Martinez v. Regents of University of California

• Decision Date: 15 September 2008
• Docket Number: No. C054124.,C054124.
• Citation: 166 Cal.App.4th 1121,83 Cal. Rptr. 3d 518
• Court: California Court of Appeals Court of Appeals
• Parties: ROBERT MARTINEZ et al., Plaintiffs and Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

166 Cal.App.4th 1121

83 Cal. Rptr. 3d 518

ROBERT MARTINEZ et al., Plaintiffs and Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

No. C054124.

Court of Appeals of California, Third District.

September 15, 2008.

As modified October 7, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

[166 Cal.App.4th 1126]

Immigration Reform Law Institute, Kris W. Kobach; Ropers, Majeski, Kohn & Bentley and Michael J. Brady for Plaintiffs and Appellants.

Sharon L. Browne and Ralph W. Kasarda for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Charles F. Robinson, Christopher M. Patti; Howard Rice Nemerovski Canady Falk & Rabkin, Ethan P. Schulman and Robert D. Hallman for Defendants and Respondents.

[166 Cal.App.4th 1127]

Munger, Tolles & Olson, Bradley S. Phillips, Fred A. Rowley, Jr., Gabriel P. Sanchez, Mark R. Yohalem; Lawyers' Committee for Civil Rights, Robert Rubin; Mexican American Legal Defense and Educational Fund, Cynthia Valenzquela, Nicholas Espiritu and Kristina Campbell for Alicia A., Gloria A., Marcos A., Mildred A., Enrique Boca, Nicole Doe, Collin Campbell, Alex Ortiz, Linda Lin Qian, Cesar Rivadeneyra, Jennifer Seidenberg, Improving Dreams, Equality, Access and Success at University of California, Davis, Improving Dreams, Equality, Access and Success of University of California, Los Angeles and National Immigration Law Center as Amici Curiae on behalf of Defendants and Respondents.

OPINION

SIMS, Acting P. J.

United States citizens who pay nonresident tuition for enrollment at California's public universities/colleges brought a lawsuit attacking a state statute (Ed. Code, § 68130.5¹) which allows certain illegal aliens² to pay the less expensive resident tuition to attend these universities/colleges. Plaintiffs³ filed a class action lawsuit against defendants Regents (Regents) of the University of California (UC), Trustees (Trustees) of the California State University System (CSU), Board of Governors (Board) of the California Community Colleges (CCC), UC President Robert C. Dynes (Dynes), CSU Chancellor Charles B. Reed (Reed), and CCC Chancellor Marshall Drummond (Drummond). Plaintiffs label their pleading as a class action complaint for damages; injunctive relief; declaratory relief; federal preemption; and violation of the United States Constitution (14th Amend.), California Constitution (art. I, § 7), federal statute (8 U.S.C. §§ 1621, 1623; 42 U.S.C. § 1983), and the Unruh Civil Rights Act (Civ. Code, § 51). Plaintiffs appeal from a judgment of dismissal following the trial court's sustaining of defendants' demurrers without leave to amend.

Numerous legal issues are addressed in this case. However, the most significant issue is whether California's authorization of in-state tuition to illegal aliens violates a federal law, title 8 of the United States Code (U.S.C.) section 1623, which provides as pertinent: "Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident."

The respondents argue the federal statute is not violated for two reasons:

1. Respondents say in-state tuition is not a "benefit" within the meaning of the federal law. For reasons we shall explain, we conclude in-state tuition, which is some $17,000 per year cheaper than out-of-state tuition at UC, is a "benefit" conferred on illegal aliens within the meaning of the federal law.

2. Respondents argue in-state tuition is not granted "on the basis of residence within a State" as required by federal law. Respondents point to the fact that in-state tuition for illegal aliens is based on a student's having attended a California high school for three or more years and on the student's having graduated from a California high school or having attained "the equivalent thereof." (§ 68130.5; see fn. 1, ante.) As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.

We shall conclude the trial court erred in determining the complaint failed as a matter of law. We shall reverse the judgment of dismissal and allow the case to proceed in the trial court.⁴

BACKGROUND

The complaint, filed December 14, 2005, alleged as follows:

Plaintiffs are United States citizens from states other than California and are students, or tuition-paying parents of students, enrolled after January 1, 2002, in a course of study for an undergraduate or graduate degree at a California public university or college, who allege they have been illegally denied exemption from nonresident tuition under section 68130.5,⁵ which gives the benefit of resident tuition to illegal aliens.

Plaintiffs do not claim they attended a California high school, as required to qualify for the section 68130.5 benefit. Rather, plaintiffs claim the attendance requirement is a de facto residence requirement, preempted by federal immigration law, which illegally discriminates against plaintiffs by denying them a benefit provided to illegal aliens.

The complaint alleged defendants engaged in an "Illegal Alien Tuition Scheme," granting illegal aliens a tuition exemption denied to nonresident United States citizens in violation of federal law. The complaint alleged defendants knew section 68130.5 violated and was preempted by federal law.

The complaint alleged upon information and belief that, during the fall 2005 term, undergraduate tuition and fees were:

—For UC, $6,769 for a resident undergraduate, and $24,589 for nonresident undergraduates ($17,304 tuition plus other fees);

—For CSU, a campus average of $3,164 for resident undergraduates, and $13,334 for nonresident undergraduates;

—For CCC, $26 per unit for residents and $135 per unit for nonresidents, with the average student taking 15 units per semester.

Although section 68130.5 states it does not apply to UC unless the Regents make it applicable (§ 68134 ["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."]), plaintiffs' complaint alleged the Regents adopted section 68130.5 in Standing Order 110.2— after lobbying for legislation (§ 68130.7⁶) limiting their legal exposure (as well as the exposure of the other defendants) in the event of lawsuits.

The complaint also set forth legislative history and plaintiffs' legal conclusions regarding statutory interpretation, which we address in our discussion.

The complaint set forth 10 counts, as follows:

1. Violation of Title 8 U.S.C. section 1623:⁷ Plaintiffs alleged it is an illegal alien's residence in California that entitles him or her to attend a California high school, and therefore section 68130.5 imposes a de facto durational residency requirement. Because section 68130.5 does not give the same benefit to United States citizens without regard to residence, the California statute violates and is preempted by title 8 U.S.C. section 1623 (fn. 7, ante) under the supremacy clause of the United States Constitution. (U.S. Const., art. VI, § 2.) Plaintiffs alleged under this and all counts that they "have been injured by having paid nonresident tuition while illegal aliens have been unlawfully exempt ...."

2. Violation of Title 8 U.S.C. section 1621:⁸ Exemption from nonresident tuition confers a benefit in violation of title 8 U.S.C. section 1621 (fn. 8 ante), and the California Legislature failed to provide affirmatively for such eligibility as specified in title 8 U.S.C. section 1621(d).

3. Title 42 U.S.C. Section 1983: Defendants Dynes, Reed, and Drummond, in their capacities as President or Chancellors, acting under color of state law, deprived out-of-state United States citizens the exemption from nonresident tuition granted to illegal aliens, in violation of the Fourteenth Amendment and title 8 U.S.C. section 1623.

4. Equal Protection (U.S. Const.): Plaintiffs are similarly situated with illegal alien beneficiaries of section 68130.5, because neither class is lawfully domiciled in California, yet plaintiffs are discriminated against in tuition rates.

5. Privileges and Immunities Clause (U.S. Const.): Section 68130.5 violates the privileges and immunities clause of the Fourteenth Amendment, denigrating United States citizens by treating them worse than illegal aliens.

6. Field Preemption: In addition to express preemption under title 8 U.S.C. section 1623, Education Code section 68130.5 is preempted by "field preemption," in that Congress occupies the field of immigration law, and section 68130.5 stands as an obstacle to Congress's objective.

7. Equal Protection (Cal. Const.): Section 68130.5 violates California's equal protection clause (Cal. Const., art. I, § 7), by denying out-of-state United States citizens an exemption from nonresident tuition that is granted to illegal aliens.

8. Unruh Civil Rights Act: Defendants violated section 68062⁹ (which precludes illegal aliens from establishing residence in California) and discriminated against plaintiffs based on geographic origin as out-of-state United States citizens, in violation of Civil Code section 51.¹⁰ Plaintiffs sought actual damages or statutory damages (Civ. Code, § 52) of $4,000 for each class member for each offense (each offense consisting of each unlawful tuition bill paid by each class member) plus $25,000 for each class member.

9. Injunctive Relief: Plaintiffs sought a preliminary...