The UCL Practitioner
Monday, August 15, 2005
Is Prop. 64 an unconstitutional bill of attainder?
Consider the following fact pattern. An unaffected plaintiff filed a UCL "general public" action several years ago and has been litigating it ever since. After the November election, the defendant moved for judgment on the pleadings based on Prop. 64. The trial court held that Prop. 64 applies retroactively to pending cases, granted the motion, and dismissed the action with prejudice. The defendant, as the prevailing party, filed a memorandum of costs, seeking several thousand dollars in expenses incurred litigating the case over the past few years. Assume the case was meritorious when filed. The trial court denies the plaintiff's motion to tax, and makes a significant costs award.

A reader has suggested to me that Prop. 64, so applied, is an unconstitutional bill of attainder. The argument would go like this. If Prop. 64 applies to cases filed before its effective date, then it simply amounts to a decree that unaffected UCL plaintiffs shall lose their cases and shall become liable for the prevailing parties' costs. Moreover, the ballot materials and the proponents' advertising demonstrate that the intent of the amendment was to single out unaffected plaintiffs (and their lawyers) and punish them for the UCL cases they filed in the past. Once the amendment passed, there was nothing they could do to avoid becoming liable for costs.

I have to reserve final judgment on this until I look more closely at the caselaw on bills of attainder, but it does sound compelling. What do others think?
Interesting idea -- but my understanding is that a Bill of Attainder is a law passed for the purpose of punishing specific individuals or groups members. I don't think that a law of general application, with no punitive intent in its legislative history, and that has a significant effect going forward would fall into this category. See Nixon v. Administrator of General Services, 433 U.S. 425, 468-484 (1977).
Using the analogy of Armijo v. Miles (2005) 127 Cal.App.4th 1405, I doubt that Proposition 64, if applied retroactively, is an unconstitutional bill of attainder. While you may be able to survive a demurrer, I doubt you could get by a Motion for Summary Judgment. As Armijo v. Mills notes on pages 1416 and 1419:

Defendants argue, however, that "it would be unconstitutional to apply AB 2580 retroactively here because… (3) it constitutes an unconstitutional bill of attainder by singling out for punishment a small discreet group of defendants…

There is no merit to defendants' assertion that Assembly Bill 2580, to the extent it amends the wrongful death statute retroactively, violates the federal and state constitutional proscriptions against passing a bill of attainder….

…The 2005 version of the statute merely sets forth the standing requirements that a surviving domestic partner must fulfill in order to obtain access to the courts and maintain a wrongful death action for a death occurring prior to January 1, 2002. Defendants therefore have failed to demonstrate that Assembly Bill 2580 is an unconstitutional bill of attainder.
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