GARCIA (SERGIO C.) ON ADMISSION

Amicus Curiae Brief of California Latino Legislative Caucus

Cal.July 27, 2012

SUPREME COURT COPY s¥eseyecous Case No. $202512 JUL 27 2012 IN THE . Frank A. McGuire Clerk SUPREME COURT OF CALIFORNIA. Deputy IN RE SERGIO C. GARCIA ON ADMISSION BAR MISCELLANEOUS4186 CALIFORNIA LATINO LEGISLATIVE CAUCUS’S APPLICATION FOR LEAVETO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF APPLICANT SERGIO C. GARCIA ARTURO J. GONZALEZ (Bar No. 121490) CLAUDIA M.VETESI (Bar No. 233485) ALEXANDRIA A. AMEZCUA (Bar No. 247507) JAVIER SERRANO (Bar No. 252266) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: (415) 268-7000 Attorneys for Amicus Curiae CALIFORNIA LATINO LEGISLATIVE CAUCUS RECEIVED JUL 18 2012 CLERK SUPREME COURT sf-3171041 Case No. $202512 IN THE SUPREME COURT OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION BAR MISCELLANEOUS 4186 CALIFORNIA LATINO LEGISLATIVE CAUCUS’S APPLICATION FOR LEAVETO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF APPLICANT SERGIO C. GARCIA ARTURO J. GONZALEZ (Bar No. 121490) CLAUDIA M.VETESI(Bar No. 233485) ALEXANDRIA A. AMEZCUA(Bar No. 247507) JAVIER SERRANO (Bar No. 252266) MORRISON & FOERSTER LLP 425 MarketStreet San Francisco, California 94105 Telephone: (415) 268-7000 Attorneys for Amicus Curiae CALIFORNIA LATINO LEGISLATIVE CAUCUS sf-3171041 TO THE HONORABLE CHIEF JUSTICE AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Pursuant to Rule 29.1(f) of the California Rules of Court, the California Latino Legislative Caucus (““CLLC”) respectfully requests permissionto file the accompanying amicus curiae brief in support of Applicant Sergio C. Garcia. Interests ofAmicus Curiae The CLLC is comprised of 23 membersof the California State Legislature: 8 California State Senators and 15 California State Assembly Members, including the current Speaker of the Assembly. Founded nearly 40 years ago, the CLLC’s mission is to represent and improvethe lives of California’s working families, support California communities, and increase educational and economic opportunities for all Californians. Throughoutits history, CLLC has advocated for and endeavoredto protect the rights of all Californians, regardless of citizenship, on issues of education, health care access, and civil rights. Givenits representation of diverse geographical regions and communities across California, its history of support for extending rights to all Californians, and its mission to addressissues affecting California’s working families, the CLLC offers an important and unique perspective on California law and policy addressing immigrants, including undocumented individuals. For these reasons, the CLLC respectfully requests that the Court accept the accompanyingbrieffor filing. sf-3171041 Other than counsel for CLLC,no party or counsel for any party has authored the proposedbrief in whole orin part, or funded preparation of the brief. Dated: July 18, 2012 sf-3171041 Respectfully submitted, MORRISPN & FOERSTER LLP ‘A x x it i | \ iBy: (aU Artuyo J. Gonzalgz(SBNTZTH9O) Attorneys for Amicus Curiae CALIFORNIA LATINO LEGISLATIVE CAUCUS Case No. $202512 IN THE SUPREME COURT OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION BAR MISCELLANEOUS 4186 CALIFORNIA LATINO LEGISLATIVE CAUCUS’S BRIEF AS AMICUS CURIAE IN SUPPORT OF APPLICANT SERGIO C. GARCIA ARTURO J. GONZALEZ (Bar No. 121490) CLAUDIA M.VETESI(Bar No. 233485) ALEXANDRIA A. AMEZCUA(Bar No. 247507) JAVIER SERRANO(Bar No. 252266) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: (415) 268-7000 Attorneys for Amicus Curiae CALIFORNIA LATINO LEGISLATIVE CAUCUS sf-3171041 TABLE OF CONTENTS Page TABLE OF AUTHORITIES......cccccccccccccsssesscccssecccecssscessecssscessessaseceveeseescees il STATEMENT OF INTEREST OF THE AMICUS CURIAE AND SOURCE OF AUTHORITYTO FILE .oe.....ecccccccccccccccccccccoeeeee 1 INTRODUCTION uuucecccecsssseccecesceseseseessecerssssesuseeeaueserssuecnssesesenseses l ARGUMENT.oui cc cccec ccc ccccccseseeccecssecessieecceseverseceessusescsstesesesssseceseserscesesettreees 3 ADMISSION OF UNDOCUMENTED IMMIGRANTS TO THE STATE BAR IS CONSISTENT WITH CALIFORNIA LEGISLATION AND PUBLIC POLICY oooccc cic ececssesscccesssecsececceccecessuauceseecsnssauaceceseecesertteceusenecess 3 I. CALIFORNIA HAS A VESTED INTERESTIN THE EDUCATION AND UPWARD MOBILITY OF UNDOCUMENTED IMMIGRANTS...........cccccseseesseseessecssesseeseeesees 3 A. California and Federal Law Require that All Children Receive a Free Public Education and Basic Health and Welfare Benefits. .....00........ccccccccccccesecceseececs 3 B. California Legislation Expressly Encourages and Supports Qualified Undocumented Immigrants Seeking Higher Education. ..........cccccccceceseeeeeeee 5 1. Qualified Undocumented Students Are Entitled to In-State Tuition Rates Under California Law.......cccccccccccsccccccccsccceseecceseseeccesseseeseccesens 6 2. The Landmark California DREAM Act Provides Other Important Educational Benefits, 0... cccccccccccccecccccccccccccccusccsttesecsceseeseccssecsececeesees 7 II. BAR ADMISSION OF QUALIFIED UNDOCUMENTED APPLICANTSIS CONSISTENT WITH CALIFORNIA LAW AND POLICY ENCOURAGING NON-CITIZENS TO TAKE THE BARwu... ececcecccccccsesscccccccccsessscscsecsssssceceesecsscenssceacsecse 12 CONCLUSION0cieee ceccccccesecccccscccccsccssscecssseceesssseseacucessucscsssersuceeeesens 15 sf-3171041 TABLE OF AUTHORITIES Page(s) CASES Brownv. Bd. ofEduc. (1954) 347 U.S. 483ciccccesecsnecseeeseeessescsessecesseseeesssessseseessaesseseseeeees 4,9 Dandamudiv. Tisch. (2d Cir. Jul. 10. 2012, No. 10-4397-cv) 2012 U.S. App. LEXIS 14090 ooo. ececccscccesteesenssessaeeeesneeesenaneeeeas 13 In re Marriage Cases (2008) 43 Cal4th 757 oeeeccecccccsecessececeeeceeeseeeesarecenseesneeseneesneesenteetenees 13 League of United Latin Am. Citizens v. Wilson (C.D. Cal. 1995) 908 F.Supp. 755 veeeccsececsecersteeceeessneeeseessaneeseaeenes 4 Martinez v. The Regents ofthe Univ. ofCal. (2010) 50 Cal.4th 1277, cert. denied (2011) 131 S.Ct. 2961 oo. eeecesneeecseneeceneereraeersnaeeersenees 6 Piper v. Big Pine Sch. Dist. ofInyo County (1924) 193 Cal. 664 oo. ceiceeccceseeseeceseeecestaeessneeeeseeeseesaeessaeesssaceesseneeeessaees 3 Plyler v. Doe (1982) 457 US. 202oieecceseccsereeneecesneeseessceceneeceneersassnseensneesaeees 3,4,9 Raffaelli v. Comm. ofBar Exam’rs (1972) 7 Cal.3d 288 ooo. ccceccccsseccesecssecesssecssscensessseesseeesseesseesees 12, 13, 14 Sei Fujii v. State (1952) 38 Cal.2d 718 ooo cecceccccscescececseesnsesseeesseeecssessessesesseessaeeesenees 14 Serrano v. Priest (1976) 18 Cal.3d 728 ooo eecccceseeseeeesceceseceeeceseeeeaeeeeaeesaeeeeaecsaaeeeeaeesees 3 CONSTITUTION Cal. Const., art. UX, § 5 co.cc cececcscccsssscesseeesssseessesecssceeeccuecseesecssseseessneenees 3 ii sf-3171041 STATUTES 8 U.S.C. § 1621, et SOQ... ccc ccccccssccsessccsecsscsecsscsscsscsscasesscssssuscesecsusessenscseaees 4 Cal. Bus. & Prof. Code, § 6060.6 .....ccciec cee ccesccsscscccesesseseserssseeneeees 13, 14 Cal. Ed. Code § 660216. cccccccsesccessecccssseccssscsesssccrsscecsesccstsesrssesessseseeesseeesenaceerseeeess 5 § 660217ececccccccesseesseccsecsseecssscsecesstecseseasessssessessssessscsesesesescesieseesaees 5 § 081305eicecccessseseeeecesecessseceseececsssesessecsssscsssesssscesteueesensuseseasess 5, 6 § O9508.5oecccsccecssseceeseecessceseseccsceccusssessusscessesessceeesesenauasseeesscessesarecenas 5 Cal. Health & Saf. Code, § 123865 oo... cccccceccececssecesscssscessesecesseuseseeaneens 5 Cal. Ins. Code, § 1269512occcecccccsssessescessccssececsesesteecevesstceetetseereenes 5 Cal. Welf. & Inst. Code, § 14007.5(d) oo... cecccccscessecsecsscseecccseeneeensecnseesaees 5 RULES Cal. R. Ct. 8.520D) oo... cceccccccccccesecccsssescsseccesseeessseccsseseseesessscesaueacerseeeserseeceenas 1 OTHER AUTHORITIES - Aldanaet al., Raising the Bar: Law Schools and Legal Institutions Leading to Educate Undocumented Students (2012) 44 Ariz, St. DD. Soc cccceecceetecesecsesseeneesecseesecsusseseeessecseessessetasens 10 Assem. Comm. on Higher Educ., Analysis of Assem. Bill No. 131, 2011-2012 Reg. Sess. (Mar. 15, 2011) ce ciceeeccseseestescsessseeseseesseseeeees 8 Assem. Comm.on Higher Educ., Analysis of Assem. Bill No. 540, 2001-2002 Reg. Sess. (Apr. 17, 2001)... eee ceeccecseesseeesseseeseenseesseeeeees 6,7 Development, Relief, and Education for Alien Minors Act of 2010, S. 3992, 111th Cong. (2010)... cecccessccseecesecssecsssessssserevereseeees 5, 10, 11 Governor Jerry Brown Signs Second Half of California DREAM Act Into Law, 88 No.40 Interpreter Releases 2502 (Oct. 17, 2011).......... 8,9 Luis Alejo, California State Assemblyman, Address to California State Assembly (May 5, 2011), Assembly Access, DREAM ActClears iii sf-3171041 California State Assembly, YouTube, available at [as Of July 17, 2012]... esccesscceeseesneetseeeseseeseeceseeeceaaeseaessaeeseaeeneesessas 9 Memorandum from Janet Napolitano, Sec’y, Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and BorderProt. at p. 2 (June 15, 2012), available at [as Of July 17, 2012]...eececceneeeceesnnneeceeesieeteeeeeessneeneeseeseaeeseesaeeseeees 11 Olivas, Compilation: State Legislation Allowing Undocumented College Students to Establish Residency, 15 Bender’s Immigr. Bull. 5 Jan. 2, 2010), available at [as of July 17, 2012)...eee 10 Press Release, Office of the Governor, Governor Brown Signs California Dream Act (Oct. 8, 2011), available at [as of July 17, 2012]... 8 Press Release, Senator Leland Yee, Senator Yee’s Statement on the Passage of the DREAM Act (July 14, 2011), available at [as of July 17, 2012)...eccee ceeteeeeteeeteeeees 9 Press Release, The White House, Remarks by the President on Immigration (June 15, 2012), available at [as of July 17, 2012] occeenseeeneeees 11 Sen. Ronald Calderon, Dem. Montebello, Cal. State Sen., Floor Debate for AB 130, the DREAM Act (July 14, 2011), available at [as of July 17, 2012] oo... eee eeeececeeeeeeeeneeeeeetenaeesseeeceneeesueeeees 8 Statement of Hon. Laura Richardson of Cal., in the House of Representatives, in support of H.R. 1842, The DREAM Act, 112 Cong. Rec., Extension ofRemarks, E1048 (June 15, 2012), available at [as of July 17, 2012]...eeeee ceeneecneeeneneeteseneeees 11 iv sf-3171041 University of California, Paying for UC (2011-2012), available at [as of July 17, 2012]........... 7 sf-3171041 STATEMENT OF INTEREST OF THE AMICUS CURIAEAND SOURCE OF AUTHORITYTO FILE Pursuant to Rule 8.520(f) of the California Rules of Court, this brief is filed with an accompanying Application for Leave to File, which sets forth the California Latino Legislative Caucus’s amicus curiae interest in this matter. INTRODUCTION This case presents an issue of first impression: Should the California Supreme Court preclude the admission of an undocumented immigrant to the State Bar based on his immigration status where the applicantis otherwise qualified for admission? The CLLC submits that the answerto this question is ‘““No” for several reasons. The CLLC agrees with the State Bar and Mr. Garcia with respect to the five questions posed by the Court in its May 16, 2012 Order to Show Cause.' In the CLLC’sview, federal law does not preclude the Court from admitting to the Bar qualified undocumented immigrants, and policy considerations weigh heavily in favor of the Court not categorically excluding undocumented immigrant applicants. The CLLC focusesin this amicus brief on the legislative and policy support for undocumented individuals in California as it relates to the Court’s Question 5: “What, if any, other public concerns arise with the grant of this application?” In particular, this brief expands uponthe State Bar’s Opening Brief, which correctly notes: “The Committee’s recommendation to license Mr. Garcia builds logically on . . . evolving efforts to allow access to educational opportunities for undocumented students. The State of California, which has expressed a desire to invest in ' Theseissues are comprehensively addressed in the opening briefs of Mr. Garcia and the State Bar. (See Brief of the Comm. of Bar Exam’rs of the State Bar of Cal. (June 18, 2012); Brief of Applicant (June 18, 2012).) 1 sf-3171041 the education of undocumented students, should be able to benefit from the contributions of these individuals as professionals, both economically and otherwise.” (See Brief of the Comm. of Bar Exam’rs of the State Bar of Cal. at p. 43.) California’s legislative policy supports a decision for the admission of Mr. Garcia in two important ways. First, the admission of undocumented immigrants like Mr. Garcia to the State Bar is consistent with California legislation providing educational opportunities to undocumented immigrants and public policy promoting their upward mobility. As detailed in Section I below,the State has invested time and money in the education and professional development of these individuals, often going back to resources provided in early childhood. A decision by this Court to deny undocumented immigrants the opportunity to use that education to achieve professional licensure would be directly at odds with the State’s express policy intentions. Indeed, Mr. Garcia’s case highlights what an anomaly it would be to categorically deny undocumented immigrants the opportunity to seek admission to the State Bar when, like Mr. Garcia, they are eligible for that license as a result of state-provided opportunities for education. The State has invested in the education and development of Mr. Garcia, and the Court should not deny him the opportunity to use that education to make an economic and professional contribution to the State. Second, California legislation and policy supports an applicant’s admission to the State Bar without regard to citizenship or residency. Affirming this principle, in 2005 California passed legislation permitting foreign non-citizens to take the State Bar exam and apply for admission. There is simply no good reason to distinguish between undocumented immigrants and other non-citizens by denying undocumented immigrants the opportunity to gain admission to the State Bar, as long as they—like sf-3171041 every other successful applicant—meetthe stringent academic,testing, and moral character requirements mandatedbythe State Bar. ARGUMENT ADMISSION OF UNDOCUMENTED IMMIGRANTSTO THE STATE BAR IS CONSISTENT WITH CALIFORNIA LEGISLATION AND PUBLIC POLICY The admission of undocumented immigrants like Mr. Garcia to the State Bar is consistent with California legislation providing educational opportunities to the undocumented—particularly those who were broughtto the U.S. as children—andpublic policy promoting their upward mobility. The State has invested in the education of immigrants like Mr. Garcia and has an interest in seeing these individuals become contributing members of society. Indeed, Mr. Garcia’s achievements—including, graduating from college and law school, and passing the State Bar exam—areprecisely what the State Legislature intended to foster when it enacted legislation mandating educational opportunities for undocumented students. I. CALIFORNIA HAS A VESTED INTEREST IN THE EDUCATION AND UPWARD MOBILITY OF UNDOCUMENTED IMMIGRANTS A. California Law and Federal Law Requirethat All Children Receive a Free Public Education and Basic Health and Welfare Benefits. The State’s commitmentto the education of undocumented immigrant youth hasits roots in the constitutional requirement that all children—regardless of their immigration status—treceivea free public education. (See Cal. Const., art. IX, § 5; Piper v. Big Pine Sch. Dist. of Inyo County (1924) 193 Cal. 664, 669 [226 P. 926] [providing for a “legal right to attend public schools”); Serrano v. Priest (1976) 18 Cal.3d 728, 766 [135 Cal.Rptr. 345, 557 P.2d 929] [holding that an education is a fundamental right]; Plyler v. Doe (1982) 457 U.S. 202, 223 [102 S.Ct. sf-317104] 2382, 72 L.Ed.2d 786] [states may not deny basic public education to children based on their immigration status].) In one of the most profoundcivil rights rulings in its history, the U.S. Supreme Court declared that a free public education is “the foundation for good citizenship” and mustbe available to all children on “equal terms.” As the Supreme Court declared: “Today [education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days,it is doubtful that any child may reasonably be expected to succeedin life if he is denied the opportunity of an education.” (Brownv. Bd. ofEduc. (1954) 347 U.S. 483, 493 [74 S.Ct. 686, 98 L.Ed. 873].) These wordsare noless true today than in 1954. Relying on Piyler and building on the Brownlegacy, California courts have rejected attempts to deny undocumented students the right to an education. For example, when Proposition 187—which would have denied undocumentedchildren a free public education— passed in 1994, a California federal court held that the Proposition was in direct conflict with Plyler and the precise federal statute at issue in this case—8 U.S.C. § 1621, et seq. (See League of United Latin Am. Citizens v. Wilson (C.D. Cal. 1995) 908 F.Supp. 755, 785 [1995 U.S. Dist. LEXIS 17720] [holding that Proposition 187’s “denial of a public education based on the immigration status of the child or the child’s parent or guardian conflicts with and is preempted by federal law as announced by the Supreme Court in Plyler’’].) These core constitutional values, and the recognition of the transformational power of educationtolift lives and break barriers, safeguard an undocumentedchild’s access to a free public education without regard to that child’s immigrationstatus. sf-3171041 In addition to the constitutionally-protected right to a free public education, California law provides public benefits to undocumented immigrant youth which are intended to support and improvetheir education, health, and welfare. For example, California Health and Safety Code section 123865 provides services to disabled children regardless of citizenship; California Welfare and Institutions Code section 14007.5, subdivision (d), provides emergency health care services to undocumented residents; and California Insurance Code section 12695.12 provides primary care services for infants and pregnant mothers regardless of immigration status. B. California Legislation Expressly Encourages and Supports Qualified Undocumented Immigrants Seeking Higher Education. The California Legislature has a long history of providing qualified undocumented families with education, health, and welfare benefits. The Legislature has made a concerted effort to provide educational opportunities to undocumented youth. Today, under the recently-enacted California DREAM Act, undocumented students who qualify for in-state tuition undersection 68130.5 of the Education Code may receive privately-funded scholarships and state-funded financial aid while attending public colleges and universities. (See Cal. Ed. Code, §§ 66021.6, 66021.7, and 69508.5.) The passage of the DREAM Act evidences California’s present and ongoing intent to educate all children. Further still, numerous California legislators, along with the California Latino Legislative Caucus, have publicly expressed support for the federal DREAM Act, which would, amongother things, provide conditional and potentially permanentresidency to qualified undocumented youth seeking higher education. (See The Development, Relief, and Education for Alien Minors Act of2010, S. 3992, 111th Cong. (2010).) sf-3171041 1, Qualified Undocumented Students Are Entitled to In-State Tuition Rates Under California Law. In 2001, the California Legislature passed California Education Codesection 68130.5, which permits qualified undocumented immigrants to pay in-state tuition rates if they: (1) attend high schoolin California for three years; (2) graduate from high schoolor obtain a GED;and (3) register or are currently enrolled in an accredited institution of higher education in California. (Cal. Ed. Code, § 68130.5.) In the process of developingthis statute, and uponits passage, California legislators made clear their intent to support the upward mobility of undocumented students by allowing them to pay the sametuition rates as resident students. (See, e.g., Assem. Comm.on Higher Educ., Analysis of Assem. Bill No. 540, 2001-2002 Reg. Sess. (Apr. 17, 2001) [affirming that the measure will help talented California high school students who cannot afford to pay nonresidenttuition attend college, since they would otherwise be ineligible to receive federal or state financial aid, due to their immigration status].) Indeed, this Court recognized that, in passing Section 68130.5, the Legislature found and declared: “There are high school pupils who have attended elementary and secondary schools in this state for most oftheir lives and whoarelikely to remain, but are precluded from obtaining an affordable college education because they are required to pay nonresidenttuition rates”; and that “[t]hese pupils have already proven their academiceligibility and merit by being accepted into our state’s colleges and universities.” (Martinez v. The Regents ofthe Univ. ofCal. (2010) 50 Cal.4th 1277, 1293 [117 Cal.Rptr. 3d 359, 241 P.3d 855], cert. denied (2011) 131 S.Ct. 2961 [180 L.Ed.2d 245] [holding that Section 68130.5 does not violate federal law] [quoting Stats. 2001, ch. 814, § 1, subd. (a)(1), (2)].) Recognizingthat rising tuition rates were an increasing impediment to higher education, the Legislature determined that it was in California’s 6 sf-3171041 best interest to provide undocumented students with the samein-state tuition rates as their documentedpeers, rather than out-of-state tuition rates, which can be thousands of dollars more per year than in-state rates. (See Assem. Comm. on Higher Educ., Analysis of Assem. Bill No. 540, supra, at p. 3 [highlighting several cases in which talented, undocumented students were encouragedto take college preparatory coursework,only to find that they “must pay an extremely high tuition due to their nonresident status”]; see, e.g., id. [In 2001, University of California resident fees totaled $3,964 while nonresidents paid in excess of $10,000.].)’ The purpose ofthis statute was to ease, at least in part, the financial barrier that often discourages, or even precludes, undocumented immigrants from seeking higher education. (Assem. Comm.on Higher Educ., Analysis of Assem. Bill No. 540, supra, at p. 3 [“For many ofthese students, the biggest barrier to attending and enrolling in college is the cost.”|.) In passing thestatute, the Legislature resoundingly proclaimed that supporting the upward mobility of undocumented immigrantsis in the State’s best interest. 2. The Landmark California DREAM Act Provides Other Important Educational Benefits. The California DREAM Acctis the Legislature’s most recent effort, strongly supported by the California Latino Legislative Caucus, to provide undocumented immigrant students access to higher education. Recognizing rising tuition costs and the disproportionate impact of those costs on underrepresented minority applicants, a central purpose of the law was * For 201 1-2012, the total estimated cost of attending a University of California school was $54,078 for nonresidents, while California residents paid $31,200. (University of California, Paying for UC (2011-2012), [as of July 17, 2012]).) Students who are California nonresidents thus pay an additional $22,878—nearly double—incosts. (Id.) sf-3171041 again to bring the dream of higher education within the grasp of qualifying undocumented students. (See, e.g., Assem. Comm. on Higher Educ., Analysis of Assem. Bill No. 131, 2011-2012 Reg. Sess. (Mar. 15, 2011) [noting undocumentedstudents’ ineligibility for federal or state financial aid and high tuition rates as underlying the needfor the bill].) Legislators noted over and over again that the intent of the statute was the upward mobility of undocumented youth, which not only helps those students,but also benefits the entire State of California: [The DREAM Act] is about supporting those that work hard, play by the rules, who want to improvetheir standards of living. Working hard to achieve one’s dreamsis a strong, American philosophyand it is the essence of the California dream. (See, e.g., Sen. Ronald Calderon, Dem. Montebello, Cal. State Sen., Floor Debate for AB 130, the DREAM Act (July 14, 2011), available at [as of July 17, 2012]; Press Release, Office of the Governor, Governor Brown Signs California Dream Act (Oct. 8, 2011), available at [as of July 17, 2012] [“Going to college is a dream that promises intellectual excitement and creative thinking. ... The Dream Act benefits us all by giving top students a chance to improvetheir lives and the lives of all of us.”].) Part I of the California DREAM Act, signed into law by California Governor Jerry Brown in July 2011, provides undocumented students who qualify for in-state tuition under Section 68130.5 with access to private scholarships. (See Governor Jerry Brown Signs Second Half of California DREAM Actinto Law, 88 No. 40 Interpreter Releases 2502 (Oct. 17, 2011) (Part I took effect on January 1, 2012).) On October 8, 2011, Governor Brownthen signed into law A.B. 131, Part II of the California DREAM Act, which provides certain undocumentedstudents access to financial aid sf-3171041 through the use of state funds. (/d.) Part II of the DREAM Actwill become effective in 2013. (/bid.) The main objective of these laws is to make higher education more accessible to undocumented students, on the democratic principle, expressed so eloquently by the Supreme Court in Brown v. Board, that education is the path to personal, professional, and societal success. (Brown, supra, 347 U.S. at p. 493 [education is “the very foundation of good citizenship”|.) Moreover, the State has a vested interest in promoting these immigrant students as leaders in their communities and avoiding their relegation to the shadowsof society. (See Plyler, supra, 457 U.S. at pp. 218-219 [the creation of a substantial “shadow population” of undocumented immigrants presents “most difficult problems for a Nation that prides itself on adherenceto principles of equality under the law’’].) With the DREAM Act, California lawmakers have built upon these principles and stated yet again that the higher education of undocumented youthis in the interest of the State: The DREAMActis not only the right thing to do for the children ofourstate, but it is also the right thing to do for California’s economic prosperity. We rightfully investin all our kids with public K-12 education, and we should also invest in them with higher education. These investments prepare our young people for jobs and innovation. (See, e.g., Press Release, Senator Leland Yee, Senator Yee’s Statement on the Passage of the DREAM Act (July 14, 2011), available at [as of July 17, 2012]; see also, Luis Alejo, California State Assemblyman, Address to California State Assembly (May 5, 2011), available at Assembly Access, DREAM ActClears California State Assembly, YouTube, [as of July 17, 2012] [“The California DREAM Actlevels the playing field sf-3171041 for all students, . . . thereby producing a more educated work force, equipped to rebuild and sustain our state’s economyin the twenty-first century.”].) California is not alone in recognizing the public policy benefits of making higher education accessible to qualified undocumented students. Since 2001, eleven other states (Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Texas, Utah, Washington, and Wisconsin) have passed laws permitting certain undocumented students to pay in-state tuition.’ (Aldanaetal., supra, at p. 54; see also Olivas, Compilation: State Legislation Allowing Undocumented College Students to Establish Residency, 15 Bender’s Immigr. Bull. 5 (Jan. 2, 2010), available at [as of July 17, 2012].) Of these eleven states, two—New Mexico and Texas—havefollowed California’s lead in providing eligible undocumented students with accessto state financial aid programs. (Aldanaet al., supra.) The federal governmenthas also recognized the benefit to the United States of having educated and upwardly mobile undocumented youth. The federal DREAM Act, currently pending in Congress, would provide conditional residency to certain undocumented immigrants of “good moral character” whoarrived to the U.S. as minors, graduated from a U.S. high school or post-secondary school, and have lived in the country continuously for a period of five years prior to the bill’s enactment. (The Development, Relief, and Education for Alien Minors (DREAM)Actof 2010, S. 3992, 111th Cong. (2010).) These immigrants maylater qualify for permanent ; Additionally, in 2008, Oklahomagranted the Oklahoma Board of Regents the authority to grant in-state tuition rates to undocumented students. (Aldanaet al., Raising the Bar: Law Schools and Legal Institutions Leading to Educate Undocumented Students (2012) 44 Ariz. St. L.J. 5, 54-55.) 10 sf-3171041 residency if they meet certain requirements, such as achieving a post-secondary education or serving in the military. (/d.) While the federal DREAM Acctis being debated, President Obama has ordered that the federal government stop deporting certain undocumented students, emphasizing that: [I]t makes no sense to expel talented young people, who, for all intents and purposes, are Americans—they’ve been raised as Americans; understand themselvesto be part ofthis country—to expel these young people who wantto staff our labs, or start new businesses, or defend our country simply becauseofthe actions of their parents—or because of the inaction of politicians. (Press Release, The White House, Remarks by the President on Immigration (June 15, 2012), available at [as of July 17, 2012].) Indeed, Janet Napolitano, Secretary of the Department of Homeland Security, the federal agency responsible for immigration policy and oversight, has recognized that these productive students “have already contributed to our country in significant ways.” (Memorandum from Janet Napolitano, Sec’y, Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and BorderProt. at p. 2 (June 15, 2012), available at [as of July 17, 2012] [recommending that the Department of Homeland Security refrain from deporting these students]; see also Statement of Hon. Laura Richardson of California, in the House of Representatives, in support of H.R. 1842, The DREAMAct, 112 Cong. Rec., Extension of Remarks, E1048 (June 15, 2012), available at [as of July 17, 2012] [“The DREAMActprovides an opportunity for certain young men and women 11 sf-3171041 who demonstrate the responsible behavior necessary to earn the chanceto becomea naturalized citizen.”].) Il. BAR ADMISSION OF QUALIFIED UNDOCUMENTED APPLICANTSIS CONSISTENT WITH CALIFORNIA LAW AND POLICY ENCOURAGING NON-CITIZENS TO TAKE THE BAR California policy does more than provide educational opportunities to undocumented immigrants. Following this Court’s holding in Raffaelli v. Comm. ofBar Examiners (1972) 7 Cal.3d 288, 304 [101 Cal.Rptr. 896, 496 P.2d 1264] and subsequentlitigation, California also permits the admission of non-citizens to the State Bar. For the past forty years, the State Bar has admitted attorneys without regard to citizenship or residency. Legislative policy now specifically facilitates and encourages non-citizens to register for and take the California Bar exam. Such policy is fully consistent with Bar admission of qualified undocumented applicants. In Raffaelli, this Court struck down a California law precluding aliens from admission to the State Bar. The Court found therestriction “constitutionally indefensible”as it did not comport with “modern decisions safeguarding the rights of those among us whoare notcitizens of the United States.” (Ud. at p. 291.) The Court reasoned that the exclusion of non-citizens from the practice of law constituted a “lingering vestige of a xenophobicattitude which . . . should now beallowedto join [previous] anachronistic classifications among the crumbled pedestals of history.” (lbid.) Ultimately, this Court concludedthat an Italian citizen who went to law school in California and passed the California Bar exam should be admitted to the State Bar, as long as hesatisfied the academic,testing, and 12 sf-3171041 moral character requirements applicable to other qualified applicants. (/d. at p. 304.) Building on the Court’s holding in Raffaelli, the Legislature enacted a 2005 amendmentto California Business & Professions Code Section 6060.6, which specifically allows individuals whoare noteligible for a social security numberto provide alternative forms of identification when applying for a law license. Business & Professions Code section 6060.6 states: Notwithstanding Section 30 of this code and Section 17520 of the Family Code, the Committee of Bar Examiners may accept for registration, and the State Bar may process for an original or renewed license to practice law, an application from an individual containing a federal tax identification number, or other appropriate identification number as determined by the State Bar, in lieu ofa social security number,ifthe individualis not eligiblefor a social security account numberat the time ofapplication andis not in “ The Court’s reasoning with respect to Mr. Raffaelli, i.e., that qualified non-citizens should not be denied Bar admission, could raise serious constitutional questions about the parallel exclusion of qualified undocumentedapplicants like Mr. Garcia. (/d. at pp. 296, 301 [finding that there was norational basis for conditioning the receipt of a bar license on citizenship because the knowledge required to be a lawyer “comes not so much from the accident of birth as from the experienceofthe daily life of the community and the role of governmentin thatlife,” and that there thus wasno “demonstrable nexus” betweenfitness to practice law and a requirement that every lawyer be a United States citizen]; see also Jn re Marriage Cases (2008) 43 Cal.4th 757, 841-844 [76 Cal.Rptr.3d 683, 183 P.3d 384] [providing that courts must look closely at classifications in which“the characteristic in question generally bears no relationship to the individual’s ability to perform or contribute to society”]; Cf. Dandamudiv. Tisch (2d Cir. Jul. 10. 2012, No. 10-4397-cv) 2012 U.S. App. LEXIS 14090, at *3 [applying strict scrutiny to a New York statute precluding nonimmigrant aliens from having a pharmacist license, and holding that the statute violated the Equal Protection Clause of the United States Constitution].) 13 sf-3171041 noncompliance with a judgmentor order for support pursuant to Section 17520 of the Family Code. (Cal. Bus. & Prof. Code, § 6060.6 [emphasis added].) Thestatute’s plain language logically provides that undocumented immigrants, who also cannot obtain social security numbers, should also beeligible for the exception. Indeed, that the statutory language does notlimit the exception to foreign law students suggests that California contemplated extending a law license to qualified aliens, including certain undocumented immigrants, as well as to foreign law students. (See Cal. Bus. & Prof. Code, § 6060.6 [extending the identification exception to any “individual [who] is not eligible for a social security account numberat the time of application” [emphasis added].) The policy expressed in the statute is clear: California expressly encourages foreign non-citizens to take the Bar exam and apply for admission. In light of the constitutional principles established in Raffaelli and the policy expressed in Section 6060.6, there is no reason for this Court to categorically exclude qualified applicants like Mr. Garcia from Bar admission. Indeed, California policy supports a decision by this Court admitting qualified undocumented immigrants. Thereis no principled basis to distinguish between foreign law students, who may only temporarily visit California and then leave, and undocumentedresidents like Sergio Garcia, who havelived in California for the majority of their lives, attended California public schools, and are invested in the progress and well-being of the State. (See, e.g., Sei Fujii v. State (1952) 38 Cal.2d 718, 733 {242 P.2d 617] [in invalidating the California Alien Land Law, which restricted aliens “ineligible for citizenship from owning[land,]” noting that the petitioner, “having made his homehere, has a naturalinterest, identical with that of an eligible alien, in the strength and security of the country in which he makesa living for his family and educates his children”). While 14 sf-3171041 foreign law students may havelittle invested in California, undocumented immigrants like Sergio Garcia have demonstrateda clear intent to give back to the State, through services and tax dollars, what the State has invested in them in the form of public secondary education and accessto higher education. It would therefore be contrary to California state public policy—and to common sense—to allow a foreign non-citizen the opportunity to obtain a license, while at the same time denying any such opportunity to a qualified applicant like Mr. Garcia. In light of California law and policy allowing and encouraging foreign non-citizens to take the Bar exam, there is every reason for the Court to permit qualified undocumented applicants admission to the practice of law. CONCLUSION California’s Legislature has consistently promoted the education of undocumented youth, and recognized that doing so is in the best interest of all Californians, regardless of citizenship. Accordingly, the California Latino Legislative Caucus respectfully submits that there is no reason for this Court to reject the recommendation of the State Bar. For the foregoing reasons, this Court should admit the applicant, Sergio C. Garcia, to the practice of law in California. 15 sf-3171041 Dated: July 18, 2012 sf-3171041 Respectfully submitted ARTURO J. GONZALEZ (Bar No. 121490) CLAUDIA M. VETESI (Bar No. 233485) ALEXANDRIA A. AMEZCUA (Bar No. 247507) JAVIER SERRANO (Bar No. 252266) MORRISON & FOERSTER LLP 425 MarketStreet San Francisco, California 94105 Telephone: (415) 268-7000 fl 4 By: 4++rldvu ‘| Saca uf 1 \ Arturo\J. Gonzalez \ % Attorneys for Amicus Curiae CALIFORNIA LATINO LEGISLATIVE CAUCUS 16 CERTIFICATE OF COMPLIANCE I hereby certify that this brief has been prepared using proportionately double-spaced 13-point Times New Roman typeface. Pursuant to California Rule of Court 8.204(c)(1), I hereby certify that the numberofwords contained in the foregoing amicus curiae brief, including footnotes but excluding the Table of Contents, the Table of Authorities, the Application for Leave to File Brief as Amicus Curiae, and this Certificate, is 4633 words as calculated using the word count feature of the program used to prepare this brief. Dated: July 18, 2012 Respectfully submitted MORRISQ@N & FOERSTER LLP 4 ArluroJ. Gonzali(SBN12149 — Attorneys for Amicus Curiae California Latino Legislative Caucus sf-3171041 DECLARATION OF SERVICE I, Regina C. Archuleta-Rodriguez, declare as follows: I am employed with Morrison & Foerster LLP, whose addressis 425 Market Street, San Francisco, CA 94105. I am readily familiar with the business practices ofthis office for collection and processing of correspondence. I am overthe age of eighteen years and nota party to this action. On July 18, 2012, I served the following: CALIFORNIA LATINO LEGISLATIVE CAUCUS’S APPLICATION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF APPLICANT SERGIO C. GARCIA CALIFORNIA LATINO LEGISLATIVE CAUCUS’S BRIEF AS AMICUS CURIAE IN SUPPORT OF APPLICANT SERGIO C. GARCIA on the parties listed on the attached Service List in this action by placing true copies thereof in sealed envelopes, addressed as shown,for collection and delivery by overnight mail to the parties indicated. I declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed on July 18, 2012, in San Francisco, California. Petree Chit Regina C. Archuleta-Rodriguez sf-3171041 Service List In Re Sergio C. Garcia on Admission Case No. 8202512 Jerome Fishkin Fishkin and Slatter, LLP 1575 Treat Boulevard, Suite 215 Walnut Creek, CA 94598 Counselfor Applicant, Sergio C. Garcia Joseph Starr Babcock State Bar of California 180 Howard Street San Francisco, CA 94105 Rachel Simone Grunberg Office of the General Counsel State Bar of California 180 Howard Street San Francisco, CA 94105 Robert E. Palmer Gibson, Dunn and Crutcher, LLP 3161 Michelson Drive Irvine, CA 92612 Donald K. Tamaki Minami Tamaki, LLP 360 Post Street, 8" Floor San Francisco, CA 94108 Mark A. Perry Gibson, Dunn and Crutcher, LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 Counselfor California Committee ofBar Examiners of the State BarofCalifornia sf-3171041