Our California clients ask us about retroactive application of enactments or amendments in bills that affect their statutes of interest and which could adversely affect their claims or litigation strategy. We understand their concerns and as we review the legislative history materials or the bill itself, we look for any indication that there was legislative intent for retroactive application of the proposals in the bill.
When there is no express statement or declaration concerning retroactivity in any bill, this can make it difficult to make any absolute determination as to the retroactivity of the provisions of that bill. The general rule pertaining to retroactivity is that statutes are presumed to operate prospectively unless there is some legislative expression to the contrary.
The law regarding retroactivity is very complex, and often seems to hinge upon particular factual elements in the circumstance to which the legislation is being applied. Unless we see from the bill itself or from the legislative history materials an intent by the Legislature to have a bill’s provisions apply retroactively, the rule is that the new provisions will apply prospectively.
Contact Legislative Intent Service, Inc. at 1-800-666-1917 or by email for a free quote or to discuss your legislative history research questions. We are professional legislative historians at your service in the 21st Century!
CLIENT COMMENT:
In your discussion on retroactivity and prospective application of laws, you state, in part, ” Unless we see from the bill itself or from the legislative history materials an intent by the Legislature to have a bill’s provisions apply retroactively, the rule is that the new provisions will apply prospectively.” Though that is certainly the presumption under Penal Code, Civil Code, and Code of Civil Procedure Code sections 3 (each), there has been an exception for amerliorative penal statutes since 1965. See In re Estrada (1965) 63 Cal.2d 740 and a host of progeny. In the context of the application of the Three Strikes Reform Act, the question is pending in the California Supreme Court as we speak. Under Estrada, the presumption is that an ameliorative penal provision is retroactive to those whose judgments are not yet final, in the absence of an indication of a contrary intent. (As in either direction, if there IS an indication of what the Legislature/Electorate intended, that intent trumps presumptions. So Estrada applies ONLY if the provision is ameliorative–usually in the context of punishment for crimes, or decriminalization of behavior, or increasing the number of elements required to commit a crime, but it has also been applied in some civil contexts–AND the intent cannot otherwise be determined.) (I wrote a couple of extensive articles on Estrada in the past year for my California Attorneys for Criminal Justice article–my column is In Custodia Legis–in their Forum publication. Not that I’d expect you to want them, but if you WOULD like them, I can send you a copy of them. GARY McCURDY, Central California Appellate Project, Sacramento, CA