Tuesday, March 15, 2016

Running from the Text

Leider v. Lewis, No. B244414 (D2d8 Feb 10, 2016)

This is a long-running dispute about the treatment of the elephants at the LA Zoo. Plaintiff brought his case under the taxpayer standing statute, Code of Civil Procedure § 526a, asking the court to enjoin violations of various animal cruelty statutes in the Penal Code. This is the second appeal in the case; a prior summary judgment for defendant was reversed. The court held a bench trial, rejecting plaintiff’s demand to close the exhibit. But it granted a limited injunction regarding appropriate elephant discipline, exercise time, and requiring rototilling of the soil in the elephant exhibit. Both sides appeal.

The procedural issue comes up in the zoo’s appeal. The zoo argues that Civil Code § 3369's prohibition on issuing injunctions to enforce criminal laws bars plaintiff’s taxpayer standing claim. A split decision finds two problems with that argument. 

First off, in the prior appeal, the court determined that plaintiff’s action was properly brought under § 526a. Although the zoo didn’t raise the precise argument about § 3369 asserted here, the court views the new argument, at best, as a refinement of what was argued previously. So under the circumstances, the law of the case argument barred reopening the issue. As the court explains, “the law of the case doctrine is not defeated by simply raising a new argument that is essentially a twist on an earlier unsuccessful argument.” Nor does the court believe that any of the prudential limits on law of the case—such as the prevention of substantial injustice—apply here.

And even if law of the case did not preclude reaching the issue, the court holds that § 3369 does not bar a taxpayer action to enjoin an illegal expenditure of funds that violates the Penal Code. According to the Court, § 526a applies to any illegal expenditure, including both civil and criminal illegality. It declines to read § 526a as applying only to illegal acts that are not also criminal.

To get there, the majority somewhat artfully reads Nathan H. Schur, Inc. v. City of Santa Monica, 47 Cal. 2d 11 (1956), and old Supreme Court case precluding a plaintiff from bringing suit to enjoin a city from issuing permits for games of chance that were, essentially, illegal gambling. While not the clearest opinion, Schur seems to hold that the then-in-effect version of § 3369 would trump a taxpayer’s right to bring a suit to enjoin criminal conduct. But it also (and more clearly) suggests that the decision rested on sort of an exclusive remedies limitation. Plaintiff in Schur was challenging the issuance of a permit, a quasi-judicial act that could specifically be attacked by a writ of mandamus. Interestingly, in footnote, the court ducks a third way to distinguish Schur. Namely, that in 1977 the statute was amended to delete certain specific exceptions about unfair competition and replace them with the phrase, “except as otherwise provided by law.”  More on that later.

Finally, in reaching its conclusion, the court parts ways with Animal Legal Defense Fund v. California Exposition & State Fairs, 239 Cal. App. 4th 1286 (2015). ALDF held that § 526a can’t be used as an end-around for the lack of a private right of action under the animal welfare laws. In getting to that result, it sort of reads Schur to say that § 3369 trumps § 526a, especially when other administrative avenues remain available outside of a § 529a action. (Certain animal welfare organizations have statutory standing to bring animal welfare complaints.)

The court goes on to uphold the judgment on the merits.

Presiding Justice Bigelow dissents. He thinks that Schur and ALDF control, in that § 3369 prevents using § 526a to enjoin criminal violations (and specifically violations of animal welfare laws) by a government entity. While the availability of administrative remedies were a feature of the Supreme Court’s decision, Schur’s rationale pretty clearly encompasses the idea that § 3369 means you can’t enjoin a criminal violation, even by using § 526a. Notably, § 529a is specifically cited in Schur, in a “it is true . . .however” formulation setting up a conflict with
§ 3369. It’s hard to say that’s not a holding, particularly in that its a supreme court case.

Justice Bigelow also reaches the issue avoided in the majority
s footnote, reasoning that § 3369’s provisio of inapplicability “as otherwise provided by law,” doesn’t mean what it pretty clearly says. He traces through the legislative history to find that the 1977 amendment was part of a overhaul that moved the earlier limited exception for unfair competition to the Business & Professions Code. Relying on the canon that courts don’t read statutes to “overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied” Justice Bigelow believes that in adding of “except as otherwise provided by law,” the Legislature couldn’t have meant to overrule Schur. He buttresses this reasoning by citing a bunch of cases where § 526a was found not to permit taxpayer standing to permit actions to enforce statutes barring injunctive relief. Although, notably, none of those statutes appears to have a similar proviso.

And since the majority would uphold an injunction against a government entity that should have been barred by statute, Justice Bigelow thinks the case falls into the manifest injustice exception to the law of the case doctrine. The zoo here is going to be on the hook for contempt if (or, as Justice Bigelow clearly thinks, when) Plaintiff contends that it has not lived up to the injunction. If an injunction were statutorily barred in the first place, that would be unjust.

I don’t find either opinion particularly satisfying. Justice Bigelow is right that the majority’s reading of Schur is hinky. While the administrative remedy logic was clearly the main thrust of Schur, intermediate courts need to be chary about reading a rationale out of a supreme court case as some kind of dicta.

But Justice Bigelow’s effort to avoid the interpretive issue the majority ducks in a footnote
—that § 3369 appears to contain an express exception for injunctive actions provided by lawis also unconvincing. The cannon that courts shouldn’t go out of their way to interpret statutory charges to overturn settled decisional law is not a license to rewrite the plain meaning of otherwise unambiguous statutes. See, e.g., Pieri v. City & Cty. of S.F., 137 Cal. App. 4th 886, 891 (2006); see also Cal. Code Civ. Proc. § 1858. To the contrary, the canon it is more generally read to preserve rules on which the statute, as amended, remains silent or ambiguous. Here, in contrast, § 3369 was amended to say “except as otherwise provided by law.” If the Legislature intended a more limited exception about unfair competition that also preserved the rule or rationale of Schur that § 3369 trump§ 526a Schur, it would not have been particularly difficult to write one. The settled interpretation canon is not so strong as to require the Legislature to expressly list every judicial interpretation it intended to reversehowever unclear, or old, or not generally followed that precedent might  bewhen it enacts a statute that is unambiguously contrary to the earlier constructions.

As the recently departed Justice Scalia might have said, this shouldn’t have been so hard. Statute A says you can’t do X except as provided by law, and statute B (a law) facially gives you a right to do X. The easy reading is that X is permissible. The result isn’t absurd and preserves the integrity of the statute. Indeed, giving force to the facial exception—which applies only to government actors—neither swallows the rule nor makes anything else surplusage. It seems like a perfectly rational Legislative choice that a state that permits taxpayer standing to enjoin government acts in general might as well permit taxpayers to sue to stop criminal violations as well. At least on that issue, the majority seems to have the batter argument. After all, the government’s reluctance to prosecute itself is a longstanding bug of our system
. (Although I suspect Justice Scalia might have described that as a feature.)


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