McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

In California, as in most states, a statute is presumed to operate prospectively. When construing statutes, there’s a general presumption against retroactive cases unless the Legislature plainly has directed otherwise. So how might the Legislature plainly direct otherwise? Generally it’s by means of express language of retroactivity or some sort of information that provides a clear and unavoidable implication that the Legislature, in fact, intended to retroactively apply a particular statute.

California’s Civil Code actually includes a specific codification of this general principle. In Section 3 of the California Civil Code, it says, “No part of this Code is retroactive unless expressly so declared.” In addition, the presumption against retroactivity applies with particular force to laws that create new obligations or impose new duties or exact new penalties because of any past transactions.

We know from different decisions issued by the California Supreme Court that the general rule in California is that if the Legislature clearly meant that an amendment to a statute is going to be, or is intended to be, applied retroactively, the court will honor that intent unless there is some sort of constitutional obstacle to doing so.

Basically, the California courts look at the text of the bill and the legislative materials to determine whether this bill that’s making a change in the law or the clarification of existing law, and then it asks itself, “Does the bill represent a clarification?” If it does, then the bill’s applied in all instances, both retroactively and prospectively. On the other hand, the courts generally find that if the bill enacts a change in the law, then the court has to look whether or not the Legislature intended this law change to be applied retroactively.

From my review of appellate court decisions in California, I found some key main points that provide guidance. This guidance is for lawmakers, bill drafters, and members of the general public when they look at whether or not to make a retroactive change to California statutes.

The questions to ask are:

  • Did the Legislature enact the change of law promptly (within a few months to less than a year) after an adverse court decision?
  • Has the Supreme Court rendered a final decision?

You can find the transcript of the audio in today’s post here.