The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 23-101
of :
: October 19, 2023
ROB BONTA :
Attorney General :
:
HEATHER THOMAS :
Deputy Attorney General :
The HONORABLE SENATOR STEVEN M. GLAZER has requested an opinion
on whether certain provisions of a recently-enacted law have retroactive application.
QUESTION PRESENTED AND CONCLUSION
Do the disclosure, recusal, and cure provisions of Senate Bill No. 1439 (amending
Government Code section 84308) apply to political contributions made before January 1,
2023?
No, the disclosure, recusal, and cure provisions of Senate Bill No. 1439 (amending
Government Code section 84308) do not apply retroactively to political contributions
made before January 1, 2023.
BACKGROUND
Senate Bill 1439 (SB 1439) was signed into law in 2022 and became effective on
January 1, 2023. 1 The legislation amends Government Code section 84308, which
1
Stats. 2022, ch. 848 (SB 1439), § 1, eff. Jan. 1, 2023.
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appears in the Political Reform Act of 1974 (PRA). 2 In general, section 84308 places
restrictions on specified government agency officers who accept contributions of more
than $250 from parties to, or participants in, agency proceedings involving “a license,
permit, or other entitlement for use.” 3
Section 84308’s “lookback” provision requires officers to disclose contributions
greater than $250 made in the previous 12 months from parties or interested participants.
Such officers must also recuse themselves from the aforementioned proceedings, unless
the officers “cure” the otherwise disqualifying contribution by returning it within 30 days
of when they knew or should have known about both the contribution and the
proceeding. 4 SB 1439 made several changes to section 84308. Most significantly here,
the section now applies to local elected officers who previously were exempted, thereby
requiring many more government agency officers to comply with its lookback and other
provisions than before. 5 The question here is whether these newly-covered local elected
2
Gov. Code, § 81000, et seq. Legislative and other materials often refer to section 84308
as the Levine Act, so named for Assembly Member Mel Levine, who authored the bill
that added that section to the PRA. All further statutory references in the main text are to
the Government Code.
3
Gov. Code, § 84308, subds. (b) and (c). “‘License, permit, or other entitlement for use’
means all business, professional, trade, and land use licenses and permits, and all
entitlements for land use, all contracts (other than competitively bid, labor, or personal
employment contracts), and all franchises.” (Id. at subd. (a)(5).) The statute also
imposes restrictions on parties to and participants in such proceedings. (Id. at subd. (e).)
4
Gov. Code, § 84308, subds. (c), (d)(1).
5
SB 1439 third reading analysis, supra, at p. 1. As enacted in 1982, section 84308
exempted legislative bodies such as city councils, county boards of supervisors, and the
State Legislature, except as specified. (See Assem. Bill No. 1040 (Reg. Sess. 1981-1982)
§ 1, subd. (d).) The language evolved over time, and Sen. Bill No. 1439 amended section
84308 to eliminate an exception for local government agencies whose members are
directly elected by the voters. The State Legislature remains exempt, as well as the
judicial branch of government, the Board of Equalization, and constitutional officers, as
specified. While this Opinion focuses upon how a retroactive application of SB 1439
would affect local elected officers’ new obligations under the “lookback” provision, the
bill made several other changes. For example, expanding the section to include local
elected officers also affects those who contribute to local elected officers. Under both
former and current section 84308, parties must disclose on the record when they have
contributed to a government officer in the 12 months before the proceeding. (Gov. Code,
§ 84308, subd. (e)(1).) Because section 84308 now applies to an additional class of
government officers than in the past, an additional class of donor must now disclose on
the record. SB 1439 also made changes to section 84308’s treatment of contributions
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officers are prohibited from participating in a proceeding that involves a license, permit,
or other entitlement for use based on uncured contributions that they accepted before SB
1439 took effect on January 1, 2023.
The Fair Political Practices Commission (FPPC), which is the expert agency in
interpreting the PRA, has considered this question and issued an opinion (the Kendrick
Opinion) and formal regulations that both conclude the amendments made by SB 1439 do
not apply to contributions made or accepted before January 1, 2023. 6 We now consider
the same question. For the reasons that follow, we conclude that section 84308, as
amended by SB 1439, does not apply retroactively to political contributions made prior to
its enactment. 7
made during a pending proceeding and after a final decision has been rendered. The
legislation extended from three months to 12 months the period in which officers are
prohibited from accepting such contributions after a final decision is rendered, and it
added a means for officers to cure their acceptance of such contribution by returning it
(or the portion exceeding $250) within 14 days of accepting, soliciting, or directing the
contribution, whichever comes latest. (Sen. Rules Comm., Off. of Sen. Floor Analyses,
third reading analysis, SB 1439 (2021-2022 Reg. Sess.), as amended Aug. 15, 2022, p. 1
(hereafter SB 1439 third reading analysis); see Gov. Code, § 84308, subds. (b),
(d)(2)(A).)
6
In re Kendrick (Fair Pol. Practices Com. Dec. 22, 2022) Opinion No. O-22-002: “Based
on the statutory language and legislative history, there is no indication the Legislature
intended SB 1439’s ‘lookback’ periods to apply to contributions received and
proceedings participated in prior to Section 84308’s amended provisions taking effect.
Absent express language otherwise, we find a local elected official is not prohibited from
taking part in a proceeding involving a license, permit, or other entitlement for use based
on contributions received before January 1, 2023. Similarly, a local elected official is not
prohibited from receiving a contribution based on the official’s participation in a license,
permit, or other entitlement for use proceeding so long as the official’s participation
occurred before January 1, 2023.” The present request for an Attorney General Opinion
is limited to the first of these two questions. (See also Cal. Code Regs., tit. 2, § 18438.)
7
During the drafting of this Opinion, SB 1439 was the subject of litigation in Sacramento
County Superior Court. (Family Business Association of California v. Fair Political
Practices Commission, Case No. 34-2023-00335169-CU-MC-GDS.) The Office of the
Attorney General represented the Fair Political Practices Commission (FPPC) in that
matter, which has now concluded. In that matter, plaintiffs sued defendants claiming SB
1439 was facially unconstitutional. They sought injunctive and declaratory relief against
defendants on the following grounds: That the bill was an unconstitutional amendment
of an initiative measure, and that the restriction on campaign contributions was an
3
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ANALYSIS
This opinion request asks us to consider whether SB 1439’s amendments to
section 84308 operate retroactively. Subject to constitutional constraints, the Legislature
generally may enact a statute that operates retroactively. 8 However, a statute is presumed
to operate prospectively unless the Legislature has clearly indicated that it intends the
statute to operate retroactively. 9 This presumption is a basic tenet of statutory
interpretation rooted in long-standing legal doctrine. As the United States Supreme Court
explained, “[e]lementary considerations of fairness dictate that individuals should have
an opportunity to know what the law is and to conform their conduct accordingly; settled
expectations should not be lightly disrupted.” 10 The California Supreme Court has thus
held that, absent clear Legislative intent to the contrary, a statute is presumed to operate
prospectively. 11
But not every application of a statute to past events is “retroactive,” as the term is
used in the presumption. 12 Courts often conduct a threshold inquiry into whether a
particular application of a statute would truly be “retroactive” before reaching and apply
unconstitutional abridgment of First Amendment-protected political speech. Plaintiffs
and defendants filed cross-motions for Judgment on the Pleadings in April 2023. On
June 16, 2023, the Court entered its judgment in favor of defendants. Plaintiffs did not
file an appeal.
8
The Legislature’s authority in this regard is not unlimited: The California and federal
constitutions prohibit ex post facto laws, or laws that retroactively alter the definition of
crimes or increase the punishment for criminal acts. (U.S. Const., art. I, § 10, cl. 1; Cal.
Const., art. I, § 9; People v. McKee (2010) 47 Cal.4th 1172, 1193.) Laws that
retroactively deprive a person of a vested property right without due process or interfere
with contract rights may also be unconstitutional. (Bouley v. Long Beach Memorial
Medical Center (2005) 127 Cal.App.4th 601, 609.)
9
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307, italics added; see also
Western Security Bank v. Superior Court (1997) 15 Cal. 4th 232, 243 (Western Security
Bank) (stating the Legislature must “plainly” intend a statute to operate retroactively);
People v. Hayes (1989) 49 Cal.3d 1260, 1274 (stating there must be a “clear and
compelling implication” the Legislature intended a statute to operate retroactively).
Landgraf v. USI Film Products (1994) 511 U.S. 244, 266; McClung v. Employment
10
Development Dept. (2004) 34 Cal.4th 467, 475 (Landgraf).
11
McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 227-228 (McHugh).
12
Id. at p. 227.
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the presumption of prospective application. 13 As the California Supreme Court has
explained:
The presumption against retroactivity is, at core, a canon to facilitate
interpretation rather than an inexorable command. [Citations omitted.] In
cases where the presumption is potentially implicated, we must consider
both its overall role—helping guide us in our core endeavor of determining
and giving full effect to a statute’s underlying purpose—and the specific
premise for applying it in that particular case. [Citations omitted.] . . . .
These considerations influence the threshold question courts must answer
before even applying the presumption against retroactivity: Is the statutory
change in question “‘retroactive’” or “‘prospective’”? [Citation omitted.] 14
We will therefore begin by considering the threshold question of whether the
proposed application of SB 1439 to contributions accepted before its enactment by
previously exempted elected local officials would be “retroactive,” for the purposes of
the presumption.
Applying SB 1439 to political contributions made before January 1, 2023, would be
“retroactive” within the meaning of the presumption.
A statutory change is retroactive, within the meaning of the presumption, when it
“significantly alters settled expectations: by changing the legal consequences of past
events, or vitiating substantial rights established by prior law.” 15 Put differently, a statute
operates retroactively when it attaches “new legal consequences to events completed
before its enactment.” 16 A statute may also operate retroactively when it “substantially
affects existing rights and obligations.” 17 California courts have found retroactivity,
13
57 Cal.Jur.3d (2023) Statutes, § 30.
14
McHugh, supra, 12 Cal.5th at p. 229.
15
McHugh, supra, 12 Cal.5th at p. 230, original italics, see also A.J. Fistes Corp. v. GDL
Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 690-691 (A.J. Fistes Corp.).
16
Landgraf, supra, 511 U.S. at p. 270. See also Western Security Bank, supra,15 Cal.4th
232, 243 (“A statute has retrospective effect when it substantially changes the legal
consequences of past events”); California Trout, Inc. v. State Water Resources Control
Board (1989) 207 Cal.App.3d 585, 609 (“The test of retroactivity is whether [the statute]
operates retroactively to materially alter the legal significance of a prior event. . . .
Application of a statute is retroactive only when it gives a different and potentially unfair
legal effect to actions taken in reliance on the preenactment law.”)
A.J. Fistes Corp., supra, 38 Cal.App.5th at pp. 690-691; see also K.M. v. Grossmont
17
Union High School Dist. (2022) 84 Cal.App.5th 717, 736; 57 Cal.Jur.3d (2023) Statutes,
5
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within the meaning of the presumption, when a statute imposes a new duty because of
past transactions, such as a new fiduciary duty between divorcing spouses that did not
exist during the marriage. 18
If a particular statutory change does not meet this standard, then a court considers
its application to be “prospective” regardless of whether it is applied to past conduct. 19
For instance, statutes that clarify existing law are considered “prospective”—even if
applied to prior conduct—because clarifying statutes, by definition, did not actually
change existing law. 20 Such a statute would therefore not trigger the presumption. 21
When determining whether a particular application of a statute would be
retroactive within the meaning of the presumption, courts look at “the nature and extent
of the change in the law and the degree of connection between the operation of the new
rule and a relevant past event. Any test of retroactivity will leave room for disagreement
in hard cases, and is unlikely to classify the enormous variety of legal changes with
perfect philosophical clarity. However, retroactivity is a matter on which judges tend to
have ‘sound . . . instinct[s],’ [citation] and familiar considerations of fair notice,
reasonable reliance, and settled expectations offer sound guidance.” 22
Turning to the question before us, we conclude that applying SB 1439 to pre-
enactment contributions would be “retroactive” within the meaning of the presumption
because this application would substantially affect local elected officials’ obligations as
they existed before the bill’s enactment. As of January 1, 2023, the “lookback”
provision—which requires government officers to disclose qualifying contributions and,
if they do not cure such contributions by returning them, recuse themselves from the
§ 32.
18
See, inter alia, In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1437-1440; In
re Marriage Walker (2006) 138 Cal.App.4th 1408 (Walker).
19
Tapia v. Superior Court (1991) 53 Cal.3d 282, 286-291; see also Elsner v. Uveges
(2004) 34 Cal.4th 915, 936 (“However, this rule does not preclude the application of new
procedural or evidentiary statutes to trials occurring after enactment, even though such
trials may involve the evaluation of civil or criminal conduct occurring before
enactment”).
20
Department of Finance v. Commission on State Mandates (2022) 85 Cal.App.5th 535,
573; Western Security Bank, supra, 15 Cal.4th at p. 243.
21
McHugh, supra, 12 Cal.5th at p. 229.
Landgraf, supra, 511 U.S. at p. 271; see also Californians for Disability Rights v.
22
Mervyn’s, LLC (2006) 39 Cal.4th 223, 230-231.
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proceedings at issue—applies to local elected officers. 23 Applying this change for 2023
proceedings based on contributions accepted in 2022 would substantially affect existing
obligations by changing the legal significance of contributions those officers had
accepted before the effective date of SB 1439, and adding new duties with respect to
those contributions.
Local elected officers such as city councilmembers have the authority to
participate in the licensure and other proceedings at issue in section 84308. 24 Further, the
Political Reform Act allows such officers to collect and spend contributions, within
certain limits. 25 While these local elected officers were certainly required to comply with
the Act in 2022, their obligations under the Act at that time did not include the
restrictions set forth in section 84308. After SB 1439, however, a local elected officer
who accepts a contribution has a new duty to comply with section 84308.
The situation here is analogous to what the Court of Appeal confronted in In re
Marriage of Walker. 26 During their marriage, the two divorcing spouses in that case had
a statutory obligation to furnish certain financial information to one another only on
demand. 27 A 2002 bill changed this duty to require spouses to furnish this information
without demand. 28 The court held that this was a change in the law that had retroactive
effect, reasoning that it imposed greater duties on partners than what had existed under
prior law. 29 Similarly, we believe that local government officers newly subject to section
84308 have greater duties placed upon them today than they had under prior law.
Courts also look generally at fairness, notice, and settled expectations when
determining retroactivity. Before SB 1439’s expansion of the “lookback” provision to
local elected officers, those officers were allowed to receive and spend contributions and
participate in certain proceedings. SB 1439 imposed a new requirement to recuse or
timely return the contribution, thus potentially preventing officers from participating in
certain proceedings in which they previously could have participated. Officers did not
have much advance notice of their changing duties given that the bill was not signed into
law until September 2022. And although the statute allows officers to cure a past
23
Gov. Code, § 84308, subds. (a)(3), (c) and (d)(1).
24
See, e.g., Gov. Code, § 37101.
25
Gov. Code, §§ 81000, et seq.
26
Walker, supra, 138 Cal.App.4th at pp. 1419-1422.
27
Ibid.
28
Id. at pp. 1419-1422, 1427-1428.
29
Ibid.
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contribution, retroactive application of SB 1439 would still disadvantage officers from
using funds they were allowed to accept at the time. 30
Because applying the changes made by SB 1439 to pre-enactment contributions
would be retroactive within the meaning of the presumption, we must next determine
whether the Legislature clearly intended SB 1439 to operate retroactively. If such clear
intent is lacking, we must apply the presumption and conclude that SB 1439 may apply
only prospectively.
The California Legislature did not clearly intend SB 1439 to operate retroactively.
The Legislature clearly intends a statute to operate retroactively if there is explicit
language in the statute or if extrinsic sources “provide a clear and unavoidable
implication that the Legislature intended retroactive application.” 31 To discern
Legislative intent, we first look at the statute’s plain language. 32 If that language is
ambiguous, we then look at other indicia of intent, including legislative history, the
overall statutory scheme, and context. 33
a. Text of section 84308 and SB 1439
While there are no “talismanic” words or phrases that would automatically give a
statute retroactive application, the California Supreme Court has held that the use of the
word “retroactive” or a statement that a section shall have “retroactive application”
constitutes an express intention of retroactive application. 34 On the other hand, without
an express legislative statement, mere evidence the Legislature was aware of the context
of a statutory amendment and the necessity for the change is not (without more) enough
to show that the Legislature intended retroactive application, particularly if the
30
Some commenters have also stated that if enough local elected officers are forced to
recuse a particular proceeding, based on contributions they accepted in 2022 and are
unable to cure in 2023, local legislative bodies might fail to meet a quorum and therefore
be unable to carry out business. (Natalie C. Kalbakian, RWG Law, Comment Letter on
Attorney General Opinion 23-101, April 18, 2023; Nancy Young, Mayor of the City of
Tracy, Emailed comment on Attorney General Opinion 23-101, March 3, 2023
(hereinafter Young comment).)
31
Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 844 (Myers); see also
Bullard v. California State Automobile Association (2005) 129 Cal.App.4th 211, 217
(Bullard); People v. Whaley (2008) 160 Cal.App.4th 779, 793-794 (Whaley).
32
Whaley, supra, 160 Cal.App.4th at p. 793-794.
33
In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587-590 (Bouquet).
34
Myers, supra, 28 Cal.4th at p. 842.
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Legislature fails to enact the bill as urgency legislation. 35 And statements from a single
legislator, even if that legislator is the bill’s author, are not by themselves enough to find
intent on behalf of the Legislature as a whole. 36 In the end, “‘a statute that is ambiguous
with respect to retroactive application is construed . . . to be unambiguously prospective
[citations].’” 37
Turning to the issue before us, we observe that the text of section 84308 does not
explicitly address retroactivity, much less express an intent that the statute operate
retroactively. There is no indication in either the lookback provision, nor in the change to
the definition of “agency” that allowed local elected government officers to be subject to
this section, that a contribution received “within the preceding 12 months” includes those
made in 2022, for officers who weren’t already subject to section 84308 at that time. The
statute is simply silent on that point.
b. Legislative history and the overall statutory scheme
A review of SB 1439’s legislative history similarly fails to yield clear evidence of
legislative intent regarding the statute’s retroactive application. While the bill file from
the Senate Committee on Elections and Constitutional Amendments included copies of
stakeholder correspondence to the FPPC concerning this topic and dated after SB 1439
was signed into law, there is nothing in the legislative intent materials we reviewed that
leads to a “clear and unavoidable implication” that the Legislature intended SB 1439 to
operate retroactively. 38
35
Bullard, supra, 129 Cal.App.4th at pp. 218-219; see also Industrial Indemnity Co. v.
Workers’ Comp. Appeals Board (1978) 85 Cal.App.3d 1028, 1031-1032 (Industrial
Indemnity) (“Something more than a desirable social objective served by the legislation is
thus required if we are to infer a legislative intent of retroactivity. We perceive that
factor to be the necessity of retroactivity to the purpose of the legislation or some factor
extraneous to the purpose alone which leads to the same conclusion”).
36
Myers, supra, 28 Cal.4th at p. 845; but see Bouquet, supra, 16 Cal.3d at pp. 587-591
(holding that when the bill’s author argues before the Legislature during debates
surrounding enactment of the bill that the bill is intended to apply retroactively; the
author alludes to that argument during negotiations to secure the votes to pass the bill;
and after passing the bill, the Legislature passes a resolution incorporating a letter from
the author that indicates the amendment is intended to operate retroactively, the
Legislature did intend the legislation at issue to operate retroactively.)
37
Myers, supra, 28 Cal.4th at p. 841.
38
Myers, supra, 28 Cal.4th at p. 844. We reviewed all of the legislative analyses posted
online for Sen. Bill No. 1439 at Bill Text - SB-1439 Campaign contributions: agency
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Legislative documents discussed the issue that SB 1439 intended to address. The
Legislature enacted SB 1439 as non-urgency legislation to apply the same “pay-to-play”
prohibitions to local elected officers that already existed for specified elected and
appointed state officers, and specified local officers not directly elected by the voters,
when approving a license, permit, or entitlement for use. 39 These concerns were echoed
by materials found in the bill files provided to us. 40
One could argue that, to best address these concerns, SB 1439 must reach
contributions made in 2022 to ensure that a locally elected officer discloses a
contribution, then recuses or cures as soon as possible after the January 1 effective date of
SB 1439. Again, however, courts have found that the mere fact that the Legislature
intended to address an ongoing problem is not enough to find that the Legislature
intended its statute to operate retroactively. 41 After all, a great number of statutes exist to
address existing, ongoing, or past problems, yet for reasons of fairness and fair notice, the
law still strongly presumes statutes operate prospectively. The desire to fix an existing
problem is not, by itself, enough to find the Legislature intended retroactive application. 42
And there are other indications here that the Legislature did not clearly intend SB
1439 to operate retroactively. Assuming for the sake of argument that SB 1439 were
retroactively applicable, parts of SB 1439 would fail to function as intended if applied to
officers (as of July 31, 2023). We also reviewed bill files from the Assembly Committee
on Elections, the Senate Committee on Elections and Constitutional Amendments, and
the Senate Committee on Appropriations for Sen. Bill No. 1439.
39
Sen. Rules Comm., Off. of Sen. Floor Analyses, unfinished business analysis, SB 1439
(2021-2022 Reg. Sess.), as amended Aug. 15, 2022, pp. 6-7.
40
See, inter alia., Sky Allen, I.E. United, letter to Sen. Steven Glazer, April 29, 2022;
David Burke, Citizens Take Action, letter to Assembly Member Chris Holden, July 8,
2022; Jonathan Mehta Stein, California Common Cause, letter to Assem. Member Isaac
G. Bryan, June 27, 2022, “End the Local Government ‘Pay-to-Play’ Loophole,”
California Common Cause.” These materials were found in the committee bill file for
SB 1439, Assembly Committee on Elections, as provided by that committee on March
27, 2023, and the bill file for SB 1439, Senate Committee on Elections and Constitutional
Amendments, as provided by that committee on July 12, 2023.
41
Industrial Indemnity, supra, 85 Cal.App.3d at pp. 1031-1032.
42
Bullard, supra, 129 Cal.App.4th at p. 219; see also Industrial Indemnity, supra, 85
Cal.App.3d at p. 1032: The fact that retroactive application would expand the class of
people subject to the legislation is not, by itself, enough to find that retroactive
application is integral to the operation when this expansion does not inhibit the operation
of the statute.
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pre-enactment contributions. 43 Officers who accepted a potentially disqualifying
contribution in 2022 may participate in an otherwise-disqualified 2023 proceeding if they
return—i.e., “cure”—the contribution within 30 days of the time they knew, or should
have known, about both the contribution and the proceeding. 44 As some commenters
observe, however, even if an officer were to meet the legal requirements to take
advantage of the curing provision in 2023, some officers may nonetheless be unable to
cure: contributions received in 2022 may have already been spent, meaning that officers
may not have the money to return (or would need to raise more money). 45
It appears to us that at least some officers newly bound by section 84308 may not,
as a practical matter, be able to cure a disqualifying contribution if they were required to
comply with changes made by SB 1439 for contributions accepted in 2022. Because we
are instructed to presume that every word in a statute has meaning, and because statutes
must be considered as a whole, we find it unlikely that the Legislature would include a
curing provision if it intended a statute to operate in a way that prevented at least some of
the covered officials from curing.
c. Historical and contemporaneous administrative interpretation
Finally, historical and contemporaneous administrative interpretation support our
view that the Legislature did not clearly intend SB 1439 to operate retroactively.
“‘[W]hen a statute is susceptible of more than one interpretation, we will consider an
administrative interpretation of the statute that is reasonably contemporaneous with its
adoption. [Citation.]’” 46 Courts are more deferential to formally promulgated
regulations than to agency interpretation, and will follow them if they are within the
lawmaking authority delegated by the Legislature, and if the regulation is reasonably
necessary to implement the purpose of the statute. 47 On the other hand, court review of
an agency interpretation of a statute “is contextual: Its power to persuade is both
43
Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1030 (every word
of a statute must be given meaning, and courts should avoid a construction that would
make some words “surplusage.”); Bonnell v. Medical Board (2003) 31 Cal.4th 1255,
1261 (when construing statutory language, we must consider the language in context of
the entire statutory scheme).
44
Gov. Code, § 84308, subd. (d)(1); Cal. Code Regs., tit. 2, § 18438.7.
45
Young comment, supra; Thomas W. Hiltachk, Bell, McAndrews & Hiltachk, letter to
Chair Miadich and Commissioners Baker, Gomez, Wilson and Wood, FPPC, Nov. 10,
2022, pp. 3-4.
46
Bernard v. City of Oakland (2012) 202 Cal.App.4th 1553, 1565.
47
Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 6-8, 10-11.
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circumstantial and dependent on the presence or absence of factors that support the merit
of the interpretation.” 48 Courts consider “two broad categories of factors relevant to”
assessing “the weight due an agency’s interpretation: those ‘indicating that the agency
has a comparative interpretive advantage over the courts,’ and those ‘indicating that the
interpretation in question is probably correct.’ [Citation.]” 49 In the first category are
factors that assume the agency has expertise and technical knowledge, while the second
category includes evidence of consistent or long-standing interpretation, evidence the
interpretation was contemporaneous with legislative enactment, and indicia that senior
agency officials have carefully considered the issue. 50
Both agency interpretation and formally promulgated regulations are at issue here.
Shortly after SB 1439 was signed into law, stakeholders asked the FPPC for guidance
regarding actions made in 2022. 51 As mentioned, the FPPC issued a formal opinion (the
Kendrick Opinion) shortly before SB 1439 took effect stating that the bill did not apply to
2022 actions and contributions for locally elected officials. 52 The opinion reasoned that
there was no express language in the bill regarding retroactivity; that the Legislature is
presumed to know that the FPPC had interpreted section 84308 in this manner in the past;
that there are officers who would not be able to cure pre-enactment contributions; and
that a retroactive application could have negative practical effects on agencies’ ability to
govern. 53
Further, the FPPC has recently promulgated a formal regulation stating that the
amendments made to section 84308 by SB 1439 do not apply to proceedings participated
in, or contributions made to or accepted, solicited, or directed by an officer prior to
January 1, 2023. 54 This regulation is substantively similar to one the FPPC promulgated
when section 84308 was first enacted in 1982. 55 A month after the 1982 legislation was
48
Id. at p. 7.
49
Id. at p. 12.
50
Id. at pp. 12-13.
51
Rebecca L. Moon, League of California Cities, letter to David Bainbridge, General
Counsel of the Fair Political Practices Commission, October 25, 2022.
52
In re Kendrick (Fair Pol. Practices Com. Dec. 22, 2022) Opinion No. O-22-002.
53
Ibid.
54
Cal. Code Regs., tit. 2, § 18438 (a).
55
Former Cal. Code Regs., tit. 2, § 18438.
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signed into law, the FPPC proposed, and eventually finalized, a regulation stating that
section 84308 did not apply to contributions made or received prior to January 1, 1983. 56
In our view, a court would likely defer to the newly promulgated regulation. It is
within the delegation of legislative authority for the FPPC to promulgate regulations to
carry out the purposes and provisions of the PRA. 57 And this regulation is reasonably
necessary to clarify and interpret SB 1439 because of the concern and questions from
stakeholders.
While a court is more deferential to a formally promulgated regulation than to
agency interpretation, given the factors listed above, we believe a court would also likely
give deference to the agency interpretation in the Kendrick Opinion. As stated above, the
FPPC is the expert agency in interpreting the Political Reform Act. And the Kendrick
Opinion adopts the long-standing position the FPPC took when section 84308 was first
enacted in 1982. This interpretation is contemporaneous with the passage of SB 1439;
indeed, the Kendrick Opinion was issued two months after the bill was signed into law,
and weeks before it went into effect.
All of these factors support our view that the Legislature did not clearly intend SB
1439 to operate retroactively. The lack of express language in the statute or an
unavoidable implication of retroactivity in the legislative history, the fact that retroactive
application may prevent some officers from curing, and the FPPC itself taking the
position in duly promulgated regulations that the statute operates only prospectively all
support a finding that the statute does not operate retroactively. Therefore, we conclude
that the disclosure, recusal, and cure provisions of SB 1439 do not apply to political
contributions made before January 1, 2023.
56
Cal. Reg. Notice Register 82, No. 42-Z, p. A-1 (former Cal. Code Regs., tit. 2,
18438(a)). This regulation was repealed in 1995 because it no longer had regulatory
effect. (Cal. Reg. Notice Register 94, Vol. 52-Z, p. 1995: “Regulation 18438(a) was
initially adopted when Section 84308 was first enacted and provided that contributions
made and received prior to the effective date of the statute would not result in
disqualification, even if the contributor appeared before the member within 12 months of
the contribution. Since the effective date of the statute was January 1, 1983, and any
obligation to disqualify regarding contributions received prior to the effective date would
end as of January 1, 1984 (12 months), this provision no longer has any effect. . . . .
Thus, it is necessary to repeal Regulation 18438.”)
57
Gov. Code, § 83112.
13
23-101