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McClung v. Employment Development Dept.

Supreme Court of California

November 4, 2004, Filed



 [**1017]   [***430]  CHIN, J.] “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,  [*470]  must of necessity expound and interpret that rule.” ( Marbury v. Madison (1803) 5 U.S. 137, 177 [2 L. Ed. 60].)

This basic principle is at issue in this case. In  Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 [90 Cal. Rptr. 2d 804, 988 P.2d 1083] (Carrisales), we interpreted Government Code section 12940 (hereafter [****2]  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) [***431]  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 [**1018]  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.

CA(1)(1) 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;  [****3]  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

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34 Cal. 4th 467 *; 99 P.3d 1015 **; 20 Cal. Rptr. 3d 428 ***; 2004 Cal. LEXIS 10527 ****; 94 Fair Empl. Prac. Cas. (BNA) 1693; 2004 Cal. Daily Op. Service 9912; 2004 Daily Journal DAR 13516

LESLI ANN McCLUNG, Plaintiff and Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Defendants and Respondents.

Prior History:  [****1]  Superior Court of Sacramento County, No. 98AS00092, Joe S. Gray, Judge. Court of Appeal, Third Dist., No. C034110.

 McClung v. Employment Development Dept., 113 Cal. App. 4th 335, 6 Cal. Rptr. 3d 504, 2003 Cal. App. LEXIS 1697 (Cal. App. 3d Dist., 2003)

Disposition: Judgment of the Court of Appeal reversed; remanded for further proceedings


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Governments, Courts, Authority to Adjudicate, Constitutional Law, Separation of Powers, Legislation, Effect & Operation, Amendments, General Overview, Prospective Operation, Civil Rights Law, Contractual Relations & Housing, Fair Housing Rights, Criminal Law & Procedure, Crimes Against Persons, Coercion & Harassment, Elements, Labor & Employment Law, Discrimination, Actionable Discrimination, Sexual Harassment, Scope & Definitions, Retrospective Operation, The Judiciary, Jurisdiction, Enactment, Interpretation, Civil Procedure, Jurisdictional Sources, Judicial Precedent