Existing law makes it a crime for a person to assault, among other people, a judge of any local, state, or federal court of record in retaliation for or to prevent the performance of their official duties, as specified. Existing law requires a county elections official to, upon application by a public safety officer, make confidential that officers residence address, telephone number, and email address appearing on the affidavit of voter registration, as specified. Existing law requires, upon request of specified persons, including an active or retired judge, that the persons home address that appears in a record of the Department of Motor Vehicles be made confidential.

This bill would additionally make it a crime for a person to assault a judge or former judge of a tribal court in retaliation for or to prevent the performance of their official duties, as specified. The bill would clarify that a tribal judge of a federally recognized California Indian tribe can request to make their records confidential pursuant to the above-described provisions. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2281 (Soria) - Tribal judges

Bill Summary:

AB 2281 would allow a tribal judge to request the confidentiality of specified personal information that appears on their affidavit of voter registration and in Department of Motor Vehicles (DMV) records. This bill also adds tribal judges to the existing statutes that make it a criminal offense to assault or attempt to murder an official in retaliation for or to prevent the performance of the official’s duties.

Fiscal Impact:

• One-time costs (Motor Vehicle Account (MVA)) to DMV to enroll participating tribal judges in its confidentiality program, possibly in the tens of thousands of dollars. Actual one-time costs will depend upon the number of newly eligible individuals who choose to participate in the confidentiality program and the time it takes DMV to enroll each individual in the program. Ongoing costs are likely minor and absorbable. According to the Legislative Analyst’s Office (LAO), the MVA—the main funding source for the DMV—is expected to fully exhaust its reserves and become insolvent in fiscal year 2025 26. The LAO further warns that the MVA, absent corrective action, such as revenue increases or spending reductions, will experience a negative fund balance of $1.4 billion in fiscal year 2028 29.
  
• Costs (local funds, General Fund) of an unknown amount to county elections offices to, upon request of a tribal judge, make confidential the judge’s residence address, telephone number, and email address on their affidavit of voter registration. Actual costs will depend on the number of requests and how long it takes to fulfill each request. Once approved, a request is valid for up to two years; a tribal judge may submit subsequent requests. General Fund costs will depend on whether these constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
  
• Costs (local funds, General Fund) to the counties and the California Department of Corrections and Rehabilitations to incarcerate people convicted of assaulting or attempting to murder a tribal judge. As discussed in more detail below, this bill effectively doubles the maximum punishment for each of these offenses. The average annual cost to incarcerate one person in county jail is approximately $29,000. The LAO estimates the average annual cost to incarcerate one person in state prison is $133,000. Actual incarceration costs will depend on the number of convictions and the length of each sentence, but may be in the hundreds of thousands of dollars in the aggregate. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

Background:

DMV Confidentiality. Under existing law, every DMV record of a person’s home address is deemed confidential. Generally, it is not possible to legally obtain any person’s home address from the DMV. This blanket confidentiality notwithstanding, statute also explicitly requires the DMV, upon request, to maintain the confidentiality of the home addresses of individuals who work in certain designated professions. Today, there are 23 professional classes of persons who may request DMV maintain confidential their home addresses, including the Attorney General, the state public defender, members of the Legislature, judges, district attorneys, public defenders, peace officers, social workers, police dispatchers, local elected officials and several others. This bill adds tribal judges to the list of persons who may request the DMV to maintain the confidentiality of their home address.

Voter Registration Confidentiality. Existing law allows an authorized county elections official to make confidential certain personal information on a public safety officer’s affidavit of registration to vote, upon request from the public safety officer. When requesting confidentiality, the public safety officer must sign a statement under penalty of perjury attesting a life-threatening circumstance exists to the officer or a member of their family. Once granted, the information is made confidential for up to two years, at which point the public safety officer may again request confidentiality. This bill specifies that for these purposes, a “public safety officer” includes a tribal judge.

Crimes against Officials. Under existing law, simple assault is a misdemeanor punishable by up to six months in county jail. Generally, attempted second degree murder is a felony punishable by 7.5 years to life in state prison. California’s criminal laws have the same force and effect within Indian country as they have elsewhere in the state, so a person who commits either of these offenses against a tribal judge is currently subject to these penalties. However, there are separate Penal Code sections that make it an offense to commit an assault on or attempt to murder a public official in retaliation for or to prevent the performance of that official’s duties. These offenses against public officials are punished more harshly than the crimes described above. Assault on a specified public official is a misdemeanor punishable by up to one year in county jail. Attempted murder of a specified public official is a felony punishable by a state prison term of 15 years to life. This bill adds tribal judges to the existing statutes for assault or attempted murder of a public official, effectively doubling the maximum sentence provided in existing law for this conduct.

Proposed Law:

This bill authorizes tribal judges of federally recognized tribes to request the confidentiality of specified personal information, and increases the criminal penalties associated with assaulting or attempting to murder tribal judges. Specifically, this bill:

• Adds tribal judges of federally recognized California Indian tribes to the list of “public safety officer[s]” authorized to request the confidentiality of their residence address, telephone number, and email address appearing on their affidavit of voter registration;
• Adds tribal judges of federally recognized California Indian tribes to the list of public officials authorized to request the confidentiality of their home addresses appearing in the Department of Motor Vehicle (DMV) records;
• Adds tribal judges of federally recognized California Indian tribes to the list of public officials for whom it is a criminal offense to assault or to attempt to commit murder, in retaliation for or to prevent the performance of that official’s official duties; and,
• Makes specified findings and declarations.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 2281 Hearing Date: June 18, 2024

Subject: Tribal judges

HISTORY

Source: California Indian Legal Services

Prior Legislation: AB 2322 (Daly), Ch. 914, Stats. 2018

SB 1131 (Galgiani), held Senate Approps. Comm. 2016

AB 2687 (Bocanegra), Ch. 273, Stats. 2014

AB 506 (Poochigan), Ch. 466, Stats. 2006

Support: California State Sheriffs’ Association; California Tribal Business Alliance; Judicial Council of California; Northern California Tribal Court Coalition; Tule River Tribe

Opposition: None known

Assembly Floor Vote: 73 - 0

PURPOSE

The purpose of this bill is to add tribal judges of federally recognized California Indian tribes to the list of “public safety officers” for purposes of requesting confidentiality of personal information and for increased punishment under specified assault or attempt to commit murder statute.

Existing federal law states that California has jurisdiction over offenses committed by or against Indians in Indian Country to the same extent that the State has jurisdiction over offenses committed elsewhere in the State. (18 U.S.C. § 1162.)

Existing federal law provides that the criminal laws of California shall have the same force and effect within Indian country as they have elsewhere within the State. (18 U.S.C. § 1162.)

Existing federal law defines “Indian country” as all land within the limits of any Indian reservation under the jurisdiction of the United States Government. (18 U.S.C. § 1151.)

Existing federal law authorizes tribal courts to exercise special tribal criminal jurisdiction over all people, concurrent with the criminal jurisdiction of the federal government and the state, for the crime of assault of tribal justice personnel, even if neither the defendant nor the alleged victim is an Indian. (25 U.S.C § 1304, subds. (a)(1), (a)(5)(A), & (b)(4)(A).)

Existing federal law defines “assault of tribal justice personnel” as any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that involves the use, attempted use, or threatened use of physical force against an individual authorized to act for, or on behalf of, that Indian tribe… during, or because of the performance or duties of that individual in… adjudicating, participating in the adjudication of, or supporting the adjudication of an [assault of tribal justice personnel].” (25 U.S.C. § 1304, subd. (a)(1).)

Existing law defines “assault” as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (Pen. Code, § 240.)

Existing law states that simple assault is punishable by a fine not exceeding $1,000.00, or by the imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. (Pen. Code, § 241, subd. (a).)

Existing law punishes assault by any means of force likely to produce great bodily injury by imprisonment in the state prison for two, three or four years, or in a county jail for not less than 6 months and not exceeding one year, or by both imprisonment and a fine not exceeding $10,000. (Pen. Code, § 245, subd. (a)(4).)

Existing law provides that a person who commits assault on specified public officials or their immediate family, including any justice, judge, or former judge of any local, state, or federal court, or other subordinate judicial officer of any court, in retaliation for or to prevent the performance of that official’s duties, shall be punished by a term of imprisonment not to exceed one year or by 16 months, two or three years. (Pen. Code, § 217.1, subd. (a).)

Existing law defines “battery” as any unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)

Existing law states that simple battery is punishable by a fine of up to $2,000, or by imprisonment in county jail not exceeding 6 months, or by both a fine and imprisonment. (Pen. Code, § 243, subd. (a).)

Existing law states that if battery is committed against a person and serious bodily injury is inflicted on the person, the battery is an alternate felony-misdemeanor punishable by imprisonment in a county jail not exceeding one year or imprisonment for two, three, or four years. (Penal Code §243, subd. (d).)

Existing law provides that persons attempting to commit crimes punishable by imprisonment in county jail or state prison are punishable by a term not to exceed half the term of imprisonment associated with the offense, although attempted first degree murder is punishable by life in prison with possibility of parole. (Pen. Code, § 664.)

Existing law punishes attempted murder, except attempted first degree murder, by imprisonment in the state prison for 5, 7 or 9 years. (Pen. Code, § 664, subd. (a).)

Existing law provides that a person who attempts to murder any justice, judge, or former judge of any local, state, or federal court, or other subordinate judicial officer of any court, in retaliation for or to prevent the performance of that official’s official duties, shall be confined in state prison for 15 years to life. (Pen. Code, § 217.1, subd. (b).)

This bill adds tribal judges to existing provisions of law on assault or attempted murder in retaliation for or to prevent the performance of official duties which provides for increased punishment than the standard assault or attempted murder statutes.

Existing law authorizes any person filing with the county elections official a new affidavit of registration or reregistration to have the information relating to his or her residence address, telephone number, and email address appearing on the affidavit, or any list or roster or index prepared therefrom, declared confidential upon order of a superior court issued upon a showing of good cause that a life-threatening circumstance exists to the voter or a member of the voter’s household, and naming the county elections official as a party. (Elec. Code, § 2166.)

Existing law authorizes county elections officials, upon application of a public safety officer who states that a life threatening circumstance exists to the officer or a member of their family, to make confidential that officer’s residence address, telephone number, and email address appearing on their affidavit of voter registration. (Elec. Code, § 2166.7, subds. (a) & (b).)

Existing law defines a public safety officer, for purposes of voter registration confidentiality, to include state and federal judges and court commissioners, peace officers, city attorneys, attorneys employed by the Department of Justice, State Public Defender, county district attorney offices, county public defender offices, the U.S. Attorney, or the Federal Public Defender, and specified employees of the Department of Corrections and Rehabilitation. (Elec. Code, § 2166.7, subd. (f); Gov. Code, § 7920.535.)

Existing law provides that such voter registration confidentiality, if granted, shall be available for two years, and for an additional two years if a new request is granted. (Elec. Code, § 2166.7, subd. (c).)

Existing law provides that such voter registration confidentiality, if granted, shall be available for two years, and for an additional two years if a new request is granted. (Elec. Code, § 2166.7, subd. (c).)

This bill adds a tribal judge of a federally recognized California Indian Tribe to the definition of “public safety officer” for purposes of confidentiality of voter registration affidavits.

Existing law provides that any residence address in any record of the Department of Motor Vehicles (DMV) is confidential and shall not be disclosed to any person, except a specified government or law enforcement agency. (Veh. Code, § 1808.21, subd. (a).)

Existing law provides that the home addresses of retired judges and court commissioners shall be permanently withheld from public inspection, if confidentiality is requested, and the home addresses of specified surviving spouses and children, shall be withheld from public inspection for three years following the death of the judge or court commissioner. (Veh. Code, § 1808.4, subd. (c)(5).)

Existing law provides that the disclosure of a confidential home address of a judge or court commissioner that results in bodily injury to that judge, court commissioner, or their spouse or children, is a felony. (Veh. Code, § 1808.4, subd. (d.).)

This bill adds a tribal judge of a federally recognized California Indian tribe to existing provisions of law that authorize specified persons to request DMV for confidentiality their home address.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Like local and state counterparts, tribal courts oversee a slew of legal cases that can touch upon very sensitive information. Misdemeanor cases, custody battles, and child support cases risk the chance of emotions becoming heightened and leading to threats and assaults on tribal judges. As the rates of court-targeted acts of violence increase at the state and federal level, California must bring to parity the same protections given to local, state, and federal judges to their counterparts servicing tribal courts across the state.

1. Existing Laws: Assault, Battery and Attempted Murder

Assault and battery are two similar but different offenses. Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) Battery is defined as “any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) Assault is essentially attempted battery. (“Simple assault” is included in the offense of battery, and a conviction of the latter would subsume the assault. By definition one cannot commit battery without also committing a “simple” assault which is nothing more than an attempted battery. People v. Fuller (1975) 53 Cal. App. 3d 417.)

An example of assault would be if a person swung at another person without hitting them, whereas if the person did strike the other person, the conduct would become a battery.

Existing law generally punishes simple assault and battery by imprisonment not exceeding 6 months, or by both a fine (maximum of $1,000 or $2,000 respectively) and imprisonment. (Pen. Code, §§ 241 and 243.) However, assaults and batteries that are committed under certain circumstances are subject to higher misdemeanor penalties, and in some circumstances felony penalties. For example, the higher misdemeanor or county-jail eligible felony applies under existing law when the assault is committed against specified public officials, including the President, Vice President, the Governor or any state, prosecutors, public defenders, any local, state or federal judge, among others, in retaliation for, or to prevent the performance of the victim’s official duties. (Pen. Code, § 217.1, subd. (a).) The law also provides that every person who attempts to commit murder against any of those listed public officials in retaliation for or to prevent the performance of the victim’s official duties, shall be punished in state prison for a term of 15 years to life. (Pen. Code, § 217.1, subd. (b).)

This bill would make the assault of a tribal judge in retaliation for, or to prevent the performance of the judge’s duties, punishable by imprisonment in county jail of no more than one year or by 16 months, 2 or 3 years in county jail. This bill would also provide that a person who attempts to murder a tribal judge in retaliation for, or to prevent the performance of the judge’s duties, shall be confined in state prisons for 15 years to life.

As discussed in the above paragraph, local, state and federal judges are included in the existing law that provides increased punishment for assault or attempted murder in retaliation for, or to prevent the performance of the duties of specified public officials. This would specify that tribal judges are also included in that statute for increased penalties.

1. DMV Confidentiality of Personal Information

Vehicle Code section 1808.4 was added by statute in 1977 to provide confidentiality of home addresses to specified public employees and their families.

In 1989, Vehicle Code section 1808.21 was added to make all residence addresses contained within the Department of Motor Vehicle files confidential. Vehicle Code section 1808.21(a) states the following:

The residence address in any record of the department is confidential and cannot

be disclosed to any person except a court, law enforcement agency, or other governmental agency, or as authorized in Section 1808.22 or 1808.23.

This section was further amended in 1994 to allow individuals under specific circumstances to request that their entire records be suppressed. Any individual who is the subject of stalking or who is experiencing a threat of death or great bodily injury to his or her person may request their entire record to be suppressed under this section. Upon suppression of a record, each request for information about that record has to be authorized by the subject of the record or verified as legitimate by other investigative means by the DMV before the information is released.

A record is suppressed for a one-year period. At the end of the one year period, the suppression is continued for a period determined by the department and if the person submits verification acceptable to the department that they continue to have reasonable cause to believe that they are the subject of stalking or that there exists a threat of death or great bodily injury to their person.

Under Vehicle Code sections 1808.4 and 1808.6 the home addresses of specific individuals are suppressed and can only be accessed through the Confidential Records Unit of the Department of Motor Vehicles. Comparatively, under Vehicle Code section 1808.21 the residence address portion of all individuals’ records are suppressed but can be accessed by a court, law enforcement agency, or other governmental agency or other authorized persons.

This bill adds tribal judges to the list of persons who can request confidentiality under Vehicle Code section 1808.4.

1. Confidentiality of Voter Registration Information

Existing law authorizes any person filing affidavits of voter registration to request that their personal contact information appearing on affidavits of registration or any list or roster, be declared confidential, upon order of a superior court showing good cause that life threatening circumstances exist to the person or their household. (Elec. Code, § 2166, subd. (a).) In addition, specified public safety officers such as state and federal judges, may request that their personal information on affidavits of registration be kept confidential, by submitting an application to a county election official that contains a statement, signed under penalty of perjury, that the person is a public safety officer and that a life threatening circumstance exists to the officer or a member of the officer’s family. (Elec. Code, § 2166.7, subds. (a) & (b).) This would make this additional confidentiality avenue available to tribal judges by declaring tribal officers to be public safety officers.

In practice, tribal judges can already seek the confidentiality of the personal information contained in affidavits of registration. However, this bill would make it easier for tribal judges to secure such confidentiality, since public safety officers need only submit an application swearing that a life threatening circumstance exists, to be approved by a county elections official. In contrast, members of the public have to seek such confidentiality by securing an order of a superior court showing good cause that life threatening circumstances exist. Further, upon a successful application by a public safety officer, confidentiality of affidavit records is provided for two years and public safety officers can subsequently re-apply to maintain such confidentiality. Thus, this bill will make it easier for tribal judges to secure the confidentiality of their information in voter registration records, and will ensure the confidentiality of those records for at least two years, until a new request is filed.

1. Jurisdiction to Enforce Criminal Law in Indian Country under Public Law 280

Tribes are under the exclusive jurisdiction of the federal government, which may restrict or abolish jurisdiction and sovereignty. The federal government has exercised this power a number of times to limit tribal jurisdiction, assume federal jurisdiction over a number of areas: Congress has granted limited jurisdictional authority to the federal (under the General Crimes Act, 18 U.S.C. § 1153 and the Major Crimes Act, 18 U.S.C. § 1152) and to states (under Public Law 280) and has imposed limits on tribal courts through the Indian Civil Rights Act (ICRA, 25 U.S.C. § 1301–1303).

In 1953, Congress passed Public Law 280 which provided six states, including California, with civil and criminal jurisdiction over crimes occurring on tribal land, and gave other states the option to adopt such jurisdiction. As a result, California and Tribes have concurrent jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country. For example, if the offender is non-Indian, and the victim is non-Indian or Indian or it is a victimless crime the state generally has exclusive jurisdiction. (Draper v. United States (1896) 164 U.S. 240). Alternatively, if the offender is Indian, and the victim is Indian or non-Indian, there is concurrent state and tribal jurisdiction, exclusive of the federal government. (Indian Civil Rights Act, 25 U.S.C. § 1301.) Lastly, if the offender is Indian, and there is a victimless crime, there is concurrent state and tribal jurisdiction, exclusive of the federal government. (Ibid.)

Most crimes committed in California Indian Country are criminally prosecuted in state court, although Tribes can also prosecute the same crime in tribal court under tribal law, if the defendant is Indian. Notably, tribal courts may exercise special tribal criminal jurisdiction over all people, concurrent with the criminal jurisdiction of the federal government and the state, for the crime of assault of tribal justice personnel, even if neither the defendant nor the alleged victim is an Indian. (25 U.S.C § 1304, subds. (a)(1), (a)(5)(A), & (b)(4)(A).) This means that both state and tribal courts may prosecute persons who assault or attempt to murder tribal judges, even where the defendant is not Indian.

This bill would add “tribal judges” to the existing provision of state law providing enhanced punishment for the crime of assault or attempted murder of specified public officials when done in retaliation against or to prevent the performance of that official’s official duties.

1. Arguments in Support

According to California Indian Legal Services:

California Tribal Judges are often faced with making decisions impacting child custody, protection orders, division of property and other highly charged litigant claims. However, unlike other judges, many Tribal Court Judges do not law enforcement officers in their court room or other security protection. Due to Judges significant vulnerabilities, state laws have greater penalties for threats and assaults made against State and Federal Court Judges and also the protections limiting their personal information from being made public. Tribal Court Judges are no less vulnerable and deserve the same level of protection. This bill is crucial as it aims to rectify this disparity by providing equity for Tribal Judges who are integral to upholding the Tribe's sovereign right to operate their own judicial systems.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2281

Author:(Soria)

As Introduced Ver:February 8, 2024

Majority vote

SUMMARY

Authorizes tribal judges of federally recognized tribes to request the confidentiality of specified personal information, and increases the criminal penalties associated with assaulting or attempting to murder tribal judges.

Major Provisions

1. Adds tribal judges of federally recognized California Indian tribes to the list of "public safety officer[s]" authorized to request the confidentiality of their residence address, telephone number, and email address appearing on their affidavit of voter registration.
2. Adds tribal judges of federally recognized California Indian tribes to the list of public officials authorized to request the confidentiality of their home addresses appearing in the Department of Motor Vehicle (DMV) records.
3. Adds tribal judges of federally recognized California Indian tribes to the list of public officials for whom it is a criminal offense to assault or to attempt to commit murder, in retaliation for or to prevent the performance of that official's official duties.
4. Makes specified findings and declarations.

COMMENTS

According to the Author

"Like local and state counterparts, tribal courts oversee a slew of legal cases that can touch upon very sensitive information. Misdemeanor cases, custody battles, and child support cases risk the chance of emotions becoming heightened and leading to threats and assaults on tribal judges. As the rates of court-targeted acts of violence increase at the state and federal level, California must bring to parity the same protections given to local, state, and federal judges to their counterparts servicing tribal courts across the state."

Arguments in Support

According to California Indian Legal Services, "California Tribal Judges are often faced with making decisions impacting child custody, protection orders, division of property and other highly charged litigant claims. However, unlike other judges, many Tribal Court Judges do not law enforcement officers in their court room or other security protection. Due to Judges significant vulnerabilities, state laws have greater penalties for threats and assaults made against State and Federal Court Judges and also the protections limiting their personal information from being made public. Tribal Court Judges are no less vulnerable and deserve the same level of protection. This bill is crucial as it aims to rectify this disparity by providing equity for Tribal Judges who are integral to upholding the Tribe's sovereign right to operate their own judicial systems."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. One-time costs (Motor Vehicle Account (MVA)) to DMV to enroll participating tribal judges in its confidentiality program, possibly in the tens of thousands of dollars. Actual one-time costs will depend upon the number of newly eligible individuals who choose to participate in the confidentiality program and the time it takes DMV to enroll each individual in the program. Ongoing costs are likely minor and absorbable. According to the Legislative Analyst's Office (LAO), the MVA—the main funding source for the DMV—is expected to fully exhaust its reserves and become insolvent in fiscal year 2025‑26.  The LAO further warns that the MVA, absent corrective action, such as revenue increases or spending reductions, will experience a negative fund balance of $1.4 billion in fiscal year 2028‑29.
2. Costs (local funds, General Fund) of an unknown amount to county elections offices to, upon request of a tribal judge, make confidential the judge's residence address, telephone number, and email address on their affidavit of voter registration. Actual costs will depend on the number of requests and how long it takes to fulfill each request. Once approved, a request is valid for up to two years; a tribal judge may submit subsequent requests. General Fund costs will depend on whether these constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
3. Costs (local funds, General Fund) to the counties and the California Department of Corrections and Rehabilitations to incarcerate people convicted of assaulting or attempting to murder a tribal judge. As discussed in more detail below, this bill effectively doubles the maximum punishment for each of these offenses. The average annual cost to incarcerate one person in county jail is approximately $29,000. The LAO estimates the average annual cost to incarcerate one person in state prison is $133,000. Actual incarceration costs will depend on the number of convictions and the length of each sentence, but may be in the hundreds of thousands of dollars in the aggregate. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

VOTES

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM TRANSPORTATION: 15-0-0

YES: Wilson, Davies, Aguiar-Curry, Juan Carrillo, Hart, Hoover, Jackson, Ortega, Papan, Sanchez, Ting, Valencia, Wallis, Ward, Wicks

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: February 8, 2024

CONSULTANT: Ilan Zur / PUB. S. / (916) 319-3744 FN: 0003070

Date of Hearing: May 1, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2281

Author:(Soria) – As Introduced Ver:February 8, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill allows a tribal judge to request the confidentiality of specified personal information that appears on their affidavit of voter registration and in Department of Motor Vehicles (DMV) records. The bill also adds tribal judges to the existing statutes that make it a criminal offense to assault or attempt to murder an official in retaliation for or to prevent the performance of the official’s duties.

FISCAL EFFECT:

1. One-time costs (Motor Vehicle Account (MVA)) to DMV to enroll participating tribal judges in its confidentiality program, possibly in the tens of thousands of dollars. Actual one-time costs will depend upon the number of newly eligible individuals who choose to participate in the confidentiality program and the time it takes DMV to enroll each individual in the program. Ongoing costs are likely minor and absorbable. According to the Legislative Analyst’s Office (LAO), the MVA—the main funding source for the DMV—is expected to fully exhaust its reserves and become insolvent in fiscal year 2025‑26.  The LAO further warns that the MVA, absent corrective action, such as revenue increases or spending reductions, will experience a negative fund balance of $1.4 billion in fiscal year 2028‑29.
2. Costs (local funds, General Fund) of an unknown amount to county elections offices to, upon request of a tribal judge, make confidential the judge’s residence address, telephone number, and email address on their affidavit of voter registration. Actual costs will depend on the number of requests and how long it takes to fulfill each request. Once approved, a request is valid for up to two years; a tribal judge may submit subsequent requests. General Fund costs will depend on whether these constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
3. Costs (local funds, General Fund) to the counties and the California Department of Corrections and Rehabilitations to incarcerate people convicted of assaulting or attempting to murder a tribal judge. As discussed in more detail below, this bill effectively doubles the maximum punishment for each of these offenses. The average annual cost to incarcerate one person in county jail is approximately $29,000. The LAO estimates the average annual cost to incarcerate one person in state prison is $133,000. Actual incarceration costs will depend on the number of convictions and the length of each sentence, but may be in the hundreds of thousands of dollars in the aggregate. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

Like local and state counterparts, tribal courts oversee a slew of legal cases that can touch upon very sensitive information. Misdemeanor cases, custody battles, and child support cases risk the chance of emotions becoming heightened and leading to threats and assaults on tribal judges. As the rates of court-targeted acts of violence increase at the state and federal level, California must bring to parity the same protections given to local, state, and federal judges to their counterparts servicing tribal courts across the state.

1. Background. DMV Confidentiality. Under existing law, every DMV record of a person’s home address is deemed confidential. Generally, it is not possible to legally obtain any person’s home address from the DMV. This blanket confidentiality notwithstanding, statute also explicitly requires the DMV, upon request, to maintain the confidentiality of the home addresses of individuals who work in certain designated professions. Today, there are 23 professional classes of persons who may request DMV maintain confidential their home addresses, including the Attorney General, the state public defender, members of the Legislature, judges, district attorneys, public defenders, peace officers, social workers, police dispatchers, local elected officials and several others. This bill adds tribal judges to the list of persons who may request the DMV to maintain the confidentiality of their home address.

Voter Registration Confidentiality. Existing law allows an authorized county elections official to make confidential certain personal information on a public safety officer’s affidavit of registration to vote, upon request from the public safety officer. When requesting confidentiality, the public safety officer must sign a statement under penalty of perjury attesting a life-threatening circumstance exists to the officer or a member of their family. Once granted, the information is made confidential for up to two years, at which point the public safety officer may again request confidentiality. This bill specifies that for these purposes, a “public safety officer” includes a tribal judge.

Crimes Against Officials. Under existing law, simple assault is a misdemeanor punishable by up to six months in county jail. Generally, attempted second degree murder is a felony punishable by 7.5 years to life in state prison. California’s criminal laws have the same force and effect within Indian country as they have elsewhere in the state, so a person who commits either of these offenses against a tribal judge is currently subject to these penalties. However, there are separate Penal Code sections that make it an offense to commit an assault on or attempt to murder a public official in retaliation for or to prevent the performance of that official’s duties. These offenses against public officials are punished more harshly than the crimes described above. Assault on a specified public official is a misdemeanor punishable by up to one year in county jail. Attempted murder of a specified public official is a felony punishable by a state prison term of 15 years to life. This bill adds tribal judges to the existing statutes for assault or attempted murder of a public official, effectively doubling the maximum sentence provided in existing law for this conduct.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 22, 2024

ASSEMBLY COMMITTEE ON TRANSPORTATION

Lori D. Wilson, Chair

ABPCA Bill Id:AB 2281 (

Author:Soria) – As Introduced Ver:February 8, 2024

SUBJECT: Tribal judges

SUMMARY: Makes it a felony for the Department of Motor Vehicles (DMV) to disclose a tribal judge’s confidential home address if it results in bodily injury. Specifically, this bill:

1. Adds tribal judges of federally recognized California Indian tribes (referred to as “tribal judges” below) to the list of “public safety officer[s]” authorized to request the confidentiality of their residence address, telephone number, and email address appearing on their affidavit of voter registration.
2. Adds tribal judges to the list of public officials authorized to request the confidentiality of their home addresses appearing in the DMV records.
3. Adds tribal judges to the list of public officials for whom it is a criminal offense to assault or to attempt to commit murder, in retaliation for, or to prevent the performance of that official’s official duties.

EXISTING LAW:

1. Lists 23 classes of persons, primarily in law enforcement fields, plus their spouses and children that may request that DMV keep their home addresses confidential. The home addresses of these persons may only be disclosed to a court; a law enforcement agency; the State Board of Equalization (BOE); an attorney in a civil or criminal action who demonstrates to a court the need for the home address, if the disclosure is made pursuant to a subpoena; and any governmental agency legally required to be furnished the information. (Vehicle Code Section (VEH) 1804.4)
2. Makes confidential the home addresses of all individuals contained within DMV records. These provisions similarly allow for disclosure to courts, law enforcement agencies, and other governmental agencies, but also allow for limited disclosure to financial institutions, insurance companies, attorneys, vehicle manufacturers, and persons doing statistical research. (VEH 1808.21)
3. Grants DMV the authority to suppress all records for at least one year for persons who are under threat of death or bodily injury. Under these circumstances, the entire record, including the address, is rendered inaccessible. (VEH 1804.21)
4. Makes the willful, unauthorized disclosure of any DMV record to any person, or the use of false representation to obtain information from DMV for a purpose other than one stated a misdemeanor, punishable by a fine not exceeding $5,000 or by imprisonment in the county jail not exceeding one year, or by both fine and imprisonment.

FISCAL EFFECT: Unknown

COMMENTS: Until 1989, DMV records were considered public records unless state law specifically made them confidential, as was the case for the addresses of peace officers and certain other officials thought to be at risk. Because home addresses were not considered confidential, any person who gave a reason that DMV deemed legitimate and could present to DMV a person's driver's license number or license plate number could obtain address information on that individual.

In 1989, actress Rebecca Schaeffer was stalked and killed. The murderer obtained her address from a private investigation agency doing business in Arizona. The private investigation agency acquired her address through a subcontractor agent in California, who obtained it from DMV. In response, the Legislature enacted AB 1779 (Roos), Chapter 1213, Statutes of 1989, which made all home addresses in DMV records confidential, with limited exceptions. AB 1779 left in place existing confidentiality provisions that applied only to peace officers and certain other officials. The list of those to whom the pre-AB 1779 confidentiality provisions apply, generally referred to as the Confidential Records Program (CRP), now includes 23 classes of persons. DMV is not aware of any instances since the implementation of AB 1779 where confidential home address information has been used for physical harm or for violent criminal purposes.

According to the author, “"Like local and state counterparts, tribal courts oversee a slew of legal cases that can touch upon very sensitive information. Misdemeanor cases, custody battles, and child support cases risk the chance of emotions becoming heightened and leading to threats and assaults on tribal judges. As the rates of court-targeted acts of violence increase at the state and federal level, California must bring to parity the same protections given to local, state, and federal judges to their counterparts servicing tribal courts across the state.”

According to California Indian Legal Services, writing in support of this bill, “California Tribal Judges are often faced with making decisions impacting child custody, protection orders, division of property and other highly charged litigant claims. However, unlike other judges, many Tribal Court Judges do not law enforcement officers in their court room or other security protection. Due to Judges significant vulnerabilities, state laws have greater penalties for threats and assaults made against State and Federal Court Judges and also the protections limiting their personal information from being made public. Tribal Court Judges are no less vulnerable and deserve the same level of protection. This bill is crucial as it aims to rectify this disparity by providing equity for Tribal Judges who are integral to upholding the Tribe's sovereign right to operate their own judicial systems.”

Committee concerns: Given that DMV records are universally confidential, with limited exceptions, and that DMV is not aware of any instances since the implementation of AB 1779 in which DMV home address information has been used for physical harm or for violent criminal purposes, the need for this bill is unclear.

While it may appear that the CRP provides a greater level of confidentiality than is available to the general public, functionally the level of confidentiality is the same. People seeking confidential information about others generally do not look to DMV records for personal data since those records are carefully protected and the same information is much more easily obtainable via the internet and social media.

A 2009 investigative article from Jennifer Muir at the Orange County Register found another use for individuals protected under the CRP: evading tickets. The article found:

1. Vehicles with protected license plates can run through dozens of intersections controlled by red light cameras and breeze along the 91 toll lanes with impunity.
   
2. Parking citations issued to vehicles with protected plates are often dismissed because the process necessary to pierce the shield is too cumbersome.
   
3. Some patrol officers let drivers with protected plates off with a warning because the plates signal that the drivers are “one of their own” or related to someone who is.

The Register found through a public records request of the Orange County Transportation Authority that there were 14,535 unpaid trips on toll facilities in the county by motorists with confidential plates over a five year period.

Further, adding tribal judges to the confidential records program will add programing costs to DMV. According to the Legislative Analyst Office (LAO), The Motor Vehicle Account (MVA), the primary funding source for DMV, is expected to fully exhaust its reserves and become insolvent in 2025-26. The LAO recommends the Legislature should consider MVA cost pressures when evaluating new proposals. LAO argues that “Until a plan is put in place to address MVA’s structural deficit, we recommend the Legislature set a high bar for considering approval of any proposals that create additional MVA cost pressures and accelerate the risk of insolvency.”

Previous legislation: Over the past 12 years, there have been a number of bills proposing to expand the list of those eligible to apply for the CRP, only one of which was chaptered. Another bill extending the length of time of a profession already on the list was also chaptered. These bills include:

AB 2322 (Daly) Chapter 914, Statutes of 2018, requires DMV, upon request, to make a retired judge or court commissioner’s home address confidential for the rest of his or her life and for any surviving spouse or child for three years following the death of the judge or court commissioner.

AB 2687 (Bocanegra), Chapter 273, Statutes of 2014, added Licensing Program Analysts with the Department of Social Services to the list.

AB 980 (Kalra) of 2019, would have required the Department of Motor Vehicles (DMV), upon request, to make an adult abuse investigator or social worker, public guardian, public conservator, or public administrator’s home address confidential. That bill was held in the Assembly Appropriations committee suspense file.

SB 1093 (Jackson) of 2017, would have added adult abuse investigators or social workers to the list of persons who can request their home address be held confidential by the DMV. SB 1093 was held in the Senate Appropriations Committee on the suspense file.

SB 101 (Nielsen) of 2021, SB 362 (Galgiani) of 2017, SB 1131 (Galgiani) of 2016 and SB 372 (Galgiani) of 2015: These bills would have added Department of Insurance investigators, code enforcement officers, and parking control officers to the list of categories for which the (DMV) must hold home addresses confidential. These bills were held on the Senate Appropriations Committee suspense file.

AB 3017 (Acosta) of 2017, would have added air marshals to the list of persons who can request that their home address be held confidential by the DMV. AB 3017 was amended on the Senate floor into a substantially different bill and died.

AB 222 (Achadjian) of 2015, would have added certain employees of the Department of State Hospitals (DSH) and the California Department of Corrections and Rehabilitation (CDCR) to the list of persons who can request that their home address be held confidential by the DMV.
AB 222 was held on the Senate Appropriations Committee suspense file.

SB 767 (Lieu) of 2014, would have added code enforcement officers and would have required eligible persons requesting confidentiality for their spouse or child to disclose whether the spouse or child had been convicted of a crime and or was on mandatory supervision or post release community supervision at the time of the request for confidentiality. SB 767 was referred to this committee but was not heard at the request of the author.

AB 1270 (Eggman) of 2013, would have added code enforcement officers and their spouses and children. AB 1270 was held in the Assembly Appropriations Committee on the suspense file.

AB 923 (Swanson) of 2009, would have added BOE members, code enforcement officers, and certain veterinarians. AB 923 was held in the Assembly Appropriations Committee on the suspense file.

AB 592 (Lowenthal) of 2009, would have added BOE staff who are designated to exercise limited peace officer authority and duties. AB 592 was held in the Assembly Appropriations Committee on the suspense file.

AB 1958 (Swanson) of 2008, would have added firefighters, code enforcement officers, and certain veterinarians. AB 1958 was held in the Assembly Appropriations Committee on the suspense file.

AB 1311 (Berryhill) of 2007, would have added community service and public service officers employed by police departments. AB 1311 was referred to this committee but was not heard at the request of the author.

AB 1706 (Strickland) of 2005, would have added fraud investigators, park rangers, emergency dispatchers, and DMV employees who test new drivers. AB 1706 was referred to this committee but was not heard at the request of the author.

AB 2012 (Chu) of 2004, would have added court-appointed attorneys, their investigators, and social workers assigned to child abuse cases. These provisions were eventually amended out of the bill.

AB 130 (Campbell) of 2003 and AB 246 (Cox) of 2003, both bills would have added members of Congress. Both bills were referred to this committee but neither was heard.

REGISTERED SUPPORT / OPPOSITION:

Support

California Indian Legal Services
California State Sheriffs' Association
California Tribal Business Alliance
Northern California Tribal Court Coalition

Opposition

None on file

Analysis Prepared by: David Sforza / TRANS. / (916) 319-2093

Date of Hearing:

Counsel: Ilan Zur

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

ABPCA Bill Id:AB 2281

Author:(Soria) – As Introduced Ver:February 8, 2024

SUMMARY:

Authorizes tribal judges of federally recognized tribes to request the confidentiality of specified personal information, and increases the criminal penalties associated with assaulting or attempting to murder tribal judges. Specifically, this bill:

1. Adds tribal judges of federally recognized California Indian tribes to the list of “public safety officer[s]” authorized to request the confidentiality of their residence address, telephone number, and email address appearing on their affidavit of voter registration.
2. Adds tribal judges of federally recognized California Indian tribes to the list of public officials authorized to request the confidentiality of their home addresses appearing in the Department of Motor Vehicle (DMV) records.
3. Adds tribal judges of federally recognized California Indian tribes to the list of public officials for whom it is a criminal offense to assault or to attempt to commit murder, in retaliation for or to prevent the performance of that official’s official duties.
4. Makes specified findings and declarations.

EXISTING FEDERAL LAW:

1. States that California has jurisdiction over offenses committed by or against Indians in Indian Country to the same extent that the State has jurisdiction over offenses committed elsewhere in the State. (18 U.S.C. § 1162.)
   
2. Provides that the criminal laws of California shall have the same force and effect within Indian country as they have elsewhere within the State. (18 U.S.C. § 1162.)
   
3. Defines “Indian country” as all land within the limits of any Indian reservation under the jurisdiction of the United States Government. (18 U.S.C. § 1151.)
4. Authorizes tribal courts to exercise special tribal criminal jurisdiction over all people, concurrent with the criminal jurisdiction of the federal government and the state, for the crime of assault of tribal justice personnel, even if neither the defendant nor the alleged victim is an Indian. (25 U.S.C § 1304, subds. (a)(1), (a)(5)(A), & (b)(4)(A).)
5. Defines “assault of tribal justice personnel” as any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that involves the use, attempted use, or threatened use of physical force against an individual authorized to act for, or on behalf of, that Indian tribe… during, or because of the performance or duties of that individual in… adjudicating, participating in the adjudication of, or supporting the adjudication of an [assault of tribal justice personnel].” (25 U.S.C. § 1304, subd. (a)(1).)
6. Establishes that the penalty that a tribal court may impose on a criminal defendant for a conviction is a term of imprisonment not to exceed 1 year or a fine of $5,000, or both. (25 U.S.C. § 1302, subd. (a)(7)(B).)
7. A tribal court may impose a term of imprisonment of 3 years or a fine not to exceed $15,000 or both, as specified, if the person has previously been convicted of the same or comparable offense by any jurisdiction in the U.S. or is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the federal or state government. Under no circumstance can the term of the sentence exceed 9 years. (25 U.S.C. § 1302, subd. (a)(7)(c) &(d).)
   

EXISTING STATE LAW:

1. Provides that simple assault is punishable by a fine up to $1,000, up to six months in county jail, or both. (Pen. Code, § 241, subd. (a).)
2. Provides that a person who commits any assault upon any justice, judge, or former judge of any local, state, or federal court, or other subordinate judicial officer of any court, in retaliation for or to prevent the performance of that official’s official duties, shall be punished by imprisonment in county jail of no more than one year (Pen. Code, § 217.1, subd. (a).)
3. Defines “battery” as the willful and unlawful use of force or violence upon another person, and makes the offense punishable by up to six months in the county jail, by a fine not to exceed $2,000, or by both. (Pen. Code, §§ 242 & 243, subd. (a).)
   
4. States that when a battery is committed upon any person and serious bodily injury is inflicted upon that person, the offense is punishable as a “wobbler” with a possible sentence of up to one year in the county jail, or for two, three, or four years in the county jail. (Pen. Code, § 243, subd. (d).)
5. Provides that persons guilty of murder in the second degree shall be imprisoned in state prison for a term of 15 years to life and persons guilty of murder in the first degree shall be punished with death, imprisonment in state prison for life without parole, or imprisonment in state person for a term of 25 years to life. (Pen. Code, § 190, subd. (a).)
6. Provides that a person who attempts to murder any justice, judge, or former judge of any local, state, or federal court, or other subordinate judicial officer of any court, in retaliation for or to prevent the performance of that official’s official duties, shall be confined in state prison for 15 years to life (Pen. Code, § 217.1, subd. (b).
7. Provides that persons attempting to commit crimes punishable by imprisonment in county jail or state prison are punishable by a term not to exceed half the term of imprisonment associated with the offense, although attempted first degree murder is punishable by life in prison with possibility of parole. (Pen. Code, § 664.)
8. Provides that any person that files with a county elections official an affidavit of voter registration may have their residential address, telephone, and email address appearing on the affidavit declared confidential upon order of a superior court showing good cause that a life-threatening circumstance exists to the person or their household (Elec. Code, § 2166, subd. (a).).
9. Authorizes county elections officials, upon application of a public safety officer who states that a life threatening circumstance exists to the officer or a member of their family, to make confidential that officer’s residence address, telephone number, and email address appearing on their affidavit of voter registration. (Elec. Code, § 2166.7, subds. (a) & (b).)
10. Defines a public safety officer, for purposes of voter registration confidentiality, to include state and federal judges and court commissioners, peace officers, city attorneys, attorneys employed by the Department of Justice, State Public Defender, county district attorney offices, county public defender offices, the U.S. Attorney, or the Federal Public Defender, and specified employees of the Department of Corrections and Rehabilitation. (Elec. Code, § 2166.7, subd. (f); Gov. Code, § 7920.535.)
11. Provides that such voter registration confidentiality, if granted, shall be available for two years, and for an additional two years if a new request is granted. (Elec. Code, § 2166.7, subd. (c).)
12. Requires election officials, in producing any list, roster, or index, to exclude voters with confidential voter status. (Elec. Code, § 2166.7, subd. (d).)
13. Provides that no action of negligence may be brought against a government entity as a result of the disclosure of an officer’s confidential voter registration information, unless there is a showing of gross negligence or willfulness. (Elec. Code, § 2166.7, subd. (e).)
14. Provides that any residence address in any record of the DMV is confidential and shall not be disclosed to any person, except a specified government or law enforcement agency. (Veh. Code, § 1808.21, subd. (a).)
15. Provides that specified public officials, including active or retired judges or court commissioners, may request that their home addresses that appear in DMV records be made confidential. (Veh. Code, § 1808.4, subd. (a)(4).)
16. Provides that the home addresses of retired judges and court commissioners shall be permanently withheld from public inspection, if confidentiality is requested, and the home addresses of specified surviving spouses and children, shall be withheld from public inspection for three years following the death of the judge or court commissioner. (Veh. Code, § 1808.4, subd. (c)(5).)
17. Provides that the disclosure of a confidential home address of a judge or court commissioner that results in bodily injury to that judge, court commissioner, or their spouse or children, is a felony. (Veh. Code, § 1808.4, subd. (d.).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Like local and state counterparts, tribal courts oversee a slew of legal cases that can touch upon very sensitive information. Misdemeanor cases, custody battles, and child support cases risk the chance of emotions becoming heightened and leading to threats and assaults on tribal judges. As the rates of court-targeted acts of violence increase at the state and federal level, California must bring to parity the same protections given to local, state, and federal judges to their counterparts servicing tribal courts across the state.”
2. Increase in Threats and Violence Against Judges. There has been an increase in threats and violence against judicial officers in recent years. Threats to federal judges have risen every year since 2019. CBS News, Threats to federal judges have risen every year since 2019 (Feb. 14, 2024). Available at: <https://www.cbsnews.com/news/threats-to-federal-judges-have-risen-every-year-since-2019/> [as of April 1, 2024].) Since 2021, persons protected by the U.S. Marshals Service, such as federal judges, prosecutors, and court officials, have faced over 4,500 threats, an increase of 400% since 2015 (National Center for State Courts, NCSC supports new legislation to protect state court judges from escalating threats (Accessed March 31, 2024). Available at: <https://www.ncsc.org/newsroom/at-the-center/2024/ncsc-supports-new-legislation-to-protect-state-court-judges-from-escalating-threats> [as of April 1, 2024].) This trend holds true at the state level. The numbers of violent incidents in state courthouses has increased every decade since 1970. (National Council of Juvenile and Family Court Judges, Courthouse Security Incidents Trending Upward: The Challenges Facing State Courts Today (March, 2022). Available at: <https://www.ncjfcj.org/wp-content/uploads/2022/03/courthouse-security-incidents-trending-upward.pdf> [as of April 1, 2024].)

Unfortunately, there is insufficient data to determine if tribal judges are facing a similar increase in threats and violence. However, written testimony provided to this committee by tribal judges in California indicates that threats to tribal judges are not uncommon. For example, one tribal judge cites multiple incidents of persons appearing before the judge who made threatening comments and referenced their knowledge of where the judge lived.

1. Effect of this Bill: AB 2281 would add tribal judges to the list of public officials, for whom it is a criminal offense to assault or to attempt to commit murder, in retaliation for or to prevent the performance of that official’s official duties. Notably, it is already a crime for a person to assault a tribal judge. Under the California Penal Code simple assault is punishable by a fine up to $1,000, imprisonment of county jail, not to exceed six months, or both. (Pen. Code, § 241, subd. (a).) Further, second degree murder is punishable by 15 years to life in state prison, and first degree murder is punishable by death, imprisonment in state prison for life without parole, or imprisonment in state person for a term of 25 years to life. (Pen. Code, § 190.) Persons attempting to commit crimes punishable by imprisonment in county jail or state prison are punishable by a term not to exceed half the term of imprisonment associated with the office, although attempted first degree murder is punishable by life in prison with possibility of parole. (Pen. Code, § 664.) Given that California’s criminal laws have the same force and effect within Indian country as they have elsewhere within the State (See 18 U.S.C. § 1162) a person who assaults a tribal judge can already be charged by a fine up to $1,000, imprisonment of county jail, not to exceed six months, or both. Additionally, a person who attempts to murder a tribal judge will face 7.5 years up to life in state prison, depending on the degree of attempted murder.

AB 2281 would make the assault of a tribal judge in retaliation for, or to prevent the performance of the judge’s duties, punishable by imprisonment in county jail of no more than one year. This would increase the punishment associated with assaulting a tribal judge from a maximum of six months to a maximum of one year. AB 2281 would also provide that a person who attempts to murder a tribal judge in retaliation for, or to prevent the performance of the judge’s duties, shall be confined in state prisons for 15 years to life. This would increase the minimum punishment associated with attempted murder of a tribal judge from 7.5 years to 15 years.

AB 2281 will afford tribal judges the same protections under as the law as state and federal judges by authorizing tribal judges to request the confidentiality of their home address, telephone number, and email address appearing in DMV records and affidavits of voter registration. It is unlikely that this bill will have any significant effect on the confidentiality of DMV records of tribal judges. Residence addresses in DMV records are already confidential, with limited exceptions under Vehicle Code Section 1801.21. This confidentiality was established after the killing of actress Rebecca Schaeffer in 1989, where the murder was able to obtain her address from a private investigation agency that acquired her address from an agent in California who obtained it from DMV records. In response, the Legislature enacted AB 1779 (Roos), Chapter 1213, Statutes of 1989, which made all home addresses in DMV records confidential. There is little to no evidence to suggest that residential addresses in DMV records have since been used for physical harm or for violent criminal purposes. This being said, given that this additional layer of confidentiality is already available to active and retired non-tribal judges, fairness and uniformity purposes support expanding this protection to include tribal judges.

It is similarly unlikely this bill would significantly impact the confidentiality available to tribal judges as it pertains to affidavits of voter registration. Existing law authorizes any person, including tribal judges, filing affidavits of voter registration to request that their personal contact information appearing on affidavits of registration or any list or roster, be declared confidential, upon order of a superior court showing good cause that life threatening circumstances exist to the person or their household. In addition, specified public safety officers such as state and federal judges, may request that their personal information on affidavits of registration be kept confidential, by submitting an application to a county election official that contains a statement, signed under penalty of perjury, that the person is a public safety officer and that a life threatening circumstance exists to the officer or a member of the officer’s family. AB 2281 would make this additional confidentiality avenue available to tribal judges by declaring tribal officers to be public safety officers.

In practice, tribal judges can already seek the confidentiality of the personal information contained in affidavits of registration. However, this bill would make it easier for tribal judges to secure such confidentiality, since public safety officers need only submit an application swearing that a life threatening circumstance exists, to be approved by a county elections official. In contrast, members of the public more generally have to seek such confidentiality by securing an order of a superior court showing good cause that life threatening circumstances exist. Further, upon a successful application by a public safety officer, confidentiality of affidavit records is provided for two years and public safety officers can subsequently re-apply to maintain such confidentiality. Thus, this bill will make it easier for tribal judges to secure the confidentiality of their information in voter registration records, and will ensure the confidentiality of those records for at least two years, until a new request is filed.

1. Research on the Deterrent Effect: In a 2014 report, the Little Hoover Commission addressed the disconnect between science and sentencing – that is, putting away offenders for increasingly longer periods of time, with no evidence that lengthy incarceration, for many, brings any additional public safety benefit. (Little Hoover Commission, Sensible Sentencing for a Safer California (2014) at p. 4 <https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/219/Report219.pdf> [as of April 4, 2024].) Given the evidence that increased incarceration does not significantly decrease criminal conduct, AB 2281s increased penalties are unlikely to deter future violent conduct against tribal judges. That being said, since the California Penal Code already contains special penalties for persons that assault or attempt to murder any local, state, or federal court judges, fairness and uniformity reasons support expanding these penalties to include tribal judges.
2. Jurisdiction to Enforce Criminal Law in Indian Country under Public Law 280: Tribes are under the exclusive and plenary jurisdiction of the federal Congress, which may restrict or abolish jurisdiction and sovereignty. The federal government has exercised this power a number of times to limit tribal jurisdiction, assume federal jurisdiction over a number of areas: Congress has granted limited jurisdictional authority to the federal (under the General Crimes Act, 18 U.S.C. § 1153 and the Major Crimes Act, 18 U.S.C. § 1152) and to states (under PL 280) and has imposed limits on tribal courts through the Indian Civil Rights Act (ICRA, 25 U.S.C. § 1301–1303).

Further, in 1953 the United States Congress passed Public Law 280, which significantly altered the criminal jurisdictional framework governing tribal lands. Specifically, it provided six states, including California, with civil and criminal jurisdiction over crimes occurring on tribal land, and gave other states the option to adopt such jurisdiction. As a result, California and Tribes have concurrent jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country. For example, if the offender is non-Indian, and the victim is non-Indian or Indian or it is a victimless crime the state generally has exclusive jurisdiction. (Draper v. United States (1896) 164 U.S. 240). Alternatively, if the offender is Indian, and the victim is Indian or non-Indian, there is concurrent state and tribal jurisdiction, exclusive of the federal government. (Indian Civil Rights Act, 25 U.S.C. § 1301.) Lastly, if the offender is Indian, and there is a victimless crime, there is concurrent state and tribal jurisdiction, exclusive of the federal government. (Ibid.)

Most crimes committed in California Indian Country are criminally prosecuted in state court, although Tribes can also prosecute the same crime in tribal court under tribal law, if the defendant is Indian. Notably, tribal courts may exercise special tribal criminal jurisdiction over all people, concurrent with the criminal jurisdiction of the federal government and the state, for the crime of assault of tribal justice personnel, even if neither the defendant nor the alleged victim is an Indian. (25 U.S.C § 1304, subds. (a)(1), (a)(5)(A), & (b)(4)(A).) This means that both state and tribal courts may prosecute persons who assault or attempt to murder tribal judges, even where the defendant is not Indian.

In practice, the criminal penalties that tribal courts can impose are limited. For example, tribal courts may not impose a penalty resulting from a conviction of more than 1 year or a fine of $5,000, or both. . (25 U.S.C. § 1302, subd. (a)(7)(B).) Although a tribal court may impose a term of imprisonment of 3 years or a fine not to exceed $15,000 or both, as specified, if the person has previously been convicted of the same or comparable offense by any jurisdiction in the U.S. or is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the federal or state government. (Id. at subd. (a)(7)(C). Under no circumstance can the term of the sentence exceed 9 years. (Id. at subd. (a)(7)(D). Here, tribal courts could still exercise their special criminal jurisdiction to prosecute persons who assault tribal judges since this bill only increases the punishment associated with assaulting a tribal judge from a maximum of six months to a maximum of one year. However, state courts will be the more appropriate venue for cases pertaining to the attempted murder of a tribal judge, seeing as AB 2281 increases the penalty associated with a conviction for the attempted murder of a tribal judge to a minimum of 15 years, which is above the maximum 9 year sentence that tribal courts can impose.

1. Argument in Support: According to California Indian Legal Services, “California Tribal Judges are often faced with making decisions impacting child custody, protection orders, division of property and other highly charged litigant claims. However, unlike other judges, many Tribal Court Judges do not law enforcement officers in their court room or other security protection. Due to Judges significant vulnerabilities, state laws have greater penalties for threats and assaults made against State and Federal Court Judges and also the protections limiting their personal information from being made public. Tribal Court Judges are no less vulnerable and deserve the same level of protection. This bill is crucial as it aims to rectify this disparity by providing equity for Tribal Judges who are integral to upholding the Tribe's sovereign right to operate their own judicial systems.”
2. Argument in Opposition: None
   
3. Related Legislation:
   1. AB 2138 (Ramos), would authorize a tribal law enforcement officer to be designated as a California peace officer if the Tribe and officer meet specified requirements. AB 2138 is pending in this committee.
   2. AB 3168 (Gipson), would authorize an agency employing specified public officials, to request that the department remove the DMV confidentiality protections following the termination of employment if no appeal to the termination is filed or if the termination or separation is upheld. AB 2168 is pending in the Assembly Committee on Transportation.
      
4. Prior Legislation:
   1. SB 101 (Nielsen), of the 2021-2022 Legislative Session, would have added code enforcement and parking control officers, as well as their spouses and children, to the list of persons who may request an additional level of confidentiality from the DMV and would have required the DMV to charge a fee to cover its program costs. SB 101 was held in the Senate Appropriations Committee.
   2. AB 980 (Kalra), of the 2019-2020 Legislative Session, would have made confidential, upon a person’s request, a person’s home address in the records of the DMV if the person is a county public guardian, county public conservator or county public administrator or a staff member of such offices. AB 980 was held in Assembly Appropriations Committee.
   3. AB 2322 (Daly), Chapter 914, Statutes of 2018, requires the DMV, upon request, to make a retired judge or court commissioner's home address confidential for the rest of their life and for any surviving spouse or child for three years following the death of the judge or court commissioner.
   4. SB 1093 (Jackson), of the 2017-2018 Legislative Session, would have added adult abuse investigators and social workers, as well as their spouses and children, to the list of persons who may request an additional level of confidentiality from the DMV. SB 1093 was held in Senate Appropriations Committee.
   5. SB 506 (Poochigian), Chapter 466, Statutes of 2006, establishes confidentiality of voter registration information for public safety officials, state and federal judges, and court commissioners and allows a local elections official in their discretion to extend confidentiality of voter registration information to specified public safety officials
   6. AB 767 (Pacheco), of the 1999-2000 Legislative Session, would have made it a felony punishable by 4, 7, or 10 years in prison to kidnap a specified elected official, a specified participant in the justice system, or one of their family members in retaliation for or to prevent the performance of their official duties. AB 767 was held in Senate Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Indian Legal Services
California State Sheriffs' Association
Northern California Tribal Court Coalition

Opposition: None

Analysis Prepared by:

Ilan Zur / PUB. S. / (916) 319-3744