Stanford Law School - Robert Crown Law Library

Filed 11/4/04
IN THE SUPREME COURT OF CALIFORNIA

LESLI ANN MCCLUNG,
Plaintiff and Appellant,
S121568
v.
) Ct.App.
3
C034110
EMPLOYMENT DEVELOPMENT )
DEPARTMENT et al.,
Sacramento
County
Defendants and Respondents. )
Super. Ct. No. 98AS00092

“It is, emphatically, the province and duty of the judicial department, to say
what the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule.” (Marbury v. Madison (1803) 5 U.S. 137, 177.)
This basic principle is at issue in this case. In Carrisales v. Department of
Corrections (1999) 21 Cal.4th 1132 (Carrisales), we interpreted Government
Code section 12940 (hereafter section 12940), part of the California Fair
Employment and Housing Act (FEHA). Later, the Legislature amended that
section by adding language to impose personal liability on persons Carrisales had
concluded had no personal liability. (§ 12940, subd. (j)(3).) Subdivision (j) also
contains a statement that its provisions “are declaratory of existing law . . . .”
(§ 12940, subd. (j)(2).) Based on this statement, plaintiff argues that the
amendment did not change, but merely clarified, existing law. Accordingly, she
argues, the amendment applies to this case to impose personal liability for earlier
actions despite our holding in Carrisales that no personal liability attached to
those actions.
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We disagree. Under fundamental principles of separation of powers, the
legislative branch of government enacts laws. Subject to constitutional
constraints, it may change the law. But interpreting the law is a judicial function.
After the judiciary definitively and finally interprets a statute, as we did in
Carrisales, supra, 21 Cal.4th 1132, the Legislature may amend the statute to say
something different. But if it does so, it changes the law; it does not merely state
what the law always was. Any statement to the contrary is beyond the
Legislature’s power. We also conclude this change in the law does not apply
retroactively to impose liability for actions not subject to liability when performed.
I. FACTS AND PROCEDURAL BACKGROUND
In January 1998, plaintiff Lesli Ann McClung filed a complaint against the
Employment Development Department and Manuel Lopez, alleging claims of
hostile work environment and failure to remedy a hostile work environment under
the FEHA, as well as another cause of action not relevant here. The superior court
granted summary judgment for defendants, and plaintiff appealed.
The Court of Appeal affirmed the judgment in favor of the Employment
Development Department, but reversed it as to Lopez. In so doing, it held that
Lopez was plaintiff’s coworker, not supervisor. It also recognized that we had
held in Carrisales, supra, 21 Cal.4th at page 1140, that the FEHA does not
“impose personal liability for harassment on nonsupervisory coworkers.”
Nevertheless, it found Lopez personally liable for harassment under the FEHA. It
applied an amendment to the FEHA that imposes personal liability on coworkers
(§ 12940, subd. (j)(3)), even though the amendment postdated the actions
underlying this lawsuit. It found that the preexisting statement in section 12940,
subdivision (j)(2), that subdivision (j)’s provisions “are declaratory of existing
law,” “supports the conclusion that [the amendment] merely clarifies the meaning
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of the prior statute.” Ultimately, it concluded that whether “the amendment
merely states the true meaning of the statute or reflects the Legislature’s purpose
to achieve a retrospective change, the result is the same: we must give effect to
the legislative intent that the personal liability amendment apply to all existing
cases, including this one.” “For Lopez,” said the Court of Appeal, “the Supreme
Court’s interpretation of individual liability under FEHA can be said to have come
and gone.”
We granted Lopez’s petition for review to decide whether section 12940,
subdivision (j)(3), applies to this case.
II. DISCUSSION
A. Background
The FEHA “declares certain kinds of discrimination and harassment in the
workplace to be ‘unlawful employment practice[s].’ (§ 12940.)” (Carrisales,
supra, 21 Cal.4th at p. 1134.) In Carrisales, we interpreted the FEHA as imposing
“on the employer the duty to take all reasonable steps to prevent this harassment
from occurring in the first place and to take immediate and appropriate action
when it is or should be aware of the conduct,” but as not imposing “personal
liability for harassment on nonsupervisory coworkers.” (Carrisales, supra, at p.
1140, citing § 12940, former subd. (h)(1).) Later, effective January 1, 2001, the
Legislature amended the subdivision of section 12940 that we interpreted in
Carrisales (now subdivision (j)). (Stats. 2000, ch. 1049, §§ 7.5, 11.) As amended,
section 12940, subdivision (j)(3), provides in relevant part: “An employee of an
entity subject to this subdivision is personally liable for any harassment prohibited
by this section that is perpetrated by the employee . . . .” It seems clear, and no
one disputes, that this provision imposes on nonsupervisory coworkers the
personal liability that Carrisales said the FEHA had not imposed. Subdivision (j)
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also states that its provisions “are declaratory of existing law . . . .” (§ 12940,
subd. (j)(2).)
We must decide whether the amendment to section 12940 applies to actions
that occurred before its enactment. If the amendment merely clarified existing
law, no question of retroactivity is presented. “[A] statute that merely clarifies,
rather than changes, existing law does not operate retrospectively even if applied
to transactions predating its enactment” “because the true meaning of the statute
remains the same.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th
232, 243 (Western Security Bank).) In that event, personal liability would have
existed at the time of the actions, and the amendment would not have changed
anything. But if the amendment changed the law and imposed personal liability
for earlier actions, the question of retroactivity arises. “A statute has retrospective
effect when it substantially changes the legal consequences of past events.” (Ibid.)
In this case, applying the amendment to impose liability that did not otherwise
exist would be a retroactive application because it would “attach[] new legal
consequences to events completed before its enactment.” (Landgraf v. USI Film
Products (1994) 511 U.S. 244, 270 (Landgraf).) Specifically, it would “increase a
party’s liability for past conduct . . . .” (Id. at p. 280; accord, Myers v. Philip
Morris Companies, Inc. (2002) 28 Cal.4th 828, 839 (Myers).)
Accordingly, two separate questions are presented here: (1) Did the
amendment extending liability in subdivision (j)(3) change or merely clarify the
law? (2) If the amendment did change the law, does the change apply
retroactively? We consider the former question first. Because we conclude the
amendment did, indeed, change the law, we also consider the latter question.
B. Whether the Amendment Changed the Law
“The powers of state government are legislative, executive, and judicial.
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Persons charged with the exercise of one power may not exercise either of the
others except as permitted by this Constitution.” (Cal. Const., art. III, § 3.) “The
judicial power of this State is vested in the Supreme Court, courts of appeal, and
superior courts, all of which are courts of record.” (Cal. Const., art. VI, § 1.)
Thus, “The judicial power is conferred upon the courts by the Constitution and, in
the absence of a constitutional provision, cannot be exercised by any other body.”
(Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 326.)
The legislative power rests with the Legislature. (Cal. Const., art. IV, § 1.)
Subject to constitutional constraints, the Legislature may enact legislation.
(Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691.) But the
judicial branch interprets that legislation. “Ultimately, the interpretation of a
statute is an exercise of the judicial power the Constitution assigns to the courts.”
(Western Security Bank, supra, 15 Cal.4th at p. 244; see also People v. Cruz
(1996) 13 Cal.4th 764, 781.) Accordingly, “it is the duty of this court, when . . . a
question of law is properly presented, to state the true meaning of the statute
finally and conclusively . . . .” (Bodinson Mfg. Co. v. California E. Com., supra,
17 Cal.2d at p. 326.)
In Carrisales, supra, 21 Cal.4th 1132, we interpreted the FEHA finally and
conclusively as not imposing personal liability on a nonsupervisory coworker.
This interpretation was binding on lower state courts, including the Court of
Appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
“The decisions of this court are binding upon and must be followed by all the state
courts of California. . . . Courts exercising inferior jurisdiction must accept the
law declared by courts of superior jurisdiction. It is not their function to attempt to
overrule decisions of a higher court.” (Ibid.)
It is true that if the courts have not yet finally and conclusively interpreted a
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statute and are in the process of doing so, a declaration of a later Legislature as to
what an earlier Legislature intended is entitled to consideration. (Western Security
Bank, supra, 15 Cal.4th at p. 244.) But even then, “a legislative declaration of an
existing statute’s meaning” is but a factor for a court to consider and “is neither
binding nor conclusive in construing the statute.” (Ibid.; see also Peralta
Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d
40, 52; Del Costello v. State of California (1982) 135 Cal.App.3d 887, 893, fn. 8.)
This is because the “Legislature has no authority to interpret a statute. That is a
judicial task. The Legislature may define the meaning of statutory language by a
present legislative enactment which, subject to constitutional restraints, it may
deem retroactive. But it has no legislative authority simply to say what it did
mean.” (Del Costello v. State of California, supra, at p. 893, fn. 8, cited with
approval in People v. Cruz, supra, 13 Cal.4th at p. 781.) A declaration that a
statutory amendment merely clarified the law “cannot be given an obviously
absurd effect, and the court cannot accept the Legislative statement that an
unmistakable change in the statute is nothing more than a clarification and
restatement of its original terms.” (California Emp. etc. Com. v. Payne (1947) 31
Cal.2d 210, 214.) Because this court had already finally and definitively
interpreted section 12940, the Legislature had no power to decide that the later
amendment merely declared existing law.
On another occasion, the Legislature similarly enacted legislation
overruling a decision of this court—which was within its power—but also
purported to state that the new legislation merely declared what the law always
was—which was beyond its power. In People v. Harvey (1979) 25 Cal.3d 754, we
interpreted Penal Code section 1170.1 as not permitting a certain consecutive
sentence enhancement. The Legislature promptly amended the statute to permit
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the enhancement. (Stats. 1980, ch. 132, § 2, p. 306.) It also declared that its intent
was “to clarify and reemphasize what has been the legislative intent since July 1,
1977.” (Stats. 1980, ch. 132, § 1, subd. (c), p. 305.) The judicial response was
swift and emphatic. The courts concluded that, although the Legislature may
amend a statute to overrule a judicial decision, doing so changes the law;
accordingly, they refused to apply the amendment retroactively. (People v. Savala
(1981) 116 Cal.App.3d 41, 55-61; People v. Harvey (1980) 112 Cal.App.3d 132,
138-139; People v. Cuevas (1980) 111 Cal.App.3d 189, 198-200; People v.
Vizcarra (1980) 110 Cal.App.3d 858, 866; People v. Fulton (1980) 109
Cal.App.3d 777, 783; People v. Matthews (1980) 108 Cal.App.3d 793, 796; see
People v. Wolcott (1983) 34 Cal.3d 92, 104, fn. 4.) As one of these decisions
explained, this court had “finally and conclusively” interpreted the statute, and a
“legislative clarification in the amended statute may not be used to overrule this
exercise of the judicial function of statutory construction and interpretation. The
amended statute defines the law for the future, but it cannot define the law for the
past.” (People v. Cuevas, supra, at p. 200.)
Plaintiff points out that Carrisales, supra, 21 Cal.4th 1132, itself postdated
the acts alleged in this case and argues that before that decision, nonsupervisory
coworkers had been personally liable under the statute. However, “[a] judicial
construction of a statute is an authoritative statement of what the statute meant
before as well as after the decision of the case giving rise to that construction.”
(Rivers v. Roadway Express, Inc. (1994) 511 U.S. 298, 312-313; accord, Plaut v.
Spendthrift Farm, Inc. (1995) 514 U.S. 211, 216.) This is why a judicial decision
generally applies retroactively. (Rivers v. Roadway Express, Inc., supra, at pp.
311-312; People v. Guerra (1984) 37 Cal.3d 385, 399.) It is true that two
administrative decisions had previously interpreted the statute differently than we
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did. (See Carrisales, supra, at pp. 1138-1139.) But we merely concluded that
those decisions had misconstrued the statute (ibid.); we did not, and could not,
amend the statute ourselves. (See People v. Guerra, supra, at p. 399, fn. 13.) It is
the courts’ duty to construe statutes, “even though this requires the overthrow of
an earlier erroneous administrative construction.” (Bodinson Mfg. Co. v.
California E. Com., supra, 17 Cal.2d at p. 326; see also Rivers v. Roadway
Express, Inc., supra, at pp. 312-313 & fn. 12 [explaining that a United States
Supreme Court decision interpreting a statute stated what the statute had always
meant, even if the decision overruled earlier federal appellate court decisions that
had interpreted the statute differently].)
Our conclusion that the amendment to section 12940, subdivision (j)(3),
changed rather than clarified the law does not itself decide the question whether it
applies to this case. It just means that applying the amended section to this case
would be a retroactive application. “The fact that application of [the statute] to the
instant case would constitute a retroactive rather than a prospective application of
the statute is, of course, just the beginning, rather than the conclusion, of our
analysis.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206.) We turn
now to the question whether the amendment applies retroactively.
C. Whether the Amendment Applies Retroactively
“Generally, statutes operate prospectively only.” (Myers, supra, 28 Cal.4th
at p. 840; see also Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1206-
1208.) “[T]he presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic.
Elementary considerations of fairness dictate that individuals should have an
opportunity to know what the law is and to conform their conduct
accordingly . . . . For that reason, the ‘principle that the legal effect of conduct
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should ordinarily be assessed under the law that existed when the conduct took
place has timeless and universal appeal.’ ” (Landgraf, supra, 511 U.S. at p. 265,
fns. omitted; see also Myers, supra, at pp. 840-841.) “The presumption against
statutory retroactivity has consistently been explained by reference to the
unfairness of imposing new burdens on persons after the fact.” (Landgraf, supra,
at p. 270.)
This is not to say that a statute may never apply retroactively. “[A]
statute’s retroactivity is, in the first instance, a policy determination for the
Legislature and one to which courts defer absent ‘some constitutional objection’ to
retroactivity.” (Myers, supra, 28 Cal.4th at p. 841.) But it has long been
established that a statute that interferes with antecedent rights will not operate
retroactively unless such retroactivity be “the unequivocal and inflexible import of
the terms, and the manifest intention of the legislature.” (United States v. Heth
(1806) 7 U.S. 399, 413; accord, Myers, supra, at p. 840.) “[A] statute may be
applied retroactively only if it contains express language of retroactively or if
other sources provide a clear and unavoidable implication that the Legislature
intended retroactive application.” (Myers, supra, at p. 844.)
We see nothing here to overcome the strong presumption against
retroactivity. Plaintiff and Justice Moreno argue that the statement in section
12940, subdivision (j)(2), that the subdivision’s provisions merely declared
existing law, shows an intent to apply the amendment retroactively. They cite our
statement that “where a statute provides that it clarifies or declares existing law,
‘[i]t is obvious that such a provision is indicative of a legislative intent that the
amendment apply to all existing causes of action from the date of its enactment.
In accordance with the general rules of statutory construction, we must give effect
to this intention unless there is some constitutional objection thereto.’ ” (Western
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Security Bank, supra, 15 Cal.4th at p. 244, quoting California Emp. etc. Com. v.
Payne, supra, 31 Cal.2d at p. 214.)
Neither Western Security Bank, supra, 15 Cal.4th 232, nor California Emp.
etc. Com. v. Payne, supra, 31 Cal.2d 210, holds that an erroneous statement that
an amendment merely declares existing law is sufficient to overcome the strong
presumption against retroactively applying a statute that responds to a judicial
interpretation. In California Emp. etc. Com. v. Payne, the amendment at issue
does not appear to have been adopted in response to a judicial decision. In
Western Security Bank, supra, 15 Cal.4th 232, the only judicial action that had
interpreted the statute before the Legislature amended it was a Court of Appeal
decision that never became final. After considering all of the circumstances, we
specifically held that the amendment at issue “did not effect any change in the law,
but simply clarified and confirmed the state of the law prior to the Court of
Appeal’s first opinion. Because the legislative action did not change the legal
effect of past actions, [the amendment] does not act retrospectively; it governs this
case.” (Id. at p. 252.) Here, by contrast, as we have explained, Carrisales, supra,
21 Cal.4th 1132, was a final and definitive judicial interpretation of the FEHA.
The amendment at issue here did change the law.
Moreover, the language of section 12940, subdivision (j)(2), namely, that
“The provisions of this subdivision are declaratory of existing law,” long predates
the Legislature’s overruling of Carrisales, supra, 21 Cal.4th 1132. That language
was added to the section in reference to a different, earlier, change to the statute.
(Stats. 1987, ch. 605, § 1, p. 1945.) Any inference the Legislature intended the
2000 amendment to apply retroactively is thus far weaker than if the Legislature
had asserted, in the 2000 amending act itself, that the amendment’s provisions
declared existing law.
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Plaintiff and the Court of Appeal also cite statements in the legislative
history to the effect that the proposed amendment would only “clarify” the law’s
original meaning. But these references may have been intended only to
demonstrate that clarification was necessary, not as positive assertions that the law
always provided for coworker liability. We see no indication the Legislature even
thought about giving, much less expressly intended to give, the amendment
retroactive effect to the extent the amendment did change the law. Specifically,
we see no clear and unavoidable intent to have the statute retroactively impose
liability for actions not subject to liability when taken. “Requiring clear intent
assures that [the legislative body] itself has affirmatively considered the potential
unfairness of retroactive application and determined that it is an acceptable price
to pay for the countervailing benefits.” (Landgraf, supra, 511 U.S. at pp. 272-
273.)
Retroactive application would also raise constitutional implications. Both
this court and the United States Supreme Court have expressed concerns that
retroactively creating liability for past conduct might violate the Constitution,
although it appears neither court has so held. (Landgraf, supra, 511 U.S. at p. 281
[“Retroactive imposition of punitive damages would raise a serious constitutional
question”]; Myers, supra, 28 Cal.4th at pp. 845-847; but see also Landgraf, at p.
272 [describing “the constitutional impediments to retroactive civil legislation” as
“now modest”].) “An established rule of statutory construction requires us to
construe statutes to avoid ‘constitutional infirmit[ies].’ [Citations.] That rule
reinforces our construction of the [statute] as prospective only.” (Myers, supra, at
pp. 846-847.) “Before we entertained that [constitutional] question, we would
have to be confronted with a statute that explicitly authorized” the imposition of
liability “for preenactment conduct.” (Landgraf, supra, at p. 281.) The
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amendment here contains no such explicit authorization.
For all of these reasons, we conclude that section 12940, subdivision (j)(3),
does not apply retroactively to conduct predating its enactment.
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.

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CONCURRING AND DISSENTING OPINION BY MORENO, J.

We held in Carrisales v. Department of Corrections (1999) 21 Cal.4th
1132 that the California Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.) does not impose on nonsupervisory coworkers personal liability
for harassment. The Legislature later amended Government Code section 12940,
subdivision (j), to impose such personal liability. The statute as amended states
that its provisions “are declaratory of existing law.” (Gov. Code, § 12940, subd.
(j)(2).)1
I agree with the majority that the Legislature could not, by amending the
statute, clarify its meaning in a manner inconsistent with our decision in
Carrisales. Thus, the amendment must be deemed to have changed, rather than
merely clarified, the law. But unlike the majority, I conclude that by purporting to
clarify its original intent, the Legislature clearly intended to apply this statutory
change retroactively. We must honor this legislative intent, unless prevented from
doing so by constitutional concerns.
The majority correctly recognizes that a statute may apply retroactively. As
we stated in Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840-
841, “[g]enerally, statutes operate prospectively only”; “unless there is an ‘express

1
All further statutory references are to the Government Code, unless
otherwise specified.
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retroactivity provision, a statute will not be applied retroactively unless it is very
clear from extrinsic sources that the Legislature . . . must have intended a
retroactive application’ [citation] . . . . Under this formulation a statute’s
retroactivity is, in the first instance, a policy determination for the Legislature and
one to which courts defer absent ‘some constitutional objection’ to retroactivity.
[Citation.]”
The majority, however, “see[s] nothing here to overcome the strong
presumption against retroactivity.” (Maj. opn., ante, at p. 9.) I disagree. The
statute at issue, subdivision (j)(2) of section 12940, states that its provisions “are
declaratory of existing law . . . .” In Western Security Bank v. Superior Court
(1997) 15 Cal.4th 232, 244, we recognized the importance of such legislative
language: “[E]ven if the court does not accept the Legislature’s assurance that an
unmistakable change in the law is merely a ‘clarification,’ the declaration of intent
may still effectively reflect the Legislature’s purpose to achieve a retrospective
change. [Citation.] . . . Thus, where a statute provides that it clarifies or declares
existing law, ‘[i]t is obvious that such a provision is indicative of a legislative
intent that the amendment apply to all existing causes of action from the date of its
enactment.”
We made the same point half a century earlier in California Emp. etc. Com.
v. Payne (1947) 31 Cal.2d 210, 213, in which the Legislature had amended a
statute to add a requirement of an “intent to evade the provisions of this act,”
further stating that the amendment “is hereby declared to be merely a clarification
of the original intention of the legislature rather than a substantive change and
such section shall be construed for all purposes as though it had always read as
hereinbefore set forth.” Despite the Legislature’s statement, it was clear that the
amendment changed, rather than merely clarified, the law, as no such intent to
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evade had previously been required. Accordingly, we held that “the language of
the ‘clarification’ provision in this case cannot be given an obviously absurd
effect, and the court cannot accept the Legislative statement that an unmistakable
change in the statute is nothing more than a clarification and restatement of its
original terms.” (Id. at p. 214.) We recognized, however, that the Legislature’s
statement indicated a clear intent that the amendment apply retroactively: “It does
not follow, however, that the ‘clarification’ provision . . . is ineffective for any
purpose. It is obvious that such a provision is indicative of a legislative intent that
the amendment apply to all existing causes of action from the date of its
enactment. In accordance with the general rules of statutory construction, we must
give effect to this intention unless there is some constitutional objection thereto.”
(Ibid.)
In the present case, as in Western Security Bank and California Emp., we
cannot give effect to the Legislature’s statement that the amendment to section
12940, subdivision (j) was declaratory of existing law, but we can give effect to
the Legislature’s clear expression of its intent that this amendment be given
retroactive effect.
The majority notes that the statutory language stating that the provisions of
subdivision (j) of section 12940 are declaratory of existing law was originally
added to the statute in reference to a 1987 amendment. The majority concludes
from this that “[a]ny inference the Legislature intended the 2000 amendment to
apply retroactively is thus far weaker than if the Legislature had asserted, in the
2000 amending act itself, that the amendment’s provisions declared existing law.”
(Maj. opn., ante, at p. 10.) Again, I do not agree.
A statute that is amended is “re-enacted as amended.” (Cal. Const., art. IV,
§ 9.) “The amendment of a statute ordinarily has the legal effect of reenacting
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(thus enacting) the statute as amended, including its unamended portions.”
(People v. Scott (1987) 194 Cal.App.3d 550, 554.) As amended, section 12940,
subdivision (j) clearly states that its provisions are declaratory of existing law.
The circumstance that the same statement had been made in reference to an earlier
amendment of the same statute does not lessen the plain meaning of this statutory
language. In general, we take it that the Legislature means what it says. In the
present case, it is difficult to imagine how the Legislature could have more clearly
expressed its intention that the 2000 amendment to subdivision (j) of section
12940, like the earlier amendment, was declaratory of existing law.
Because the Legislature clearly indicated its intent that the amendment to
the statute be applied retroactively, we must honor that intent unless there is a
constitutional objection to doing so.
The high court addressed the constitutional concerns posed by retroactive
application of statutes at some length in Landgraf v. USI Film Products (1994)
511 U.S. 244. The court recognized that “the presumption against retroactive
legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine
centuries older than our Republic. Elementary considerations of fairness dictate
that individuals should have an opportunity to know what the law is and to
conform their conduct accordingly; settled expectations should not be lightly
disrupted.” (Id. at p. 265, fn. omitted.) The court noted that “the antiretroactivity
principle finds expression in several provisions of our Constitution,” including the
ex post facto clause, the provision prohibiting the impairment of obligations of
contracts, the Fifth Amendment’s takings clause, the prohibition of bills of
attainder, and the due process clause. (Id. at p. 266.)
The court was careful to make clear, however, that these concerns do not
necessarily prohibit retroactive application of statutes: “The Constitution’s
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restrictions, of course, are of limited scope. Absent a violation of one of those
specific provisions, the potential unfairness of retroactive civil legislation is not a
sufficient reason for a court to fail to give a statute its intended scope.
Retroactivity provisions often serve entirely benign and legitimate purposes,
whether to respond to emergencies, to correct mistakes, to prevent circumvention
of a new statute in the interval immediately preceding its passage, or simply to
give comprehensive effect to a new law Congress considers salutary. However, a
requirement that Congress first make its intention clear helps ensure that Congress
itself has determined that the benefits of retroactivity outweigh the potential for
disruption or unfairness.” (Landgraf v. USI Film Products, supra, 511 U.S. 244,
267-268, fn. omitted.)
Further, courts must defer to a legislative judgment that a statute should be
applied retroactively: “In this century, legislation has come to supply the
dominant means of legal ordering, and circumspection has given way to greater
deference to legislative judgments.” (Landgraf v. USI Film Products, supra, 511
U.S. 244, 272.) Accordingly, the high court declared, “the constitutional
impediments to retroactive civil legislation are now modest.” (Ibid., italics
omitted.)
Significantly, defendant Lopez does not cite any authority establishing that
retroactive application of the amendment to section 12940, subdivision (j) would
violate the Constitution. Rather, he simply asserts that “to impose personal
liability . . . retroactively should require a ‘clear and unavoidable’ statement from
the Legislature favoring retroactivity . . . .” As explained above, I conclude that
the provision stating that the amendment is declaratory of existing law constitutes
such a clear statement of intent to apply the amendment retroactively.
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Neither does the majority cite any authority establishing that retroactive
application of the amendment to section 12940, subdivision (j) would violate the
Constitution. Rather, the majority asserts that retroactive application would “raise
constitutional implications,” while acknowledging that “[b]oth this court and the
United States Supreme Court have expressed concerns that retroactively creating
liability for past conduct might violate the Constitution, although it appears
neither court has so held. [Citations.]” (Maj. opn., ante, at p. 11, italics added.)
I discern no constitutional impediment to giving effect to the Legislature’s
clear intent to apply the amendment to section 12940, subdivision (j) retroactively.
As noted above, the amendment changed the law by imposing upon
nonsupervisory coworkers personal liability under the FEHA for harassment, but
this did not subject such nonsupervisory coworkers to liability for harassment for
the first time. As we noted in Carrisales, “our conclusion [that nonsupervisory
coworkers could not be held personally liable under the FEHA] does not
necessarily prevent a harasser from being personally liable to the victim under
some other statute or theory of tort. All we hold is that the FEHA does not cover
harassment short of an unlawful employment practice. The FEHA’s noncoverage
does not immunize anyone, including a coworker, from the consequences of
conduct that is otherwise tortious.” (Carrisales v. Department of Corrections,
supra, 21 Cal.4th 1132, 1136.) And we have recognized “that employment
discrimination, including sexual harassment . . . can cause emotional distress [and]
that such distress is a compensable injury under traditional theories of tort law
. . . .” (Peralta Community College Dist. v. Fair Employment & Housing Com.
(1990) 52 Cal.3d 40, 48, fn. omitted.)
Given the “modest” constitutional impediments to retroactive civil
legislation (Landgraf v. USI Film Products, supra, 511 U.S. 244, 272), and the
6

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circumstance that harassment by nonsupervisory coworkers was tortious prior to
the statutory amendment imposing liability for such conduct under the FEHA, I
conclude that there is no constitutional obstacle to the retroactive imposition of
personal liability for harassment on nonsupervisory coworkers, as the Legislature
intended.
MORENO, J.
7

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion McClung v. Employment Development Department
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 113 Cal.App.4th 335
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S121568
Date Filed: November 4, 2004
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Joe S. Gray

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Guy D. Loranger, Guy D. Loranger; and Shelley Gregory for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, James M. Schiavenza, Louis R. Mauro, Barton R. Jenks and Diana L.
Cuomo, Deputy Attorneys General, for Defendant and Respondent Employment Development Department.

Matheny Sears Linkert & Long, Michael A. Bishop and Roger Yang for Defendant and Respondent
Manuel Lopez.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Shelley Gregory
Legal Aid Society - Employment Law Center
600 Harrison Street, Suite 120
San Francisco, CA 94107
(415) 864-8848

Michael A. Bishop
Matheny Sears Linkert & Long
3638 American River Drive
Sacramento, CA 95853
(916) 978-3434

2

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Opinion Information

Date:	Docket Number:
Thu, 11/04/2004	S121568

Disposition
Nov 4 2004	Opinion: Reversed

Dockets
Dec 23 2003	Petition for review filed   by counsel for resp. (Manuel Lopez)
Dec 30 2003	Received Court of Appeal record   1 doghouse
Jan 15 2004	Record requested   Via e-mail to Abby by overnight mail. 2nd volume of record
Jan 16 2004	Note:   Per Darlene, Abby didn't send out the requested record. She will send it out today.
Jan 21 2004	Received Court of Appeal record   One doghouse (Vol. 2 of 2).
Feb 13 2004	Time extended to grant or deny review   to and including March 22, 2004
Mar 3 2004	Petition for review granted; issues limited (civil case)   The issue to be briefed and argued is limited to the following: Does Government Code section 12940, subdivision (j) (3), apply retroactively, despite our decision in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 16 2004	Certification of interested entities or persons filed   from resp Lopez
Mar 19 2004	Certification of interested entities or persons filed   from resp Employment Development Dept.
Apr 2 2004	Opening brief on the merits filed   by resp Lopez
Apr 13 2004	Filed:   notice from resp Emp. Development Dept. that they will not be participating in briefing.
May 3 2004	Answer brief on the merits filed   by counsel for aplt Mc Clung (40k)
May 20 2004	Reply brief filed (case fully briefed)   by resp Lopez
Aug 11 2004	Case ordered on calendar   was 9-9-04, 9am, S.F.
Aug 24 2004	Filed:   Aplt's counsel's request to postpone oral argument to the Oct. calendar (faxed)
Aug 25 2004	Argument rescheduled   Wed. 9/8/04 @ 9am. - San Francisco
Sep 8 2004	Cause argued and submitted
Nov 4 2004	Opinion filed: Judgment reversed   and remanded to the Court of Appeal for further proceedings. Majority opinion by Chin, J. --------------------joined by George, C.J., Kennard, Baxter, Werdegar, Brown, J. concurring & dissenting opinion by Moreno, J.
Dec 8 2004	Remittitur issued (civil case)

Briefs
Apr 2 2004	Opening brief on the merits filed
May 3 2004	Answer brief on the merits filed
May 20 2004	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website