The "statutory repeal rule" - Post #2

This is the second in my series of posts about California Supreme Court cases interpreting the so-called "statutory repeal rule." My first post in the series addressed two cases from the 1930s, Callet v. Alioto, 210 Cal. 65 (1930) (per curiam) and Krause v. Rarity, 210 Cal. 644 (1930) (in bank). In both cases, the Supreme Court mentioned the "statutory repeal rule" but decided it did not apply.

In Hopkins v. Anderson, 218 Cal. 62 (1933), the Supreme Court also mentioned the "statutory repeal rule" and again decided that it did not apply. Hopkins involved a 1929 amendment to the state constitutional provisions governing the jurisdiction of the superior and municipal courts. Id. at 64-66. If applied retroactively, the amendment would have stripped away the plaintiff’s judgment, because the court that entered it would have lacked jurisdiction. See id. The Supreme Court cited Callet v. Alioto both for “the general rule that a cause of action or remedy dependent on statute falls with a repeal of the statute, even after the action thereon is pending, in the absence of a saving clause in the repealing statute” as well as for “the equally well settled and … fundamental rule of statutory construction that every statute will be construed to operate prospectively, and will not be given a retrospective effect, unless the intention that it should have that effect is clearly expressed.” Id. at 66-67. Although the case involved a purely statutory issue—superior and municipal court subject-matter jurisdiction—the Supreme Court declined to apply the amendment retroactively, holding that “[t]here is nothing in the 1929 amendment … indicating that it was intended to have a retroactive operation.” Id. at 67 (emphasis added).

A few years later, the Supreme Court addressed the “statutory repeal rule” again in Southern Service Co. v. County of Los Angeles, 15 Cal.2d 1 (1940). Defendants frequently cite this case in arguing that Prop. 64 applies retroactively, because Southern Service held that a certain amendment to the state tax laws applied retroactively and abated all pending actions. Prior law authorized refunds of taxes illegally assessed but paid without protest. Id. at 5-6. A 1939 amendment changed that law, and prohibited refunds “of any tax voluntarily paid which was levied prior to January 1, 1939 .…” Id. at 6. The Supreme Court observed that the right to a tax refund is “purely statutory,” and that “[t]he legislature may withdraw such a statutory right or remedy, and a repeal of such a statute without a saving clause will terminate all pending actions based thereon.” Id. at 11-12 (citing Callet v. Alioto and other cases). However, the Court applied this principle to the case before it only because the Legislature had expressly indicated that the change in law would apply to taxes “levied prior to January 1, 1939”:

True, the words of the 1939 statute are not expressly words of repeal without a saving clause, but the effect is the same in so far as the application of the principles is concerned when the legislature by apt expression has withdrawn the right and remedy in particular cases, including all pending actions based thereon. The legislature, no doubt having in mind the holding of this court in Krause v. Rarity, 210 Cal. 644, 654, 655, expressly provided that the withdrawal of the right to refund in the particular class of illegal taxes specified should terminate all pending actions. Its expression in this respect is sufficient to accomplish the declared intent and purpose.

Id. at 13. As I explained in my last post on this subject, the Supreme Court in Krause v. Rarity held the “statutory repeal rule” inapplicable because the necessary expression of legislative intent was absent. Accordingly, neither Southern Service nor Kraus v. Rarity supports the notion that Prop. 64 applies retroactively to pending cases.

The next case in which the Supreme Court addressed the “statutory repeal rule” is Sekt v. Justice’s Court, 26 Cal.2d 297, 304-307 (1945). In Sekt, the Supreme Court declared with even more force that this so-called “rule” is merely an application of the legislative intent doctrine.

A 1943 amendment expanded the superior court’s jurisdiction over certain criminal conspiracy cases and increased the potential punishment. Id. at 299. The defendant, who had been tried and convicted in the justice court and whose appeal was pending when the law was changed, argued that the amendment stripped away his conviction because the justice court no longer had jurisdiction over his case. Id. at 299-300. The Supreme Court disagreed for two reasons. First, it determined that the general savings clause of Government Code section 9608 was enacted to “avoid the strict common-law rule that the repeal of criminal statutes terminates all pending prosecutions not reduced to final judgment .” Id. at 300. Second, as “another and completely independent ground,” the Court determined that “the amendment … was not a repeal of the type to bring into operation the common-law rule that the repeal of a criminal statute, without a saving clause, operates to terminate all pending prosecutions.” Id. at 303-304. In so holding, it explained that the rationale behind this rule is grounded in legislative intent:

This rule is well settled at common law and is accepted by most American jurisdictions. It is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts. (See discussion, 22 C.J.S. § 27, p. 81.) This rule results, of course, in permitting a person who has admittedly committed a crime to go free, it being assumed that the Legislature, by repealing the law making the act a crime, did not desire anyone in the future whose conviction had not been reduced to final judgment to be punished under it. But this rule only applies in its full force where there is an outright repeal, and where there is no other new or old law under which the offender may be punished.

Id. at 304-305 (emphasis added). The Supreme Court reiterated that “legislative intent is the test” for determining whether a statutory “repeal” applies retroactively or not. Id. at 306 (emphasis added). As for the defendant’s conviction, it would stand under the prior law:

There is substantial and well-reasoned authority to the effect that where the later statute increases the punishment the Legislature has clearly demonstrated its intent that the act should be punished, and since the offender cannot be punished under the new law because of the ex post facto provision of the Constitution, he will be held under the old law. It is presumed from the very purpose of the amendment that the Legislature intended that all offenders should be punished, and a saving clause is implied. …. The very nature of the situation compels the conclusion that the Legislature must have intended that the amendment should operate prospectively, and that as to past offenders they should be punished under the old law. To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature.

Id. at 307, 311. Finally, the Court issued a stern warning to other courts against “blindly applying the common-law [statutory repeal] rule to a situation where the reason for the rule does not exist. Where the reason for the rule ceases the rule should not apply.” Id. at 308 (emphasis added).

My next post on this topic will address cases from the 1960s and 1970s in which the Supreme Court reiterated the legislative intent principle behind the so-called “statutory repeal rule.”

UPDATE: The third post in the series is accessible here.

Comments

[Ellen Lake]

Kimberly,
This weblog is very impressive and helpful! Have you done any more posts on the Statutory Repeal rule beyond these first two?

Ellen Lake

[Kimberly]

Hi Ellen, thanks for your comment and for reading the blog. Unfortunately, I'm a bit behind schedule with my statutory repeal posts and post #2 is my most recent one. I hope to have the next post in the series up by the end of the month.
Best regards,
Kim Kralowec