The UCL Practitioner
Friday, March 04, 2005
Three new trial court orders
I've updated my list of Prop. 64 orders to include these three, two of which (Andres and Zamani) hold that Prop. 64 does NOT apply to pending cases:
The Zamani order is significant in that it is the first to come out of Santa Clara County. The reader who kindly forwarded this order reported that:
Judge Kevin McKenney dealt with the retroactivity question by simply stating that there were differences in the courts of appeal in that the First District had held it was not retroactive and the Second and Fourth Districts had held otherwise, but neither decision was binding on him and that unless and until the Sixth District issued a ruling directing otherwise he would continue to apply Prop. 64 non-retroactively.
I am unaware of any Sixth District pending appeals in which the Prop. 64 retroactivity question has been raised.
It would be reversible error for Judge McKenney to automatically follow any Sixth Circuit published appellate decision on the Proposition 64 retroactivity issue. That is because appellate decisions have the same status as binding authority (if there is no split of authority) of persuasive authority (if, as here, there is a split) regardless of which district ruled which way or where the trial court is. Auto Equity Sales, Inc. v. Sup. Ct., 57 Cal. 2d 450, 456 (1962); Walsh v. West Valley Mission Comm. College Dist., 66 Cal.App.4th 1532, 1542, n. 4. Although the trial judge can follow the decision he prefers, it had better be for wel-articulated reasons and not just because he thinks he has to because it's from his district.
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