"High Court Will Resolve Whether Proposition 64 Is Retroactive"

In anticipation of this morning's oral arguments in the Mervyn's and Branick cases, today's Daily Journal has an article by yours truly that addresses the so-called "statutory repeal rule." (Unfortunately, the Daily Journal does not provide pass-through links to specific articles.) A brief excerpt:

Among other issues, the Supreme Court will have to decide whether the so-called statutory repeal rule applies to Proposition 64. This rule holds that "a cause of action or remedy dependent on a 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." Callet v. Alioto, 210 Cal. 65 (1930). Five court of appeal divisions (in three districts) have held in published opinions that Prop. 64 applies retroactively - all in reliance on this rule. Two divisions (in two districts) have held otherwise.

The California Supreme Court has addressed the statutory repeal rule in a series of cases dating back to the 1930s. A close, chronological examination of these cases demonstrates that this so-called rule is merely an application of the ordinary principle of statutory interpretation that new statutes apply prospectively only, absent a very clear indication of legislative (or electoral) intent to the contrary. See Tapia v. Superior Court, 53 Cal.3d 282 (1991). Accordingly, the rule may not be applied to Prop. 64, or to any other statutory amendment, without examining the Legislature's (or the electorate's) intent.

The article completes the analysis that I began in my three prior posts on the "statutory repeal rule." I'm hoping very much to attend this morning's arguments and to provide a report later today. Anyone else who attends the arguments should feel more than free to email me their thoughts, or post them here as a comment.

UPDATE: I just got back from the arguments and hope to put up a post at some point later today. For now, suffice it to say that all the attorneys argued very well, and the bench was what I would call medium-hot. I also want to point out that the editors made one change to my article that I think is substantive. My original version had quotation marks around the words "statutory repeal rule" (and the shorter version, "rule") wherever they appeared. This was deliberate, as the whole point of my article is that there really is no distinct "statutory repeal rule" per se. Rather, the so-called "rule" is simply an application of the ordinary principle of statutory construction that amendments operate prospectively absent some clear indication of retroactive intent.