The UCL Practitioner
Tuesday, February 01, 2005
 
BREAKING NEWS: Court of Appeal holds that Prop. 64 does NOT apply to pending cases
The Court of Appeal, First Appellate District, Division Four, just issued its published opinion in Californians for Disability Rights v. Mervyn's, LLC, ___ Cal.App.4th ___ (Feb. 1, 2005), in which it held that Proposition 64 does NOT apply to pending cases filed before its effective date. I will post more on the decision later.

UPDATE: In brief, the Court of Appeal found that Proposition 64 contains no clear statement of the electorate's intent on retroactivity; that the presumption against retroactivity therefore applies; that the so-called "statutory repeal" rule is simply an application of the electoral intent doctrine in the context of a repeal; and that the amendments "substantially affect existing rights and obligations." The opinion recognizes that the voters' intent is paramount (a recognition sorely lacking from the trial court decisions going the other way):
When read as a whole, the only fair conclusion is that the question of whether Proposition 64 applies to pending lawsuits was not presented to, nor considered by, the electorate. .... Nor is it proper for this court to exploit the voters' silence on the question of retroactivity and impose its own view as to whether the remedial purposes of Proposition 64 warrant disrupting pending litigation. .... Had the drafters, and voters, intended the initiative to apply retroactively, they could have so provided. They did not. The voters' silence on the issue of whether Proposition 64 is meant to have retroactive effect implicates the general presumption, unrebutted here, that the initiative applies prospectively.
Slip op. at 4-6. On the "statutory repeal" issue, the Court observed:
A case holding that the repeal of a statute terminates pending actions is not an exception to the prospectivity presumption, but an application of it. In those cases, the repeal of a statute indicated legislative intent that the repeal legislation apply retroactively, thus rebutting the presumption of prospectivity. Such cases also reflect an analytically distinct determination that the legislature had the power to retroactively affect pending litigation, because the rights being prosecuted were contingent statutory rights rather than vested rights, which implicate constitutional concerns.
Id. at 7. The Court also recognized that the voters' intent should be considered in assessing an amendment's impact on litigants' existing rights:
The relevant question is whether the law substantially affects existing rights and remedies. Dismissal of [this] appeal would substantially affect CDR's rights [because it would] foreclose consideration of CDR's claims .... It does not lessen the effect upon CDR's rights to observe, as Mervyn's does, that another plaintiff might be able to file an action against it for alleged unlawful business practices. .... Retroactive application of a statute often entails difficulties in enforcement and unanticipated consequences, and should not be embarked upon where, as here, there is no indication that retroactivity was even considered or intended by the voters.
Id. at 8-9. In other words, the Court is focusing on the rights of the plaintiff who filed the suit, rather than the rights of some hypothetical non-party who might be able to re-file a similar case in the future (another point on which many trial courts, in my view, tripped up). This decision is a victory all around for plaintiffs. Congratulations to counsel for CDR on your win.
Comments:
This is a good bit of news and will make my work on my writ to the Fourth Appellate District slightly less daunting.

I particularly like the fact that the Court goes straight at the line of cases talking about the "statutory repeal" issue. The "Krumme" briefs had it dead to rights: prospectivity is the presumption which must be overcome before retroactive application is permissible.

Now its a race between the Fourth and the Second Appellate Districts to get a decision out next. I wonder if we will see a split in the Districts...
 
So what does this do to the Sabraw "template" order?
 
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