LESLI ANN McCLUNG, Plaintiff and Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Defendants and Respondents.
No. S121568
Supreme Court of California
Nov. 4, 2004.
34 Cal. 4th 467
Law Offices of Guy D. Loranger, Guy D. Loranger; and Shelley Gregory for Plaintiff and Appellant.
Bill Lockyer, Attorney General, James M. Schiavenza, Louis R. Mauro, Barton R. Jenks and Diana L. Cuomo, Deputy Attorneys General, for Defendant and Respondent Employment Development Department.
Matheny Sears Linkert & Long, Michael A. Bishop and Roger Yang for Defendant and Respondent Manuel Lopez.
OPINION
CHIN, J.—“It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases,
This basic principle is at issue in this case. In Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 (Carrisales), we interpreted
We disagree. Under fundamental principles of separation of powers, the legislative branch of government enacts laws. Subject to constitutional constraints, it may change the law. But interpreting the law is a judicial function. After the judiciary definitively and finally interprets a statute, as we did in Carrisales, supra, 21 Cal.4th 1132, the Legislature may amend the statute to say something different. But if it does so, it changes the law; it does not merely state what the law always was. Any statement to the contrary is beyond the Legislature‘s power. We also conclude this change in the law does not apply retroactively to impose liability for actions not subject to liability when performed.
I. FACTS AND PROCEDURAL BACKGROUND
In January 1998, plaintiff Lesli Ann McClung filed a complaint against the Employment Development Department and Manuel Lopez, alleging claims of hostile work environment and failure to remedy a hostile work environment under the FEHA, as well as another cause of action not relevant here. The superior court granted summary judgment for defendants, and plaintiff appealed.
The Court of Appeal affirmed the judgment in favor of the Employment Development Department, but reversed it as to Lopez. In so doing, it held that Lopez was plaintiff‘s coworker, not supervisor. It also recognized that we had held in Carrisales, supra, 21 Cal.4th at page 1140, that the FEHA does not “impose personal liability for harassment on nonsupervisory coworkers.” Nevertheless, it found Lopez personally liable for harassment under the FEHA. It applied an amendment to the FEHA that imposes personal liability
We granted Lopez‘s petition for review to decide whether
II. DISCUSSION
A. Background
The FEHA “declares certain kinds of discrimination and harassment in the workplace to be ‘unlawful employment practice[s].’ (
We must decide whether the amendment to
Accordingly, two separate questions are presented here: (1) Did the amendment extending liability in subdivision (j)(3) change or merely clarify the law? (2) If the amendment did change the law, does the change apply retroactively? We consider the former question first. Because we conclude the amendment did, indeed, change the law, we also consider the latter question.
B. Whether the Amendment Changed the Law
“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (
The legislative power rests with the Legislature. (
It is true that if the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration. (Western Security Bank, supra, 15 Cal.4th at p. 244.) But even then, “a legislative declaration of an existing statute‘s meaning” is but a factor for a court to consider and “is neither binding nor conclusive in construing the statute.” (Ibid.; see also Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 52; Del Costello v. State of California (1982) 135 Cal.App.3d 887, 893, fn. 8.) This is because the “Legislature has no authority to interpret a statute. That is a judicial task. The Legislature may define the meaning of statutory language by a present legislative enactment which, subject to constitutional constraints, it may deem retroactive. But it has no legislative authority simply to say what it did mean.” (Del Costello v. State of California, supra, at p. 893, fn. 8, cited with approval in People v. Cruz, supra, 13 Cal.4th at p. 781.) A declaration that a statutory amendment merely clarified the law “cannot be given an obviously absurd effect, and the court cannot accept the Legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms.” (California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 214.) Because this court had already finally and definitively interpreted
On another occasion, the Legislature similarly enacted legislation overruling a decision of this court—which was within its power—but also purported to state that the new legislation merely declared what the law always was—which was beyond its power. In People v. Harvey (1979) 25 Cal.3d 754, we interpreted
Plaintiff points out that Carrisales, supra, 21 Cal.4th 1132, itself postdated the acts alleged in this case and argues that before that decision, nonsupervisory coworkers had been personally liable under the statute. However, “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” (Rivers v. Roadway Express, Inc. (1994) 511 U.S. 298, 312-313; accord, Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211, 216.) This is why a judicial decision generally applies retroactively. (Rivers v. Roadway Express, Inc., supra, at pp. 311-312; People v. Guerra (1984) 37 Cal.3d 385, 399.) It is true that two administrative decisions had previously interpreted the statute differently than we did. (See Carrisales, supra, at pp. 1138-1139.) But we merely concluded that those decisions had misconstrued the statute (ibid.); we did not, and could not, amend the statute ourselves. (See People v. Guerra, supra, at p. 399, fn. 13.) It is the courts’ duty to construe statutes, “even though this requires the overthrow of an earlier erroneous administrative construction.” (Bodinson Mfg. Co. v. California E. Com., supra, 17 Cal.2d at p. 326; see also Rivers v. Roadway Express, Inc., supra, at pp. 312-313 & fn. 12 [explaining that a United States Supreme Court decision interpreting a statute stated what the statute had always meant, even if the decision overruled earlier federal appellate court decisions that had interpreted the statute differently].)
Our conclusion that the amendment to
C. Whether the Amendment Applies Retroactively
“Generally, statutes operate prospectively only.” (Myers, supra, 28 Cal.4th at p. 840; see also Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1206-1208.) “[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. . . . For that reason, the ‘principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal. ’ ” (Landgraf, supra, 511 U.S. at p. 265, fns. omitted; see also Myers, supra, at pp. 840-841.) “The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact.” (Landgraf, supra, at p. 270.)
This is not to say that a statute may never apply retroactively. “[A] statute‘s retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent ‘some constitutional objection’ to retroactivity.” (Myers, supra, 28 Cal.4th at p. 841United States v. Heth (1806) 7 U.S. 399, 413; accord, Myers, supra, at p. 840.) “[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.” (Myers, supra, at p. 844.)
We see nothing here to overcome the strong presumption against retroactivity. Plaintiff and Justice Moreno argue that the statement in
Neither Western Security Bank, supra, 15 Cal.4th 232, nor California Emp. etc. Com. v. Payne, supra, 31 Cal.2d 210, holds that an erroneous statement that an amendment merely declares existing law is sufficient to overcome the strong presumption against retroactively applying a statute that responds to a judicial interpretation. In California Emp. etc. Com. v. Payne, the amendment at issue does not appear to have been adopted in response to a judicial decision. In Western Security Bank, supra, 15 Cal.4th 232, the only judicial action that had interpreted the statute before the Legislature amended it was a Court of Appeal decision that never became final. After considering all of the circumstances, we specifically held that the amendment at issue “did not effect any change in the law, but simply clarified and confirmed the state of the law prior to the Court of Appeal‘s first opinion. Because the legislative action did not change the legal effect of past actions, [the amendment] does not act retrospectively; it governs this case.” (Id. at p. 252.) Here, by contrast, as we have explained, Carrisales, supra, 21 Cal.4th 1132, was a final and definitive judicial interpretation of the FEHA. The amendment at issue here did change the law.
Moreover, the language of
Plaintiff and the Court of Appeal also cite statements in the legislative history to the effect that the proposed amendment would only “clarify” the law‘s original meaning. But these references may have been intended only to demonstrate that clarification was necessary, not as positive assertions that the law always provided for coworker liability. We see no indication the Legislature even thought about giving, much less expressly intended to give, the amendment retroactive effect to the extent the amendment did change the law. Specifically, we see no clear and unavoidable intent to have the statute retroactively impose liability for actions not subject to liability when taken. “Requiring clear intent assures that [the legislative body] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” (Landgraf, supra, 511 U.S. at pp. 272-273.)
Retroactive application would also raise constitutional implications. Both this court and the United States Supreme Court have expressed concerns that
For all of these reasons, we conclude that
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
MORENO, J., Concurring and Dissenting. We held in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 that the California Fair Employment and Housing Act (FEHA) (
I agree with the majority that the Legislature could not, by amending the statute, clarify its meaning in a manner inconsistent with our decision in Carrisales. Thus, the amendment must be deemed to have changed, rather than merely clarified, the law. But unlike the majority, I conclude that by purporting to clarify its original intent, the Legislature clearly intended to apply this statutory change retroactively. We must honor this legislative intent, unless prevented from doing so by constitutional concerns.
The majority correctly recognizes that a statute may apply retroactively. As we stated in Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828,
The majority, however, “see[s] nothing here to overcome the strong presumption against retroactivity.” (Maj. opn., ante, at p. 475.) I disagree. The statute at issue, subdivision (j)(2) of section 12940, states that its provisions “are declaratory of existing law. . . .” In Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244, we recognized the importance of such legislative language: “[E]ven if the court does not accept the Legislature‘s assurance that an unmistakable change in the law is merely a ‘clarification,’ the declaration of intent may still effectively reflect the Legislature‘s purpose to achieve a retrospective change. [Citation.] . . . Thus, where a statute provides that it clarifies or declares existing law, ‘[i]t is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment.’ ”
We made the same point half a century earlier in California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 213, in which the Legislature had amended a statute to add a requirement of an “intent to evade the provisions of this act,” further stating that the amendment “is hereby declared to be merely a clarification of the original intention of the legislature rather than a substantive change and such section shall be construed for all purposes as though it had always read as hereinbefore set forth.” Despite the Legislature‘s statement, it was clear that the amendment changed, rather than merely clarified, the law, as no such intent to evade had previously been required. Accordingly, we held that “the language of the ‘clarification’ provision in this case cannot be given an obviously absurd effect, and the court cannot accept the Legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms.” (Id. at p. 214.) We recognized, however, that the Legislature‘s statement indicated a clear intent that the amendment apply retroactively: “It does not follow, however, that the ‘clarification’ provision . . . is ineffective for any purpose. It is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, we must give effect to this intention unless there is some constitutional objection thereto.” (Ibid.)
The majority notes that the statutory language stating that the provisions of subdivision (j) of section 12940 are declaratory of existing law was originally added to the statute in reference to a 1987 amendment. The majority concludes from this that “[a]ny inference the Legislature intended the 2000 amendment to apply retroactively is thus far weaker than if the Legislature had asserted, in the 2000 amending act itself, that the amendment‘s provisions declared existing law.” (Maj. opn., ante, at p. 476.) Again, I do not agree.
A statute that is amended is “re-enacted as amended.” (
Because the Legislature clearly indicated its intent that the amendment to the statute be applied retroactively, we must honor that intent unless there is a constitutional objection to doing so.
The high court addressed the constitutional concerns posed by retroactive application of statutes at some length in Landgraf v. USI Film Products (1994) 511 U.S. 244. The court recognized that “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” (Id. at p. 265, fn. omitted.) The court noted that “the antiretroactivity principle finds expression in several provisions of our Constitution,” including the ex post facto clause, the provision prohibiting the impairment of obligations of contracts, the Fifth Amendment‘s takings clause, the prohibition of bills of attainder, and the due process clause. (Id. at p. 266.)
Further, courts must defer to a legislative judgment that a statute should be applied retroactively: “In this century, legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments.” (Landgraf v. USI Film Products, supra, 511 U.S. 244, 272.) Accordingly, the high court declared, “the constitutional impediments to retroactive civil legislation are now modest.” (Ibid., italics omitted.)
Significantly, defendant Lopez does not cite any authority establishing that retroactive application of the amendment to section 12940, subdivision (j) would violate the Constitution. Rather, he simply asserts that “to impose personal liability . . . retroactively should require a ‘clear and unavoidable’ statement from the Legislature favoring retroactivity . . . .” As explained above, I conclude that the provision stating that the amendment is declaratory of existing law constitutes such a clear statement of intent to apply the amendment retroactively.
Neither does the majority cite any authority establishing that retroactive application of the amendment to section 12940, subdivision (j) would violate the Constitution. Rather, the majority asserts that retroactive application would “raise constitutional implications,” while acknowledging that “[b]oth this court and the United States Supreme Court have expressed concerns that retroactively creating liability for past conduct might violate the Constitution, although it appears neither court has so held. [Citations.]” (Maj. opn., ante, at pp. 476-477, italics added.)
I discern no constitutional impediment to giving effect to the Legislature‘s clear intent to apply the amendment to section 12940, subdivision (j) retroactively. As noted above, the amendment changed the law by imposing upon nonsupervisory coworkers personal liability under the FEHA for harassment, but this did not subject such nonsupervisory coworkers to liability for
Given the “modest” constitutional impediments to retroactive civil legislation (Landgraf v. USI Film Products, supra, 511 U.S. 244, 272), and the circumstance that harassment by nonsupervisory coworkers was tortious prior to the statutory amendment imposing liability for such conduct under the FEHA, I conclude that there is no constitutional obstacle to the retroactive imposition of personal liability for harassment on nonsupervisory coworkers, as the Legislature intended.