public benefit for which such alien would otherwise
be ineligible under subsection (a) of this section only through the
enactment of a State law after August 22, 1996, which
affirmatively provides for such eligibility.” (Italics added.) As
noted, De Vries contends that neither A.B. 540, nor A.B. 131, nor
S.B. 1210 “affirmatively provides for such eligibility” for
UC students, and that policies the Regents adopted to implement
A.B. 540, A.B. 131, and S.B. 1210 are not “enactments of State
law” within the meaning of section 1621(d).
2. The University’s Status Under the California
Constitution
The University of California is a public trust established
pursuant to article IX, section 9, of the California Constitution as
9
follows: “(a) The University of California shall constitute a public
trust, to be administered by the existing corporation known as
‘The Regents of the University of California,’ with full powers of
organization and government, subject only to such legislative
control as may be necessary to insure the security of its funds
and compliance with the terms of the endowments of the
university and such competitive bidding procedures as may be
made applicable to the university by statute for the letting of
construction contracts, sales of real property, and purchasing of
materials, goods, and services.” Article IX, section 9(f), further
provides, in part: “The university shall be entirely independent
of all political or sectarian influence and kept free therefrom in
the appointment of its regents and in the administration of its
affairs.”
“The California Supreme Court has recognized that
‘[a]rticle IX, section 9, grants the regents broad powers to
organize and govern the university and limits the Legislature’s
power to regulate either the university or the regents.’ [Citation.]
This constitutional grant of power to the Regents includes both
quasi-judicial and quasi-legislative powers, according [the
Regents] ‘virtual autonomy in self-governance.’ [Citation.] ‘“The
Regents have the general rule-making or policy-making power in
regard to the University . . . and are . . . fully empowered with
respect to the organization and government of the University.”’”
(People v. Lofchie, supra, 229 Cal.App.4th at pp. 248-249,
fn. omitted, quoting Regents of University of California v.
Superior Court (1970) 3 Cal. 3d 529, 540, and Regents of
University of California v. City of Santa Monica (1978) 77
Cal. App. 3d 130, 135.)
10
As a result, “[t]he Regents may . . . exercise quasi-
legislative powers, subject to legislative regulation. Indeed,
‘[p]olicies established by the Regents as matters of internal
regulation may enjoy a status equivalent to that of state
statutes.’’’ (Campbell v. Regents of University of California (2005)
35 Cal. 4th 311, 320, quoting Regents of University of California v.
City of Santa Monica, supra, 77 Cal.App.3d at p. 135; see, e.g.,
Hamilton v. Regents of the University of California (1934) 293
U.S. 245, 258 [a Regents order making military instruction
compulsory “is a statute of the state within the meaning of [a
statute establishing federal jurisdiction]”]; Campbell v. Regents of
University of California, at p. 321 [a Regents policy for handling
whistleblower claims under its power to govern and organize the
University is treated as a statute in order to determine whether
the exhaustion doctrine applies]; see also Lachtman v. Regents of
University of California (2007) 158 Cal. App. 4th 187, 207; Kim v.
Regents of University of California, supra, 80 Cal.App.4th at
p. 165.)
In some circumstances, state legislation concerning matters
outside those specifically enumerated in the Constitution may
apply to the University of California. The Supreme Court has
deemed some such laws “matters of statewide concern” and has
considered whether the law in question “would infringe upon
sovereign governmental powers.” (Regents of University of
California v. Superior Court (1976) 17 Cal. 3d 533, 536; see Labor
Council, supra, 26 Cal.3d at p. 789 [“legislation regulating public
agency activity not generally applicable to the public may be
made applicable to the university when the legislation regulates
matters of statewide concern not involving internal university
affairs”]; Regents of University of California v. Superior Court,
11
at p. 536.) Neither side argues that A.B. 540, A.B. 131, or S.B.
1210 addresses “matters of statewide concern.”
3. State Enactments Making Undocumented
Immigrants Eligible for Postsecondary
Education Benefits
a. A.B. 540 and nonresident tuition
Education Code section 68040 provides,5 “Each student
shall be classified as a resident or nonresident at the University
of California, the California State University, or the California
Maritime Academy or at a California community college.”
Section 68050 provides, “A student classified as a nonresident
shall be required, except as otherwise provided in this part, to
pay, in addition to other fees required by the institution,
nonresident tuition.” “Thus, nonresidents must generally pay
nonresident tuition at public universities and colleges in
California.” (Martinez, supra, 50 Cal.4th at p. 1286.)
In 2001 the Legislature enacted A.B. 540. Section 1 of A.B.
540 states in relevant part: “The people of the State of California
do enact as follows: [¶] (a) The Legislature hereby finds and
declares all of the following: [¶] (1) There are high school pupils
who have attended elementary and secondary schools in this
state for most of their lives and who are likely to remain, but are
precluded from obtaining an affordable college education because
they are required to pay nonresident tuition rates.” (Stats. 2001,
ch. 814, § 1, subd. (a)(1).) Section 1, subdivision (a)(4), states:
5 Statutory references are to the Education Code unless
otherwise indicated.
12
“This act . . . allows all persons, including undocumented
immigrant students who meet the requirements set forth in
Section 68130.5 of the Education Code, to be exempt from
nonresident tuition in California’s colleges and universities.”
(Stats. 2001, ch. 814, § 1, subd. (a)(4).)
Section 2 of A.B. 540 added section 68130.5 to Part 41,
article 11 of the Education Code. Section 68130.5, as amended,
provides:
“(a) A student, other than a nonimmigrant foreign
national within the meaning of paragraph (15) of subsection (a)
of section 1101 of Title 8 of the United States Code, who meets all
of the following requirements shall be exempt from paying
nonresident tuition at the California State University and the
California Community Colleges:
“(1) Satisfaction of either of the following:
“(A) High school attendance in California for
three or more years.
“(B) Attainment of credits earned in California
from a California high school equivalent to three or more years of
full-time high school coursework and a total of three or more
years of attendance in California elementary schools, California
secondary schools, or a combination of those schools.
“(2) Graduation from a California high school or
attainment of the equivalent thereof.
“(3) Registration as an entering student at, or current
enrollment at, an accredited institution of higher education in
California not earlier than the fall semester or quarter of the
2001-02 academic year.
“(4) In the case of a person without lawful
immigration status, the filing of an affidavit with the institution
13
of higher education stating that the student has filed an
application to legalize his or her immigration status, or will file
an application as soon as he or she is eligible to do so.
“(b) A student exempt from nonresident tuition under this
section may be reported by a community college district as a full-
time equivalent student for apportionment purposes.
“(c) The Board of Governors of the California Community
Colleges and the Trustees of the California State University shall
prescribe rules and regulations for the implementation of this
section.
“(d) Student information obtained in the implementation of
this section is confidential.”
Section 68134 is part of Part 41, Chapter 1, article 11 of the
Education Code. Section 68134, which predates the enactment of
A.B. 540, provides: “No provision of this part shall be applicable
to the University of California unless the Regents of the
University of California, by resolution, make such provision
applicable.”
b. A.B. 131 and financial aid programs
In 2011 the Legislature enacted A.B. 131. (Stats. 2011,
ch. 604.) The bill separately addressed financial aid programs
administered by the University of California (commonly referred
to as “UC Grants”) and those administered by the State of
California (commonly referred to as “Cal Grants”). Section 1
of A.B. 131 added section 66021.6 regarding eligibility for
UC Grants. It provides in relevant part: “Notwithstanding any
other law, and except as provided for in subdivision (b), the
Trustees of the California State University and the Board of
Governors of the California Community Colleges shall, and the
14
Regents of the University of California are requested to, establish
procedures and forms that enable persons who are exempt from
paying nonresident tuition under Section 68130.5, or who meet
equivalent requirements adopted by the regents, to apply for, and
participate in, all student aid programs administered by these
[schools] to the full extent permitted by federal law. The
Legislature finds and declares that this section is a state law
within the meaning of Section 1621(d) of Title 8 of the United
States Code.”
Section 3 of A.B. 131 added section 69508.5 regarding
eligibility for Cal Grants. It provides in relevant part:
“Notwithstanding any other law, and except as provided for in
subdivision (c), a student who meets the requirements of
subdivision (a) of Section 68130.5, or who meets equivalent
requirements adopted by the Regents of the University of
California, is eligible to apply for, and participate in, any student
financial aid program administered by the State of California to
the full extent permitted by federal law. The Legislature finds
and declares that this section is a state law within the meaning
of [section 1621(d)] of Title 8 of the United States Code.”
c. S.B. 1210 and student loan programs
Most recently, in 2014, the Legislature enacted S.B. 1210
(referred to as the California DREAM Loan Act) to make
undocumented immigrants eligible for certain student loan
programs. (Stats. 2014, ch. 754.) Section 2 of S.B. 1210 states:
“Since 2002, students have been exempt from paying nonresident
tuition and fees at the California Community Colleges, the
California State University, and the University of California
pursuant to Section 68130.5. Commencing in 2011, these
15
students were eligible for state financial aid or financial aid
offered by these public institutions. Nevertheless, many of these
students remain ineligible for federal student aid for reasons
beyond their control. Lack of access to federal student loans
presents a substantial barrier for these students to obtain a
baccalaureate degree from the California State University or the
University of California.” (Stats. 2014, ch. 754, § 2, subd. (b).)
“The California DREAM Loan Act addresses this barrier by
providing access to additional state aid so students may take full
advantage of the educational opportunities offered at the
California State University and the University of California.”
(§ 2, subd. (c).)
Section 3 of S.B. 1210 added several provisions to the
Education Code, including sections 70032 and 70033.
Section 70032, subdivision (i), defines “Participating institution”
to include “any campus of the . . . University of California that
elects to participate in the DREAM Program pursuant to the
requirements specified for a qualifying institution.” Section
70033, subdivisions (a) and (a)(1), provide, “Commencing with the
2015-16 academic year, a student attending a participating
institution may receive a loan under the DREAM Program if the
student satisfies all of the following requirements,” including that
the “student is exempt from paying nonresident tuition under
Section 68130.5, or meets equivalent requirements adopted by
the Regents of the University of California.”
16
4. The Regents’s Policies Making Undocumented
Immigrants Eligible for Postsecondary
Education Benefits
The Regents adopts standing orders and policies for the
University of California. (Regents of U.C., Policy 1000.)
Following the Legislature’s enactments of A.B. 540, A.B. 131, and
S.B. 1210, the Regents adopted corresponding policies for
UC students. Regents Policy 3106.1.C addresses nonresident
tuition and provides: “The University of California shall exempt
students from tuition and/or fees or waive tuition and/or fees, as
set forth below. . . . [¶] [¶] . . . as provided in [Education Code]
Section 68130.5 (AB 540).” (Regents of U.C., Policy 3106.1.C.)
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 in part:
“The University of California shall extend financial aid to any
student exempt from paying nonresident tuition under California
Education Code Section 68130.5 and Regents Policy 3106.”
(Regents of 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 of U.C., Policy Nos. 3202.2,
3202.3.)
B. Enactments and Eligibility Under Section 1621(d)
As noted, section 1621(d) allows a state to make
undocumented immigrants eligible for postsecondary education
benefits “through the enactment of a State law . . . which
affirmatively provides for such eligibility.” De Vries argues that
17
A.B. 540, A.B. 131, and S.B. 1210 do not provide eligibility for
UC students because those measures apply only to students of
California State University and California community colleges.
~(AOB 15)~ In so doing, De Vries suggests that the requirement
of section 1621(d) that state laws provide “eligibility” for state or
local public benefits means that such laws must actually confer
benefits on qualified undocumented immigrants. De Vries
further argues that, because the University of California’s
constitutional status precludes the Legislature from making
UC students eligible for benefits under section 1621(d), no
legislative enactment can ever comply with section 1621(d) with
respect to UC students.
The Regents contends that Martinez controls this case
because the Supreme Court’s opinion in 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 De Vries challenges are “materially indistinguishable
from the nonresident tuition exemption,” Martinez dictates that
those “parallel authorizations” also satisfy section 1621(d). In the
alternative, the Regents argues that its policies are “state law”
within the meaning of section 1621(d) and that, at a minimum,
the acts of the Legislature in combination with Regents policies
satisfy federal law.
1. Martinez Is Not Controlling
Preliminarily, we agree with De Vries that Martinez is not
controlling. In Martinez the Supreme Court considered a
challenge to A.B. 540 under section 1621 and another provision of
18
the Personal Responsibility and Work Opportunity Reconciliation
Act that prohibits undocumented immigrants from receiving
postsecondary education benefits on the basis of their residence.
(Martinez, supra, 50 Cal.4th at pp. 1284, 1294; see 8 U.S.C.
§ 1623).) With respect to section 1621, the plaintiffs alleged the
defendants, including the Regents, the Board of Trustees of 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, at p. 1294.) The parties stipulated that
“the Regents have, by resolution, made [A.B. 540] applicable” to
undocumented immigrants. (Martinez, at p. 1287, fn. 1.)
The Supreme Court held that A.B. 540 satisfies the
requirement of section 1621(d) that a state law “affirmatively
provide” eligibility for undocumented immigrants to receive State
or local public benefits.6 (Martinez, supra, 50 Cal.4th at p. 1295.)
The court, however, did not define or interpret the term
“eligibility.” Moreover, unlike De Vries, the plaintiffs in Martinez
did not argue that the Legislature could not make UC students
eligible for public benefits because of the University of
6 The Supreme Court in Martinez also held that a state
statute does not comply with section 1621(d) unless it “‘expressly
state[s] that it applies to undocumented aliens, rather than
conferring a benefit generally without specifying that its
beneficiaries may include undocumented aliens.’” (Martinez,
supra, 50 Cal.4th at p. 1296; see Garcia, supra, 58 Cal.4th at
p. 458.) De Vries does not argue that either A.B. 131 or S.B. 1210
fails to comply with this standard; indeed, he appears to concede
that each statute does comply.
19
California’s constitutional status. The Supreme Court in
Martinez did not address that specific question in connection with
A.B. 540, and it did not decide that or any other issue in
connection with A.B. 131 or S.B. 1210. Martinez, therefore, does
not control the outcome of this case.
2. A.B. 540, A.B. 131, and S.B. 1210 Are
“Enactments of State Law”
The Personal Responsibility and Work Opportunity
Reconciliation Act does not define the phrase “enactment of a
State law” in section 1621(d). De Vries argues that these words
require “an enactment of the state legislature,” while the Regents
argues that the phrase is broader and includes measures such as
the quasi-legislative acts of the Regents. We need not decide
whether the Regents’s broader view is correct because, even
under De Vries’s narrower standard, A.B. 540, A.B. 131, and
S.B. 1210 are “enactments of 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 by the Governor Oct. 12, 2001];
Stats. 2011, ch. 604 [approved by the Governor Oct. 8, 2011];
Stats. 2014, ch. 754 [approved by the Governor Sept. 27, 2014].)
Even under De Vries’s theory, they qualify as enactments under
section 1621(d), and De Vries does not contend otherwise.
Indeed, each of the three measures contains the prefatory
language, “The people of the State of California do enact as
follows,” confirming that it is an “enactment of a State law.” (See
Branch v. Smith (2003) 538 U.S. 254, 264 [“[a]n ‘enactment’ is the
product of legislation, not adjudication,” citing the definition of
“enact” in Webster’s New Internat. Dict. (2d ed. 1949) p. 841 as
20
“‘[t]o make into an act or law; esp., to perform the legislative act
with reference to (a bill) which gives it the validity of law’”]; see
also Grinzi v. San Diego Hospice Corp. (2004) 120 Cal. App. 4th
72, 86 [an uncodified section of an act “is fully part of the law”
and “must be read together with provisions of codes”].)
3. The Meaning of “Eligibility” Under
Section 1621(d)
The Personal Responsibility and Work Opportunity
Reconciliation Act also does not define or interpret the word
“eligibility” in section 1621(d). “When a term goes undefined in a
statute, we give the term its ordinary meaning.” (Taniguchi v.
Kan Pacific Saipan, Ltd. (2012) U.S. , [132 S. Ct. 1997,
2002] (Taniguchi); see Crawford v. Metropolitan Government of
Nashville and Davidson County, Tenn. (2009) 555 U.S. 271, 276
[“[t]he term ‘oppose,’ being left undefined by the statute, carries
its ordinary meaning”]; Hardt v. Reliance Standard Life Ins. Co.
(2010) 560 U.S. 242, 251 [we assume that “‘the ordinary meaning
of [a statute’s] language accurately expresses the legislative
purpose’”]; see also People v. Barros (2012) 209 Cal. App. 4th
1581, 1593 [using “[t]he plain meaning of the word ‘proceeding’”
where the phrase was “not defined in the statute”]; Arnall v.
Superior Court (2010) 190 Cal. App. 4th 360, 369 [“we look first
to the term’s ‘plain meaning’ for guidance” when the statute
does not define the term]; In re Eureka Reporter (2008)
165 Cal. App. 4th 891, 897 [turning to the “plain and
commonsense meaning” of a term not defined in the statute].)
In divining a term’s “ordinary meaning,” courts regularly
turn to general and legal dictionaries. (See, e.g., Freeman v.
Quicken Loans, Inc. (2012) U.S. , ___, 132 S. Ct. 2034, 2041-
21
2042; Taniguchi, supra, U.S. at p. , 132 S.Ct. at p. 2002;
Lopez v. Gonzales (2006) 549 U.S. 47, 53-54; MCI
Telecommunications Corp. v. American Tel. & Tel. Co. (1994)
512 U.S. 218, 225 (MCI Telecommunications); see also Outfitter
Properties, LLC v. Wildlife Conservation Bd. (2012)
207 Cal. App. 4th 237, 244 [“[w]e use the ordinary dictionary
meaning of terms when terms are not defined in the statute”];
County of Sacramento v. State Water Resources Control Bd.
(2007) 153 Cal. App. 4th 1579, 1592 [“‘[a] dictionary is a proper
source to determine the usual and ordinary meaning of a word or
phrase in a statute’”]; Stamm Theatres, Inc. v. Hartford Casualty
Ins. Co. (2001) 93 Cal. App. 4th 531, 539 [“‘courts . . . turn to
general dictionaries when they seek to ascertain the “ordinary”
meaning of words used in a statute’”].) Merriam-Webster’s
Collegiate Dictionary defines “eligible” (the adjective form of the
noun “eligibility”) as “qualified to participate or be chosen.”
(Merriam-Webster’s Collegiate Dict. (11th ed. 2014) p. 404; see
American Heritage Dict. (2d ed. 1985) p. 446 [“eligible” means
“[q]ualified, as for an office or position”]; 5 Oxford English Dict.
(2d ed. 1989) p. 140 [“eligibility” means “[f]itness to be chosen or
preferred”].) Black’s Law Dictionary similarly defines “eligible”
as “[f]it and proper to be selected or to receive a benefit; legally
qualified for an office, privilege, or status.” (Black’s Law Dict.
(10th ed. 2014) p. 634, col. 1; see also Ballentine’s Law Dictionary
(3d ed. 1969) p. 396 [“eligibility” means “[f]itness for selection”].)
Thus, the ordinary meaning of “eligibility” connotes qualification
for a benefit, not entitlement to that benefit.7
7 Webster’s New International Dictionary and its abridged
version published as Webster’s New Collegiate Dictionary include
22
Another provision of the Personal Responsibility and Work
Opportunity Reconciliation Act enacted at the same time as
section 1621 confirms this interpretation of the word “eligibility”
as used in section 1621(d). (See Taniguchi, supra, U.S. at
p. ___ [132 S.Ct. at pp. 2004-2005] [considered together, other
provisions of the same act provide “strong contextual clue[s]” of a
term’s ordinary meaning]; Dyna-Med, Inc. v. Fair Employment &
“entitled” among several meanings of “eligible,” including
“qualified to be chosen” and “permitted under football rules to
catch a forward pass.” (Webster’s Third New International
Dictionary (2002) p. 736; Webster’s Ninth New Collegiate Dict.
(1984) p. 404; see MCI Telecommunications, supra, 512 U.S.
at p. 226, fn. 2 [“Webster’s New Collegiate Dictionaries . . . are
essentially abridgments of that company’s Webster’s New
International Dictionaries”].) “That a definition is broad enough
to encompass one sense of a word does not establish that the
word is ordinarily understood in that sense.” (Taniguchi, supra,
U.S. at p. [132 S.Ct. at p. 2003]; see Mallard v. United States
Dist. Court for Southern Dist. of Iowa (1989) 490 U.S. 296, 301
[relying on the “most common meaning” and the “ordinary and
natural signification” of the word “request,” even though it may
sometimes “double for ‘demand’ or ‘command’”].) No other
common or legal dictionary we consulted defines “eligible” as
“entitled.” (See Taniguchi, supra, U.S. at p. [132 S.Ct. at
p. 2004] [“[b]ased on our survey of the relevant dictionaries, we
conclude that the ordinary or common meaning of ‘interpreter’
does not include those who translate writings [as suggested by
Webster’s Third]”].) Thus, we reject the definition of “eligible” in
Webster’s Third New International and New Collegiate
Dictionaries as including “entitled.” (See ibid.; MCI
Telecommunications, at p. 227 [rejecting the suggested meaning
of a word in one dictionary and its progeny where that definition
“contradicts one of the meanings contained in virtually all other
dictionaries,” italics omitted].)
23
Housing Com. (1987) 43 Cal. 3d 1379, 1387 [“[t]he words of the
statute must be construed in context, keeping in mind the
statutory purpose, and statutes or statutory sections relating to
the same subject must be harmonized, both internally and with
each other, to the extent possible”]; Sutter Health v. Superior
Court (2014) 227 Cal. App. 4th 1546, 1555 [looking to “the context
and ordinary meaning” of a term “not defined in the statute”].)
Section 1621 is contained in United States Code title 8,
chapter 14, which consists of four subchapters. One subchapter
includes a provision entitled “Statutory construction,” which
states: “Nothing in this chapter may be construed as an
entitlement or a determination of an individual’s eligibility or
fulfillment of the requisite requirements for any Federal, State,
or local governmental program, assistance, or benefits. For
purposes of this chapter, eligibility relates only to the general
issue of eligibility or ineligibility on the basis of alienage.”
(8 U.S.C. § 1643(a)(1), italics added.)
The juxtaposition of “entitlement” and “eligibility” makes
clear that these words are not synonymous as they are used in
title 8 United States Code section 1643(a)(1). Indeed, that
provision indicates that “eligibility” is broader than “entitlement”
and describes a person who may qualify to receive a benefit but
has no legal right to it. (See Immigration and Naturalization
Service v. Cardoza-Fonseca (1987) 480 U.S. 421, 444 [“those who
can only show a well-founded fear of persecution are not entitled
to anything, but are eligible for the discretionary relief of
asylum”]; Jarecha v. Immigration and Naturalization Service
(5th Cir. 1969) 417 F.2d 220, 223 [as 8 U.S.C. § 1255 “is now
construed, an applicant who meets the objective prerequisites is
merely eligible for adjustment of status, he is in no way entitled
24
to such relief”].) Because “‘“identical words used in different
parts of the same act are intended to have the same meaning,”’”
we construe “eligibility” in section 1621(d) to mean “qualified to
receive a benefit” as that term is used in title 8 United States
Code section 1643(a)(1). (See Taniguchi, supra, U.S. at p. ___
[132 S.Ct. at pp. 2004-2005] [“interpreter” as used in 28 U.S.C. §
1920 has the same meaning as used in 28 U.S.C. § 1827]; accord,
Gustafson v. Alloyd Co. (1995) 513 U.S. 561, 570; Department of
Revenue of Ore. v. ACF Industries, Inc. (1994) 510 U.S. 332, 342;
see also Gustafson v. Alloyd Co., at p. 568 [“[a] term should be
construed, if possible, to give it a consistent meaning throughout
[an] Act”].)
De Vries suggests that section 1621(d) requires state laws
to actually confer benefits on qualified undocumented
immigrants. ~(AOB 15, 18; ARB 1)~ That is not what section
1621(d) says. Section 1621(d) requires only that state laws make
undocumented immigrants “eligible” for public benefits.
C. A.B. 540, A.B. 131, and S.B. 1210 Provide Eligibility
for UC Students To Receive Postsecondary Education
Benefits
In construing a statute, “‘“our fundamental task is ‘to
ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.’ . . . We begin by examining the statutory
language because it generally is the most reliable indicator of
legislative intent. We give the language its usual and ordinary
meaning, and ‘[i]f there is no ambiguity, then we presume the
lawmakers meant what they said, and the plain meaning of the
language governs.’ . . . If, however, the statutory language is
ambiguous, ‘we may resort to extrinsic sources, including the
25
ostensible objects to be achieved and the legislative history.’”’”
(Lee v. Hanley, supra, 61 Cal.4th at pp. 1232-1233; accord,
Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors, supra, 48 Cal.4th at p. 45; Mays v. City of Los
Angeles (2008) 43 Cal. 4th 313, 321.) Extrinsic sources include
“‘the statutory scheme, the apparent purposes underlying the
statute and the presence (or absence) of instructive legislative
history.’” (County of San Diego v. Alcoholic Beverage Control
Appeals Bd. (2010) 184 Cal. App. 4th 396, 401; see Mt. Hawley
Insurance Company v. Lopez (2013) 215 Cal. App. 4th 1385, 1400
(Mt. Hawley).) “‘“Ultimately we choose the construction that
comports most closely with the apparent intent of the lawmakers,
with a view to promoting rather than defeating the general
purpose of the statute.”’” (Lee v. Hanley, at p. 1233; accord,
Mays v. City of Los Angeles, at p. 321.)
1. A.B. 540
a. The language of A.B. 540 is unambiguous
A statute’s language is ambiguous when it is subject to
more than one reasonable interpretation. (See Bruns v.
E– Commerce Exchange, Inc. (2011) 51 Cal. 4th 717, 724; Jones
v. Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158,
1162-1163; Coalition of Concerned Communities, Inc. v. City of
Los Angeles (2004) 34 Cal. 4th 733, 737.) Here, the language of
A.B. 540 broadly applies to make “all persons” attending any
“accredited institution of higher education in California” eligible
for an exemption from nonresident tuition,” including
undocumented immigrant students who meet the requirements
set forth in Section 68130.5.” (See Martinez, 50 Cal. 4th
26
at p. 1295.) “All persons” means all persons, including
UC students. Nothing in A.B. 540, including the requirements
set forth in section 68130.5, can be reasonably interpreted to
limit or restrict UC students from eligibility for the exemption
from nonresident tuition. The language is unambiguous.
De Vries contends that A.B. 540 does not make
UC students eligible for the exemption from nonresident tuition
because it does not “apply to” the University of California. In
support of his argument, De Vries cites section 68134, which
states: “No provision of this part shall be applicable to the
University of California unless the Regents of the University of
California, by resolution, make such provision applicable.”
De Vries notes that the Supreme Court in Martinez cited
section 68134 in observing that, “[b]y its terms, [A.B. 540] applies
only to the California State University and California
Community Colleges, and not to the University of California.”
(Martinez, supra, 50 Cal.4th at p. 1287, fn. 1.)
Section 68134, however, does not negate UC students’
eligibility for the exemption from nonresident tuition under
A.B. 540, nor does it render the language of A.B. 540 ambiguous.
As the Regents argued in its demurrer, A.B. 540 makes all
qualified students eligible for the exemption from nonresident
tuition. Pursuant to section 68134, UC students are not entitled
to that benefit unless the University of California elects to
provide it. Indeed, section 68134 and the Supreme Court’s
reference to that statute in Martinez address whether A.B. 540
“applies to” the University of California, not whether it “applies
to” UC students or makes them “eligible” for certain benefits.
Whether A.B. 540 “applies to” the University of California is not
relevant to whether A.B. 540 makes UC students eligible for the
27
exemption from nonresident tuition. As noted, section 1621(d)
requires only that state law provide eligibility for undocumented
immigrants to receive public benefits. It does not require that
state law confer such benefits on eligible persons or mandate that
any other entity do so.
De Vries also argues that, because section 68130.5,
subdivision (a), which provides that qualified undocumented
immigrants “shall be exempt from paying nonresident tuition at
the California State University and the California Community
Colleges,” makes no mention of the University of California,
A.B. 540 must exclude UC students from eligibility for the
exemption from nonresident tuition. The absence of language in
section 68130.5 referring to the University of California, however,
does not eliminate UC students from eligibility for that benefit.
Section 68130.5, subdivision (a), merely requires California State
University and California community colleges to exempt their
qualifying students from paying nonresident tuition. (See
§ 68130.5, subd. (c) [“[t]he Board of Governors of the California
Community Colleges and the Trustees of the California State
University shall prescribe rules and regulations for the
implementation of this section,” italics added].) It may be, as
De Vries argues, that A.B. 540 (and A.B. 131 and S.B. 1210)
“cannot require the Regents to provide eligibility” for UC
students. But section 1621(d) does not place that burden on the
Legislature. It only requires that the Legislature provide
“eligibility” for public benefits, which the Legislature has done
through A.B. 540.
In re Garcia, supra, 58 Cal. 4th 440 presented an analogous,
though not identical, scenario. That case involved a state statute
making undocumented immigrants eligible for membership in
28
the State Bar. Although the California Constitution gives the
Supreme Court “ultimate authority” for establishing policies
relating to admission to 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 is not lawfully present in the United States] as an
attorney at law in all the courts of this state and may direct an
order to be entered upon its records to that effect.” (Garcia, at
p. 451, fn. 9, italics added.) Garcia held that Business and
Professions Code section 6064 satisfied the requirements of
section 1621(d) because the former section “explicitly authoriz[es]
a bar applicant ‘who is not lawfully present in the United States’
to obtain a law license.” (Garcia, at p. 458.)
Business and Professions Code section 6064, however,
merely made undocumented immigrants eligible for admission to
the Bar. The Supreme Court retained authority to confer or deny
membership “as a matter of state law” or for reasons specific to
the applicant. (Garcia, supra, 58 Cal.4th at p. 459.) Thus,
Business and Professions Code section 6064 “remov[ed] any
federal statutory barrier” to admitting undocumented
8 Garcia explained: “Although both the Legislature and this
court possess the authority to establish rules regulating
admission to the State Bar, under the California Constitution
this court bears the ultimate responsibility and authority for
determining the issue of admission.” (Garcia, 58 Cal.4th at
p. 451; see id. at p. 452, fn. 11.) Thus, the Legislature arguably
exercises more authority over policies affecting admission to the
State Bar than it does over policies affecting tuition rates at the
University.
29
immigrants to the State Bar, and the Supreme Court ultimately
conferred that benefit on qualified applicants. (Ibid.)
Similarly, A.B. 540 removed the federal barrier to making
undocumented immigrants eligible for the exemption from
nonresident tuition, and the Regents conferred that benefit on
qualified UC students. Nothing in section 1621(d), California’s
Constitution, or A.B. 540 requires more. In short, legislative
deference to the University’s constitutional status does not affect
the Legislature’s express intent to make UC students eligible for
the exemption from nonresident tuition. De Vries’s suggestion
that A.B. 540 does not provide “eligibility” for UC students within
the meaning of that term under section 1621(d) is not reasonable
and does not cast doubt on the clarity of A.B. 540. (See Coalition
of Concerned Communities, Inc. v. City of Los Angeles, supra,
34 Cal.4th at p. 737 [language is unambiguous unless it is subject
to more than one “reasonable interpretation”].)
b. The legislative history of A.B. 540 confirms that
UC students are eligible for the exemption from
nonresident tuition
Although it is not necessary to look to legislative history
and other extrinsic sources because A.B. 540 is unambiguous, the
legislative history and subsequent legislative enactments confirm
our interpretation. (See Goodman v. Lozano (2010) 47 Cal. 4th
1327, 1335 [although the meaning of language in a statute “is
plain, it is helpful to look at [the statute’s] legislative history”];
Hughes v. Pair (2009) 46 Cal. 4th 1035, 1046 [“we [may] look to
legislative history to confirm our plain-meaning construction of
statutory language”]; Kulshrestha v. First Union Commercial
Corp. (2004) 33 Cal. 4th 601, 613, fn. 7 [“courts may always test
30
their construction of disputed statutory language against
extrinsic aids bearing on the drafters’ intent”]; United Health
Centers of San Joaquin Valley, Inc. v. Superior Court (2014)
229 Cal. App. 4th 63, 79 [“‘[r]eviewing courts may turn to the
legislative history behind even unambiguous statutes when it
confirms or bolsters their interpretation’”].) “We look to the
Legislative Counsel’s digest and other summaries and reports
indicating the Legislature’s intent.” (Mt. Hawley, supra, 215
Cal.App.4th at p. 1401; see Committee for Green Foothills v.
Santa Clara County Bd. of Supervisors, supra, 48 Cal.4th at
p. 56, fn. 15 [“‘[w]e have routinely found enrolled bill reports,
prepared by a responsible agency contemporaneous with passage
and before signing, instructive on matters of legislative intent’”];
Valley Vista Services, Inc. v. City of Monterey Park (2004)
118 Cal. App. 4th 881, 889 [“[w]hen construing a statute, we
may consider its legislative history, including committee and bill
reports, and other legislative records”].)
Several enrolled bill reports for A.B. 540 refer repeatedly to
tuition and “eligibility” rates for UC students in assessing the
impact of A.B. 540 on the state and its student population. For
example, the Enrolled Bill Report of the Office of the Secretary of
Education notes that the estimated percentage of the student
population “who may qualify for a nonresident tuition exemption
under provisions of [the] bill . . . is less than 1% of the total
student population at the three public higher education
institutions, the UC, the CSU [California State University], and
the CCC [California community colleges].” (Off. of the Sect. for
Educ., Rep. on Assem. Bill. No. 540 (2001-2002 Reg. Sess.)
Oct. 3, 2001, p. 5.) The Enrolled Bill Report goes on to state, “The
UC and the CSU estimate minor, absorbable costs based on the
31
low number of students who would qualify for a nonresident
tuition exemption under the provisions of this bill.” (Id. at p. 6;
see also Dept. of Finance, Rep. on Assem. Bill No. 540 (2001-2002
Reg. Sess.) Oct. 10, 2001, pp. 2-3; Dept. of Finance, Rep. on
Assem. Bill No. 540 (2001-2002 Reg. Sess.) July 3, 2001, pp. 1-3;
Assem. Republican Bill Analysis, Higher Educ. Com., Rep. on
Assem. Bill No. 540 (2001-2002 Reg. Sess.) Sept. 13, 2001, p. 2.)
If A.B. 540 did not provide eligibility for UC students to benefit
from the nonresident tuition exemption, there would be no need
for the Legislature to consider the impact of A.B. 540 on the
University of California and its students.
De Vries argues that a sentence in the Legislative
Counsel’s Digest of A.B. 540 supports his contention that
A.B. 540 provides eligibility only to students of California State
University and California community colleges. He points to
language stating, “These provisions are applicable to the
University of California only if the Regents of the University of
California act to make them applicable.” (Legis. Counsel’s Dig.,
Assem. Bill No. 540 (2001-2002 Reg. Sess.) 2001 Stats. ch. 814,
p. 93.) As discussed with respect to the almost identical language
in section 68134, however, the fact that A.B. 540 does not “apply
to’’ the University of California does not affect UC students’
“eligibility” for the nonresident tuition exemption.
Moreover, the sentence De Vries cites from the Legislative
Counsel’s Digest refers not to A.B. 540, but to language in section
68062, described by the Legislative Counsel’s Digest as “existing
law,” which provided that an “alien” may establish “residence” in
California unless precluded by federal law. (§ 68062, subd. (h).)
In Regents of University of California v. Superior Court (1990)
225 Cal. App. 3d 972 (Regents v. Superior Court) the court held
32
that federal law prohibited California colleges and universities
(including the University of California) from classifying
undocumented immigrants as “residents” under section 68062.
(Id. at p. 980.) The court in that case acknowledged that section
68134 made section 68062 applicable to the University of
California “only to the extent its Regents adopt it” (Regents v.
Superior Court, supra, at p. 976, fn.1), meaning that the Regents
could, but was not required to, classify qualified “aliens” as
“residents” under section 68062. A.B. 540 now allows California
colleges and universities to make undocumented immigrants
eligible for the exemption from nonresident tuition based on
factors other than their “residence,” thus complying with federal
law. (Martinez, supra, 50 Cal.4th at p. 1290; see 8 U.S.C. § 1623
[prohibiting “an alien who is not lawfully present in the United
States” from eligibility for postsecondary education benefits “on
the basis of residence”].) As was the case with section 68062,
section 68134 allows the Regents to adopt the nonresident tuition
exemption provided by A.B. 540 if it chooses to do so.
We assume the Legislature knew of section 68134 and its
effect on other provisions of the Education Code when the
Legislature enacted section 2 of A.B. 540, which added section
68130.5. (See People v. Scott (2014) 58 Cal. 4th 1415, 1424 [“the
Legislature ‘“is deemed to be aware of statutes and judicial
decisions already in existence, and to have enacted or amended a
statute in light thereof”’”].) We also assume the Legislature
intended section 68134 to have the same effect on section 68130.5
that it had on section 68062. (See People v. Scott, at p. 1424
[“[c]ourts may assume . . . that the Legislature intended to
maintain a consistent body of rules and to adopt the meaning of
statutory terms already construed”].) That effect is to
33
acknowledge the University of California’s special status under
the California Constitution and to allow the University to decide
whether to confer on its students the benefits for which they are
eligible under state law.9
Finally, S.B. 1210, which the Legislature enacted in 2014,
acknowledges that A.B. 540 applies to UC students even if it does
not apply to the University. S.B. 1210 states, “Since 2002,
students have been exempt from paying nonresident tuition and
fees at the California Community Colleges, the California State
University, and the University of California pursuant to
Section 68130.5.”10 (Stats. 2014, ch. 754, § 2, subd. (b).) While
not binding, “‘a declaration of a later Legislature as to what an
earlier Legislature intended is entitled to consideration.’”
(Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th
9 Other Education Code statutes follow a similar pattern.
For example, section 68075.5, subdivision (a), exempts certain
members of the Armed Forces stationed in California from paying
nonresident tuition at the California State University and
California community colleges. Even though that provision does
not reference the University of California, another subdivision of
section 68075.5, subdivision (c), asks the University of California
to adopt policies regarding tuition rates for eligible veterans that
conform to the requirements of section 68075.5, subdivision (a).
Thus, through section 68075.5, subdivision (c), the Legislature
intended to make veterans attending a UC school eligible for the
benefit of in-state tuition.
10 The same provision also acknowledges that A.B. 131 makes
UC students “eligible for state financial aid or financial aid
offered by [that] public institution.” (Stats. 2014, ch. 754,
§ 2, subd. (b).)
34
914, 922; see People ex rel. Lockyer v. R.J. Reynolds Tobacco Co.
(2005) 37 Cal. 4th 707, 724 [“‘[w]hile “subsequent legislation
interpreting [a] statute . . . [cannot] change the meaning [of the
earlier enactment,] it [does supply] an indication of the legislative
intent which may be considered together with other factors in
arriving at the true intent existing at the time the legislation was
enacted”’”].) Here, S.B. 1210 confirms that A.B. 540 makes
UC students eligible for the nonresident tuition exemption.
2. A.B. 131 and S.B. 1210
A.B. 131 and S.B. 1210, like A.B. 540, make undocumented
immigrants attending the University of California eligible for
financial aid and student loan programs and rely on the Regents
to confer these benefits on qualified students. The language of
A.B. 131 and S.B. 1210, like the language of A.B. 540, does not
exclude from eligibility any qualified students on the basis of the
institution they attend. Indeed, by specifically referencing the
University of California and its students, those measures provide
eligibility for the specified benefits to those students, regardless
of whether the University ultimately confers such benefits on
them.
For example, section 3 of A.B. 131, which added section
69508.5, addresses eligibility for Cal Grants and states that
“a student who meets the requirements of subdivision (a) of
Section 68130.5, or who meets equivalent requirements adopted
by the Regents of the University of California, is eligible to apply
for, and participate in, any student financial aid program
administered by the State of California to the full extent
permitted by federal law.” The plain language of this provision
makes clear that UC students are eligible to participate in the
35
Cal Grant program.11 Section 1 of A.B. 131, which added section
66021.6, applies to UC Grants and states that “the Regents of the
University of California are requested to . . . establish procedures
and forms that enable persons who are exempt from paying
nonresident tuition under Section 68130.5, or who meet
equivalent requirements adopted by the [R]egents, to apply for,
and participate in, all student aid programs administered by
these [schools] to the full extent permitted by federal law.” Thus,
section 1 of A.B. 131 makes undocumented UC students eligible
to participate in the UC Grant program.
De Vries argues that the reference in A.B. 131 to
“requirements adopted by the Regents of the University of
California” means that “its terms do not apply to UC students.”
Putting aside the fact that the Regents is not involved in the
Cal Grants program, De Vries’s argument lacks merit. Section
1621(d) does not require an enactment of state law to specify the
terms under which eligible beneficiaries may receive certain
benefits. Section 1621(d) merely requires the enactment of state
law to make undocumented immigrants eligible for those
benefits, and A.B. 131 satisfies that requirement, regardless
of whether, as De Vries argues, UC students’ eligibility for UC
Grants requires them to meet certain conditions adopted by the
Regents.
In terms even plainer than A.B. 540 and A.B. 131, S.B.
1210 provides eligibility to qualified UC students to benefit from
certain student loan programs. Section 3 of S.B. 1210, which
added section 70033, subdivision (a)(1), states: “Commencing
11 The Regents notes that it plays no role in conferring
Cal Grants on any students, including UC students.
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with the 2015-16 academic year, a student attending a
participating institution may receive a loan under the DREAM
Program if the student satisfies all of the following requirements:
[¶] (1) The student is exempt from paying nonresident tuition
under Section 68130.5, or meets equivalent requirements adopted
by the Regents of the University of California.” (Italics added.)
A “participating institution” is defined as “any campus of
the . . . University of California that elects to participate in the
DREAM Program pursuant to the requirements specified for a
qualifying institution . . . .” (§ 70032, subd. (i).) Thus,
UC students are eligible to participate in the DREAM Program
established by S.B. 1210.
DISPOSITION
The judgment is affirmed. The Regents is to recover its
costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J. KEENY, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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