Leider v. Lewis, No. S232622 (Cal. May 25, 2017)
The trial court in this case issued an injunction against certain practices involving the elephant enclosure at the LA Zoo. The Court of Appeal affirmed, in a split decision, over the Zoo’s challenge that Civil Code § 3369 prohibited the issuance of an injunction against acts of animal cruelty that were prohibited only by criminal laws in the Penal Code. The Court of Appeal held that the argument was barred by the resolution of a prior appeal under the law of the case doctrine, and that, in any event, it was wrong on the merits. But the Supreme Court granted review and now unanimously disagrees.
The law of the case issue isn’t too hard. There’s a rule and a corollary. First, “the doctrine of law of the case does not extend to points of law which might have been but were not presented and determined in the prior appeal.” But, the doctrine does apply “to questions not expressly decided but implicitly decided because they were essential to the decision on the prior appeal.” Here, the § 3369 argument wasn’t raised in the prior appeal. Although the earlier appeal might have had a different result were the argument raised, that isn’t enough implicitly resolve it because nothing in the logic of the prior decision implicated the relationship between § 3369 and Code of Civil Procedure § 526a (the taxpayer standing statute) that is at issue here.
So far as that relationship goes, § 526a gives taxpayers standing to enjoin the unlawful expenditure of public funds. But § 3369 says that equity will not enjoin a crime, “except in a case of nuisance or as otherwise provided by law.” So the essential question is whether § 526a counts as “otherwise provided by law.” There’s an old Supreme Court case—Schur Inc. v. City of Santa Monica, 47 Cal.2d 11 (1956)—that held that § 3369 precuded use of § 526a to bring a claim enjoin the issuance of gaming licenses that were allegedly illegal under the Penal Code. Which seems to be pretty on point.
But the issue is that the “otherwise provided by law” exception in § 3369 didn’t appear until 1977, and that might change the result in Schur. But the Court unanimously holds that “otherwise provided by law” doesn’t mean what it appears to. Apparently the 1977 changes were part of moving the Unfair Competition statutes out of the Civil Code and into the newly enacted Business & Professions Code, without any effort to substantively change the law. Unfair competition material was removed from § 3369, to became Business & Professions Code 17202. That section says “notwithstanding [§] 3369,” injunctive relief could be obtained against acts of unfair competition prohibited under the Penal Code. So then the “otherwise provided by law” reference was essentially just a reference to § 17202. The court thus reads “the otherwise provided by law” exception very narrowly to apply only to statutes that, like § 17202, specifically define criminally prohibited conduct and also expressly permit an award of injunctive relief. Section 526a’s general authorization to enjoin unlawful expenditures isn’t specifically enough to meet that test.
Reversed.
Unanimity is great and all, but I don’t think I agree with this one. “Otherwise provided by law” doesn’t really mean “otherwise provided by a specific law that specifically says you can enjoin criminal acts.” So I’m not sure I would get past that language and delve into the forty-year old drafting history, given that text doesn’t seem to support the court’s reading. After all, to determine legislative intent, “courts begin with the text of the statute, because the words used are the best evidence of legislative intent.” See People v. Anderson, 28 Cal. 4th 767, 785 (2002). “If the statutory text, viewed in light of the ordinary meaning of its words, is not ambiguous, courts usually accept this meaning as the proper construction of the statute without further inquiry.” Id. at 786. The Court here never so much as bothers to find § 3369 facially ambiguous.
Moreover, as I mentioned in my post on the Court of Appeal opinion, it’s not like permitting use of § 526a to enjoin criminal expenditures by governmental bodies is absurd. Indeed, the whole rationale of § 3369—to keep prosecutors from avoiding the jury trial rights and burdens applicable in criminal cases by bringing instead cases in civil equity—doesn’t really hold to civil cases brought by private parties seeking injunctions against the government.
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