Last week, in Carter v. California Department of Veterans Affairs, ___ Cal.4th ___ (Jun. 8, 2006), the California Supreme Court discussed retroactivity for the first time since McClung v. Employment Development Dept., 34 Cal.4th 467 (2004) (see my original post on McClung here). In a unanimous opinion, the Court held that a 2003 amendment to the Fair Employment and Housing Act (Gov. Code §§12900 et seq.) applied to pending cases because it "merely clarified existing law." In so holding, the Court penned the following language, which could be relevant to its upcoming analysis of Prop. 64 retroactivity in Mervyn's and Branick:
A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 (Western Security Bank).) However, a statute might not apply retroactively when it substantially changes the legal consequences of past actions, or upsets expectations based in prior law. (Id. at p. 243; see also Landgraf v. USI Film Products (1994) 511 U.S. 244, 269 (Landgraf).) .... If we conclude the amendment did more than clarify existing law, we would then address whether the amendment should apply retroactively to the conduct present here, and whether a retroactive application would implicate due process concerns. (Landgraf, supra, 511 U.S. at p. 270.)Slip op. at 6-7, 8 (emphasis and hyperlinks added).
Two aspects of this language warrant comment. First, during the Mervyn's/Branick oral arguments on May 31, those arguing against retroactive application of Prop. 64 focused heavily on the idea that applying the amendments to pending cases would "upset expectations based in prior law." The Supreme Court acknowledged the validity of that idea in Carter.
Second, the Court of Appeal (First Appellate District, Division Four) relied heavily on Landgraf in holding that Prop. 64 does not apply retroactively to pending cases. Californians for Disability Rights v. Mervyn's, LLC, 126 Cal.App.4th 386, 393-97 (2005) (review granted). Although the Mervyn's court has been harshly criticized for relying on Landgraf (because the principles set forth in Landgraf supposedly only apply to federal statutes), the Supreme Court showed no hesitancy in citing and relying on Landgraf itself in Carter.