In Strauss, et al. v. Horton, as State Registrar of Vital Statistics, et al., the California Supreme Court denied original writs of mandate challenging Proposition 8 (constitutionally definining valid "marriage" as being between a man and a woman)

Although it's an issue that isn't customarily within my wheelhouse, the Opinion issued by the California Supreme Court this morning is undoubtedly "complex."  As one barometer of the complexlity, the introductory comments span some twelve pages.  Most opinions get a paragraph or two to set the stage.  But after perusing the Opinion out of general curiosity, I decided that a few remarks (and a few long excerpts) are in order to press against the inevitability of mischaracterizations about what the California Supreme Court actually did and did not do in its opinion.  In other words, the more obscure the legal analysis, the more likely it is that it won't be summarized correctly.

On May 26, 2009, in Strauss, et al. v. Horton, as State Registrar of Vital Statistics, et al., the California Supreme Court denied Petitions for Original Writs of Mandate.  The Petitions challenged the validity of California Proposition 8, which added a new section to article I of the California Constitution.  That new section, section 7.5, reads in full: "Only marriage between a man and a woman is valid or recognized in California."  (Slip op., at p. 8.)  The language of section 7.5 is identical to language previously included in Proposition 22, which proposed the adoption in California of a new statutory provision, Family Code section 308.5.   Proposition 22 was approved by voters and later found to be unconstitutional by the California Supreme Court in the consolidated matter entitled In re Marriage Cases (2008) 43 Cal.4th 757.

Today's Opinion in Strauss offers some important clarifications about what the Court could and could not do in the exercise of its constitutional role:

For the third time in recent years, this court is called upon to address a question under California law relating to marriage and same-sex couples.

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), we were faced with the question whether public officials of the City and County of San Francisco acted lawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman were unconstitutional. We concluded in Lockyer that the public officials had acted unlawfully in issuing licenses in the absence of such a judicial determination, but emphasized in our opinion that the substantive question of the constitutional validity of the marriage statutes was not before our court in that proceeding.

In In re Marriage Cases (2008) 43 Cal.4th 757 (hereafter the Marriage Cases), we confronted the substantive constitutional question that had not been addressed in Lockyer — namely, the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriage statutes limiting marriage to a union between a man and a woman. A majority of this court concluded in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the protection of the constitutional right to marry embodied in the privacy and due process provisions of the California Constitution, and that by granting access to the designation of "marriage" to opposite-sex couples and denying such access to same-sex couples, the existing California marriage statutes impinged upon the privacy and due process rights of same-sex couples and violated those couples’ right to the equal protection of the laws guaranteed by the California Constitution.

Proposition 8, an initiative measure approved by a majority of voters at the November 4, 2008 election, added a new section — section 7.5 —to article I of the California Constitution, providing: "Only marriage between a man and a woman is valid or recognized in California." The measure took effect on November 5, 2008. In the present case, we address the question whether Proposition 8, under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and — if it does — we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.

In a sense, this trilogy of cases illustrates the variety of limitations that our constitutional system imposes upon each branch of government — the executive, the legislative, and the judicial.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states. (U.S. Const., art. V.) In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature (Cal. Const., art. XVIII, § 1) or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election (Cal. Const., art. II, § 8, subd. (b); id., art. XVIII, § 3), and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)

(Slip op., at pp. 1-4, origial emphasis.)  The Court then explained the scope of its holding, which may prove to be somewhat different than what was sought by any of the parties:

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage" (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of "marriage" holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. Contrary to petitioners’ claim in this regard, the measure does not transform or undermine the judicial function; this court will continue to exercise its traditional responsibility to faithfully enforce all of the provisions of the California Constitution, which now include the new section added through the voters’ approval of Proposition 8. Furthermore, the judiciary’s authority in applying the state Constitution always has been limited by the content of the provisions set forth in our Constitution, and that limitation remains unchanged.

(Slip op., at pp. 6-8.)  Although it is small consolation to the proponents of gay marriage, my reading of this Opinion is that the California Supreme Court construes the Constitutional amendment effectuated by Proposition 8 as having reserved the word "marriage" for state-recognized unions between men and women, while preserving the Marriage Cases holding that gay couples are entitled to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."  (Marriage Cases, supra, 43 Cal.4th at p. 829).  They just can't call it a marriage.  In other words, everybody is going to be unhappy with this decision.

While there is likely to be much commentary about what should happen in our society after this Opinion, I think that, in a difficult circumstance, the California Supreme Court correctly discharged its limited role in our government.  The Court doesn't deserve to be pilloried here, and I hope that it is not.

In Hatfield v. Halifax PLC, et al., the Ninth Circuit explains that American Pipe tolling and California's equitable tolling doctrine are not identical

The Ninth Circuit issued a very interesting opinion last week about serial class action tolling in California state courts (for purposes of this post, let's just assume that "interesting" and "serial class action tolling" are phrases you would arguably use in a single sentence that did not also involve irony or sarcasm).  In Hatfield v. Halifax PLC, et al. (May 8, 2009), the Ninth Circuit reviewed a district court decision in which the district court found that Plaintiff "Hatfield’s claims, brought eight-and-a-half years after her causes of action arose, were barred by California’s statutes of limitations, which are four years or less for each of Hatfield’s claims."  (Slip op., at p. 5403.)  On appeal, Hatfield argued, in part, that the "limitations period was tolled by the filing of a previous class action in New Jersey state court, making this action timely.  (Id.)

First, the Ninth Circuit concluded that Hatfield, as an individual, was entitled to tolling from the filing of the New Jersey class action.  (Slip op., at pp. 5412-15.)  The Ninth Circuit then turned to the more difficult question of whether Hatfield could claim such tolling on behalf of class members that Hatfield sought to represent:

While there is no California precedent directly on point, based on closely analogous precedent, we see no reason why California’s equitable tolling doctrine would not also apply to the claims of its unnamed putative class members who, like Hatfield, are California residents.  First, the California Supreme Court has indicated a general agreement with tolling in the class action context, going so far as to cite with approval the Supreme Court’s decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). See Jolly v. Eli Lilly & Co., 751 P.2d 923, 934-35 (Cal. 1988). In American Pipe, the Supreme Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U.S. at 554.  In Jolly, 751 P.2d 934-35, the California Supreme Court noted with approval the two major policies that underlie the American Pipe tolling rule, the first of which is most relevant here.  That policy protects the class action device because, without it, potential class members would be induced to file protective actions to preserve their claims, thus depriving class actions of their ability to secure “efficiency and economy of litigation.”  Id. at 935 (quoting American Pipe, 414 U.S. at 553).  In Jolly, despite the endorsement of American Pipe, the court rejected its application under the facts of that case.  Id. at 935-36.

(Slip op., at pp. 5415-16, footnotes omitted.)  Defendant Halifax then argued that a recent Ninth Circuit opinion, Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008), precluded "cross-jurisdictional tolling."  The Ninth Circuit agreed that, while Clemens would preclude American Pipe tolling, it would not bar California's equitable tolling doctrine:

Although the Clemens decision would foreclose application of American Pipe here, it does not dictate a similar rejection of California’s equitable tolling doctrine, especially as it applies to California’s own residents. Although the two types of tolling—equitable and American Pipe —overlap to some extent, see Becker, 277 Cal. Rptr. at 496, and even though California courts have treated them at times as interchangeable, they are not congruent. The Halifax Appellees themselves concede that “the equitable tolling applied to individual actions is distinct from American Pipe tolling.” They cite Newport v. Dell, Inc., No. CV-08-0096, 2008 WL 4347311, at *4 n.8 (D. Az. Aug. 21, 2008), a case decided shortly after Clemens, which stated that “[t]he class-action tolling discussed in American Pipe and Crown is a species of legal tolling, not equitable tolling.” Thus, by the Halifax Appellees’ own admission, Clemens, which only rejected the application of American Pipe tolling in a cross-jurisdictional action, does not affect the application of California’s equitable tolling doctrine, which covers situations beyond those covered by American Pipe. See McDonald v. Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026, 1032 (Cal. 2008) (“[California’s equitable HATFIELD v. HALIFAX PLC tolling] may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason.”).

(Slip op., at pp. 5417-18.)  The Court concluded that California would protect its own citizens with its equitable tolling doctrine ("California has a strong interest in providing a remedy for wrongs committed against its citizens"), but would not extend that same equitable tolling protection to individuals outside of California. 

As a final observation, the Ninth Circuit also offered a useful comment on the extent of tolling that is available under American Pipe:

Although American Pipe is clearly applicable to individual actions, some federal decisions have refused to allow the doctrine to toll the limitations period for subsequently filed class actions. See Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987) (“We agree with the Second Circuit that to extend tolling to class actions ‘tests the outer limits of the American Pipe doctrine and . . . falls beyond its carefully crafted parameters into the range of abusive options.’ ” (quoting Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987) (alteration in original))).  In Catholic Social Services, Inc. v. INS, 232 F.3d 1139, 1149 (9th Cir. 2000) (en banc), however, the Ninth Circuit extended American Pipe to toll the claims of an entire class where “[p]laintiffs . . . are not attempting to relitigate an earlier denial of class certification, or to correct a procedural deficiency in an earlier would-be class.”  Whether the subject class action was actually trying to relitigate the certification issue was disputed by one of the dissents.  Id. at 1157-58 (Graber, J., dissenting in part).  However, the current action is clearly not an instance in which Hatfield is trying to reargue a denial of class certification because of a failure to meet Rule 23 of the Federal Rules of Civil Procedure or its state counterpart.  Rather, the previous class action was dismissed for lack of in personam jurisdiction.  Thus, if Hatfield had brought the original class action in California, American Pipe would permit tolling for the entire class action.

(Slip op., at p. 5419, fn. 8.)

In D'Este v. Bayer Corporation, Ninth Circuit certifies interesting issue to California Supreme Court

The Ninth Circuit has been certifying questions to various state Supreme Courts with increasing frequency.  After giving this observed increase some thought, I theorize that at least one reason for this increase is the shift of some class actions to federal court as a result of CAFA.  For example, in a post on this blog, I noted a recent question certified to the California Supreme Court about e-mail spam.  Other issues certified to state supreme courts are simply questions of first impression, at least as the caselaw is viewed by the Ninth Circuit.  One example of such an issue involves a question about statutes of limitation in California, noted in this post on Products Liability Prof Blog.  The most famous recent example involves the certification of questions in Sullivan v. Oracle Corp., covered on The UCL Practitioner.

On May 5, 2009, in D'Este v. Bayer Corporation (link now corrected) the Ninth Circuit certified a challenging question that actually a colleague of mine fits in a class action we both worked on several years ago.  Here is the key question certified to the California Supreme Court:

“The Industrial Welfare Commission’s Wage Orders 1-2001 and 4-2001 define “outside salesperson” to mean “any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.” 8 Cal. Code Regs., tit. 8, §§ 11010, subd. 2(J); 11040, subd. 2(M). Does a pharmaceutical sales representative (PSR) qualify as an “outside salesperson” under this definition, if the PSR spends more than half the working time away from the employer’s place of business and personally interacts with doctors and hospitals on behalf of drug companies for the purpose of increasing individual doctors’ prescriptions of specific drugs?

(Order, at p. 5193.)  But the question doesn't really capture the issue.  The underlying issue, developed in the factual description, turns on the fundamental nature of sales for purposes of the "outside salesperson" overtime exemption.  The pharmaceutical representatives in question promote Bayer products to doctors and hospitals, but they don't actually enter into bindings sales agreements.  Instead, they attempt to influence the prescription decisions of doctors and hospitals.  Are they "selling" when they engage in this promotion that does not end in a commercial transaction?  The Ninth Circuit thinks that the wage order can be interpreted in either manner.  Without CAFA, this issue would certainly have made its way to a California Court of Appeal.  Instead, it has moved outside the state court system, up to the Ninth Circuit, and may end up at the California Supreme Court through this inefficient route.

Update on 2009-05-07 23:39 by The Complex Litigator

UPDATE:  With apologies to the UCL Practitioner, I've fixed the link error to the 9th Circuit opinion.  It happens from time to time when posting while tired.