Prop. 64 and waiver

As I reported here, the Court of Appeal recently ruled that a defendant can waive the right to argue that Prop. 64 applies retroactively to a pending case by not raising the issue soon enough. Lyons v. Chinese Hosp. Assn., ___ Cal.App.4th ___ (Feb. 6, 2006) (slip op. at 2 n.2). Last week, a reader wrote in with the following question:

What does the recent appeals court’s ruling finding that the Prop 64 issue can be waived if not raised in a timely fashion say about or do to the argument that defendants have raised to the Supreme Court about standing being challengable at any time during the process, if anything? Are they safe because they challenged it early enough, or does this in some way strike a blow against that argument?

This was my response:

In answer to your question, off the top of my head, I think the rule that standing can be raised at any time derives from the related rule that challenges to the court's jurisdiction can be raised at any time. Indeed, the courts have a duty to raise jurisdictional problems sua sponte whenever they become aware of them. Normally, standing is jurisdictional, so if the plaintiff lacks standing, the court lacks jurisdiction. Thus, the rule developed that challenges to standing can be raised at any time. With Prop. 64, however, if the new standing rules do not apply retroactively, then there is no standing problem; instead, the old standing rules would apply, and the (unaffected) plaintiff would have standing. Thus, there is no jurisdictional problem that the court would be required to raise sua sponte, or that a party would be permitted to raise at any time. This may have been the reasoning underlying the court's decision that Prop. 64 retroactivity is not the kind of issue that can be raised at any time, and that it can, in fact, be waived.

It also seems to me that in all of the cases now pending before the Supreme Court, the defendants raised the Prop. 64 issue very quickly, within a couple of weeks or months, at most, after the initiative passed, so those defendants are safe from any waiver argument. Any other thoughts on this?