The UCL Practitioner
Tuesday, November 30, 2004
Trial judge holds Prop. 64 inapplicable to pending cases
On November 10, 2004—just a week after Proposition 64 went into effect—a Sacramento County Superior Court judge issued the following order in Twomey v. Hansen Information Technologies (no. 03AS03632):
The court has received and considered the supplemental briefs filed by both parties as to the effect of the passage of Proposition 64. There is no dispute that the initiative is immediately effective. However, the parties disagree on whether it may be applied to this case.

The well-settled rule is that statutes, and initiatives, are presumed to operate prospectively only absent an explicit expression otherwise. Tapia v. Superior Court (1991) 53 Cal.3d 282, 287. The language of Proposition 64 is completely silent on whether it is to be applied retroactively. The voter information material is similarly silent. In such cases, it may be applied only prospectively. Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1194 (holding that Proposition 51 operated prospectively only as the language did not indicate the measure was to apply retroactively). Compare, Jenkins v. County of Los Angeles (1999) 74 Cal.App.4th 524, 536 (language of Proposition 213 included statement that the act “shall apply to all actions in which the initial trial has not commenced prior to January 1, 1997.”). The Court notes that Propositions 69 and 66 on this year’s ballot each include express language concerning retroactive application.

Defendant’s contention that this Court may infer an intent that the initiative apply retroactively from language concerning the seriousness of the problem it addresses is the same argument made to the Court in Evangelatos and rejected. Evangelatos, supra, 44 Cal.3d. at 1209-12.

Defendant’s contention that Proposition 64 operates prospectively, and therefore applies to this action, because its only effect is on how trial is conducted is not persuasive. In Tapia, supra, the California Supreme Court held that certain portions of Proposition 115 applied to pending actions because their only effect was on how trial was to be conducted, e.g. jury voir dire. The requirement for standing imposed by Proposition 64 is not a procedure affecting only how trial is to be conducted. Rather, the requirement of actual injury for standing goes to the very existence of a cause of action under Bus. & Prof. Code section 17200.

In conclusion, the Court finds that Proposition 64 does not apply to this action. Therefore, the tentative ruling granting plaintiff’s motion for further responses to interrogatories ... is affirmed with the following addition. Defendant's position that the language of the initiative itself, e.g. the word "eliminate," resolves this issue is not persuasive. The language is not specific enough to overcome the general presumption against retroactive application to pending cases.
This is the first and only order I'm aware of that addresses the Proposition 64 retroactivity issue. If you know of any others, please email me. (UPDATED to include additional language from the order. Also, many thanks to the colleague who forwarded this order to me yesterday.)

Maybe it was a little early for me to declare that Prop 64 does not apply retroactively as if it were written in stone, but after reading these Memos from BigLaw (from the CLE program), it seems pretty clear to me that the arguments against are pretty weak, and Judge Cecil seems to agree.
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