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HomeMy WebLinkAbout2/9/2021 Item 1, Smith Wilbanks, Megan From:White, Kelly Sent:Monday, February 8, 2021 12:53 PM To:CityClerk Cc:Atty_Only Subject:FW: Kennedy Club Fitness - 02/09/2021 Attachments:KCF_CasesCited.pdf Clerk’s Office – Here is another agenda correspondence to route for the ARB meeting scheduled for tomorrow, 2/9, at 3pm. Thank you. Kelly White Legal Assistant/Paralegal City Attorney's Office E kwhite@slocity.org From: Makenna Smith < Sent: Monday, February 8, 2021 12:34 PM To: White, Kelly <kwhite@slocity.org>; Jorgensen, Markie <mjorgensen@slocity.org>; Amberg, Mark <mamberg@slocity.org> Cc: Jordan Cunningham < Subject: Kennedy Club Fitness - 02/09/2021 Good afternoon, Please see the attached "Cases Cited" document in reference to Mr. Cunnigham's Supplemental Brief that was emailed on Friday. Thank you, -- Makenna Smith, Paralegal Cunningham Law Group 1830 Spring Street, Paso Robles, CA 93446 Phone: (805) 369-2399 Fax: (805) 396-2388 1 Cases Cited McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... Opinion, 6 Cal.Rptr.3d 504, superseded. KeyCite Yellow Flag - Negative Treatinent Declined to Extend by Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services, Cal.App. 2 Dist., July 22, 2009 West Headnotes (24) 34 Ca1.4th 467 Supreme Court of California Lesli Ann McCLUNG, Plaintiff and Appellant, V. EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Defendants and Respondents. No. S121568. Nov. 4, 2004. Synopsis Background: A state Employment Development Department (EDD) auditor, who alleged she was sexually harassed by a lead auditor, sued EDD and the lead auditor for hostile work environment and failure to remedy hostile work environment under the California Fair Employment and Housing Act (FEHA). The Superior Court, Sacramento County, No. 98AS00092, Joe S. Gray, J., granted summary judgment for defendants. Plaintiff appealed. The Court of Appeal affirmed as to EDD and reversed as to lead auditor. The Supreme Court granted lead auditor's petition for review, superseding the opinion of the Court of Appeal. Holdings: The Supreme Court, Chin, J., held that: [1] amendment to FEHA making nonsupervisory employees liable for sex harassment effectuated a change in the law, rather than merely clarifying it, and [2] amendment imposing liability on nonsupervisory personnel did not apply retroactively. Judgment of the Court of Appeal reversed and matter remanded. Moreno, J., filed a concurring and dissenting opinion. ill Constitutional Law Nature and scope in general It is the province and duty of the judicial department, to say what the law is; those who apply the rule to particular cases, must of necessity expound and interpret that rule. 3 Cases that cite this headnote 121 Statutes Declaratory, clarifying, and interpretive statutes A statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment, because the true meaning of the statute remains the same. 25 Cases that cite this headnote 131 Statutes - Nature and definition of retroactive statute A statute has "retrospective effect" when it substantially changes the legal consequences of past events. 5 Cases that cite this headnote 141 Constitutional Law - - Nature and scope in general The judicial power is conferred upon the courts by the Constitution and, in the absence of a constitutional provision, cannot be exercised by any other body. West's Ann.Cal. Const. Art. 6, § 1. 1 Cases that cite this headnote 151 Constitutional Law Nature and scope in general Constitutional Law _ Interpretation of statutes ',`O i'.i£lI�ii 1:C) Orl�aliiai L?. >. �ovc i1�7k'fl'i, E�"��C'�fks McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693— Subject to constitutional constraints, the Legislature may enact legislation, but the judicial branch interprets that legislation. West's Ann.Cal. Const. Art. 4, § 1; Art. 6, § 1. 2 Cases that cite this headnote 161 Constitutional Law Interpretation of statutes Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts. West's Ann.Cal. Const. Art. 6, § 1. 3 Cases that cite this headnote 171 Statutes - Questions of law or fact It is the duty of the court, when a question of law is properly presented, to state the true meaning of the statute finally and conclusively. West's Ann.Cal. Const. Art. 6, § 1. 3 Cases that cite this headnote 181 Civil Rights -- Retrospective application Supreme Court's decision in Carrisales v. Department of Corrections interpreted the California Fair Employment and Housing Act (FEHA) finally and conclusively as not imposing personal liability on a nonsupervisory coworker for sex harassment, and thus, for purposes of determining the status of the law when state employee's cause of action against her coworker accrued, Legislature's subsequent amendment imposing personal liability on nonsupervisory personnel had to be interpreted as effectuating a change in the law, rather than as a mere clarification of it. West's Ann.Cal.Gov.Code § 129400)(3). 18 Cases that cite this headnote 191 Courts - Highest appellate court The decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California. 2 Cases that cite this headnote [101 Courts -- ° Decisions of Higher Court or Court of Last Resort Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction; it is not their function to attempt to overrule decisions of a higher court. 1 Cases that cite this headnote 1111 Statutes . - Legislative Construction If the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration. 19 Cases that cite this headnote 1121 Statutes -,- Legislative Construction A legislative declaration of an existing statute's meaning is but a factor for a court to consider and is neither binding nor conclusive in construing the statute. 11 Cases that cite this headnote 1131 Constitutional Law -= Construction of statutes in general The Legislature has no authority to interpret a statute; interpretation is a judicial task. 8 Cases that cite this headnote 1141 Constitutional Law Construction of statutes in general Although the Legislature may define the meaning of statutory language by a present legislative enactment which, subject to constitutional restraints, it may deem retroactive, the Legislature has no authority simply to say what the statute meant. 13 Cases that cite this headnote -c) 1,0] rhoar sore Peu[ ors No chin; to originol US ,nverrimment Works 2 McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 RM 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... 1151 Statutes _ Relationship to statute amended; clarification or change of meaning A declaration that a statutory amendment merely clarified the law cannot be given an obviously absurd effect, and the court cannot accept the legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms. 16 Cases that cite this headnote 1161 Civil Rights Retrospective application Civil Rights Retrospective application Because the Supreme Court had already finally and definitively interpreted sex harassment provision in the California Fair Employment and Housing Act (FEHA), the Legislature had no power to decide that a later amendment merely declared existing law. West's Ann.Cal.Gov.Code § 12940. 8 Cases that cite this headnote 1171 Courts Previous Decisions as Controlling or as Precedents A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction. 5 Cases that cite this headnote 1181 Administrative Law and Procedure _ Erroneous or unreasonable construction; conflict with statute It is the courts' duty to construe statutes, even if this requires the overthrow of an earlier erroneous administrative construction. 1 Cases that cite this headnote 1201 Constitutional Law _ - Policy A statute's retroactivity is, in the first instance, a policy determination for the legislature and one to which courts defer absent some constitutional objection to retroactivity. 7 Cases that cite this headnote 1211 Statutes _ - Language and Intent; Express Provisions Statutes Presumptions and inferences A statute may be applied retroactively only if it contains express language of retroactively or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application. 32 Cases that cite this headnote 1221 Civil Rights -- Retrospective application Statutes Labor, Employment, and Public Officials Amendment to California Fair Employment and Housing Act (FEHA) provision, imposing liability on nonsupervisory personnel for sex harassment, did not apply retroactively to alleged sex harassment in the workplace occurring before amendment; any inference that Legislature intended retroactive application was weak, and creating retroactive liability posed constitutional concerns. West's Ann.Cal.Gov.Code § 129400)(2, 3). See 8 Witkin, Summary of Cal. Laiv (9th ed. 1988) Constitutional Laiv, § 760C; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2003) ¶ 10:495 et seq. (CAEMPL Ch. 10-E); Cal. Jur. 3d, Labor, § 74 et seq.; Cal. Civil Practice (Thomson/West 2003) Employment Litigation, § 5: 47 et seq. 26 Cases that cite this headnote 1191 Statutes Retroactivity Generally, statutes operate prospectively only. 1231 Constitutional Law Avoidance of 19 Cases that cite this headnote constitutional questions Courts are required to construe statutes to avoid constitutional infirmities. 111)(':, l7p.N5) WCii"1�7,inal _I(v,r�lf .`Z -� I �I _ !� ��: McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... 1241 Constitutional Law . - Necessity of Determination Before a court entertains the question whether retroactive application of a statute implicates constitutional concerns, the court must be confronted with a statute that explicitly authorized the imposition of liability for preenactment conduct. 5 Cases that cite this headnote Attorneys and Law Firms ***430 Law Offices of Guy D. Loranger, Guy D. Loranger; and Shelley Gregory, San Francisco, for Plaintiff and Appellant. Bill Lockyer, Attorney General, James M. Schiavenza, Louis R. Mauro, Barton R. Jenks and Diana L. Cuomo, Deputy Attorneys General, for Defendant and Respondent Employment Development Department. Matheny Sears Linkert & Long, Michael A. Bishop and Roger Yang, Sacramento, for Defendant and Respondent Manuel Lopez. Opinion CHIN, J. **1017 111 *469 "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) 1 Cranch 137, 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 CalAth 1132, 90 Cal.Rptr.2d 804, 988 P.2d 1083 (Carrisales ), we interpreted Government Code section 12940 (hereafter 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 ***431 0) 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. 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 CalAth 1132, 90 Cal.Rptr.2d 804, 988 P.2d 1083, the Legislature may amend the statute to say something different. But if it does so, it changes the law; 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 In January 1998, plaintiff Lesli Ann McClung filed a complaint against the Employment Development Department and Manuel Lopez, alleging claims of hostile work environment and failure to remedy a hostile work environment under the FEHA, as well as another cause of action not relevant here. The superior court granted summary judgment for defendants, and plaintiff appealed. The Court of Appeal affirmed the judgment in favor of the Employment Development Department, but reversed it as to Lopez. In so doing, it held that Lopez was plaintiffs coworker, not supervisor. It also recognized that we had held in Carrisales, supra, 21 Cal.4th at page 1140, 90 Cal.Rptr.2d 804, 988 P.2d 1083, that the FEHA does not "impose personal liability for harassment on nonsupervisory coworkers." Nevertheless, it found Lopez personally liable for harassment under the FEHA. It applied an amendment to the FEHA that imposes personal liability *471 on coworkers (§ 12940, subd. 0)(3)), even though the amendment postdated the actions underlying this lawsuit. It found that the preexisting statement in section 12940, subdivision 0)(2), that subdivision (j)'s provisions "are declaratory of existing law," "supports the conclusion that [the amendment] merely clarifies the meaning of the prior statute." Ultimately, it concluded that whether "the amendment merely states the true meaning of the statute or reflects the Legislature's purpose to 4 McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... achieve a retrospective change, the result is the same: we must give effect to the legislative intent that the personal liability amendment apply to all existing cases, including this one." "For Lopez," said the Court of Appeal, "the Supreme Court's interpretation of individual liability under FEHA can be said to have come and gone." We granted Lopez's petition for review to decide whether section 12940, subdivision 0)(3), applies to this case. II. Discussion A. Background The FEHA "declares certain kinds of discrimination and harassment in the workplace to be `unlawful employment practice[s].' (§ 12940.)" (Carrisales, supra, 21 CalAth at p. 1134, 90 Cal.Rptr.2d 804, 988 P.2d 1083.) In Carrisales, we interpreted the FEHA as imposing "on the employer the duty to take all reasonable steps to prevent this harassment from occurring in the first place and to take immediate ***432 and appropriate action when it is or should be aware of the conduct," but as not imposing "personal liability for harassment on nonsupervisory coworkers." (Carrisales, supra, at p. 1140, 90 Cal.Rptr.2d 804, 988 P.2d 1083, citing § 12940, former subd. (h)(1).) Later, effective January 1, 2001, the Legislature amended the subdivision of section 12940 that we interpreted in Carrisales (now subdivision (j)). (Stats.2000, ch. 1049, §§ 7.5, 11.) As amended, section 12940, subdivision 0)(3), provides in relevant part: "An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee...." It seems clear, and no one disputes, that this provision imposes on nonsupervisory coworkers the personal liability that Carrisales said the FEHA had not imposed. Subdivision 0) also states that its **1019 provisions "are declaratory of existing law ...." (§ 12940, subd. (j)(2).) 121 131 We must decide whether the amendment to section 12940 applies to actions that occurred before its enactment. If the amendment merely clarified existing law, no question of retroactivity is presented. "[A] statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment" "because the true meaning of the statute remains the same." ( *472 Western Security Bank v. Superior Court (1997) 15 CalAth 232, 243, 62 Cal.Rptr.2d 243, 933 P.2d 507 (Western Security Bank ).) In that event, personal liability would have existed at the time of the actions, and the amendment would not have changed anything. But if the amendment changed the law and imposed personal liability for earlier actions, the question of retroactivity arises. "A statute has retrospective effect when it substantially changes the legal consequences of past events." (Ibid.) In this case, applying the amendment to impose liability that did not otherwise exist would be a retroactive application because it would "attach[ ] new legal consequences to events completed before its enactment." (Landgraf v. USI Film Products (1994) 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (Landgraf ).) Specifically, it would "increase a party's liability for past conduct...." (Id. at p. 280, 114 S.Ct. 1483; accord, Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839, 123 Cal.Rptr.2d 40, 50 P.3d 751 (Myers Accordingly, two separate questions are presented here: (1) Did the amendment extending liability in subdivision 0)(3) change or merely clarify the law? (2) If the amendment did change the law, does the change apply retroactively? We consider the former question first. Because we conclude the amendment did, indeed, change the law, we also consider the latter question. B. Whether the Amendment Changed the Law 141 "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Cal. Const., art. II1, § 3.) "The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record." (Cal. Const., art. VI, § 1.) Thus, "The judicial power is conferred upon the courts by the Constitution and, in the absence of a constitutional provision, cannot be exercised by any other body." (Bodinson Mfg. Co. v California E. Com. (1941) 17 Cal.2d 321, 326,109 P.2d 935.) 151 161 171 The legislative power rests with the Legislature. (Cal. Const., art. IV, § 1.) Subject to constitutional constraints, the Legislature may enact legislation. ***433 (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 488 P.2d 161.) But the judicial branch interprets that legislation. "Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts." (Western Security Bank, supra, 15 Cal.4th at p. 244, 62 Cal.Rptr.2d 243, 933 P.2d 507; see also People v. Cruz (1996) 13 CalAth 764, 781, 55 Cal.Rptr.2d 117, 919 P.2d McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... 731.) Accordingly, "it is the duty of this court, when ... a question of law is properly presented, to state the true meaning of the statute finally and conclusively...." (Bodinson Mfg. Co. 12940, the Legislature had no power to decide that the later amendment merely declared existing law. v. California E. Com., supra, 17 Cal.2d at p. 326, 109 P.2d On another occasion, the Legislature similarly enacted 935.) legislation overruling a decision of this court —which was within its power —but also purported to state that the new 181 191 1101 *473 In Carrisales, supra, 21 CalAth 1132, legislation merely declared what the law always was —which 90 Cal.Rptr.2d 804, 988 P.2d 1083, we interpreted the FEHA was beyond its power. In People v. Harvey (1979) 25 Cal.3d finally and conclusively as not imposing personal liability on 754, 159 Cal.Rptr. 696, 602 P.2d 396, we interpreted Penal a nonsupervisory coworker. This interpretation was binding Code section 1170.1 as not permitting a certain consecutive on lower state courts, including the Court of Appeal. (Auto sentence enhancement. The Legislature promptly amended Equity Sales, Inc. v Superior Court (1962) 57 Cal.2d 450, the statute to permit the enhancement. (Stats.1980, ch. 132, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) "The decisions of § 2, p. 306.) It also declared that its ***434 intent was this court are binding upon and must be followed by all "to clarify and reemphasize what has been the legislative the state courts of California.... Courts exercising inferior intent since July 1, 1977." (Stats.1980, ch. 132, § 1, subd. (c), jurisdiction must accept the law declared by courts of superior p. 305.) The judicial response was swift and emphatic. The jurisdiction. It is not their function to attempt to overrule courts concluded that, although the Legislature may amend a decisions of a higher court." (Ibid.) *474 statute to overrule a judicial decision, doing so changes the law; accordingly, they refused to apply the amendment 1111 1121 1131 1141 1151 1161 It is true that if thtroactively. (People v. Savala (1981) 116 Cal.App.3d 41, courts have not yet finally and conclusively interpreted a 55-61, 171 Cal.Rptr. 882; People v. Harvey (1980) 112 statute and are in the process of doing so, a declaration of a Cal.App.3d 132, 138-139, 169 Cal.Rptr. 153; People v. later Legislature as to what **1020 an earlier Legislature Cuevas (1980) 111 Cal.App.3d 189, 198-200, 168 Cal.Rptr. intended is entitled to consideration. (Western Security Bank, 519; People v. Vizcarra (1980) 110 Cal.App.3d 858, 866, supra, 15 CalAth at p. 244, 62 Cal.Rptr.2d 243, 933 P.2d 168 Cal.Rptr. 257; People v. Fulton (1980) 109 Cal.App.3d 507.) But even then, "a legislative declaration of an existing 777, 783, 167 Cal.Rptr. 436; People v Mattheivs (1980) 108 statute's meaning" is but a factor for a court to consider Cal.App.3d 793, 796, 167 Cal.Rptr. 8; see People v. Wolcott and "is neither binding nor conclusive in construing the (1983) 34 Cal.3d 92, 104, fn. 4, 192 Cal.Rptr. 748, 665 statute." (Ibid.; see also Peralta Community College Dist. P.2d 520.) As one of these decisions explained, this court v. Fair Employment & Housing Com. (1990) 52 Cal.3d had "finally and conclusively" interpreted the statute, and 40, 52, 276 Cal.Rptr. 114, 801 P.2d 357; Del Costello v. a "legislative clarification in the amended statute may not State of California (1982) 135 Cal.App.3d 887, 893, fn. 8, be used to overrule this exercise of the judicial function of 185 Cal.Rptr. 582.) This is because the "Legislature has no statutory construction and interpretation. The amended statute authority to interpret a statute. That is a judicial task. The defines the law for the future, but it cannot define the law for Legislature may define the meaning of statutory language by a the past." (People v Cuevas, supra, at p. 200, 168 Cal.Rptr. present legislative enactment which, subject to constitutional 519.) restraints, it may deem retroactive. But it has no legislative authority simply to say what it did mean." (Del Costello v 1171 1181 Plaintiff points out that Carrisales, supra, 21 State of California, supra, at p. 893, fn. 8, 185 Cal.Rptr. 582, Cal.4th 1132, 90 Cal.Rptr.2d 804, 988 P.2d 1083, itself cited with approval in People v. Cruz, supra, 13 CalAth at postdated the acts alleged in this case and argues that before p. 781, 55 Cal.Rptr.2d 117, 919 P.2d 731.) A declaration that that decision, nonsupervisory coworkers had been personally a statutory amendment merely clarified the law "cannot be liable under the statute. However, "[a] judicial construction of given an obviously absurd effect, and the court cannot accept a statute is an authoritative statement of what the statute meant the Legislative statement that an unmistakable change in the before as well as after the decision of the case giving rise to statute is nothing more than a clarification and restatement that construction." (Rivers v. Roadivay Express, Inc. (1994) of its original terms." (California Emp. etc. Com. v Payne 511 U.S. 298, 312-313, 114 S.Ct. 1510, 128 L.Ed.2d 274; (1947) 31 Cal.2d 210, 214, 187 P.2d 702.) Because this accord, Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211, court had already finally and definitively interpreted section 216, 115 S.Ct. 1447, 131 L.Ed.2d 328.) This is why a judicial decision generally applies retroactively. (Rivers v. Roadivay lior:�uiun s , :UL'."S 4'idaiI McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... Express, Inc., supra, at pp. 311-312, 114 S.Ct. 1510; People v Guerra (1984) 37 Cal.3d 385, 399, 208 Cal.Rptr. 162, 690 P.2d 635.) It is true that two administrative decisions had previously interpreted the statute differently than we did. (See Carrisales, supra, at pp. 1138-1139, 90 Cal.Rptr.2d 804, 988 P.2d 1083.) But we merely concluded that those decisions **1021 had misconstrued the statute (ibid.); we did not, and could not, amend the statute ourselves. (See People v. Guerra, supra, at p. 399, fn. 13, 208 Cal.Rptr. 162, 690 P.2d 635.) It is the courts' duty to construe statutes, " even though this requires the overthrow of an earlier erroneous administrative construction." (Bodinson Mfg Co. v. California E. Com., supra, 17 Cal.2d at p. 326, 109 P.2d 935; see also Rivers v. Roadivay Express, Inc., supra, at pp. 312-313 & fn. 12, 114 S.Ct. 1510 [explaining that a United States Supreme Court decision interpreting a statute stated what the statute had always meant, even if the decision overruled earlier federal appellate court decisions that had interpreted the statute differently].) Our conclusion that the amendment to section 12940, subdivision 0)(3), changed rather than clarified the law does not itself decide the question whether it applies to this case. It just means that applying the amended section to this case would be a retroactive application. "The fact that application of [the statute] to the instant case would constitute a *475 retroactive rather than a prospective application of the statute is, of course, just the beginning, rather than the conclusion, of our analysis." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206, 246 Cal.Rptr. 629, 753 P.2d 585.) We turn now to the question ***435 whether the amendment applies retroactively. C. Whether the Amendment Applies Retroactively 1191 "Generally, statutes operate prospectively only." (Myers, supra, 28 CalAth at p. 840, 123 Cal.Rptr.2d 40, 50 P.3d 751; see also Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1206-1208, 246 Cal.Rptr. 629, 753 P.2d 585.) "[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.... For that reason, the `principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.' " (Landgraf, supra, 511 U.S. at p. 265, 114 S.Ct. 1483, fns. omitted; see also Myers, supra, at pp. 840-841, 123 Cal.Rptr.2d 40, 50 P.3d 751.) "The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact." (Landgraf supra, at p. 270, 114 S.Ct. 1483.) 1201 1211 This is not to say that a statute may never apply retroactively. "[A] statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent `some constitutional objection' to retroactivity." (Myers, supra, 28 CalAth at p. 841, 123 Cal.Rptr.2d 40, 50 P.3d 751.) But it has long been established that a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be "the unequivocal and inflexible import of the terms, and the manifest intention of the legislature." (United States v. Heth (1806) 3 Cranch 399, 7 U.S. 399, 413, 2 L.Ed. 479; accord, Myers, supra, at p. 840, 123 Cal.Rptr.2d 40, 50 P.3d 751.) "[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application." (Myers, supra, at p. 844, 123 Cal.Rptr.2d 40, 50 P.3d 751.) 1221 We see nothing here to overcome the strong presumption against retroactivity. Plaintiff and Justice Moreno argue that the statement in section 12940, subdivision 0)(2), that the subdivision's provisions merely declared existing law, shows an intent to apply the amendment retroactively. They cite our statement that "where a statute provides that it clarifies or declares existing law, `[i]t is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, we must give effect to this intention unless there is some constitutional objection *476 thereto.' " (Western Security Bank, supra, 15 Cal.4th at p. 244, 62 Cal.Rptr.2d 243, 933 P.2d 507, quoting California Emp. etc. Com. **1022 v. Payne, supra, 31 Cal.2d at p. 214, 187 P.2d 702.) Neither Western Security Bank, supra, 15 CalAth 232, 62 Cal.Rptr.2d 243, 933 P.2d 507, nor California Emp. etc. Com. v. Payne, supra, 31 Cal.2d 210, 187 P.2d 702, holds that an erroneous statement that an amendment merely declares existing law is sufficient to overcome the strong presumption against retroactively applying a statute that responds to a judicial interpretation. In California Emp. etc. Com. v. Payne, the amendment at issue does not appear to have been adopted in response to a judicial decision. In Western Security Bank, how, -,on Ci21YT': i0 OCIf';ii i<..ni k �.,_ _�i)i�C "Il���f fi + ��t(�r4i5 McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693... supra, 15 CalAth 232, 62 Cal.Rptr.2d 243, 933 P.2d 507, the only judicial action that had interpreted the statute before the Legislature amended it was a ***436 Court of Appeal decision that never became final. After considering all of the circumstances, we specifically held that the amendment at issue "did not effect any change in the law, but simply clarified and confirmed the state of the law prior to the Court of Appeal's first opinion. Because the legislative action did not change the legal effect of past actions, [the amendment] does not act retrospectively; it governs this case." (Id. at p. 252, 62 Cal.Rptr.2d 243, 933 P.2d 507.) Here, by contrast, as we have explained, Carrisales, supra, 21 CalAth 1132, 90 Cal.Rptr.2d 804, 988 P.2d 1083, was a final and definitive judicial interpretation of the FEHA. The amendment at issue here did change the law. Moreover, the language of section 12940, subdivision 0) (2), namely, that "The provisions of this subdivision are declaratory of existing law," long predates the Legislature's overruling of Carrisales, supra, 21 CalAth 1132, 90 Cal.Rptr.2d 804, 988 P.2d 1083. That language was added to the section in reference to a different, earlier, change to the statute. (Stats.1987, ch. 605, § 1, p.1945.) Any inference the Legislature intended the 2000 amendment to apply retroactively is thus far weaker than if the Legislature had asserted, in the 2000 amending act itself, that the amendment's provisions declared existing law. Plaintiff and the Court of Appeal also cite statements in the legislative history to the effect that the proposed amendment would only "clarify" the law's original meaning. But these references may have been intended only to demonstrate that clarification was necessary, not as positive assertions that the law always provided for coworker liability. We see no indication the Legislature even thought about giving, much less expressly intended to give, the amendment retroactive effect to the extent the amendment did change the law. Specifically, we see no clear and unavoidable intent to have the statute retroactively impose liability for actions not subject to liability when taken. "Requiring clear intent assures that [the legislative body] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." (Landgraf, supra, 511 U.S. at pp. 272-273, 114 S.Ct. 1483.) [231 1241 Retroactive application would also raise constitutional implications. Both this court and the United States Supreme Court have expressed concerns that *477 retroactively creating liability for past conduct might violate the Constitution, although it appears neither court has so held. (Landgraf, supra, 511 U.S. at p. 281, 114 S.Ct. 1483 ["Retroactive imposition of punitive damages would raise a serious constitutional question"]; Myers, supra, 28 Cal.4th at pp. 845-847, 123 Cal.Rptr.2d 40, 50 P.3d 751; but see also Landgraf, at p. 272, 114 S.Ct. 1483 [describing "the constitutional impediments to retroactive civil legislation" as "now modest"].) "An established rule of statutory construction requires us to construe statutes to avoid `constitutional infirmit[ies].' [Citations.] That rule reinforces our construction of the [statute] as prospective only." (Myers, supra, at pp. 846-847, 123 Cal.Rptr.2d 40, 50 P.3d 751.) "Before we entertained that [constitutional] question, we would have to be confronted with a statute that explicitly authorized" the imposition of liability "for preenactment conduct." (Landgraf, supra, at p. 281, 114 S.Ct. 1483.) The amendment here contains no such explicit authorization. For all of these reasons, we conclude that section 12940, subdivision 0)(3), does not apply **1023 retroactively to conduct predating its enactment. ***437 I11. Conclusion We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion. WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR and BROWN, JJ. Concurring and Dissenting Opinion by MORENO, J. We held in Carrisales v. Department of Corrections (1999) 21 CalAth 1132, 90 Cal.Rptr.2d 804, 988 P.2d 1083 that the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) does not impose on nonsupervisory coworkers personal liability for harassment. The Legislature later amended Government Code section 12940, subdivision 0), to impose such personal liability. The statute as amended states that its provisions "are declaratory of existing law." (Gov.Code, § 12940, subd. 0)(2).)] I agree with the majority that the Legislature could not, by amending the statute, clarify its meaning in a manner inconsistent with our decision in Carrisales. Thus, the 10��,'lOf1 r �'='. i%C�f'`?. i�li(� �� 9F)I!11 in oriCiwa1 i .. ��11� f Pif�l^cil% VAiorks. 8 McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693.,, amendment must be deemed to have changed, rather than merely clarified, the law. But unlike the majority, I conclude that by purporting to clarify its original intent, the Legislature clearly intended to apply this statutory change retroactively. We must honor this legislative intent, unless prevented from doing so by constitutional concerns. The majority correctly recognizes that a statute may apply retroactively. As we stated in *478 Myers v. Philip Morris Companies, Inc. (2002) 28 CalAth 828, 840-841, 123 Cal.Rptr.2d 40, 50 P.3d 751, "[g]enerally, statutes operate prospectively only"; "unless there is an `express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature ... must have intended a retroactive application' [citation].... Under this formulation a statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent `some constitutional objection' to retroactivity. [Citation.]" The majority, however, "see[s] nothing here to overcome the strong presumption against retroactivity." (Maj. opn., ante, 20 Cal.Rptr.3d at p. 435, 99 P.3d at p. 1021.) I disagree. The statute at issue, subdivision 0)(2) of section 12940, states that its provisions "are declaratory of existing law...." In Western Security Bank v Superior Court (1997) 15 Cal.4th 232, 244, 62 Cal.Rptr.2d 243, 933 P.2d 507, we recognized the importance of such legislative language: "[E]ven if the court does not accept the Legislature's assurance that an unmistakable change in the law is merely a `clarification,' the declaration of intent may still effectively reflect the Legislature's purpose to achieve a retrospective change. [Citation.] ... Thus, where a statute provides that it clarifies or declares existing law, `[i]t is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment.' " We made the same point half a century earlier in California Emp. etc, Com. v. Payne (1947) 31 Cal.2d 210, 213, 187 P.2d 702, in which the Legislature had amended a statute to add a requirement of an "intent to evade the provisions of this act," further stating that the amendment "is hereby declared to be merely a clarification of the original intention of the legislature rather than a substantive change and ***438 such section shall be construed for all purposes as though it had always read as hereinbefore set forth." Despite the Legislature's statement, it was clear that the amendment changed, rather than merely clarified, the law, as no such intent to evade had previously been required. Accordingly, we held that "the language of the `clarification' provision in this case cannot be given an obviously absurd effect, and the court cannot accept the Legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms." (Id. at p. 214, 187 P.2d 702.) We recognized, however, that the Legislature's statement indicated a clear **1024 intent that the amendment apply retroactively: "It does not follow, however, that the `clarification' provision ... is ineffective for any purpose. It is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, we must give effect to this intention unless there is some constitutional objection thereto." (Ibid.) *479 In the present case, as in Western Security Bank and California Emp., we cannot give effect to the Legislature's statement that the amendment to section 12940, subdivision 0) was declaratory of existing law, but we can give effect to the Legislature's clear expression of its intent that this amendment be given retroactive effect. The majority notes that the statutory language stating that the provisions of subdivision 0) of section 12940 are declaratory of existing law was originally added to the statute in reference to a 1987 amendment. The majority concludes from this that "[a]ny inference the Legislature intended the 2000 amendment to apply retroactively is thus far weaker than if the Legislature had asserted, in the 2000 amending act itself, that the amendment's provisions declared existing law." (Maj. opn., ante, 20 Cal.Rptr.3d at p. 436, 99 P.3d at p. 1022.) Again, I do not agree. A statute that is amended is "re-enacted as amended." (Cal. Const., art. IV, § 9.) "The amendment of a statute ordinarily has the legal effect of reenacting (thus enacting) the statute as amended, including its unamended portions." (People u Scott (1987) 194 Cal.App.3d 550, 554, 239 Cal.Rptr. 588.) As amended, section 12940, subdivision 0) clearly states that its provisions are declaratory of existing law. The circumstance that the same statement had been made in reference to an earlier amendment of the same statute does not lessen the plain meaning of this statutory language. In general, we take it that the Legislature means what it says. In the present case, it is difficult to imagine how the Legislature could have more clearly expressed its intention that the 2000 amendment to subdivision 0) of section 12940, like the earlier amendment, was declaratory of existing law. to Orjgjf it+l yi '•.'�(?1`^' f ?-ll-^.f�l. `1%�1C�"IC:�. McClung v. Employment Development Dept., 34 CalAth 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (13NA) 1693... Because the Legislature clearly indicated its intent that the amendment to the statute be applied retroactively, we must honor that intent unless there is a constitutional objection to doing so. The high court addressed the constitutional concerns posed by retroactive application of statutes at some length in Landgraf v. USI Film Products (1994) 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229. The court recognized that "the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary 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." ( ***439 Id. at p. 265, 114 S.Ct. 1483, fn. omitted.) The court noted that "the anti retroactivity principle finds expression in several provisions of our Constitution," including the ex post facto clause, the provision prohibiting the impairment of obligations of contracts, the Fifth Amendment's takings clause, the prohibition of bills of attainder, and the due process clause. (Id. at p. 266, 114 S.Ct. 1483.) *480 The court was careful to make clear, however, that these concerns do not necessarily prohibit retroactive application of statutes: "The Constitution's restrictions, of course, are of limited scope. Absent a violation of one ofthose specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope. Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary. However, a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." (Landgraf v. USI **1025 Film Products, supra, 511 U.S. 244, 267-268, 114 S.Ct. 1483, fn. omitted.) Further, courts must defer to a legislative judgment that a statute should be applied retroactively: "In this century, legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments." (Landgraf v. USI Film Products, supra, 511 U.S. 244, 272, 114 S.Ct. 1483.) Accordingly, the high court declared, "the constitutional impediments to retroactive civil legislation are now modest." (Ibid., italics omitted.) Significantly, defendant Lopez does not cite any authority establishing that retroactive application of the amendment to section 12940, subdivision Q) would violate the Constitution. Rather, he simply asserts that "to impose personal liability ... retroactively should require a `clear and unavoidable' statement from the Legislature favoring retroactivity...." As explained above, I conclude that the provision stating that the amendment is declaratory of existing law constitutes such a clear statement of intent to apply the amendment retroactively. Neither does the majority cite any authority establishing that retroactive application of the amendment to section 12940, subdivision 0) would violate the Constitution. Rather, the majority asserts that retroactive application would "raise constitutional implications," while acknowledging that "[b]oth this court and the United States Supreme Court have expressed concerns that retroactively creating liability for past conduct might violate the Constitution, although it appears neither court has so held. [Citations.]" (Maj. opn., ante, 20 Cal.Rptr.3d at p. 436, 99 P.3d at p. 1022, italics added.) I discern no constitutional impediment to giving effect to the Legislature's clear intent to apply the amendment to section 12940, subdivision 0) retroactively. As noted above, the amendment changed the law by imposing upon nonsupervisory coworkers personal liability under the FEHA for harassment, but this did not subject such nonsupervisory coworkers to liability for *481 harassment for the first time. As we noted in Carrisales, "our conclusion [that nonsupervisory coworkers could not be held personally liable under the FEHA] does not necessarily prevent a harasser from being personally liable to the victim under some other statute or theory of tort. All we hold is that the ***440 FEHA does not cover harassment short of an unlawful employment practice. The FEHA's noncoverage does not immunize anyone, including a coworker, from the consequences of conduct that is otherwise tortious." (Carrisales v. Department of Corrections, supra, 21 CalAth 1132, 1136, 90 Cal.Rptr.2d 804, 988 P.2d 1083.) And we have recognized "that employment discrimination, including sexual harassment ... can cause emotional distress [and] that such distress is a compensable injury under traditional theories of tort law...." (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 48, 276 Cal.Rptr. 114, 801 P.2d 357, fn. omitted.) (c; �iirii.4.�i;iC^i;°:.f5,J.'1<riYi,t�'Ci6it,if;,31i_d.i _'�`,'._rP�lit"9li'ilU)�!:,- 10 McClung v. Employment Development Dept., 34 Cal.4th 467 (2004) 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693.., Given the "modest" constitutional impediments to retroactive civil legislation (Landgraf a US/ Film Products, supra, 511 U.S. 244, 272, 114 S.Ct. 1483), and the circumstance that harassment by nonsupervisory coworkers was tortious prior to the statutory amendment imposing liability for such conduct under the FEHA, I conclude that there is no constitutional obstacle to the retroactive imposition of personal liability for harassment on nonsupervisory coworkers, as the Legislature intended. All Citations 34 Cal.4th 467, 99 P.3d 1015, 20 Cal.Rptr.3d 428, 94 Fair Empl.Prac.Cas. (BNA) 1693, 04 Cal. Daily Op. Serv. 9912, 2004 Daily Journal D.A.R. 13,516 Footnotes 1 All further statutory references are to the Government Code, unless otherwise specified. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2. 01 Thomson Reuters No clairn to original U.S. Government Works. 11 Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UDC Rep.Serv.2d 534... KeyCite Yellow Flag - Negative Treatment Declined to Follow by Greenwich Hosp v. Gavin, Conn., September 2, 2003 15 Ca1.4th 232, 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534, 97 Cal. Daily Op. Serv. 2554, 97 Daily Journal D.A.R. 4507 Supreme Court of California WESTERN SECURITY BANK, N.A., Petitioner, V. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BEVERLY HILLS BUSINESS BANK et al., Real Parties in Interest. VISTA PLACE ASSOCIATES et al., Petitioners, V. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; WESTERN SECURITY BANK, N.A., et al., Real Parties in Interest. No. S037504• Apr 7, 1997• SUMMARY After a partnership went into default on a loan it had obtained from a bank, the bank and the partnership modified the terms of the loan, and the general partners obtained unconditional, irrevocable standby letters of credit in favor of the bank as additional collateral. When the partnership again went into default, the bank foreclosed nonjudicially on the real property securing the loan and then presented the letters of credit to the issuer so as to cover the unpaid deficiency. The issuer brought an action for declaratory relief, seeking a declaration that it was not obligated to accept or honor the bank's tender of the letters of credit or, alternatively, a declaration that, if it was required to honor the letters, the partners were obligated to reimburse the issuer. The trial court entered a judgment decreeing that the issuer was required to honor the letters of credit and that the issuer was not barred from severally seeking reimbursement from the partners. (Superior Court of Los Angeles County, No. BC031239, Ernest George Williams, Judge.) The Court of Appeal, Second Dist., Div. Three, No. B066488, reversed, concluding that, under Code Civ. Proc., § 580d, part of the antideficiency law, the issuer of a standby letter of credit, provided to a real property lender by a debtor as additional security, may decline to honor it after receiving notice that it is to be used to discharge a deficiency following the beneficiary -lender's nonjudicial foreclosure on real property. Thereafter, the Legislature enacted urgency legislation (Sen. Bill No. 1612), providing that an otherwise conforming draw on a letter of credit does not contravene the antideficiency laws and that those laws afford no basis for refusal to honor a draw (Code Civ. Proc., § 580.5). After the Supreme Court granted review and returned the matter to the Court of Appeal for reconsideration in light of the urgency legislation, the Court of Appeal concluded the legislation constituted a substantial change in existing law and thus was prospective only and had no impact on the Court of Appeal's earlier conclusions regarding the parties' rights and obligations. *233 The Supreme Court reversed the judgment of the Court of Appeal and remanded. The court held that the Court of Appeal erred in concluding that the enactment of Sen. Bill No. 1612 had no effect on this case. The Legislature explicitly intended to abrogate the Court of Appeal's prior decision to clarify the parties' obligations when letters of credit support loans also secured by real property. The Court of Appeal mistook standby letters of credit for an attempt to evade the antideficiency and foreclosure laws by seeing them only as a form of guaranty, and also overlooked that the parties specifically intended the standby letters of credit to be additional security. When viewed as additional security for a note also secured by real property, a standby letter of credit does not conflict with the statutory prohibition of deficiency judgments. Further, the Legislature manifestly intended the respective obligations of the parties to a letter of credit transaction to remain unaffected by the antideficiency laws, whether those obligations arose before or after enactment of Sen. Bill No. 1612. Since the Legislature's action constituted a clarification of the state of the law before the Court of Appeal's decision, rather than a change in the law, the legislation had no impermissible retroactive consequences, and it governed this case. (Opinion by Chin, J., with George, C. J., Baxter, and Brown, JJ., concurring. Concurring and dissenting opinion by Werdegar, J. Concurring and dissenting opinion by Mosk, J., with Kennard, J., concurring.) HEADNOTES '? 1. Thoil fr',i i (: E,; fi " : :lo "Jaii i i w original L,l ;ovcifilmem Worl'S. � Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534.., Classified to California Digest of Official Reports (la, lb, lc) Letters of Credit § 10--Duties and Privileges of Issuer --Letters Presented to Cover Deficiency --Following Nonjudicial Foreclosure --Retroactivity of New Legislation. In an action brought by the issuer of letters of credit against a bank that had loaned money to a partnership secured by real property, and against the partnership and its general partners, the Court of Appeal erred in concluding that the Legislature's postjudgment enactment of urgency legislation (Sen. Bill No. 1612), providing that an otherwise conforming draw on a letter of credit does not contravene the antideficiency laws and that those laws afford no basis for refusal to honor a draw (Code Civ. Proc., § 580.5), had no effect on a prior Court of Appeal holding in this case to the effect that, under Code Civ. Proc., § 580d, the issuer of a standby letter of credit, provided to a real property lender by a debtor as additional security, may decline to honor it after receiving notice that it is to be used to discharge a deficiency following the beneficiary - lender's nonjudicial foreclosure on real property. The partners obtained the letters *234 of credit as additional collateral for repayment of the loan and presented the letters for payment to the issuer after the bank foreclosed nonjudicially on the real property. The Legislature explicitly intended to abrogate the Court of Appeal's prior decision to clarify the parties' obligations when letters of credit support loans also secured by real property. The Court of Appeal mistook standby letters of credit for an attempt to evade the antideficiency and foreclosure laws by seeing them only as a form of guaranty, and also overlooked that the parties specifically intended the standby letters of credit to be additional security. When viewed as additional security for a note also secured by real property, a standby letter of credit does not conflict with the statutory prohibition of deficiency judgments. Further, the Legislature manifestly intended the respective obligations of the parties to a letter of credit transaction to remain unaffected by the antideficiency laws, whether those obligations arose before or after enactment of Sen. Bill No. 1612. Since the Legislature's action constituted a clarification of the state of the law before the Court of Appeal's decision, rather than a change in the law, the legislation had no impermissible retroactive consequences, and it governed this case. [See 3 Witkin, Summary of Cal. Law (9th ed. 1987) Negotiable Instruments, § 11.1 (2) Statutes § 5--Operation and Effect --Retroactivity. Statutes do not operate retrospectively unless the Legislature plainly intended them to do so. A statute has retrospective effect when it substantially changes the legal consequences of past events. A statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment. When the Legislature clearly intends a statute to operate retrospectively, the courts are obliged to carry out that intent unless due process considerations prevent them from doing so. (3) Statutes § 5--Operation and Effect- -Retroactivity -- Amendments-- Purpose --Change in Law or Clarification. A statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment. The courts assume that the Legislature amends a statute for a purpose, but that purpose need not necessarily be to change the law. The courts' consideration of the surrounding circumstances can indicate that the Legislature made material changes in statutory language in an effort only to clarify a statute's true meaning. Such a legislative act has no retrospective effect because the true meaning of the statute remains the *235 same. One such circumstance is when the Legislature promptly reacts to the emergence of a novel question of statutory interpretation. An amendment that in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute. In such a case, the amendment may logically be regarded as a legislative interpretation of the original act -a formal change - rebutting the presumption of substantial change. Even so, a legislative declaration of an existing statute's meaning is neither binding nor conclusive in construing the statute. Ultimately, the interpretation of a statute is an exercise of the judicial power that the Constitution assigns to the courts. (4) Statutes § 5--Operation and Effect--Retroactivity-- Legislative Intent-- Change in Law or Clarification. A subsequent expression of the Legislature as to the intent of a prior statute, although not binding on the court, may properly be used in determining the effect of a prior act. Moreover, even if the court does not accept the Legislature's assurance that an unmistakable change in the law is merely a clarification, the declaration of intent may still effectively ��fCi ir; Ok"iCl91o1 a3 `,�lnrlS,`;. Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534..: reflect the Legislature's purpose to achieve a retrospective change. Whether a statute should apply retrospectively or only prospectively is, in the first instance, a policy question for the legislative body enacting the statute. Thus, where a statute provides that it clarifies or declares existing law, such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, the court must give effect to this intention unless there is some constitutional objection to it. (5) Letters of Credit § 10--Duties and Privileges of Issuer -- Independence Principle. The liability of the issuer of a letter of credit to the letter's beneficiary is direct and independent of the underlying transaction between the beneficiary and the issuer's customer. Under the independence principle, a letter of credit is an independent obligation of the issuing bank rather than a form of guaranty or a surety obligation (Cal. U. Com. Code, § 5114, subd. (1)). Thus, the issuer of a letter of credit cannot refuse to pay based on extraneous defenses that might have been available to its customer. Absent fraud, the issuer must pay upon proper presentment, regardless of any defenses the customer may have against the beneficiary based in the underlying transaction. (6) Letters of Credit § 10--Duties and Privileges of Issuer -- Independence Principle --Effect of Draw on Letter of Credit. A standby *236 letter of credit is a security device created at the request of the customer/debtor that is an obligation owed independently by the issuing bank to the beneficiary/creditor. A creditor that draws on a letter of credit does no more than call on all of the security pledged for the debt. When it does so, it does not violate the prohibition of deficiency judgments. COUNSEL Ervin, Cohen & Jessup, Allan B. Cooper, Steven A. Roseman and Garee T. Gasperian for Petitioner and Real Parties in Interest Western Security Bank, N.A. William K. Wilburn as Amicus Curiae on behalf of Petitioner and Real Parties in Interest Western Security Bank, N.A. Walker, Wright, Tyler & Ward, John M. Anglin and Robin C. Campbell for Petitioners Vista Place Associates et al. R. Stevens Condie and Charles T. Collett as Amici Curiae on behalf of Petitioners Vista Place Associates et al. No appearance for Respondent. Saxon, Dean, Mason, Brewer & Kincannon, Lewis, D'Amato, Brisbois & Bisgaard, Arter & Hadden, Eric D. Dean, Steven J. Cote, Robert S. Robinson and Michael L. Coates for Real Parties in Interest Beverly Hills Business Bank. Gibson, Dunn & Crutcher, Dennis B. Arnold, Hill, Wynne, Troop & Meisinger, Neil R. O'Hanlon, Cadwalader,Wickersham & Taft, Robert M. Eller, Joseph M. Mal inowski, Kenneth G. McKenna, Michael A. Santoro, John E. McDermott, Kenneth G. McKenna, John C. Kirkland, Stroock & Stroock & Lavan, Julia B. Strickland, Bennett J. Yankowitz, Chauncey M. Swalwell, Brobeck, Phleger & Harrison, George A. Hisert, Jeffrey S. Turner, John Francis Hilson, G. Larry Engel, Frederick D. Holden, Jr., and Theodore W. Graham as Amici Curiae on behalf of Real Parties in Interest Beverly Hills Business Bank. CHIN, J. This case concerns the extent to which two disparate bodies of law interact when standby letters of credit are used as additional support for *237 loan obligations secured by real property. On one side we have California's complex web of foreclosure and antideficiency laws that circumscribe enforcement of obligations secured by interests in real property. On the other side is the letter of credit law's "independence principle," the unique characteristic of letters of credit essential to their commercial utility. The antidefciency statute invoked in this case is Code of Civil Procedure section 580d. That section precludes a judgment for any loan balance left unpaid after the lender's nonjudicial foreclosure under a power of sale in a deed of trust or mortgage on real property. (See Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, 43-44 [27 Cal.Rptr. 873, 378 P.2d 97].)I The independence principle, in summary form, makes the letter of credit issuer's obligation to pay a draw conforming to the letter's terms completely separate from, and not contingent on, any underlying contract between the issuer's customer and the letter's beneficiary. (See, e.g., Cal. U. Com. Code, § 5114, subd. (1); San Diego Gas & Electric Co. v Bank Leumi (1996) 42 Cal.App.4th 928, 933-934 [50 Cal.Rptr.2d 20].)2 The Court of Appeal perceived a conflict between the public policies behind Code of Civil Procedure section 580d and the independence principle under the facts of this case. Here, after nonjudicial foreclosure of the real property security for its loan left a deficiency, the lender attempted to draw on the standby letters of credit of which it was the beneficiary. Ordinarily, the issuer's payment on a letter of credit would 3 Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534..,,, require the borrower to reimburse the issuer. (See § 5114, subd. (3).) The Court of Appeal considered that this result indirectly imposed on the borrower the equivalent of a *238 prohibited deficiency judgment. The court concluded the situation amounted to a "fraud in the transaction" under section 5114, subdivision (2)(b), one of the limited circumstances justifying an issuer's refusal to honor its letter of credit. The Legislature soon acted to express a clear, contrary intent. It passed Senate Bill No. 1612 (1993-1994 Reg. Sess.) (hereafter Senate Bill No. 1612) as an urgency measure specifically meant to abrogate the Court of Appeal's holding. (Stats. 1994, ch. 611, §§ 5, 6.) In brief, the aspects of Senate Bill No. 1612 we address provided that an otherwise conforming draw on a letter of credit does not contravene the antideficiency laws and that those laws afford no basis for refusal to honor a draw. After the Legislature's action, we returned the case to the Court of Appeal for reconsideration in light of the statutory changes. On considering the point, the Court of Appeal concluded the Legislature's action was prospective only and had no impact on the court's earlier analysis ofthe parties' rights and obligations. Accordingly, the Court of Appeal reiterated its former conclusions. We again granted review and now reverse. The Legislature's manifest intent was that Senate Bill No. 1612's provisions, with one exception not involved here, would apply to all existing loans secured by real property and supported by outstanding letters of credit. We conclude the Legislature's action constituted a clarification of the state of the law before the Court of Appeal's decision. The legislation therefore has no impermissible retroactive consequences, and we must give it the effect the Legislature intended. 1. Factual and Procedural Background On October 10, 1984, Beverly Hills Savings and Loan Association, later known as Beverly Hills Business Bank (the Bank), loaned $3,250,000 to Vista Place Associates (Vista), a limited partnership, to finance the purchase of real property improved with a shopping center. Vista's general partners, Phillip F. Kennedy, Jr., John R. Bradley, and Peter M. Hillman (the Vista partners), each signed the promissory note. The loan transaction created a "purchase money mortgage," as it was secured by a "Deed of Trust and Assignment of Rents" as well as a letter of credit. Vista later experienced financial difficulties, and the loan went into default. Vista asked the Bank to modify the loan's terms so Vista could continue operating the shopping center and repay the debt. The Bank and Vista agreed to a loan modification in February 1987, under which the three Vista partners each obtained an unconditional, irrevocable standby letter of *239 credit in favor of the Bank in the amount of $125,000, for a total of $375,000. These were delivered to the Bank as additional collateral security for repayment of the loan. Under the modification agreement, the Bank was entitled to draw on the letters of credit if Vista defaulted or failed to pay the loan in full at maturity. Western Security Bank, N.A. (Western) issued the letters of credit at the Vista partners' request. Each partner agreed to reimburse Western if it ever had to honor the letters. Under the agreement, each Vista partner gave Western a $125,000 promissory note.3 In December 1990, the Bank declared Vista in default on the modified loan. The Bank recorded a notice of default on February 13, 1991, and began *240 nonjudicial foreclosure proceedings. (Civ. Code, § 2924.) It then filed an action against Vista seeking specific performance of the rents and profits provisions in the trust deed and appointment of a receiver. On June 11, 1991, attorneys for the Bank and Vista signed a letter agreement settling the Bank's lawsuit. In that agreement, Vista promised it would "not take any legal action to prevent [the Bank's] drawing upon [the letters of credit] after the Trustee's Sale of the Vista Place Shopping Center,... provided that the amount of the draw by [the Bank] does not exceed an amount equal to the difference between [Vista's] indebtedness and the successful bid of the Trustee's Sale." Vista promised as well not to take any draw -related legal action against the Bank after the Bank's draw on the letters of credit. On June 13, 1991, the Bank concluded its nonjudicial foreclosure on the shopping center under the power of sale in its deed of trust. The Bank was the only bidder, and it purchased the property. The sale left an unpaid deficiency of $505,890.16. That same day, the Bank delivered the three letters of credit and drafts to Western and demanded payment of their full amount, $375,000. The Bank never sought to recover the $505,890.16 deficiency from Vista or the Vista partners. About the time that Western received the Bank's draw demand, it also received a written notice from the Vista partners' attorney. The notice asserted that Code of ( )" ; f;OI"i is . i'; `'C'.li::]C':: �N to Cl,_-J 71 to orir 0,al ! ... (pox-rnnnr`rli: livorks 4 Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... Civil Procedure section 580d barred Western from seeking reimbursement from the Vista partners for any payment on the letters of credit, and that if Western paid, it did so at its own risk. Western did not honor the Bank's demand for payment on the letters of credit. Instead, on June 24, 1991, Western filed this declaratory relief action against the Bank, as well as Vista and the Vista partners (collectively, the Vista defendants). Western's complaint sought: (1) a declaration that Western is not obligated to accept or honor the Bank's tender ofthe letters of credit; or, alternatively, (2) a declaration that, if Western must pay on the letters of credit, the Vista partners must reimburse Western according to the terms of their promissory notes. The Vista defendants cross -complained against Western for cancellation of their promissory notes and for injunctive relief. in July 1991, the Bank filed a first amended cross - complaint, alleging Western wrongfully dishonored the letters of credit, and the Vista defendants breached the agreement not to take legal action to prevent the Bank's drawing on the letters of credit. The Bank, Western, and the Vista defendants each sought summary judgment. After several hearings and discussions with counsel, which produced a stipulation on the key facts, the court issued its decision on January *241 23, 1992. By its minute order of that date, the court (1) denied the three motions for summary judgment, (2) severed the Vista defendants' cross -complaint against Western for cancellation of the promissory notes, (3) severed the Bank's amended cross -complaint against the Vista defendants for breach of the letter agreement, and (4) issued a tentative decision on the trial of Western's complaint for declaratory relief and the Bank's amended cross -complaint against Western for wrongful dishonor of the letters of credit. The trial court signed and filed the judgment on March 26, 1992. The court decreed the Bank was entitled to recover $375,000 from Western, plus interest at 10 percent from June 13, 1991, the date of the Bank's demand, and costs of suit. The court further decreed Western could seek reimbursement from the Vista partners severally, and each Vista partner was obligated to reimburse Western, pursuant to the promissory notes in favor of Western, for its payment to the Bank. Western appealed, and the Vista defendants cross -appealed. The Court of Appeal, after granting rehearing and accepting briefing by several amici curiae, issued an opinion reversing the trial court on December 21, 1993. In that opinion, the court concluded: "We hold that, under section 580d of the Code of Civil Procedure, an integral part of California's long-established antideficiency legislation, the issuer of a standby letter of credit, provided to a real property lender by a debtor as additional security, may decline to honor it after receiving notice that it is to be used to discharge a deficiency following the beneficiary -lender's nonjudicial foreclosure on real property. Such a use of standby letters of credit constitutes a 'defect not apparent on the face of the documents' within the meaning of California Uniform Commercial Code section 5114, subdivision (2)(b), and therefore such permissive dishonor does no offense to the 'independence principle."' (Original italics, fn. omitted.) In that first opinion, the Court of Appeal also solicited the Legislature's attention: "To the extent that this result will present problems for real estate lenders with respect to the way they now do business (as the Bank and several amici curiae have strongly suggested), it is a matter which should be addressed to the Legislature. We have been presented with two important but conflicting statutory policies. Our reconciliation of them in this case may not prove as satisfactory in another factual context. It is therefore a matter which should receive early legislative attention." (Fn. omitted.) We granted review, and while the matter was pending, the Legislature passed Senate Bill No. 1612, an urgency statute that the Governor signed on *242 September 15, 1994. Senate Bill No. 1612 affected four statutes. Section 1 of the bill amended Civil Code section 2787 to state that a letter of credit is not a form of suretyship obligation. (Stats. 1994, ch. 611, § 1.) Section 2 of the bill added Code of Civil Procedure section 580.5, explicitly excluding letters of credit from the purview of the antideficiency laws. (Stats. 1994, ch. 611, § 2.) Section 3 of the bill added Code of Civil Procedure section 580.7, which declares unenforceable letters of credit issued to avoid defaults on purchase money mortgages for owner - occupied real property containing one to four residential units. (Stats. 1994, ch. 611, § 3.) Section 4 of the bill made "technical, nonsubstantive changes" to section 5114. (Stats. 1994, ch. 611, § 4; Legis. Counsel's Dig., Sen. Bill No. 1612 (1993-1994 Reg. Sess.).) The Legislature made its purpose explicit: "It is the intent of the Legislature in enacting Sections 2 and 4 of this act �_.'��' .-r'�1QIiiSr,?rl ��:.' il' ;;L. �eln C:i��ll'. �. � Ori;�l�lk]! i � .. •<11��.�.i's1�;li;'VAI����. ;� Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... to confirm the independent nature of the letter of credit engagement and to abrogate the holding [of the Court of Appeal in this case] .... [¶] The Legislature also intends to confirm the expectation of the parties to a contract that underlies a letter of credit, that the beneficiary will have available the value of the real estate collateral and the benefit of the letter of credit without regard to the order in which the beneficiary may resort to either." (Stats. 1994, ch. 611, § 5.) The same purpose was echoed in the bill's statement of the facts calling for an urgency statute: "In order to confirm and clarify the law applicable to obligations which are secured by real property or an estate for years therein and which also are supported by a letter of credit, it is necessary that this act take effect immediately." (Stats. 1994, ch. 611, § 6.) After the Legislature enacted Senate Bill No. 1612, we requested the parties' views on its effect. On February 2, 1995, after considering the parties' responses, we transferred the case to the Court of Appeal with directions to vacate its decision and reconsider the cause in light of the Legislature's action. On reconsideration, the Court of Appeal determined Senate Bill No. 1612 constituted a substantial change in existing law. Believing there was no clear evidence that the Legislature intended the statute to operate retrospectively, the Court of Appeal thought Senate Bill No. 1612 had only prospective application. Therefore, Senate Bill No. 1612 did not affect the Court of Appeal's prior conclusions on the parties' rights and obligations. The Court of Appeal filed its second opinion on September 29, 1995, mostly repeating its prior reasoning and conclusions. We granted the Bank's petition for review. H. Discussion (1a) As the Court of Appeal recognized, we first must determine the effect on this case of the Legislature's enactment of Senate Bill No. 1612. *243 ( 2) A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207-1208 [246 Cal.Rptr. 629, 753 P.2d 585]; Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393 [182 P.2d 159].) A statute has retrospective effect when it substantially changes the legal consequences of past events. (Kizer v Hanna (1989) 48 Cal.3d 1, 7 [255 Cal.Rptr. 412, 767 P.2d 679].) A statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment. (Ibid.) Of course, when the Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent unless due process considerations prevent us. (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 592 [128 Cal.Rptr. 427, 546 P.2d 1371].) (3) A corollary to these rules is that a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment. We assume the Legislature amends a statute for a purpose, but that purpose need not necessarily be to change the law. (Cf. Williams v. Garcetti (1993) 5 CalAth 561, 568 [20 Cal.Rptr.2d 341, 853 P.2d 507].) Our consideration of the surrounding circumstances can indicate that the Legislature made material changes in statutory language in an effort only to clarify a statute's true meaning. (Martin v. California Mut. B. & L. Assn. (1941) 18 Cal.2d 478, 484 [116 P.2d 711; GTE Sprint Communications Corp. v. State Bd. of Equalization (1991) 1 Cal.AppAth 827,833 [2 Cal.Rptr.2d 441]; see Balen v. Peraha Junior College Dist. (1974) 11 Cal.3d 821, 828, fn. 8 [114 Cal.Rptr. 589, 523 P.2d 629].) Such a legislative act has no retrospective effect because the true meaning of the statute remains the same. (Stockton Say. & Loan Bank v Massanet (1941) 18 Cal.2d 200, 204 [114 P.2d 592]; In re Marriage of Reuling (1994) 23 Cal.AppAth 1428, 1440 [28 Cal.Rptr.2d 726]; Tyler v. State of California (1982) 134 Cal.App.3d 973, 976-977 [185 Cal.Rptr. 49].) One such circumstance is when the Legislature promptly reacts to the emergence of a novel question of statutory interpretation: "'An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute.... [¶] If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act —a formal change —rebutting the presumption of substantial change.' (IA Singer, Sutherland Statutory Construction (5th ed. 1993) § 22.31, p. *244 279, fins. omitted.)" (RNRevieiv for Nurses, Inc. v. State of California (1994) 23 Cal.AppAth 120, 125 [28 Cal.Rptr.2d 354].)4 Even so, a legislative declaration of an existing statute's meaning is neither binding nor conclusive in construing the statute. Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts. (California Emp. etc. Com. v Payne (1947) 31 Cal.2d 210, 213 [187 P.2d 702]; Bodinson Mfg. Co. v California E. Com. (1941) 17 Cal.2d 321, 326 [109 P.2d 935]; see Del i'!; '! 1116 9 -i V-0im ,I I I-, i; if II Alt q'i�r, �; Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... Costello v. State of California (1982) 135 Cal.App.3d 887, that underlies a letter of credit, that the beneficiary will have 893, fn. 8 [185 Cal.Rptr. 582].) Indeed, there is little logic available the value of the real estate collateral and the benefit and some incongruity in the notion that one Legislature may speak authoritatively on the intent of an earlier Legislature's enactment when a gulf of decades separates the two bodies. (Cf. Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 51-52 [276 Cal.Rptr. 1]4, 801 P.2d 357].) Nevertheless, the Legislature's expressed views on the prior import of its statutes are entitled to due consideration, and we cannot disregard them. (4) "[A] subsequent expression of the Legislature as to the intent of the prior statute, although not binding on the court, may properly be used in determining the effect of a prior act." (California Emp. etc. Com. v. Payne, supra, 31 Cal.2d at pp. 213-214.) Moreover, even if the court does not accept the Legislature's assurance that an unmistakable change in the law is merely a "clarification," the declaration of intent may still effectively reflect the Legislature's purpose to achieve a retrospective change. (ld. at p. 214.) Whether a statute should apply retrospectively or only prospectively is, in the first instance, a policy question for the legislative body enacting the statute. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1206.) Thus, where a statute provides that it clarifies or declares existing law, "[i]t is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, we must give effect to this intention unless there is some constitutional objection thereto." ( *245 California Emp. etc. Com. v. Payne, supra, 31 Cal.2d at p. 214; cf. City of Sacramento v Public Employees' Retirement System (1994) 22 Cal.AppAth 786, 798 [27 Cal.Rptr.2d 545]; City of Redlands v Sorensen (1985) 176 Cal.A pp.3d 202, 211 [221 Cal.Rptr. 728].) With respect to Senate Bill No. 1612, the Legislature made As mentioned earlier, its intent plain. Section 5 of the bill states, in part: "It is code sections (§ 5114; the intent of the Legislature in enacting Sections 2 and 4 of this acts to confirm the independent nature of the letter of credit engagement and to abrogate the holding in [the Court of Appeal's earlier opinion in this case], that presentment of a draft under a letter of credit issued in connection with a real property secured loan following foreclosure violates Section 580d of the Code of Civil Procedure and constitutes a 'fraud ... or other defect not apparent on the face of the documents' under paragraph (b) of subdivision (2) of Section 5114 of the Commercial Code.... [¶] The Legislature also intends to confirm the expectation of the parties to a contract of the letter of credit without regard to the order in which the beneficiary may resort to either." (Stats. 1994, ch. 611, § 5.) The Legislature's intent also was evident in its statement of the facts justifying enactment of Senate Bill No. 1612 as an urgency statute: "In order to confirm and clarify the law applicable to obligations which are secured by real property or an estate for years therein and which also are supported by a letter of credit, it is necessary that this act take effect immediately." (Stats. 1994, ch. 611, § 6.) The Legislature's unmistakable focus was the disruptive effect of the Court of Appeal's decision on the expectations of parties to transactions where a letter of credit was issued in connection with a loan secured by real property. By abrogating the Court of Appeal's decision, the *246 Legislature intended to protect those parties' expectations and restore certainty and stability to those transactions. If the Legislature acts promptly to correct a perceived problem with a judicial construction of a statute, the courts generally give the Legislature's action its intended effect. (See, e.g., Escalante v City of Hermosa Beach (1987) 195 Cal.App.3d 1009, 1020 [241 Cal.Rptr. 199]; City of Redlands v. Sorensen, supra, 176 Cal.App.3d at pp. 211-212; Tyler v. State of California, supra, 134 Cal.App.3d at pp. 976-977; but see Del Costello v. State of California, supra, 135 Cal.App.3d at p. 893, fn. 8 [courts need not accept Legislature's interpretation of statute].) The plain import of Senate Bill No. 1612 is that the Legislature intended its provisions to apply immediately to existing loan transactions secured by real property and supported by outstanding letters of credit, including those in this case. We next consider whether Senate Bill No. 1612 effected a change in the law, or instead represented a clarification of the state of the law before the Court of Appeal's decision. Senate Bill No. 1612 amended two Civ. Code, § 2787) and added two sections to the Code of Civil Procedure (§§ 580.5, 580.7). The two code sections Senate Bill No. 1612 amended plainly made no substantive change in the law. The amendments to section 5114, which concerns the issuer's duty to honor a draft conforming to the letter of credit's terms, were "technical, nonsubstantive changes," as the Legislative Counsel's Digest correctly noted. (See Legis. Counsel's Dig., Sen. Bill No. 1612 (1993-1994 Reg. Sess.).) In the other section amended, Civil Code section 2787, Senate Bill No. 1612 added a statement reflecting an established - . ..� i f llrJ,,�EC)iT `o'-.._,c.ii; ,'a) iJ,il .� l 6f9f,7=,rl',IGI• 1.An";." Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... formal distinction: "A letter of credit is not a form of suretyship obligation." (Stats. 1994, ch. 611, § 1.) Civil Code section 2787 defines a surety or guarantor as "one who promises to answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor." Generally, a surety's liability for an obligation is secondary to, and derivative of, the liability of the principal for that obligation. (See, e.g., Civ. Code, § 2806 et seq.) (5) By contrast, the liability of the issuer of a letter of credit to the letter's beneficiary is direct and independent of the underlying transaction between the beneficiary and the issuer's customer. (See San Diego Gas & Electric Co. v. Bank Leumi, supra, 42 Cal.AppAth at pp. 933-934; Paramount Export Co. v Asia Trust Bank, Ltd. (1987) 193 Cal.App.3d 1474, 1480 [238 Cal.Rptr. 920]; Lumbermans Acceptance Co. v. Security Pacific Nat. Bank (1978) 86 Cal.App.3d 175, 178 [150 Cal.Rptr. 69].) Thus, as the amendment to Civil Code section 2787 made clear, existing law viewed a *247 letter of credit as an independent obligation of the issuing bank rather than as a form of guaranty or a surety obligation. (See, e.g., Dolan, The Law of Letters of Credit: Commercial and Standby Credits (rev, ed. 1996) § 2.10[1], pp. 2-61 to 2-63 (Dolan, Letters of Credit); 3 White & Summers, Uniform Commercial Code (4th ed. 1995) Letters of Credit, § 26-2, pp. 112-117.) The issuer of a letter of credit cannot refuse to pay based on extraneous defenses that might have been available to its customer. (San Diego Gas & Electric Co. v. Bank Leumi, supra, 42 Cal.App.4th at p. 934.) Absent fraud, the issuer must pay upon proper presentment regardless of any defenses the customer may have against the beneficiary based in the underlying transaction. (/bid.) Senate Bill No. 1612's remaining statutory addition with which we are concerned,6 Code of Civil Procedure section 580.5, specified that letter of credit transactions do not violate the antideficiency laws contained in Code of Civil Procedure sections 580a, 580b, 580d, or 726. (Code Civ. Proc., § 580.5, subd. (b)(3).) In particular, the new section specifies that a lender's resort to a letter of credit, and the issuer's concomitant right to reimbursement, do not constitute an "action" under Code of Civil Procedure section 726, or a failure to proceed first against security, regardless of whether they come before or after a foreclosure. (Code Civ. Proc., § 580.5, subd. (b)(1).) Similarly, letter of credit draws and reimbursements do not constitute deficiency judgments "or the functional equivalent of any such judgment." (Code Civ. Proc., § 580.5, subd. (b) (2)•) The Court of Appeal saw Code of Civil Procedure section 580.5 as a change in the law, in large part, because of the analogy it employed to examine the use of standby letters of credit as additional support for loans also secured by real property. The Bank argued a standby letter of credit was the functional equivalent of cash collateral. The Court of Appeal disagreed, instead analogizing standby letters of credit to guaranties and emphasizing the similarities of purpose and function: "No matter how it may be regarded *248 by the beneficiary, a standby letter is certainly not cash or its equivalent from the perspective of the debtor; in reality, it represents his promise to provide additional funds in the event of his future default or deficiency, thus confirming its use not as a means of payment but rather as an instrument of guarantee." (Original italics.) The Court of Appeal relied on Union Bank v. Gradsky (1968) 265 Cal.App.2d 40 [71 Cal.Rptr. 64] (Gradsky) and Commonlvealth Mortgage Assurance Co. v Superior Court (1989) 211 Cal.App.3d 508 [259 Cal.Rptr. 425] (Commomvealth Mortgage). Gradsky held that a creditor, after nonjudicial foreclosure of the real property security for a note, could not recover the note's unpaid balance from a guarantor. (Gradsky, supra, 265 Cal.App.2d at p. 41.) Significantly, the court did not find Code of Civil Procedure section 580d's prohibition of deficiency judgments barred the creditor's claim on the guarantor: "It is barred by applying the principles of estoppel. The estoppel is raised as a matter of law to prevent the creditor from recovering from the guarantor after the creditor has exercised an election of remedies which destroys the guarantor's subrogation rights against the principal debtor." (Gradsky, supra, 265 Cal.App.2d at p. 41.) The court noted that the guarantor, after payment, ordinarily would be equitably subrogated to the rights and security formerly held by the creditor. (Gradsky, supra, 265 Cal.App.2d at pp. 44-45; cf. Civ. Code, §§ 2848, 2849.) However, where the creditor first resorts to nonjudicial foreclosure, the guarantor could not acquire any subrogation rights from the creditor because under Code of Civil Procedure section 580d, the nonjudicial sale eliminated both the security and the possibility of a deficiency judgment against the debtor. (Gradsky, supra, 265 Cal.App.2d at p. 45.) Because the creditor has a duty not to impair the guarantor's remedies against the debtor, the court held the creditor is estopped from pursuing the guarantor after electing a remedy —nonjudicial foreclosure —that eliminated the security for the debt and curtailed the possibility of the guarantor's reimbursement from the debtor. (Id. at pp. 46-47.) h"-wilfForl cl 0.!6ii�. to C?fli:il �i ,l:\1(:P=i:nf"i1% 1X: ,, — Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... However, the rules applicable to surety relationships do not govern the relationships between the parties to a letter of credit transaction. (See Dolan, Letters of Credit, supra, § 2.10[l], pp. 2-62 to 2-63.) At the time of this case's transactions, a majority of courts did not grant subrogation rights to an issuer that honored a draw on a credit; the issuer satisfied its own primary obligation, not the debt of another. (Tudor Dev. Group, Inc. v. U.S. Fid. & Guar. Co. (3d Cir. 1992) 968 F.2d 357, 361-363; see 3 White & Summers, Uniform Commercial Code, supra, Letters of Credit, § 26-15, pp. 211-212; but see Cal. U. Com. Code, § 5117; fn. 2, ante, at pp. 237-238.) Nor does the *249 beneficiary of a credit owe any obligations to the issuer; literal compliance with the letter of credit's terms for payment is all that is required. (Cf. Paramount Export Co. v. Asia Trust Bank, Ltd., supra, 193 Cal.App.3d at p. 1480; Lumbermans Acceptance Co. v. Security Pacific Nat. Bank, supra, 86 Cal.App.3d at p. 178.) Gradsky contains additional language suggesting a much broader rule than its holding and analysis warranted. Going beyond the subrogation theory underlying its holding, the court observed: "If... the guarantor ... can successfully assert an action in assumpsit against [the debtor] for reimbursement, the obvious result is to permit the recovery of a'deficiency' judgment against the debtor following a nonjudicial sale of the security under a different label. It makes no difference to [the debtor's] purse whether the recovery is by the original creditor in a direct action following nonjudicial sale of the security, or whether the recovery is in an action by the guarantor for reimbursement of the same sum." (Gradsky, supra, 265 Cal.App.2d at pp. 45-46.) The court also said: "The Legislature clearly intended to protect the debtor from personal liability following a nonjudicial sale of the security. No liability, direct or indirect, should be imposed upon the debtor following a nonjudicial sale of the security. To permit a guarantor to recover reimbursement from the debtor would permit circumvention of the legislative purpose in enacting section 580d." (Id. at p. 46.) In view of the reasoning of the court's holding, these additional observations were unnecessary to the case's determination. Commonwealth Mortgage followed Gradsky to hold a mortgage guaranty insurer could not enforce indemnity agreements to obtain reimbursement from the debtors for the insurer's payment to the lender after the lender's nonjudicial sale of its real property security. (Commonwealth Mortgage, supra, 211 Cal.App.3d at p. 517.) The court said the mortgage guaranty insurance policy served the same purpose as the guaranty in Gradsky, and thus Gradsky would bar the insurer from being reimbursed under subrogation principles. (Commomvealth Morigarge, supra, 211 Cal.App.3d at p. 517.) The court found the substitution of indemnity agreements for subrogation rights did not distinguish the case from Gradsky. Relying on the rule that a principal obligor incurs no additional liability on a note by also being a guarantor of it, the court said the agreements added nothing to the debtors' existing liability. (Commonwealth Mortgage, supra, 211 Cal.App.3d at p. 517.) Thus, the court said the indemnity agreements could not be viewed as independent obligations. (Ibid) Instead, the court concluded they were invalid attempts to have the debtors waive in advance the statutory prohibition against deficiency judgments. (Ibid.) As did Gradsky, Commonwealth Mortgage also inveighed against subterfuges that thwart the purposes of Code of Civil Procedure section 580d. *250 (Commonwealth Mortgage, supra, 211 Cal.App.3d at pp. 515, 517.) "Although section 580d applies by its specific terms only to actions for 'any deficiency upon a note secured by a deed of trust' and not to actions based upon other obligations, the proscriptions of section 580d cannot be avoided through artifice [citation] .... In determining whether a particular recovery is precluded, we must consider whether the policy behind section 580d would be violated by such a recovery. [Citation.]" (Commonwealth Mortgage, supra, 211 Cal.App.3d at p. 515.) Thus, as did the Gradsky court, the Commonwealth Mortgage court augmented its opinion with concepts unnecessary to its determination of the case.? The Court of Appeal in this case extrapolated from the Gradsky and Commonwealth Mortgage precedents a rule that swept far beyond their origins in guaranty and suretyship relationships: "Not only is a creditor prevented from obtaining a deficiency judgment against the debtor, but no other person is permitted to obtain what would, in effect, amount to a deficiency judgment." (Original italics.) The Court of Appeal apparently concluded a transaction has such an effect if it "has the practical consequence of requiring the debtor to pay additional money on the debt after default or foreclosure." (Original italics.) "Thus, we preserve the principle, clearly established by Gradsky and Commonwealth [Mortgage], that a lender should not be able to utilize a device of any kind to avoid the limitations of section 580d; and we apply that principle here to standby letters of credit." However, as we have seen, neither Gradsky nor Commonwealth Mortgage established such a principle as a rule of law. Instead, their statements accentuated the courts' •-I u:! i ,ti+..I � f .,: ,i 1,a,! �,. �+!r � t,:i�nro 11C} ❑11rJ�r1dI I �. �. f is iVi:l'F►I'11L'rll �111Uf'(r.;, a Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 R2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... vigilance regarding attempted evasions of the antideficiency and foreclosure laws. (lb) The Court of Appeal mistook standby letters of credit for such an attempt by seeing them only as a form of guaranty. The court analogized the standby letter of credit to a guaranty because of the perceived functional similarities. One consequence of that analogy was that the court applied to standby letters of credit a rule whose legal justifications originated in the subrogation rights owed to sureties. However, as discussed before, letters of credit — standby or otherwise —are not a form of suretyship, and the rights of the parties to these transactions are not governed by suretyship principles. *251 Further, suretyship involves no counterpart to the independence principle essential to letters of credit. While analogies can improve our understanding of how and why letters of credit are useful, analogies cannot substitute for recognizing the letters' unique qualities. The authors of one leading treatise aptly summarized the point: "In short, a letter of credit is a letter of credit. As Bishop Butler once said, 'Everything is what it is and not another thing.' " (3 White & Summers, Uniform Commercial Code, supra, Letters of Credit, § 26-2, p. H 7, fn. omitted.) By focusing on analogies to guaranties, the Court of Appeal also overlooked that the parties in this case specifically intended the standby letters of credit to be additional security.$ The parties' stipulated facts include that the original loan agreement was secured by a letter of credit, and that "Vista caused [the subsequent letters of credit] to be issued by Western as additional collateral security ...." The Court of Appeal found the letters of credit were not security interests in personal property under California Uniform Commercial Code section 9501, subdivision (4), as the Bank had argued. However, we need not determine whether a standby letter of credit comes within the scope of division 9 of the California Uniform Commercial Code. A letter of credit is sui generis as a means of securing or supporting performance of an obligation incurred in a separate transaction. Regardless of whether this idiosyncratic undertaking meets the qualifications for a security interest under the California Uniform Commercial Code, it nevertheless is a form of security for assuring another's performance. When viewed as additional security for a note also secured by real property, a standby letter of credit does not conflict with the statutory *252 prohibition of deficiency judgments. Code of Civil Procedure section 580d does not limit the security for notes given for the purchase of real property only to trust deeds; other security may be given as well. (Freedland v Greco (1955) 45 Cal.2d 462, 466 [289 P.2d 463].) Creditors may resort to such other security in addition to nonjudicial foreclosure of the real property security. (Ibid.; Hatch v. Security -First Nat. Bank (1942) 19 Cal.2d 254, 260 [120 P.2d 869].) (6) A standby letter of credit is a security device created at the request of the customer/debtor that is an obligation owed independently by the issuing bank to the beneficiary/creditor. (See San Diego Gas & Electric Co. v. Bank Leumi, supra, 42 Ca1.App.4th at pp. 933-934; Lumberman Acceptance Co. v Security Pacific Nat. Bank, supra, 86 Cal.App.3d at p. 178.) A creditor that draws on a letter of credit does no more than call on all the security pledged for the debt. When it does so, it does not violate the prohibition of deficiency judgments. (Ic) The Legislature plainly intended that the sections of Senate Bill No. 1612 we have addressed would apply to existing loan transactions supported by outstanding letters of credit. We conclude the Legislature's action did not effect a change in the law. Before the Legislature passed Senate Bill No. 1612, an issuer could not refuse to honor a conforming draw on a standby letter of credit —given as additional security for a real property loan —on the basis that the draw followed a nonjudicial sale of the real property security. The Court of Appeal created such a basis, but produced an unprecedented rule without solid legal underpinnings or any real connection to the actual language of the statutes involved. Therefore, the aspects of Senate Bill No. 1612 we have discussed did not effect any change in the law, but simply clarified and confirmed the state of the law prior to the Court of Appeal's first opinion. Because the legislative action did not change the legal effect of past actions, Senate Bill No. 1612 does not act retrospectively; it governs this case. The Legislature concluded that Senate Bill No. 1612 should be given immediate effect to confirm and clarify the law applicable to loans secured by real property and supported by letters of credit. This conclusion was reasonable, particularly in view of the uncertainties the financial community evidently faced after the Court of Appeal's decision. (See, e.g., Murray, What Should 1 Do With This Letter of Credit? (Cont.Ed.Bar 1994) 17 Real Prop. L. Rptr. 133, 138-140.) In sum, the Court of Appeal erred in concluding the Legislature's enactment of Senate Bill No. 1612 had no effect Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 R2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... on this case. The Legislature explicitly intended to abrogate the Court of Appeal's prior decision and make certain the parties' obligations when letters of credit supported loans also secured by real property. The Legislature manifestly intended the *253 respective obligations of the parties to a letter of credit transaction should remain unaffected by the antideficiency laws, whether those obligations arose before or after enactment of Senate Bill No. 1612. Accordingly, we conclude the judgment of the Court of Appeal should be reversed.9 Disposition The judgment of the Court of Appeal is reversed, and the cause remanded for further proceedings consistent with this opinion. George, C. J., Baxter, J., and Brown, J., concurred.. WERDEGAR, J., Concurring and Dissenting. -I concur in the majority's conclusion that California Uniform Commercial Code section 5114, subdivision (2)(b), does not excuse Western Security Bank, N.A. (Western), the issuer, from honoring its letter of credit upon demand for payment by Beverly Hills Business Bank (the Bank), the beneficiary. I would not, however, reach this conclusion under the majority's reasoning that Senate Bill No. 1612 (Stats. 1994, ch. 611) merely declared existing law and that, prior to the bill's enactment, the antideficiency law had no effect on letters of credit. Instead, I agree with Justice Mosk that section 5114 simply does not bear the interpretation that the use of a letter of credit to support an obligation secured by a mortgage or deed of trust constitutes "fraud in the transaction." (Cal. U. Com. Code, § 5114, subd. (2); see cone. & dis. opn. of Mosk, J., post, at pp. 262-263.) Thus, Western was obliged to honor the Bank's demand for payment. The conclusion that the Bank may properly draw upon the letter of credit does not compel the further conclusion that the antideficiency law ultimately offers no protection to Vista Place Asssociates. This is illustrated by a comparison of the majority opinion and the separate opinion of Justice Mosk, which agree on the former point but disagree on the latter. In my view, the Bank's petition for review of a decision rejecting its claim (as *254 beneficiary) against Western (as issuer) under superseded law does not present an appropriate vehicle for broader pronouncements on the antideficiency law's effect on other claims and other parties. Because the Legislature in Senate Bill No. 1612 has articulated rules that will govern all future letters of credit, and because letters of credit typically expire after a finite period, the status of residual letters of credit issued before the bill's effective date will soon become an academic question. In contrast, whether the antideficiency law should as a general matter be expansively or narrowly construed remains of vital importance, as demonstrated by the interest in this case shown by amici curiae involved in the purchase and sale of real estate. Under these circumstances, the principle of judicial restraint counsels against the majority's sweeping declaration that the reach of the antideficiency law prior to Senate Bill No. 1612 was too narrow to affect the respective obligations of the parties to a letter of credit transaction. Underlying the broad declaration just mentioned is the majority's erroneous conclusion that Senate Bill No. 1612 merely clarified existing law and, thus, may be applied to transactions entered into before the bill's operative date. Before that date, the antideficiency law did not distinguish between residential and nonresidential real estate transactions. Now, however, as amended by Senate Bill No. 1612, the antideficiency law does distinguish between residential and nonresidential real estate transactions. New Code of Civil Procedure section 580.7, which the bill added, makes a letter of credit unenforceable when issued to avoid the default of an existing loan and "[t]he existing loan is secured by a purchase money deed of trust or purchase money mortgage on real property containing one to four residential units, at least one of which is owned and occupied, or was intended at the time the existing loan was made, to be occupied by the customer." (/d., subd. (b)(3).) In light of this provision, we may conclude that letters of credit before Senate Bill No. 1612 either were enforceable in the specified residential real estate transactions but now are not, or were not enforceable in all other real estate transactions but now are. This case does not require us to choose between these possibilities. Either way, Senate Bill No. 1612 went beyond mere clarification to change the effective scope of the antideficiency law. To apply it retroactively would change the legal consequences of past acts. Under these circumstances, it is appropriate to apply the ordinary presumption that a legislative act operates prospectively, and inappropriate to apply to this case the new set of rules articulated in Senate Bill No. 1612. Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534. MOSK, J., Concurring and Dissenting.-] agree with the majority that the issue before us is not whether Senate Bill No. 1612 (1993-1994 Reg. Sess.) (hereafter Senate Bill No. 1612) has retrospective application. It does not. *255 Rather, we must determine what the law was before Senate Bill No. 1612 was enacted to provide, in effect, a "standby letter of credit exception" to the antideficiency statutes. I disagree with the majority that Senate Bill No. 1612 did not change prior law. In my view, far from merely "clarifying" the "true" meaning of prior law —as the majority implausibly assert —its numerous amendments and additions to the statutes reversed what the Court of Appeal aptly referred to as "the fifty years of consistent solicitude which California courts have given to the foreclosed purchase money mortgagee."t As the majority concede, a legislative declaration of an existing statute's meaning is neither binding nor conclusive. "The Legislature has no authority to interpret a statute. That is a judicial task." (Del Costello v State of California (1982) 135 Cal.App.3d 887, 893, fn. 8 [185 Cal.Rptr. 582]; see also California Emp. etc. Com. v Payne (1947) 31 Cal.2d 210, 213 [187 P.2d 702]; Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 326 [109 P.2d 935].) As the majority also concede, the legislative interpretation of prior law in this case is particularly unworthy of deference: Nothing in the previous legislative history of letter of credit statutes suggests an intent to create an exception to the antideficiency statutes. Indeed, it is apparently only recently that standby letters of credit have been used in real estate transactions. Accordingly, unlike the majority, I conclude that before Senate Bill No. 1612, standby letters of credit were not exempt from the antideficiency statutes precluding creditors from obtaining a deficiency judgment from a creditor following nonjudicial foreclosure on a real property loan. I. As the Court of Appeal emphasized, before Senate Bill No. 1612, the potential conflict between the letters of credit statutes and the antideficiency statutes posed a question of first impression, arising from the relatively recent innovation of the use of standby letters of credit as additional security *256 for real estate loans. Does the so-called "independence principle" —under which letters of credit stand separate and apart from the underlying transaction —constitute an exception to the antideficiency statutes that bar deficiency judgments after a nonjudicial foreclosure on real property? The majority conclude that even before Senate Bill No. 1612, there was no restriction on the right of a creditor to demand payment on a standby letter of credit after a nonjudicial foreclosure on real property. They are wrong. Under the so-called "independence principle," the issuer of a standby letter of credit "must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary." (Cal. U. Com. Code, former § 5114, subd. (1), as amended by Stats. 1994, ch. 611, § 4.) In turn, the issuer of a standby letter of credit "is entitled to immediate reimbursement of any payment made under the credit and to be put in effectively available funds not later than the day before maturity of any acceptance made under the credit." (Id., subd. (3).)2 A standby letter of credit specifically operates as a means of guaranteeing payment in the event of a future default. "A letter of credit is an engagement by an issuer (usually a bank) to a beneficiary, made at the request of a customer, which binds the bank to honor drafts up to the amount of the credit upon the beneficiary's compliance with certain conditions specified in the letter of credit. The customer is ultimately liable to reimburse the bank. The traditional function of the letter of credit is to finance an underlying customer's beneficiary contract for the sale of goods, directing the bank to pay the beneficiary for shipment. A different function is served by the 'standby' letter of credit, which directs the bank to pay the beneficiary not for his own performance but upon the customer's default, thereby serving as a guarantee device." (Note, "Fraud in the Transaction": Enjoining Letters of Credit During the Iranian Revolution (1980) 93 Harv. L.Rev. 992, 992-993, fins. omitted.) Thus, in practical effect, a standby letter of credit constitutes a promise to provide additional funds in the event of a future default or deficiency. As such, prior to passage of Senate Bill No. 1612, it potentially came up against the restrictions of the antideficiency statutes barring a creditor from obtaining additional funds from a debtor after a nonjudicial foreclosure. Indeed, as *257 the parties concede, nothing in the applicable statutes or legislative history prior to the amendments and additions enacted by 12 Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... Senate Bill No. 1612 created any specific exception to the antideficiency statutes for standby letters of credit. Nor did anything in the applicable statutes or legislative history "imply" that the antideficiency statutes must yield to the so- called "independence principle," based on public policy or otherwise. We have previously summarized the history and purpose of the antideficiency statutes as follows. "Prior to 1933, a mortgagee of real property was required to exhaust his security before enforcing the debt or otherwise to waive all rights to his security [citations]. However, having resorted to the security, whether by judicial sale or private nonjudicial sale, the mortgagee could obtain a deficiency judgment against the mortgagor for the difference between the amount of the indebtedness and the amount realized from the sale. As a consequence during the great depression with its dearth of money and declining property values, a mortgagee was able to purchase the subject real property at the foreclosure sale at a depressed price far below its normal fair market value and thereafter to obtain a double recovery by holding the debtor for a large deficiency. [Citations.] In order to counteract this situation, California in 1933 enacted fair market value limitations applicable to both judicial foreclosure sales ([Code Civ. Proc.,] § 726) and private foreclosure sales ([id.,] § 580a) which limited the mortgagee's deficiency judgment after exhaustion of the security to the difference between the fair [market] value of the property at the time of the sale (irrespective of the amount actually realized at the sale) and the outstanding debt for which the property was security. Therefore, if, due to the depressed economic conditions, the property serving as security was sold for less than the fair [market] value as determined under section 726 or section 580a, the mortgagee could not recover the amount of that difference in this action for a deficiency judgment. [Citation.] "In certain situations, however, the Legislature deemed even this partial deficiency too oppressive. Accordingly, in 1933 it enacted section 580b [citation] which barred deficiency judgments altogether on purchase money mortgages. 'Section 580b places the risk of inadequate security on the purchase money mortgagee. A vendor is thus discouraged from overvaluing the security. Precarious land promotion schemes are discouraged, for the security value of the land gives purchasers a clue as to its true market value. [Citation.] If inadequacy of security results, not from overvaluing, but from a decline in property values during a general or local depression, section 580b prevents the aggravation of the downturn that would result if defaulting *258 purchasers were burdened with large personal liability. Section 580b thus serves as a stabilizing factor in land sales.' [Citations.] "Although both judicial foreclosure sales and private nonjudicial foreclosure sales provided for identical deficiency judgments in nonpurchase money situations subsequent to the 1933 enactment of the fair value limitations, one significant difference remained, namely property sold through judicial foreclosure was subject to the statutory right of redemption ([Code Civ. Proc.,] § 725a), while property sold by private foreclosure sale was not redeemable. By virtue of sections 725a and 701, the judgment debtor, his successor in interest or a junior lienor could redeem the property at any time during one year after the sale, frequently by tendering the sale price. The effect of this right of redemption was to remove any incentive on the part of the mortgagee to enter a low bid at the sale (since the property could be redeemed for that amount) and to encourage the making of a bid approximating the fair market value of the security. However, since real property purchased at a private foreclosure sale was not subject to redemption, the mortgagee by electing this remedy, could gain irredeemable title to the property by a bid substantially below the fair value and still collect a deficiency judgment for the difference between the fair value of the security and the outstanding indebtedness. "In 1940 the Legislature placed the two remedies, judicial foreclosure sale and private nonjudicial foreclosure sale on a parity by enacting section 580d [citation]. Section 580d bars'any deficiency judgment' following a private foreclosure sale. 'It seems clear ... that section 580d was enacted to put judicial enforcement on a parity with private enforcement. This result could be accomplished by giving the debtor a right to redeem after a sale under the power. The right to redeem, like proscription of a deficiency judgment, has the effect of making the security satisfy a realistic share of the debt. [Citation.] By choosing instead to bar a deficiency judgment after private sale, the Legislature achieved its purpose without denying the creditor his election of remedies. If the creditor wishes a deficiency judgment, his sale is subject to statutory redemption rights. If he wishes a sale resulting in nonredeemable title, he must forego the right to a deficiency judgment. In either case his debt is protected."' (Cornelison v Kornbluth (1975) 15 Cal.3d 590, 600-602 [125 Cal.Rptr. 557, 542 P.2d 981], fns. omitted.) C;'kn onoO.,1131 U."). 1/Vt iks. 1:3 Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 R2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep,Serv,2.d 534.... Y Over the several decades since their enactment, our courts have construed the antideficiency statutes liberally, rejecting attempts to circumvent the proscriptions against deficiency judgments after nonjudicial foreclosure. "It is well settled that the proscriptions of section 580d cannot be avoided through artifice ...." ( *259 Refiner v. Shepherd (1991) 231 Cal.App.3d 943, 952 [282 Cal.Rptr. 687]; accord, Freedland r. Greco (1955) 45 Cal.2d 462, 468 [289 P.2d 463] [In construing the antideficiency statutes, "'that construction is favored which would defeat subterfuges, expediencies, or evasions employed to continue the mischief sought to be remedied by the statute, or ... to accomplish by indirection what the statute forbids.' "]; Simon v. Superior Court (1992) 4 Cal.AppAth 63, 78 [5 Cal.Rptr.2d 428].) Nor can the antideficiency protections be waived by the borrower at the time the loan was made. (See Civ. Code, § 2953 [such waiver "shall be void and of no effect"]; Valinda Builders, Inc. v. Bissner (1964) 230 Cal.App.2d 106, 112 [40 Cal.Rptr. 735] [The debtor's waiver agreement was "contrary to public policy, void and ineffectual for any purpose."].) In this regard, as the Court of Appeal observed, two decisions are of particular relevance here: Union Bank v. Gradsky (1968) 265 Cal.App.2d 40 [71 Cal.Rptr. 64] (hereafter Gradsky), and Commonwealth Mortgage Assurance Co. v. Superior Court (1989) 211 Cal.App.3d 508 [259 Cal.Rptr. 425] (hereafter Commonwealth). In Gradsky, the Court of Appeal held that Code of Civil Procedure section 580d operated to preclude a lender from collecting the unpaid balance of a promissory note from the guarantor after a nonjudicial foreclosure on the real property securing the debt. It concluded that if the guarantor could successfully assert an action against the borrower for reimbursement, "the obvious result is to permit the recovery of a 'deficiency' judgment against the [borrower] following a nonjudicial sale of the security under a different label." (Gradsky, supra, 265 Cal.App.2d at pp. 45-46.) "The Legislature clearly intended to protect the [borrower] from personal liability following a nonjudicial sale of the security. No liability, direct or indirect, should be imposed upon the [borrower] following a nonjudicial sale of the security. To permit a guarantor to recover reimbursement from the debtor would permit circumvention of the legislative purpose in enacting section 580d." (Id. at p. 46.) In Commonwealth, borrowers purchased real property with a loan secured by promissory notes provided by a bank. At the bank's request, they obtained policies of mortgage guarantee insurance to secure payment on the promissory notes. They also signed indemnity agreements promising to reimburse the mortgage insurer for any funds it paid out under the policy. When the borrowers defaulted on the promissory notes, the bank foreclosed nonjudicially on the real property. It then collected on the mortgage insurance; the mortgage insurer then brought an action for reimbursement on the indemnity agreements. *260 The Court of Appeal in Commonwealth held that reimbursement was barred by Code of Civil Procedure section 580d. It rejected the argument that the indemnity agreements constituted separate and independent obligations: "The instant indemnity agreements add nothing to the liability [the borrowers] already incurred as principal obligors on the notes .... To splinter the transaction and view the indemnity agreements as separate and independent obligations ... is to thwart the purpose of section 580d by a subterfuge [citation], a result we cannot permit." (Commonwealth, supra, 211 Cal.App.3d at p. 517.) The majority's attempt to distinguish Gradsky and Commonwealth, by characterizing them as grounded in subrogation law, is unpersuasive. Indeed, in Commonwealth, subrogation law was not directly in issue; the indemnity obligation provided a contract upon which to base collection.3 The majority miss the point. As the Court of Appeal in this matter explained: "Gradsky and Commonwealth reflect the strong judicial concern about the efforts of secured real property lenders to circumvent section 580d by the use of financial transactions between debtors and third parties which involve post-nonjudicial foreclosure debt obligations for the borrowers. Their common and primary focus is on the lender's requirement that the debtor make arrangements with a third party to pay a portion or all of the mortgage debt remaining after a foreclosure, i.e., to pay the debtor's deficiency." The Legislature, in enacting Senate Bill No. 1612, expressly abrogated the Court of Appeal decision in this matter and gave primacy to the so-called "independence principle" as against the antideficiency protections. Its additions and amendments to the statutes —lobbied for, and drafted by, the California Bankers Association —significantly altered prior law. Senate Bill No. 1612, therefore, should have prospective application only. *261 I �,.xI ; ,"'u;E:rs ; If 0 ariginll} tJ 3. ovej'timctlt Works Western Security Bank v. Superior Court, 15 CalAth 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... In their strained attempt to reach the conclusion that Senate Bill No. 1612 governs this case, the majority adopt the fiction that a standby letter of credit is an "idiosyncratic" form of "security" or the "functional equivalent" of cash collateral. They offer no sound support for such an approach. There is none.4 As the Court of Appeal observed, from the perspective of the debtor, a standby letter of credit is not cash or its equivalent. It is, instead, a promise to provide additional funds in the event of future default or deficiency and has the practical consequence of requiring the debtor to pay additional money on the debt after default or foreclosure.5 Moreover, unlike cash, which can be pledged as collateral security only once, a standby letter of credit does not require a debtor to part with its own funds until payment is made and thus permits a borrower to use standby letters of credit in a large number of transactions separately. Cash collateral, by contrast, does not impose personal liability on the borrower following atrustee's sale and does not encourage speculative lending practices. As the Court of Appeal observed: "For us to conclude that such use of a standby letter of credit is the same as an increased cash investment (whether or not from borrowed funds) is to deny reality and to invite the very overvaluation and potential aggravation of an economic downturn which the antideficiency legislation was originally enacted to prevent." *262 II. The Court of Appeal correctly concluded that, before Senate Bill No. 1612, there was no implied exception to the antideficiency statutes for letters of credit. It erred, however, in holding that Western Security Bank, N.A. (Western) could have refused to honor the letter of credit on the ground that the Beverly Hills Business Bank (Bank), in presenting the letters of credit after a nonjudicial foreclosure, worked an "implied" fraud on Vista Place Associates (Vista). The Court of Appeal cited former California Uniform Commercial Code former section 5114, subdivision (2)(b), which provides that when there has been a notification from the customer of "fraud, forgery or other defect not apparent on the face of the documents," the issuer "may" —but is not obligated to —"honor the draft or demand for payment."(Cal. U. Com. Code, § 5114, subd. (2)(b) as amended by Stats. 1994, ch. 611, § 4.)6 The statute is inapplicable under the present facts. Western, presented with a demand for payment on a letter of credit, was limited to determining whether the documents presented by the beneficiary complied with the letter of credit —a purely ministerial task of comparing the documents presented against the description of the documents in the letter of credit. If the documents comply on their face, the issuer must honor the draw, regardless of disputes concerning the underlying transaction. (Lumbermans Acceptance Co. v. Security Pacific Nat. Bank (1978) 86 Cal.App.3d 175, 178 [150 Cal.Rptr. 69]; Cal. U. Com. Code, former § 5109, subd. (2) as added by Stats. 1963, ch. 819, § 1, p. 1934.) Thus, in this case, Western was not entitled to look beyond the documents presented by the Bank and refuse to honor the standby letter of credit based on a potential violation of the antideficiency statutes in the underlying transaction. In my view, the concurring and dissenting opinion by Justice Kitching in the Court of Appeal correctly reconciled the policies behind standby letter of credit law and the antideficiency provisions of Code of Civil Procedure section 580d, as they existed before Senate Bill No. 1612. Thus, I would conclude that Western was obligated, under the so- called "independence principle," to honor the standby letter of credit presented by the Bank. None of the limited exceptions to that rule applied. Western was not, however, without recourse. It was entitled to seek reimbursement from Vista, pursuant *263 to former California Uniform Commercial Code former section 5114, subdivision (3) and its promissory notes. Vista, in turn, could seek disgorgement from the Bank, if it has not legally waived its protection under Code of Civil Procedure section 580d—an issue that is not before us and should be remanded to the trial court. As Justice Kitching's concurrence and dissent concluded, "[t]his procedure would retain certainty in the California letter of credit market while implementing the policies supporting section 580d." Kennard, J., concurred. *264 Footnotes 1 In pertinent part, Code of Civil Procedure section 580d provides: "No judgment shall be rendered for any deficiency upon a note secured by a deed of trust or mortgage upon real property or an estate for years therein hereafter executed in I i I icj „on iit:o:(us. No clion to original U S. {�ovi•.'.ITlrrient Works 1 Western Security Bank v. Superior Court, 15 Cal.4th 232 (1997) 933 R2d 507, 62 Cal.Rptr.2d 243, 32 UGC Rep.Serv.2d 534... any case in which the real property or estate for years therein has been sold by the mortgagee or trustee under power of sale contained in the mortgage or deed of trust." FN2 In 1996, the Legislature completely revised division 5 of the California Uniform Commercial Code, which pertains to letters of credit. (Stats. 1996, ch. 176.) The enactment of chapter 176 repealed the former division 5 and added a new division 5. (Stats. 1996, ch. 176, §§ 6, 7.) The new provisions apply to letters of credit issued after the statute's effective date. (Stats. 1996, ch. 176, § 14.) Letters of credit issued earlier are to be dealt with as though the repeal had not occurred. (Stats. 1996, ch. 176, § 15.) We have no occasion in this case to consider the provisions of the new division 5. The Legislature (Stats. 1996, ch. 497, § 7) later amended a statutory reference found in California Uniform Commercial Code section 5114 as it existed before chapter 176 was enacted. This second legislative action might appear to restore the prior section 5114 from the repealed former division 5 and possibly leave two sections numbered 5114 in the new division 5. (See Cal. Const., art. IV, § 9; Gov. Code, § 9605.) We have no occasion in this case to address the meaning or effect of this seeming incongruity either. All references to section 5114 in this opinion are to California Uniform Commercial Code section 5114 as it existed before the 1996 legislation. 3 The parties' arrangements reflected a common use of letters of credit. A letter of credit typically is an engagement by a financial institution (the issuer), made at the request of a customer (also referred to as the applicant or account party) to pay a specified sum of money to another person (the beneficiary) upon compliance with the conditions for payment stated in the letter of credit, i. e., presentation of the documents specified in the letter of credit. (See Gregora, Letters of Credit in Real Property Finance Transactions (Spring 1991) 9 Cal. Real Prop. J. 1, 1-2.) A letter of credit transaction involves at least three parties and three separate and independent relationships: (1) the relationship between the issuer and the beneficiary created by the letter of credit; (2) the relationship between the customer and the beneficiary created by a contract or promissory note, with the letter of credit securing the customer's obligations to the beneficiary under the contract or note; and (3) the relationship between the customer and the issuer created by a separate contract under which the issuer agrees to issue the letter of credit for a fee and the customer agrees to reimburse the issuer for any amounts paid out under the letter of credit. (Gregora, Letters of Credit in Real Property Finance Transactions, supra, 9 Cal. Real Prop. J. at p. 2; San Diego Gas & Electric Co. v. Bank Leumi, supra, 42 Cal.App.4th at pp. 932-933; see Voest-Alpine Intern. Corp. v. Chase Manhattan Bank (2d Cir. 1983) 707 F.2d 680, 682; and Colorado Nat. Bank, etc. v. Bd. of County Com'rs (Colo. 1981) 634 P.2d 32, 36-38, for a discussion of the history and structure of letter of credit transactions.) Letters of credit can function as payment mechanisms. For example, in sales transactions a letter of credit assures the seller of payment when parting with goods, while the conditions for payment specified in the letter of credit (often a third party's documentation, such as a bill of lading) assure the buyer the goods have been shipped before payment is made. (Gregora, Letters of Credit in Real Property Finance Transactions, supra, 9 Cal. Real Prop. J. at p. 3.) In the letter of credit's role as a payment mechanism, a payment demand occurs in the ordinary course of business and is consistent with full performance of the underlying obligations. (Ibid.) The use of letters of credit has now expanded beyond that function, and they are employed in many other types of transactions in which one party requires assurances the other party will perform. (Gregora, Letters of Credit in Real Property Finance Transactions, supra, 9 Cal. Real Prop. J. at p. 3.) When used to support a debtor's obligations under a promissory note or other debt instrument, the so-called "standby" letter of credit typically provides that the issuer will pay the creditor when the creditor gives the issuer written certification that the debtor has failed to pay the amount due under the debtor's underlying obligation to the creditor. (Ibid.) Thus, a payment demand under a standby letter of credit indicates that there is a problem —either the customer is in financial difficulty, or the beneficiary and the customer are in a dispute. (Ibid.) 4 The " 'presumption of substantial change'" mentioned in the quoted passage refers to the presumption that amendatory legislation accomplishing substantial change is intended to have only prospective effect. Some courts have thought changes categorized as merely formal or procedural present no problem of retrospective operation. However, as mentioned above, California has rejected this type of classification: "In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears." (Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 394; cf. Kizer v. Hanna, supra, 48 Cal.3d at pp. 7-8.) ' I TIIori soII I•:,r;i1;eI-:;. No (:Iahn to o16rii�I ll.S. G-twoinie,nI Wbrkn. Western Security Bank v. Superior Court, 15 Cal.4th 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534.. 5 Section 2 of Senate Bill No. 1612 added Code of Civil Procedure section 580.5, which provides in pertinent part: "(b) With respect to an obligation which is secured by a mortgage or a deed of trust upon real property or an estate for years therein and which is also supported by a letter of credit, neither the presentment, receipt of payment, or enforcement of a draft or demand for payment under the letter of credit by the beneficiary of the letter of credit nor the honor or payment of, or the demand for reimbursement, receipt of reimbursement or enforcement of any contractual, statutory or other reimbursement obligation relating to, the letter of credit by the issuer of the letter of credit shall, whether done before or after the judicial or nonjudicial foreclosure of the mortgage or deed of trust or conveyance in lieu thereof, constitute any of the following: [¶] (1) An action within the meaning of subdivision (a) of Section 726, or a failure to comply with any other statutory or judicial requirement to proceed first against security. [¶] (2) A money judgment for a deficiency or a deficiency judgment within the meaning of Section 580a, 580b, or 580d, or subdivision (b) of Section 726, or the functional equivalent of any such judgment. [¶] (3) A violation of Section 580a, 580b, 580d, or 726." (Code Civ. Proc., § 580.5, subd. (b), as added by Stats. 1994, ch. 611, § 2.) Section 4 of Senate Bill No. 1612 made certain technical, nonsubstantive changes to section 5114, which embodies the independence principle applicable to letter of credit payment obligations. (§ 5114, as amended by Stats. 1994, ch. 611, § 4.) 6 We do not address the effect of section 3 of Senate Bill No. 1612, which added section 580.7 to the Code of Civil Procedure. This section provides, in pertinent part: "(b) No letter of credit shall be enforceable by any party thereto in a loan transaction in which all of the following circumstances exist: [¶] (1) The customer is a natural person [¶] (2) The letter of credit is issued to the beneficiary to avoid a default of the existing loan [¶] (3) The existing loan is secured by a purchase money deed of trust or purchase money mortgage on real property containing one to four residential units, at least one of which is owned and occupied, or was intended at the time the existing loan was made, to be occupied by the customer. [¶] (4) The letter of credit is issued after the effective date of this section." (Code Civ. Proc., § 580.7, subd. (b), italics added, as added by Stats. 1994, ch. 611, § 3.) The italicized language, not found in the other statutory changes made by Senate Bill No. 1612, suggests the Legislature intended section 580.7 to have prospective effect only. However, this case does not involve any interpretation of this section or its effect, and so we express no view on those matters. 7 The precedential value of such statements in Commonwealth Mortgage also is clouded by a factual enigma the court left unresolved. As the Court of Appeal recognized, the lender in that case purchased the real property security at the trustee's sale for a full credit bid, which ought to have satisfied the debt. (Commonwealth Mortgage, supra, 211 Cal App 3d at p. 512, fn. 3.) Despite the apparent absence of any deficiency, the court deemed it unnecessary to decide whether a deficiency in fact remained before discussing the effect of Code of Civil Procedure section 580d's prohibition of deficiency judgments. (Commonwealth Mortgage, supra, 211 Cal.App.3d at p. 515.) 8 To the extent that resort to analogy is appropriate for such a singular legal creation as the standby letter of credit, its closest relative would seem to be cash collateral. As one commentator noted: "In view of the relative positions of the beneficiary, the [customer], and the issuing bank, the standby letter of credit is more analogous to a cash deposit left with the beneficiary than it is to the traditional letter of credit or to the performance bond. Because the beneficiary generates all the documents necessary to obtain payment, he has the power to appropriate the funds represented by the standby letter of credit at any time.... [¶] Even though the standby letter of credit is functionally equivalent to a cash deposit, it differs from a cash deposit because the customer does not have to part with its own funds until payment is made and it is forced to reimburse the issuing bank. Because the cash -flow burden might otherwise be prohibitive, this is a great advantage to a party who enters into a large number of transactions simultaneously. Moreover, the beneficiary is satisfied; while it does not actually possess the funds, as it would if a cash deposit were used, it is protected by the credit of a financial institution." (Comment, The Independence Rule in Standby Letters of Credit (1985) 52 U. Chi. L.Rev. 218, 225-226, fns. omitted; see Dolan, Letters of Credit, supra, § 1.06, pp. 1-24 to 1-25, for a discussion of cases illustrating use of standby credits in lieu of cash, bonds, and other security.) 9 Western belatedly claims it should not be liable for prejudgment interest on the amount of the letter of credit it dishonored. It argues it should not be "punished" for seeking a declaration of its rights in a novel and complex case. The Court of Appeal decided that "if it is ultimately determined that Western is liable to the Bank on the letters of credit then it must follow that it is liable for legal interest thereon from and after the day when its obligation to pay on the letters arose. (Civ. Code, § 3287, subd. (a).)" Western did not petition for review of this aspect of the Court of Appeal decision. In any event, Western's liability for prejudgment interest is clear. The award of this interest is not imposed for the sake of punishment. The award depends only on whether Western knew or could compute the amount the Bank was entitled to recover on the letters of credit. (Fireman's Fund Ins. Co. v. Allstate Ins. Co. (1991) 234 Cal.App 3d 1154, 1173 [286 Cal.Rptr. 146].) The Court of Appeal correctly assessed Western's liability for prejudgment interest. . l "! ! Ilr;i ,: tuI in, ,jii;•r,s No -lainli Io UiOlin-al I i._, ',iwn,riirn %nt Wnrks Western Security Bank v. Superior Court, 15 Cal.4th 232 (1997) 933 P.2d 507, 62 Cal.Rptr.2d 243, 32 UCC Rep.Serv.2d 534... 1 Among other things, Senate Bill No. 1612 amended Civil Code section 2787, added Code of Civil Procedure sections 580.5 and 580.7, and amended California Uniform Commercial Code former section 5114. (See Stats. 1994, ch. 611, §§ 1-6.) It appears, however, that our decision in this matter will have limited application. It will operate only when: (a) a lender obtained a standby letter of credit prior to September 15, 1994, the effective date of Senate Bill No. 1612, to support a transaction secured by a deed of trust against real property; (b) the creditor defaulted on the deed of trust; (c) the lender elected to foreclose on by way of trustee's sale rather than through judicial foreclosure; and (d) the lender thereafter demanded payment under the standby letter of credit. In view of the limited precedential value of this case, a better course would have been to dismiss review as improvidently granted. 2 As the reference to "goods or documents" in the statute suggests, the drafters appear to have contemplated use of letters of credit in commercial financial transactions, not as additional security in real estate transactions. 3 In any event, the analogy between standby letters of credit and guarantees is not as "forced" as the majority would suggest. As one commentator recently observed, "upon closer analysis, the borders between standby credits and contracts of guarantee are not so well settled as they may first appear." (McLaughlin, Standby Letters of Credit and Guaranties: An Exercise in Cartography (1993) 34 Wm. & Mary L.Rev. 1139, 1140; see also Alces, An Essay on Independence, Interdependence, and the Suretyship Principle (1993)1993 U III L Rev. 447 [rejecting distinction between letters of credit and "secondary obligations," i.e., guarantees and sureties].) Moreover, "courts have long recognized that, in a sense, issuers of credits 'must be regarded as sureties.' [Citation.] A seller of goods often insists on a commercial letter of credit because he is unsure of the buyer's ability to pay. The standby letter of credit arises out of situations in which the beneficiary wants to guard against the applicant's nonperformance. In both instances, the credit serves in the nature of a guaranty." Dolan, The Law of Letters of Credit: Commercial and Standby Credits (2d ed. 1991) § 2.10[1], pp. 2-61 to 2-62.) 4 The principal "authority" cited by the majority for the proposition that standby letters of credit are the "functional equivalent" of cash collateral is a student law review note published over a decade ago —and apparently never cited in any case in California or elsewhere. (Comment, The Independence Rule in Standby Letters of Credit(1985) 52 U. Chi. L.Rev. 218.) Significantly, the note nowhere discusses the use of standby letters of credit in transactions involving purchase money mortgages or the potential conflict between the so-called "independence principle" and antideficiency statutes. Indeed, it assumes that "[t]hose who engage in standby letter of credit transactions are usually large corporate or governmental entities with access to high -quality counsel and are thus in a position to evaluate and respond to the risks involved." (Id. at p. 238.) Needless to say, that is often notthe case in real property transactions, particularly those involving residential property. As a leading commentator observed: "the motivation of the parties to a real estate secured transaction is frequently other than purely commercial, and their relative bargaining power is often grossly disproportionate." (Hetland & Hansen, The `Mixed Collateral" Amendments to California's Commercial Code —Covert Repeal of California's Real Property Foreclosure and Antideficiency Provisions or Exercise in Futility? (1987) 75 Cal.L.Rev. 185, 188, fn. omitted.) 5 Although it appears to be uncommon, an issuer of a standby letter of credit may demand security from its customer in the form of cash collateral or personal property as a condition for issuing the letter of credit. In the event of a draw on the letter of credit, the issuer would then have recourse to the pledged security, up to the value of the draw, without requiring its customer to pay additional money. Whether a real estate lender's draw on a standby letter of credit backed by security, and not by a mere promise to pay, would fall within the mixed security rule is a difficult question that need not be addressed here. 6 An issuer's obligations and rights are now governed by California Uniform Commercial Code section 5108, enacted in 1996 as part of Senate Bill No. 1599. (Stats. 1996, ch. 176, § 7.) The same legislation repealed section 5114, relating to the issuer's duty to honor a draft or demand for payment, as part of the repeal of division 5, Letters of Credit. (Stats. 1996, ch. 176, § 6.) End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. il[ll ('M rili? 13 Weaverv. Graham, 450 U.S. 24 (1981) 101 S.M. 960, 67 L.Ed.2d 17 acts would give fair warning of their effect to permit individuals to rely on their meaning until KeyCite Yellow Flag - Negative Treatment explicitly changed. U.S.C.A.Const. Art. 1, § 10, Overruling Recognized by Ramirez v. Frauenheim, C.D.Cal., December 28, 2016 101 S.Ct. 960 213 Cases that cite this headnote Supreme Court of the United States Hoyt WEAVER, Petitioner, 121 Constitutional Law . Legislative branch V. Ex post facto ban restricts governmental power by restraining arbitrary potentially vindictive Robert GRAHAM, Governor of Florida. legislation. U.S.C.A.Const. Art. 1, § 10, cl. 1. No. 79-5780. Argued Nov. 5, 1980. Decided Feb. 24, 1981. Synopsis State prisoner sought writ of habeas corpus challenging application to him of change in state law with respect to good time or gain time credits. The Supreme Court of Florida, 376 So.2d 855, denied the application and certiorari was granted. The Supreme Court, Justice Marshall, held that: (1) for a criminal or penal law to be ex post facto, it must be retrospective and it must disadvantage the offender affected by it; (2) the effect, not the form, of the law, determines whether to ex post facto; (3) fact that statute reducing good time credits was enacted in conjunction with other statutes providing additional bases for credits against sentence did not save it from an ex post facto challenge; and (4) as applied to a prisoner whose crime was committed before its effective date, the statute reducing the amount of good time credit violated the ex post facto clause. 81 Cases that cite this headnote 131 Constitutional Law Legislative branch Constitutional Law Judicial branch Ex post facto provision upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary's and executive's applications of existing law. U.S.C.A.Const. Art. 1, § 10, cl. 1. 32 Cases that cite this headnote 141 Constitutional Law - Penal laws in general In order for a criminal or penal law to be ex post facto, it must be retrospective, applying to events occurring before its indictment, and must disadvantage the offender affected by it. U.S.C.A.Const. Art. 1, § 10, cl. 1. 846 Cases that cite this headnote Reversed and remanded. 151 Constitutional Law Substantive rights in general Justice Blackmun filed an opinion concurring in the judgment Constitutional Law Remedies and in which Chief Justice Burger joined. procedure in general No ex post facto violation occurs when the Justice Rehnquist filed an opinion concurring in the judgment. change effected is merely procedural and does not increase the punishment or change the ingredients of the offense or the ultimate West Headnotes (17) facts necessary to establish guilt; alteration of substantial right is not merely procedural even if the statute takes a seemingly procedural form. I11 Constitutional Law Purpose U.S.C.A.Const. Art. 1, § 10, cl. 1. Through the ex post facto prohibition, framers of 191 Cases that cite this headnote the Constitution sought to assure that legislative Weaverv. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 It is the effect, not the form, of the law 161 Constitutional Law . Vested rights in which determines whether it is ex post facto. general U.S.C.A.Const. Art. 1, § 10, cl. 1. Law need not impair a vested right to violate the ex post facto prohibition. U.S.C.A.Const. Art. 1, 350 Cases that cite this headnote § 10, cl. 1. [111 Constitutional Law -- Length of sentence 124 Cases that cite this headnote Even when the sentence is at issue, a law may be retrospective for ex post facto purposes not 171 Constitutional Law Existence and validity only if it alters the length of the sentence but of contract also if it changes the maximum sentence from Constitutional Law Vested rights discretionary to mandatory. U.S.C.A.Const. Art. Evaluation of whether a right has vested is 1, § 10, cl. 1. important for claims under the contracts or due process clauses, which solely protect preexisting 52 Cases that cite this headnote entitlements. U.S.C.A.Const. Amend. 5. [121 Constitutional Law - Punishment in general 12 Cases that cite this headnote Critical question for ex post facto purposes is whether the new statutory provision imposes 181 Constitutional Law Purpose greater punishment after the commission of Constitutional Law - Punishment in general the offense, not merely whether it increases a Presence or absence of an affirmative, criminal sentence. U.S.C.A.Const. Art. 1, § 10, enforceable right is not relevant to the ex post cl. 1. facto prohibition which forbids the imposition 296 Cases that cite this headnote of punishment more severe than the punishment assigned by law when the act to be punished occurred; critical to relief under the clause is 1131 Federal Courts State constitutions, not the individual's right to less punishment but statutes, regulations, and ordinances the lack of fair notice and governmental restraint For ex post facto purposes, whether a when the legislature increases punishment retrospective state criminal statute ameliorates or beyond what was prescribed when the crime was worsens conditions imposed by its predecessor consummated. U.S.C.A.Const. Art. 1, § 10, cl. 1. is a federal question and the inquiry looks to the challenged provision and not to any special 574 Cases that cite this hcadnote circumstances which might mitigate its effect on the particular individual. U.S.C.A.Const. Art. 1, 191 Constitutional Law f. Penal laws in general § 10, cl. 1. Even if a statute merely alters penal provisions 15 Cases that cite this headnote accorded by the grace of the legislature, it violates the ex post facto clause if it is both retrospective and more onerous than the law in 1141 Constitutional Law - - Length of sentence effect on the date of the offense. U.S.C.A.Const. Prisons _ Amount and computation of Art. 1, § 10, cl. 1. credits Fact that Florida statute reducing the amount of 432 Cases that cite this headnote good time or gain time which can be acquired by an inmate was enacted in conjunction with 1101 Constitutional Law Constitutional a number of other provisions which added new Prohibitions in General bases for reduction of time spent in prison did �t; ' i I ..:lli[:f S. No dailn to arirli;wJ O.S. r cnrefnmeot :+Araks. 2 Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 not save the statute as against an ex post facto challenge. U.S.C.A.Const. Art. 1, § 10, cl. 1; West's F.S.A. § 944.275(l). 120 Cases that cite this headnote 1151 Constitutional Law Length of sentence Prisons Amount and computation of credits For ex post facto purposes, Florida statute reducing the amount of good time or gain time which can be earned by prisoners was not merely procedural simply because it did not alter punishment prescribed for the offense. U.S.C.A.Const. Art. 1, § 10, cl. 1; West's F.S.A. § 944.275(1). 413 Cases that cite this headnote 1161 Constitutional Law - Length of sentence Prisons . Amount and computation of credits Florida statute reducing the amount of good time or gain time which could be earned by prisoners violated the ex post facto clause as applied to one whose crime occurred before its effective date. U.S.C.A.Const. Art. 1, § 10, cl. 1; West's F.S.A. § 944.275(1). 647 Cases that cite this headnote 1171 Federal Courts Reversal, Vacation, and Remand Proper relief upon a conclusion that a state prisoner is being treated under an ex post facto law is to remand to permit the state court to apply, if possible, the law in place when his crime occurred. U.S.C.A.Const. Art. 1, § 10, cl. 1. 18 Cases that cite this headnote **961 Syllabus* *24 Held: A Florida statute repealing an earlier statute and reducing the amount of "gain time" for good conduct and obedience to prison rules deducted from a convicted prisoner's sentence is unconstitutional as an ex post facto law as applied to petitioner, whose crime was committed before the statute's enactment. Pp. 964-968. **962 (a) For a criminal or penal law to be ex post facto, it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182; Calder v. Bull, 3 Dall. 386, 390, l L.Ed. 648. It need not impair a "vested right." Even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Ex Post Facto Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. Pp. 964-965. (b) The effect, not the form, of the law determines whether it is ex post facto. Although the Florida statute on its face applies only after its effective date, respondent conceded that the statute is used to calculate the gain time available to prisoners, such as petitioner, convicted for acts committed before the statute's effective date. Regardless of whether or not the prospect of gain time was in some technical sense part of the petitioner's sentence, the statute substantially alters the consequences attached to a crime already completed, changing the quantum of punishment, and thus is a retrospective law which can be constitutionally applied to petitioner only if it is not to his detriment. Pp. 965- 966. (c) The Florida statute is disadvantageous to petitioner and other similarly situated prisoners. The reduction in gain time that had been available under the repealed statute for abiding by prison rules and adequately performing assigned tasks lengthens the period that someone in petitioner's position must spend in prison. It is immaterial that other statutory provisions were also enacted whereby a prisoner might earn extra gain time by satisfying extra conditions. The award of such extra gain time is purely discretionary, contingent on both the correctional authorities' wishes and the inmate's special behavior, and thus none of the provisions for extra gain time compensates for the reduction of gain time available solely for good conduct. The new provision therefore constricts the inmate's opportunity to earn early release and thereby *25 makes more onerous the punishment for crimes committed before its enactment. Pp. 966-968. La., 376 So.2d 855, reversed and remanded. f T lii, 4,z;i E;r ij:or:; N c 1 i.:lain-i to ongiriM U.5 Gov onjinanl Woz—ks 3 Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 Attorneys and Law Firms Thomas C. MacDonald, Jr., Menlo Park, Cal., for petitioner, Wallace E. Allbritton, Tallahassee, Fla., for respondent. Opinion Justice MARSHALL delivered the opinion of the Court. Florida, like many other States, rewards each convicted prisoner for good conduct and obedience to prison rules by using a statutory formula that reduces the portion of his sentence that he must serve. In this case, we consider whether a Florida statute altering the availability of such "gain time for good conduct"] is unconstitutional as an ex post facto law when applied to petitioner, whose crime was committed before the statute's enactment. The relevant facts are undisputed. Petitioner pleaded guilty to second-degree murder. The crime charged occurred on January 31, 1976.On May 13, 1976, petitioner was convicted and sentenced to a prison term of 15 years, less time *26 already served. The state statute in place on both the date of the offense and the date of sentencing provided a formula for deducting gain -time credits from the sentences "of every prisoner who has committed no infraction of the rules or regulations of the division, or of the **963 laws ofthe state, and who has performed in a faithful, diligent, industrious, orderly and peaceful manner, the work, duties and tasks assigned to him." Fla.Stat. § 944.27(1) (1975).2 According to the formula, gain -time credits were to be calculated by the month and were to accumulate at an increasing rate the more time the prisoner had already served. Thus, the statute directed that the authorities "shall grant the following deductions" from a prisoner's sentence as gain time for good conduct: "(a) Five days per month off the first and second years of his sentence; "(b) Ten days per month off the third and fourth years of his sentence; and "(c) Fifteen days per month off the fifth and all succeeding years of his sentence." Fla.Stat. § 944.27(1) (1975). In 1978, the Florida Legislature repealed § 944.27(1) and enacted a new formula for monthly gain -time deductions. This new statute provided: "(a) Three days per month off the first and second years of the sentence; "(b) Six days per month off the third and fourth years of the sentence; and "(c) Nine days per month off the fifth and all succeeding years of the sentence." Fla.Stat. § 944.275(1) (1979).3 *27 The new provision was implemented on January 1, 1979, and since that time the State has applied it not only to prisoners sentenced for crimes committed since its enactment in 1978, but also to all other prisoners, including petitioner, whose offenses took place before that date.4 Petitioner, acting pro se, sought a writ of habeas corpus from the Supreme Court of Florida on the ground that the new statute as applied to him was an ex post facto law prohibited by the United States and the Florida Constitutions.5 He alleged that the reduced accumulation of monthly gain -time credits provided under the new statute would extend his required time in prison by over 2 years, or approximately 14 percent of his original 15-year sentence.6 The State Supreme *28 Court summarily denied the petition. 376 So.2d 855. The court relied on its decision in a companion case raising the same issue where it reasoned that "gain time allowance is an act of grace rather than a vested right and may be withdrawn, modified, or denied." Harris v. Wainwright, 376 So.2d 855, 856 (1979).7 We **964 granted certiorari, 445 U.S. 927, 100 S.Ct. 1311, 63 L.Ed.2d 759, and we now reverse. I11 121 131 The ex post facto prohibition$ forbids the Congress and the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Cummings v. Missouri, 4 Wall. 277, 325- 326, 18 L.Ed. 356 (1867). See Lindsey v. Washington, 301 ! I- •-r ,� 1'. .,,:., �. ..,r„ �•!: �Il 1, j., .:o�;•:;�,�i I �.�,�-� .I ir!i, .I �.� 4 Weaver v. Graham, 450 U.S. 24 (1981) 101 S.M. 960, 67 L.Ed.2d 17 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Rooney v North Dakota, 196 U.S. 319, 324-325, 25 S.Ct. 264, 265-266, 49 L.Ed. 494 (1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890); Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798).9 Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to retrospective and more onerous than the law in effect on the date of *31 the offense.14 We now consider the Florida statute in light of these two considerations. A rely on then• meaning until explicitly *29 changed. Dobbert 1101 The respondent maintains that Florida's 1978 law v Florida, 432 U.S. 282, 298, 97 S.Ct. 2290, 2300, 53 altering the availability of gain time is not retrospective L.Ed.2d 344 (1977); Kringv. Missouri, 107 U.S. 221, 229, 2 because, on its face, it applies only after its effective date. S.Ct. 443, 449, 27 L.Ed. 506 (1883); Calder v Bull, supra, Brief for Respondent 12, 15-16. This argument fails to 3 Dail. at 387. The ban also restricts governmental power acknowledge that it is the effect, not the form, of the law that by restraining arbitrary and potentially vindictive legislation. determines whether it is ex post facto.15 The critical question Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, is whether the law changes the legal consequences of acts 508, 59 L.Ed. 905 (1915); Kring v. Missouri, supra, 107 completed before its effective date. In the context of this U.S., at 229, 2 S.Ct., at 449; Fletcher v. Peck, 6 Cranch 87, case, this question can be recast as asking whether Fla.Stat. 138, 3 L.Ed. 162 (1810); Calder v. Bull, supra, at 395, 396 § 944.275(1) (1979) applies to prisoners convicted for acts (Paterson, J.); the Federalist No. 44 (J. Madison), No. 84 (A. committed before the provision's effective date. Clearly, the Hamilton). 1 0 answer is in the affirmative. The respondent concedes that the State uses § 944.275(l), which was implemented on January 141 151 161 171 181 191 In accord with these purposgs 1979, to calculate the gain time available to petitioner, who our decisions prescribe that two critical elements must be was convicted of a crime occurring on January 31, 1976.16 present for a criminal or penal law to be ex post facto: Thus, the provision attaches legal consequences to a crime it must be retrospective, that is, it must apply to events committed before the law took effect. occurring before its enactment, II and it must disadvantage the offender affected by it.12 Lindsey v. Washington, supra, I111 1121 Nonetheless, respondent contends that the State's 301 U.S., at 401, 57 S.Ct., at 799; Calder v. Bull, supra, revised gain -time provision **966 is not retrospective at 390. Contrary to the reasoning of the Supreme Court of because its predecessor was "no part of the original sentence Florida, a law need not impair a "vested right" to violate and thus no part of the punishment annexed to the crime the ex post facto prohibition.13 Evaluating whether **965 at the time petitioner was sentenced." Brief for Respondent a right has vested *30 is important for claims under the 12. This contention *32 is foreclosed by our precedents. Contracts or Due Process Clauses, which solely protect pre- First, we need not determine whether the prospect of the existing entitlements. See, e. g., Wood v Lovett, 313 U.S. gain time was in some technical sense part of the sentence 362, 371, 61 S.Ct. 983, 987, 85 L.Ed. 1404 (1941); Dodge to conclude that it in fact is one determinant of petitioner's i� Board of Education, 302 U.S. 74, 78-79, 58 S.Ct. 98, prison term -and that his effective sentence is altered once 100, 82 L.Ed. 57 (1937). See also United States Railroad this determinant is changed. See Lindsey v. Washington, 301 Retirement Board v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, U.S., at 401-402, 57 S.Ct., at 799; Greenfield v. Scafati, 459, 66 L.Ed.2d 368 (1980). The presence or absence of an 277 F.Supp. 644 (Mass.1967) (three -judge court), summarily affirmative, enforceable right is not relevant, however, to the affd, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968). ex post facto prohibition, which forbids the imposition of See also Rodriguez v. United States Parole Comm'n, 594 punishment more severe than the punishment assigned by F.2d 170 (CA7 1979) (elimination of parole eligibility held law when the act to be punished occurred. Critical to relief an ex post facto violation). We have previously recognized under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both that a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed. Wolff v McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Warden v. Marrero, 417 U.S. 653, 658, 94 S.Ct. 2532, 2535, 41 L.Ed.2d 383 (1974). 1 i'lio�r';r.ui ::t.iiiri PIr3 claim to Urir�irr fl 11 i (nF:�nr��� rll VIIr'ir4.� 5 Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 See United States v. De Simone, 468 F.2d 1196 (CA2 1972); Durant v United States, 410 F.2d 689, 692 (CAI 1969). Second, we have held that a statute may be retrospective even if it alters punitive conditions outside the sentence. Thus, we have concluded that a statute requiring solitary confinement prior to execution is ex post facto when applied to someone who committed a capital offense prior to its enactment, but not when applied only prospectively. Compare In re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890), with Holden v Minnesota, 137 U.S. 483, 11 S.Ct. 143, 34 L.Ed. 734 (1890). See also Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356 (1867).17 *33 For prisoners who committed crimes before its enactment, § 944.275(1) substantially alters the consequences attached to a crime already completed, and therefore changes "the quantum of punishment." See Dobbert v. Florida, supra, 432 U.S., at 293-294, 97 S.Ct., at 2298. Therefore, it is a retrospective law which can be constitutionally applied to petitioner only if it is not to his detriment. Id., at 294, 97 S.Ct., at 2298. C3 1131 Whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Lindsey v. Washington, supra, 301 U.S., at 400, 57 S.Ct., at 798. See Malloy v South Carolina, supra, 237 U.S., at 184, 35 S.Ct., at 508; Rooney v. North Dakota, supra, 196 U.S., at 325, 25 S.Ct., at 265. The inquiry looks to the challenged provision, and not to any special circumstances that may mitigate its effect on the particular individual. Dobbert v. Florida, supra, 432 U.S., at 300, 97 S.Ct., at 2301; Lindsey v. Washington, supra, 301 U.S. at 401, 57 S.Ct., at 799; Rooney v North Dakota, supra, 196 U.S., at 325, 25 S.Ct., at 265. Under this inquiry, we conclude § 944.275(l) is disadvantageous to petitioner and **967 other similarly situated prisoners. On its face, the statute reduces the number of monthly gain -time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain -time accumulation lengthens the period that someone in petitioner's position must spend in prison. In Lindsey v. Washington, supra, 301 U.S., at 401-402, 57 S.Ct., at 799, we reasoned that "[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term." Here, petitioner is similarly disadvantaged by the reduced *34 opportunity to shorten his time in prison simply through good conduct. In Greenfield v Scafati, supra, we affirmed the judgment of a three -judge District Court which found an ex post facto violation in the application of a statute denying any gain time for the first six months after parole revocation to an inmate whose crime occurred before the statute's enactment. There, as here, the inmate was disadvantaged by new restrictions on eligibility for release. In this vein, the three judge court in Greenfield found "no distinction between depriving a prisoner of the right to earn good conduct deductions and the right to qualify for, and hence earn, parole. Each ... materially `alters the situation of the accused to his disadvantage.' " 277 F.Supp., at 646 (quoting In re Medley, supra, at 171, 10 S.Ct., at 387). See also Murphy v. Commomvealth, 172 Mass. 264, 52 N.E. 505 (1899). 1141 1151 Respondent argues that our inquiry should not end at this point because Fla.Stat. § 944.275(1) (1979) must be examined in conjunction with other provisions enacted with it. Brief for Respondent 18-26. Respondent claims that the net effect of all these provisions is increased availability of gain -time deductions.]$ There can be no doubt that the legislature *35 intended through these provisions to promote rehabilitation and to create incentives for specified productive conduct. See Fla.Stat. § 944.012 (1979). But none of these provisions for extra gain time compensates for the reduction of gain time available solely for good conduct. The fact remains that an inmate who performs satisfactory work and avoids disciplinary violations could obtain more gain time per month under the repealed provision, § 944.27(1) (1975), than he could for the same conduct under the new provision, § 944.275(1) (1979). To make up the difference, the inmate has to satisfy the extra conditions specified by the discretionary gain -time provisions.19 Even then, the **968 award of the extra gain time is purely discretionary, contingent on both the wishes of the correctional authorities and special behavior by the inmate, such as saving a life or diligent performance in an academic program. Fla.Stat. §§ 944.275(3)(a), (b) (1979). In contrast, under both the new and old statutes, an inmate is automatically entitled to the monthly gain time simply for avoiding disciplinary infractions and performing his assigned tasks. Compare Fla.Stat. § 944.275(1) (1979) with § 944.27(1) (1975).20 Thus, the new provision constricts the inmate's *36 opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed EIS:?��. "sC' i:�J.i�" i;�k fl¢I.�,,IPif!I s;V�1� i? ":i1i''Nm`iis. Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 before its enactment. This result runs afoul of the prohibition against ex post•facto laws.21 lid 1161 1171 We find Fla.Stat. § 944.275(1) (1979) void as applied to petitioner, whose crime occurred before its effective date. We therefore reverse the judgment of the Supreme Court of Florida and remand this case for further proceedings not inconsistent with this opinion. 22 Reversed and remanded. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the judgment. Were the Court writing on a clean slate, I would vote to affirm the judgment of the Supreme Court of Florida. My *37 thesis would be: (a) the 1978 Florida statute operates only prospectively and does not affect petitioner's credits earned and accumulated prior to the effective date of the statute; (b) "good time" or "gain time" is something to be earned and is not part of, or inherent in, the sentence imposed; (c) all the new statute did was to remove some of petitioner's hope and a portion of his opportunity; and (d) his sentence therefore was not enhanced by the statute. In addition, as the Court's 18th footnote reveals, ante, at 967, the statutory change by no means was entirely restrictive; in certain respects it was more lenient, as the Court's careful preservation for this prisoner of the new statute's **969 other provisions clearly implies. Ante, at 968, n. 22. The Court's precedents, however, particularly Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), and the summary disposition of Greenfield v. Scafati, 277 F.Supp. 644 (Mass.1967), affd, 390 U.S. 713, 88 S.Ct. 1409,20 L.Ed.2d 250 (1968), although not warmly persuasive for me, look the other way, and I thus must accede to the judgment of the Court. Justice REHNQUIST, concurring in the judgment. I find this case a close one. As the Court recently noted: "It is axiomatic that for a law to be ex post facto it must be more Footnotes onerous than the prior law." Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Petitioner was clearly disadvantaged by the loss of the opportunity to accrue gain time through good conduct pursuant to the 5-10-15 formula when the legislature changed to a 3-6-9 formula. The new statute, however, also afforded petitioner opportunities not available *38 under prior law to earn additional gain time beyond the good -conduct formula.* The case is not resolved simply by comparing the 5-10-15 formula with the 3-6-9 formula. "We must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous." Ibid. I am persuaded in this case, albeit not without doubt, that the new statute is more onerous than the old, because the amount of gain time which is accrued automatically solely through good conduct is substantially reduced, and this reduction is not offset by the availability of discretionary awards of gain time for activities extending beyond simply "staying out of trouble." This is not to say, however, that no reduction in automatic gain time, however slight, can ever be offset by increases in the availability of discretionary gain time, however great, or that reductions in the amount of credit for good conduct can never be offset by increases in the availability of credit which can be earned by more than merely good conduct. Since the availability of new opportunities for discretionary gain time and the reduction in the amount of automatic gain time can be viewed as a total package, it must be emphasized *39 that nothing in today's decision compels Florida to provide prisoners in petitioner's position with the benefits of the new provisions when this Court has held that Florida may not require such prisoners to pay the price. It is not at all clear that the Florida Legislature would have intended to make available the new discretionary gain time to prisoners earning automatic gain time under the old 5-10-15 formula, when the legislature in fact reduced the 5-10-15 formula when it enacted the new provisions. The question is, of course, one for Florida to resolve. All Citations 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 I Ir,l"1�rLoi +_a,lors. %- dam to Original U- 5 s-;OVerIM1CelII 1Xolks- 7 Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 Fla.Stat. § 944.275(1) (1979); Fla.Stat. § 944.27(1) (1975). At the time of petitioner's offense, Florida used the term "good- time," to refer to extra "allowance for meritorious conduct or exceptional industry." Fla.Stat. § 944.29 (1975). The current Florida law adopts the phrase "gain -time" to apply to various kinds of time credited to reduce a prisoner's prison term. See, e. g., Fla.Stat. § 944.275(3) (1979). 2 The statute also provided for extra discretionary good time, based on other factors. See n. 18, infra. 3 There are some minor language differences in the new provision directing the correctional authorities at the Department of Offender Rehabilitation to make the gain -time deductions. The phrase "who has performed in a satisfactory and acceptable manner the work, duties, and tasks assigned," Fla.Stat. § 944.275(1) (1979), replaces the former phrase, "who has performed in a faithful, diligent, industrious, orderly, and peaceful manner the work, duties, and tasks assigned," Fla.Stat. § 944.27(1) (1975). The new version also explicitly adds that the deductions are to be made "on a monthly basis, as earned," which appears to codify the previous practice The State Supreme Court assigned no significance to these differences in evaluating the ex post facto claim, nor does any party here assert that these minor language changes are relevant to our inquiry. 4 No saving clause limiting the Act's application was included. 1978 Fla.Laws, ch. 78-304. In applying the new schedule to prisoners like petitioner, the Secretary of the Department of Offender Rehabilitation relied on the legal opinion of the Attorney General of Florida. Fla.Op.Atty.Gen. 078-96 (1978). 5 "No State shall ... pass any ... ex post facto Law." U.S.Const., Art. I, § 10, cl. 1. The Florida Constitution similarly provides that "[n]o ... ex post facto law ... shall be passed." Fla.Const., Art. I, § 10. See also Fla Const., Art. X, § 9 (forbidding state legislature to enact a statute "affect[ing] [the] prosecution or punishment" for any offense previously committed). 6 Petitioner estimated that his "tentative expiration date" under Fla Stat. § 944 27 (1975) would be December 31, 1984. App. 15a. The State calculated that application of the new gain -time provision starting with its effective date resulted in a projected release date of February 2, 1987. Id., at 12a-13a. The State does not dispute petitioner's contention that a difference of over two years is at stake. 7 The Florida court also distinguished cases from other jurisdictions striking down retrospective statutes that eliminated the allowance of gain time in specified situations, revised the entire scheme of criminal penalties, and extended the incarceration of juvenile offenders. 376 So.2d, at 857 (distinguishing Dowd v. Sims, 229 Ind. 54, 95 N.E.2d 628 (1950); Goldsworthy v. Hannifin, 86 Nev. 252, 468 P.2d 350 (1970); In re Dewing, 19 Cal.3d 54, 136 Cal.Rptr. 708, 560 P.2d 375 (1977); and In re Valenzuela, 275 Cal.App.2d 483, 79 Cal.Rptr 760 (1969)). 8 U.S.Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. "So much importance did the [c]onvention attach to [the ex post facto prohibition], that it is found twice in the Constitution." Kring v. Missouri, 107 U.S. 221, 227, 2 S.Ct. 443, 448, 27 L.Ed. 506 (1883). 9 "The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty" after the fact. Calder v. Bull, 3 Dall., at 397 (Paterson, J.). See also Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810) ("An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed"). 10 The ex post facto prohibition also upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law. Cf. Ogden v. Blackledge, 2 Cranch 272, 277, 2 L. Ed. 276 (1804). 11 See Jaehne v. New York, 128 U.S. 189, 194, 9 S.Ct. 70, 71, 32 L.Ed. 398 (1888) (portion of legislation void which "'should endeavor to reach by its retroactive operation acts before committed' ") (quoting T. Cooley, Constitutional Limitations 215 (5th ed. 1883)). 12 We have also held that no ex post facto violation occurs if the change effected is merely procedural, and does "not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). See Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form. Thompson v. Utah, 170 U.S. 343, 354-355, 18 S.Ct. 620, 624, 42 L.Ed. 1061 (1898); Kring v. Missouri, supra, at 232, 2 S.Ct., at 452. 13 In using the concept of vested rights, Harris v. Wainwright, 376 So.2d, at 856, the Florida court apparently drew on the test for evaluating retrospective laws in a civil context. See 2 C. Sands, Sutherland on Statutory Construction § 41.06 (4th ed. 1973); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 696 (1960); Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn.L.Rev. 775, r.:: I I hoo;,--on 0, Iaini to, original t].S Gym,;i, ,:,. ,. wo Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 782 (1936). Discussion of vested rights has seldom appeared in ex post facto analysis, as in identifying whether the challenged change is substantive rather than procedural. Hopt v. Utah, supra, 110 U.S., at 590, 4 S.Ct., at 210. When a court engages in ex post facto analysis, which is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred, it is irrelevant whether the statutory change touches any vested rights. Several state courts have properly distinguished vested rights from ex post facto concerns. E. g., State v. Curtis, 363 So.2d 1375, 1379, 1382 (La.1978); State ex rel. Woodward v. Board of Parole, 155 La. 699, 700, 99 So. 534, 535-536 (1924); Murphy v. Commonwealth, 172 Mass. 264, 272, 52 N.E. 505, 507 (1899). Respondent here advances several theories that incorporate the vested rights approach. For example, respondent defends Fla.Stat. § 944.275(1) (1979) on the ground that it does not take away any gain time that petitioner has already earned. Brief for Respondent 39-40. Although this point might have pertinence were petitioner alleging a due process violation, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct, 2963, 41 L.Ed.2d 935 (1974), it has no relevance to his ex post facto claim. 14 Durant v. United States, 410 F.2d 689, 691 (CA1 1969); Adkins v. Bordenkircher, 262 S.E.2d 885, 887 (W.Va.1980); Goldsworthy v. Hannifin, 86 Nev., at 256-257, 468 P.2d, at 352. See Murphy v. Commonwealth, supra, at 272, 52 N.E., at 507. 15 "The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised." Cummings v. Missouri, 4 Wall. 277, 325, 18 L.Ed. 356 (1867). 16 See App. 12a-13a (Affidavit, Louie Wainwright, Secretary, Department of Corrections). 17 Even when the sentence is at issue, a law may be retrospective not only if it alters the length of the sentence, but also if it changes the maximum sentence from discretionary to mandatory. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). The critical question, as Florida has often acknowledged, is whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence. Greene v. State, 238 So.2d 296 (Fla.1970); Higginbotham v. State, 88 Fla, 26, 31, 101 So. 233, 235 (1924); Herberle v. P. P. O. Liquidating Co., 186 So.2d 280, 282 (Fla.App.1966). Thus in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), we held there was no ex post facto violation because the challenged provisions changed the role of jury and judge in sentencing, but did not add to the "quantum of punishment." Id., at 293-294, 97 S.Ct. at 2298. In Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915), we concluded that a change in the method of execution was not ex post facto because evidence showed the new method to be more humane, not because the change in the execution method was not retrospective. Id., at 185, 35 S.Ct., at 509. 18 These other provisions permit discretionary grants of additional gain time for inmates who not only satisfy the good - conduct requirement, but who also deserve extra reward under designated categories. Under § 944.275(3)(b) (1979), "special gain -time" of 1 to 60 days "may be granted" to an "inmate who does some outstanding deed, such as the saving of a life or assisting in the recapturing of an escaped inmate." Another provision specifies that an inmate "may be granted" one to six extra gain -time days per month if he "faithfully performs the assignments given to him in a conscientious manner over and above that which may normally be expected of him" and also either shows "his desire to be a better than average inmate" or "diligently participates in an approved course of academic or vocation study." § 944.275(3)(a). An inmate may be awarded up to one gain -time credit for labor evaluated "on the basis of diligence of the inmate, the quality and quantity of work performed, and the skill required for performance of the work." § 944.275(2)(b). Finally, for inmates unable to qualify under this previous provision due to "age, illness, infirmity, or confinement for reasons other than discipline," additional gain time of up to six days per month may be granted for "constructive utilization of time." § 944.275(2)(e). 19 In addition, few of the "new" sources for extra gain time do more than reiterate previous opportunities provided by statute or state regulation. Compare Fla.Stat. § 944.275(3)(a) (1979) with § 944.29 (1975) ("an extra good-time allowance for meritorious conduct or exceptional industry"); Fla.Stat. § 944.275(2)(b) (1979) with § 944.27 (1975) (authorizing administrative rules governing additional gain time) and Fla.Admin.Code, Rule 10B-20.04(1) (1975) (gain time for construction labor project); Fla.Stat. § 944.275(3)(b) (1979) with Rule 10B-20.04(2) (1975) (gain time for outstanding deed). Moreover, under the statute in existence when petitioner's crime occurred, the Department of Corrections enjoyed greater discretion as to the reasons for awarding extra gain time, and as to the amount that could be awarded. See § 944.29 (1975). 20 As respondent put it, "all any prisoner had to do ... was to stay out of trouble." Brief for Respondent 25. The monthly gain -time provision, both at the time of petitioner's offense and now, directed that the Department of Corrections "shall" award gain time to those who obey the rules and perform their work satisfactorily. Fla.Stat. § 944.27(1) (1975); Fla.Stat. § 944.275(1) (1979). The discretionary extra gain time cannot fully compensate for the reduced accumulation of gain time Weaver v. Graham, 450 U.S. 24 (1981) 101 S.Ct. 960, 67 L.Ed.2d 17 for good behavior, for the discretionary credit is more uncertain. Cf. In re Medley, 134 U.S. 160, 172, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890) (rejecting nondisclosure of execution date as ex post facto increase of uncertainty and mental anxiety). Moreover, replacement of mandatory sentence reduction with discretionary sentence reduction cannot be permissible in light of Lindsey v. Washington, 301 U.S., at 401, 57 S.Ct., at 799, There we rejected as an ex post facto violation a legislative change from flexible sentencing to mandatory maximum sentencing because the retrospective legislation restricted defendants' opportunity to serve less than the maximum time in prison. 21 We need not give lengthy consideration to respondent's claim that the challenged statute, Fla.Stat. § 944.275(1) (1979), is merely procedural because it does not alter the punishment prescribed for petitioner's offense. Brief for Respondent 13, 17-18. This contention is incorrect, given the uncontested fact that the new provision reduces the quantity of gain time automatically available, and does not merely alter procedures for its allocation. See supra, Part II —A. Respondent's reliance on a general statement of legislative intent unrelated to the gain -time provision, see Brief for Respondent 17 (citing Fla.Stat. § 944.012(6) (1979)), is also unpersuasive. 22 The proper relief upon a conclusion that a state prisoner is being treated under an ex post facto law is to remand to permit the state court to apply, if possible, the law in place when his crime occurred. See Lindsey v. Washington, supra, at 402, 57 S.Ct., at 799; In re Medley, supra, at 173, 10 S.Ct., at 388. In remanding for this relief, we note that only the ex post facto portion of the new law is void as to petitioner, and therefore any severable provisions which are not ex post facto may still be applied to him. See 2 C. Sands, Sutherland on Statutory Construction § 44.04 (4th ed. 1973). * While the Court points out that gain time was available under the old scheme beyond the 5-10-15 formula, ante, at 967, n. 19, 1 am not convinced that the new sources simply "reiterate[d]" opportunities previously available. There is, for example, no dispute that several of the new sources of gain time have no analogues in the previous statutory or administrative scheme. See, e. g., Fla.Stat. § 944.275(2)(e) (1979) (up to six days of gain time per month because of age, illness, infirmity, or confinement for reasons other than discipline); § 944.275(3)(a) (up to six days per month for inmates who diligently participate in an approved course of academic or vocational study). Other new statutory provisions which had only administrative counterparts improved substantially on the availability of gain time. For example, under the old administrative system, an inmate could receive from 1 to 15 days of gain time per month for constructive labor, Fla.Admin.Code, Rule 1013-20.04(1) (1975), while under the new statutory scheme, an inmate can receive up to 1 day of gain time for every day of constructive labor, Fla.Stat. § 944.275(2)(b) (1979). End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 10 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Doe v. Dept. of Public Safety ex rel. Lee, 2nd Cir. (Conn.), October 19, 2001 124 F.3d 1079 United States Court of Appeals, Ninth Circuit. Willie RUSSELL, Johnny Stearns, Plaintiffs —Appellants, V. Christine GREGOIRE, James Blodgett, Chase Riveland, Norman Stamper, Norm Maleng, Annette Sandburg, James Montgomery, Lyle Quasim, Everett Police Dept., James Scharf, Sheriff, Janet Barbour, Defendants —Appellees. No. 96-35398• Argued and Submitted Nov. 5, 1996. 1 Decided Sept. 4, 1997• Synopsis Convicted sex offenders brought § 1983 action challenging state's community notification statute, which required registration by offenders and disclosure of offenders' conviction information to local community. The United States District Court for the Western District of Washington, Carolyn R. Dimmick, J., denied offenders' motions for preliminary injunction preventing notification, and offenders appealed. The Court of Appeals, O'Scannlain, Circuit Judge, held that: (1) whether statute violated ex post facto clause would be determined under "intent -effects" test; (2) registration element of statute did not violate ex post facto clause; (3) notification element of statute did not violate ex post facto clause; (4) statute did not violate any constitutional right to privacy; and (5) statute did not violate due process. Affirmed. West Headnotes (12) III Injunction - Grounds in general; multiple factors Preliminary injunction may issue if movant has shown either likelihood of success on merits and possibility of irreparable injury, or that serious questions are raised and balance of hardships tips sharply in movant's favor. l Cases that cite this headnote 121 Federal Courts - Preliminary injunction; temporary restraining order Court of Appeals reviews district court's order denying preliminary injunction for abuse of discretion, which occurs if district court bases its decision on erroneous legal standard or on clearly erroneous findings of fact, but Court reviews de novo legal issues underlying decision to deny injunction, as well as conclusion that plaintiffs are likely to fail on merits of those issues. 1 Cases that cite this headnote 131 Federal Courts - Matters of Substance Court of Appeals has discretion to hear arguments not raised in district court if issue is purely one of law and either issue does not depend on factual record developed below or pertinent record has been fully developed. 141 Constitutional Law Penal laws in general Question of whether particular statute imposes punishment, for purpose of ex post facto clause, is to be determined under "intent -effects" test, which inquires whether legislature intended sanction to be punitive and whether sanction is so punitive in effect as to prevent court from legitimately viewing it as regulatory or civil in nature, despite legislature's intent. U.S.C.A. Const. Art. 1, § 10, cl. 1. -'int; son c;,A 'i to ori4' lull ll Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal [�A­R. 11,517 36 Cases that cite this headnote 151 Constitutional Law Purpose Intent portion of test for determining whether statute violates ex post facto clause, which inquires whether legislature intended sanction to be punitive, looks solely to declared purpose of legislature as well as structure and design of statute; whether particular sanction, or class of sanctions, has historically been considered punishment does not properly belong in analysis of legislature's intent. U.S.C.A. Const. Art. 1, § 10, cl. 1. l 1 Cases that cite this headnote 161 Constitutional Law - Penal laws in general Effects portion of test for determining whether statute violates ex post facto clause requires party challenging statute to provide clearest proof that statutory scheme is so punitive either in purpose or effect as to negate state's nonpunitive intent. U.S.C.A. Const. Art. 1, § 10, cl. 1. 15 Cases that cite this headnote No ex post facto problem occurs when legislature creates new offense that includes prior conviction as element of offense, as long as other relevant conduct took place after law was passed. U.S.C.A. Const. Art. 1, § 10, cl. 1. 17 Cases that cite this headnote 191 Constitutional Law _ - Sex Offenders Mental Health - - Sex offenders Statute authorizing public agencies to release relevant and necessary information regarding convicted sex offenders to public when release of information is necessary for public protection did not amount to "punishment" in violation of ex post facto clause, as to offenders who were convicted before statute was enacted; statute had regulatory and remedial purpose, regardless of whether heated public sentiment motivated its enactment, and sanction was not so punitive in effect as to overcome nonpunitive legislative intent, regardless of possible resulting humiliation, public opprobrium, ostracism, and loss of job opportunities. U.S.C.A. Const. Art. 1, § 10, cl. 1; West's RCWA 4.24.550(1). 29 Cases that cite this headnote 171 Constitutional Law - Registration Mental Health 1 - Sex offenders 1101 Constitutional Law Penal laws in general State statutory requirement that convicted sex That sanction has deterrent purpose does not offenders register with local law enforcement make it punitive, for purpose of ex post facto agencies did not amount to "punishment" subject analysis. U.S.C.A. Const. Art. 1, § 10, cl. 1. to ex post facto clause, as to offenders who 1 Cases that cite this headnote were convicted before statute was enacted; statute evidenced regulatory, not punitive, intent, and sanction was not so punitive in effect 1111 Constitutional Law --- Sex offenders as to overcome nonpunitive legislative intent, Mental Health . = Sex offenders even though statute imposed affirmative duty to State statute requiring convicted sex offenders to register and criminal penalty for failure to do so. register with local law enforcement authorities U.S.C.A. Const. Art. 1, § 10, cl. 1; West's RCWA and requiring disclosure of offenders' conviction 9A.44.130. information to community did not violate any constitutional right to privacy. West's RCWA 80 Cases that cite this headnote 4.24.550, 9A.44.130. 181 Constitutional Law Particular Offenses 23 Cases that cite this headnote Criminal Law ---- Retroactive operation 2., Y I I l l ii ! JW—i' s. No cl:aii o to CSrii}mal 11 No0,,s. !'- Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op, Serv. 7137, 97 Daily Journal D.A.R. 11,517 1121 Constitutional Law . - Classification and registration; restrictions and obligations Mental Health . Sex offenders State statute which required registration by convicted sex offenders and disclosure of offenders' conviction information to local community did not deprive offenders of liberty interest and thus did not violate due process. U.S.C.A. Const.Amend. 14; West's RCWA 4.24.550, 9A.44.130. 28 Cases that cite this headnote Attorneys and Law Firms *1081 Todd Maybrown, Allen, Hansen & Maybrown, P.S., Seattle, WA, for plaintiffs -appellants. John J. Samson, Assistant Attorney General, Olympia, WA, Sandra L. Cohen, Assistant City Attorney, City of Seattle, Thomas W. Kuffel, Deputy Prosecuting Attorney, King County Prosecuting Attorney's Office, Seattle, WA, Jill Vanneman, Assistant City Attorney, Everett City Attorney's Office, Everett, WA, for defendants -appellees. Leonard Schaitman and Wendy M. Keats, United States Department of Justice, Washington, DC, for amicus curiae. Appeal from the United States District Court for the Western District of Washington; Carolyn Dimmick, District Judge, Presiding. D.C. No. CV-95-01486—CRD. Before: WRIGHT, BRUNETTI, and O'SCANNLAIN, Circuit Judges. Opinion O'SCANNLAIN, Circuit Judge: We must decide whether a Washington statute of the kind popularly referred to as "Megan's law" violates the Constitution. Willie Russell and Johnny Stearns are both convicted sex offenders who have been released from confinement and are now residing in Washington State. Russell was convicted in Washington in 1989 of second degree rape and attempted second degree rape; Stearns was convicted in Washington in 1989 of first degree robbery and attempted second degree rape. Both were imprisoned. In 1990, the Washington legislature passed the Community Protection Act, 1990 Wash. Laws, ch. 3 ("the Act") which included provisions requiring sex offenders to register with local law enforcement authorities and subjecting some offenders to community notification of conviction information including the offender's photograph and approximate residential location.I *1082 After their releases, both Russell and Stearns registered as required. Each learned that he would be subject to community notification under the Act. In early 1996, each filed civil rights actions under 42 U.S.C. § 1983 against various state officials, including Washington Attorney General Christine Gregoire, claiming that the registration and notification provisions of the Act would deprive him of his constitutional rights, and requesting declaratory and injunctive relief. Specifically, each claimed that the Act violated the Ex Post Facto Clause, and abridged his rights to privacy and due process. lJ The Act requires both registration and notification. The registration element provides that any person convicted of a sex offense (or found not guilty by reason of insanity of a sex offense) register with the sheriff for the county of the person's residence. Wash. Rev.Code § 9A.44.130(1). The offender must provide his or her name, address, date and place of birth, place of employment, crime for which he or she was convicted, date and place of conviction, aliases used, and social security number. Id. at § 9A.44.130(2). The sheriff must obtain a photograph and a copy of the offender's fingerprints. Id. at § 9A.44.130(5). The information is forwarded to the Washington State Patrol for inclusion in a central registry. Id. at § 43.43.540. A sex offender released from custody must register within 24 hours of his or her release; sex offenders who change addresses must register within 10 days of the change. Id. at § 9A.44.130(3)(a). The Act also requires a sex offender convicted in another jurisdiction to register within 30 days of moving into Washington. Id. If a sex offender changes residences, he or she must notify the sheriff 14 days before I I i u rl ,sm i MI Ciao; to orlgn idl 0 a. 1,, covermrwnl Wofks. `3 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 moving, or, if not within 14 days, as soon as the new address is known. Id. at § 9A.44.130(4). Failure to register within the time required is punishable as a Class C felony or gross misdemeanor depending on the degree of the offender's underlying sex offense. Id. at § 9A.44.130(7). I� The notification element authorizes public agencies to release "relevant and necessary information" regarding a sex offender2 to the public when "necessary for public protection." Id at § 4.24.550. The Washington Supreme Court3 has held that "a public agency must have some evidence of an offender's future dangerousness, likelihood of reoffense, or threat to the community, to justify disclosure to the public in a given case." State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1070 (1994). "An agency must disclose only that information relevant to and necessary for counteracting the offender's dangerousness." Id. Any notice given to the public must contain a warning against violence towards the offender. Id. Further, information may only be disseminated within a narrow geographic area. Id. 869 P.2d at 1070-71. Prior to an offender's release, Washington's Sex Offender Oversight Committee reviews information provided by the Department of Corrections to assess the seriousness level of the offender. If an offender is classified as Level One, no public notification occurs. If an offender is classified as Level Two, standard notification forms are provided to government and law enforcement agencies, to schools within the federal census tract where the offender is living, and to Block Watch Captains in that census tract and the adjoining census tracts. If an offender is classified as Level Three, notification forms are distributed in the same way, but are also provided to local news media. *1083 Russell and Stearns were each classified as Level Three offenders. The notification form provides the offender's picture, name, age, date of birth, and other identifying information. It also contains a summary of the offender's crime and the general vicinity of the offender's residence. It does not contain the offender's exact address, nor does it contain any information about the offender's employment. Finally, the form has a long "caveat" regarding the information contained in the notice, including a warning that threats, intimidation, or harassment of the offender "will not be tolerated." C The district court granted and renewed Temporary Restraining Orders in favor of Russell and Stearns, preventing law enforcement agencies from making the statutory notification to the community until hearing argument on their motions for preliminary injunction. After a hearing, the district court denied their motions for preliminary injunction, thus permitting notification. Russell and Stearns filed this timely joint appeal from the order denying a preliminary injunction. W III A preliminary injunction may issue "if the movant has shown either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor." Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1438 (9th Cir.1997) (quotation marks and citation omitted). 121 (3) We review the district court's order denying a preliminary injunction for an abuse of discretion, which occurs if the district court bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. Does 1-5 v. Chandler, 83 F.3d 1150, 1152, (9th Cir.1996). We review de novo the legal issues underlying the decision to deny an injunction, as well as the conclusion that plaintiffs are likely to fail on the merits of those issues. International Molders' and Allied Workers' Local Union No. 164 a Nelson, 799 F.2d 547, 551 (9th Cir.1986).4 141 Article 1, § 10 of the Constitution provides: "No State shall ... pass any ... ex post facto Law...." It prohibits the states from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)). "[T]he focus of the ex post,facto inquiry is not on whether a legislative change produces some sort of `disadvantage,' ... but on whether %f,.' I -hran,tinil Rc., itnr5. No lain, Its ❑nmir it II. _.over;innorol Works Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dept of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995); see Collins a Youngblood, 497 U.S. 37, 50-52, 110 S.Ct. 2715, 2723-24, 111 L.Ed.2d 30 (1990). Since Russell and Stearns argue that the Act is an ex post facto law, the principal question presented in this case is whether the registration and notification provisions impose "punishment." *1084 A Our court has not previously established a clear test to determine what constitutes punishment under the Ex Post Facto Clause. Likewise, the Supreme Court has not articulated a "formula" for identifying the legislative changes that fall within the constitutional prohibition. Morales, 514 U.S. at 508-10, 115 S.Ct. at 1603. In Kennedy v. Mendoza -Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), a case dealing with the procedural safeguards of the Fifth and Sixth Amendments, the Court enumerated factors to be considered: Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -retribution and deterrence, whether the behavior to which it applies is already a crime, whether alternative purposes to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Id. at 168-69, 83 S.Ct. at 567-68. As the Court later noted, however, Mendoza-Martinez's list of considerations is often "helpful" but is "certainly neither exhaustive nor dispositive." United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). The Supreme Court has decided a series of punishment cases recently, including United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).5 Ursery held that in rem civil forfeitures were not punishments under the Double Jeopardy Clause. In reaching that conclusion, the Court returned to the two-part test for punishment it announced in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), which we shall call the "intent -effects" test. "First, we ask whether Congress intended proceedings ... to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to `persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature,' despite Congress' intent." Ursery, 518 U.S. at , 116 S.Ct. at 2147 (quoting 89 Firearms, 465 U.S. at 366, 104 S.Ct. at 1107). The Court in Ursery applied a broad view of nonpunitive purposes for the provision, and allowed only "the `clearest proof' " of a punitive effect to overwhelm a nonpunitive purpose. Id. at 116 S.Ct. at 2147-48; Sardone, 94 F.3d at 1235- 36. And although the Court did not explicitly cite Mendoza - Martinez, its analysis under the "effects" prong examined many of the Mendoza -Martinez factors: whether the statute has nonpunitive goals or effects, whether the sanction has historically been regarded as punishment, whether scienter is required, and whether it is tied to criminal activity. Ursery, 518 U.S. at , 116 S.Ct. at 2148-49. Ht On the surface, it would appear that Ursery's version of the "intent -effects" test *1085 should govern this case. After we had oral argument in this case, however, the Supreme Court handed down two decisions construing the Ex Post Facto Clause: Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), and Kansas v Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501. We must first determine the impact of Lynce and Hendricks on the Ursery test for punishment. In Lynce, Florida had granted early release credits to state prisoners to alleviate prison overcrowding. It later revoked those credits for certain violent offenders, including Lynce, who had already been released. As a result, Lynce was rearrested and incarcerated. The Court ruled that the application of the revocation to Lynce violated the Ex Post Facto Clause. Lynce is the latest installment in the line of cases dealing with changes in the law that decrease the chances that a prisoner will be released from prison early or will receive a shorter prison term. This line began with Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), which held that C�l ii'.. I oil?�. >il "'I:;F,rj,ISI;�!I Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 a retrospective law setting a minimum prison sentence was ex post facto "since the measure of punishment prescribed by the later statute is more severe than that of the earlier." Id. at 401, 57 S.Ct. at 799. Later, the Court decided Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), ruling that a law reducing the availability of "gain time" credits for early release for prisoners violated the Ex Post Facto Clause because it made "more onerous the punishment for crimes committed before its enactment." Id. at 36, 101 S.Ct. at 968. Then, in Miller v Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the Court, quoting language from both Lindsey and Weaver, invalidated the retrospective application of a state sentencing guidelines statute which increased the petitioner's presumptive prison sentence. Id. at 432-35, 107 S.Ct. at 2452-54. Each case in the Lindsey —Weaver —Miller trio contained language suggesting that enhancements to the measure of punishment are prohibited by the Ex Post Facto Clause because they operate to the "disadvantage" of covered offenders. See Lindsey, 301 U.S. at 401, 57 S.Ct. at 799; Weaver, 450 U.S. at 29, 101 S.Ct. at 964-65; Miller; 482 U.S. at 433, 107 S.Ct. at 2452-53. In Collins v Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718-19, 111 L.Ed.2d 30 (1990), however, the Supreme Court conducted an extensive examination of the original understanding of the Ex Post Facto Clause and disapproved of similar "disadvantage" language. The Court went a step further in California Dept of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), which upheld California's retrospective increase in the time between parole hearings for serious offenders. Morales expressly repudiated the Lindsey — Weaver —Miller trio's "disadvantage" language and stated that it "was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins." Id. at 506 n. 3, 115 S.Ct. at 1602 n. 3 (citation omitted). Instead, "the focus of the ex post facto inquiry is ... on whether a legislative change ... alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Id. What is the common thread of these cases? When seen in the light of the Collins —Morales framework, Lindsey, Weaver, Miller, and Morales each turned on whether the change increased the quantum of punishment attached to an already -committed crime. The Court in those cases had no need to determine the threshold question of whether the sanction was punishment since a criminal sentence of imprisonment is plainly punishment. Properly viewed, these are not punishment -defining cases at all. Lynce is no different. It focuses on whether the Florida statute increased Lynce's punishment -not on whether Lynce's reimprisonment was punishment in the first place. See, e.g., Lynce, 519 U.S. at , 117 S.Ct. at 895 ("The narrow issue that we must decide is ... whether [the] consequences [of the law] disadvantaged petitioner by increasing his punishment."); id. at , 117 S.Ct. at 897 ("[Morales concluded that] the change at issue had neither the purpose nor the effect of increasing the quantum of punishment." *1086 ); id, at n. 16, 117 S.Ct. at 898 n. 16 (distinguishing Morales because statutory scheme there was not "more `onerous' "). Most significantly, Lynce does not even mention Ursery or the other cases addressing whether a particular sanction is punishment, but confined itself to a discussion of Lindsey, Weaver, Miller, and Morales. Understanding Lynce 's place in the Court's jurisprudence is important for our decision today. Russell and Stearns point out in their supplemental brief that Lynce contains a discussion of the limited role of legislative intent in examining whether a sanction increases the quantum of punishment. See id. at , 117 S.Ct. at 897. They argue that Lynce thereby discards, sub silentio, Ursery's "intent -effects" test. We reject this argument for two reasons. First, Lynce teaches only that legislative intent is not generally relevant to whether the amount of a given punishment has increased. Lynce did not question whether the prison sentence was punishment, but only whether a decrease in early release credits increased that punishment. In contrast, intent is very important in determining whether a particular sanction is punishment in the first place. Ursery, 518 U.S. at , 116 S.Ct. at 2147. These are distinct questions, and legislative intent is crucial in answering the latter, but not necessarily so in answering the former. Second, the Court has just reiterated the primacy of legislative intent in Hendricks, to which we now turn. 2 Hendricks involved Kansas' Sexually Violent Predator Act, which establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or "personality disorder," are likely to engage in "predatory acts of sexual violence." Hendricks, 521 U.S. at , 117 S.Ct. at 2076. The Court ruled that, even though sexual predators are �J ;7O,2 ! i holy )! (,on q1!) origin,! U. S. 11i,over3i.ineri; VV)rks G Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 confined in state institutions, the Kansas Act does not constitute punishment and therefore does not violate the Ex Post Facto and the Double Jeopardy Clauses. In reaching its conclusion, the Court applied essentially the same test for punishment as in Ursery: We must initially ascertain whether the legislature meant the statute to establish "civil" proceedings. If so, we ordinarily defer to the legislature's stated intent.... Although we recognize that a "civil label is not always dispositive," we will reject the legislature's manifest intent only where a party challenging the statute provides "the clearest proof' that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. Id, at , 117 S.Ct. at 2082 (citation and brackets omitted). To prove that a civil proceeding imposes punishment is a "heavy burden." Id. Indeed, even if the legislature's nonpunitive purpose was merely ancillary to another overriding or primary purpose of the statute, a court may conclude that the statute is not punitive. Id. at , 117 S.Ct. at 2082. The Court went on to note that the Kansas statute does not implicate either of the two primary objectives of criminal punishment, retribution and deterrence, and does not turn on a finding of scienter. Id. at , 117 S.Ct. at 2082. That the statute imposes an affirmative restraint and imposes a sanction traditionally regarded as punishment does not override its nonpunitive nature. Id. at , 117 S.Ct. at 2079. C 151 161 Where does the Ursery punishment test stand now? We are persuaded that the Court's approach to the punishment question is essentially the same in both Ursery and Hendricks. Nothing in Lynce is to the contrary. Consequently, we will apply the Ursery—Hendricks "intent -effects" test to determine whether the Act imposes punishment.6 When examining whether a law violates the *1087 Ex Post Facto Clause, we inquire whether (1) the legislature intended the sanction to be punitive, and (2) the sanction is "so punitive" in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the legislature's intent. Ursery, 518 U.S. at , 116 S.Ct. at 2147; see Hendricks, 521 U.S. at 117 S.Ct. at 2080. The first part of the test ("intent") looks solely to the declared purpose of the legislature as well as the structure and design ofthe statute. Ursery, 518 U.S. at 116 S.Ct. at 2147 (examining terms used by Congress and structure of forfeiture statute under first part of test); see United States v. Huss, 7 F.3d 1444, 1447 (9th Cir.1993) (deciding pre-Ursery that court should look to intent and design of statute as well as effects). The second part of the test ("effects") requires the party challenging the statute to provide "the clearest proof' that the statutory scheme is so punitive either in purpose or effect as to negate the State's nonpunitive intent. Hendricks, 521 U.S. at , 117 S.Ct. at 2082; Ursery, 518 U.S. at , 116 S.Ct, at 2148. See Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960) ("[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute on [the ground that the `history and scope' of the statute reveal a punitive purpose notwithstanding the legislative intent]."). In assessing the Act's effects, we shall refer to the appropriate Mendoza —Martinez factors. See Hendricks, 521 U.S. at , 117 S.Ct. at 2079-80, 2082 (considering some Mendoza —Martinez factors); Ursery, 518 U.S. at 116 S.Ct. at 2148-49 (same). IV 171 We now turn our attention to the registration portion of the Act. Applying the "intent -effects" test, we must first look at the language of the statute to see if we may discern the legislature's intent. A Section 401 of the Act declares: The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement's efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency's jurisdiction. Therefore, this state's policy is to assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in section 402 of this act. 1990 Wash. Laws, ch. 3, § 401. The Supreme Court of Washington looked no further than this recital in determining r; Ire [>ju, i it o, igilInI ! 1 I riff • •;,I .Afc ; i,s= 7 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 the intent of the Legislature, noting that the statement of purpose evidences an unequivocal regulatory motivation, State v. Ward, 869 P.2d at 1068, and we agree. The overall design of the statute's registration provisions indicates a regulatory, not punitive, intent. Registration does no more than apprise law enforcement officials of certain basic information about an offender living in the area. It places no restraint on the offender's movements; an offender need only notify the sheriff of any change of address 14 days before moving, or, if not within 14 days, as soon as the new address is known. Wash. Rev.Code § 9A.44.130(4). He or she may do so by simply mailing a written notice to the sheriff. Id. The information required to be divulged in registering is not burdensome -an offender must provide his or her name, address, date and place of birth, place of employment, crime of conviction, date and place of conviction, aliases used, and social security number. Id. at § 9A.44.130(2). A less - serious offender's duty to register terminates after 10 or 15 years, depending on the class of the underlying offense. Id. at § 9A.44.140(1). These provisions evidence a *1088 clear intent to monitor the whereabouts of the offender; we are satisfied that they do not manifest any intent to punish. IQ The second part of the "intent -effects" test asks whether Russell and Stearns have provided "the clearest proof' that the sanction is "so punitive" in effect that it overcomes the nonpunitive legislative intent. Their only argument on this point is that the registration requirement imposes an affirmative duty to register and a criminal penalty for failure to do so -a situation they claim is analogous to Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), and United States v. Paskow, 11 F.3d 873 (9th Cir.1993). Those cases are properly distinguished, however. In Weems, the Supreme Court examined whether a sentence imposed under Philippine law for falsifying a public document -a crime committed by the mere misstatement of facts in a public document even if there was no intent to defraud or actual injury to another -was cruel and unusual punishment. Weems was sentenced to twelve years "hard and painful" labor while shackled at wrist and ankle, "civil interdiction" (loss of property rights, marital rights, and rights of parental authority), perpetual loss of political rights, and perpetual "surveillance" which included notifying authorities of his domicile and obtaining written permission to change residences. The Court concluded that the sentence was cruel and unusual punishment because it was disproportionately harsh when compared to the crime committed. Weems, 217 U.S. at 380-81, 30 S.Ct. at 554-55. In describing the harsh nature of the sentence, the Court discussed the burdens of 11surveillance".8 Russell and Stearns latch on to this dictum as demonstrating the severe effects of registration. With clever ellipses, however, they omit from their quotation the fact that Weems not only had to inform the authorities of his domicile, but also had to obtain written permission from them to change residences. Obtaining permission to move is a much greater burden than simple registration, and the Court's language should be read with this sanction in mind. Even the Third Circuit, which has formulated a much broader test for punishment, concluded that, especially in light of the other harsh penalties imposed on Weems, "the Court's dictum about the harshness of `surveillance' hardly establishes that registration is `punishment.' " Artivay v. Attorney General of New Jersey, 81 F.3d 1235, 1266 (3rd Cir.1996) (addressing New Jersey's sex offender registration requirement). Paskow involved an offender whose supervised release was revoked after he violated the terms of that release. A statute passed after he committed the underlying offense -but before he violated the terms of his supervised release -imposed a mandatory minimum period of revocation, which we held violated the Ex Post Facto Clause. Paskow, I F.3d at 875- 76. Paskow is distinguishable, however, because anyone punished for fail ing to register under the Act is being punished for a new offense, and hence no ex post facto problem exists. In Paskow, we noted that "[r]evocation of parole is not a punishment for a new offense, although the conduct on which revocation is based may be punished separately. For revocation purposes, the conduct simply triggers the execution of the conditions of the original sentence." Id. at 881. 181 We emphasize that the crime of failing to register under the Act constitutes a separate offense. The fact that a prior conviction for sexual misconduct is an element ofthe "failure to register" offense is of no consequence. It is hornbook law that no ex post facto problem occurs when the legislature creates anew offense that includes a prior *1089 conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed. The Supreme Court has recently suggested as much. See United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). i Mot1rtir.H7 1 :ilCfti;r6. MIci c,.toi ni to nrigirn_rl IJ.,S '.;avurnrnrni VVcffks 8 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 C A consideration of the other Mendoza —Martinez factors does not support a finding that registration has a punitive effect: no affirmative restraint or disability is imposed; registration is typically and historically a regulatory measure; it does not have a retributive purpose but does have legitimate nonpunitive purposes; and it is not excessive given the state interest at stake. Although registration arguably has a deterrent effect, Ursery declared that deterrence can serve both civil and criminal goals. Ursery, 518 U.S. at , 116 S.Ct. at 2149 (citing Bennis v. Michigan, 516 U.S. 442, , 116 S.Ct. 994, 1000, 134 L.Ed.2d 68 (1996)). Ursery also noted that the fact that a sanction may be tied to criminal activity alone is insufficient to render the sanction punitive. Id.; see Hendricks, 521 U.S. at , 117 S.Ct. at 2082. Finally, registration provisions have overwhelmingly been sustained as constitutional by other courts. See, e.g., Doe v. Pataki, 120 F.3d 1263, 1265-66 (2d Cir.1997); Arhway, 81 F.3d at 1267; Doe v. Kelley, 961 F.Supp. 1105 (W.D.Mich.1997); Doe v. Weld, 954 F.Supp. 425 (D.Mass.1996); People v. Afrika, 168 Misc.2d 618, 648 N.Y.S.2d 235 (N.Y.Sup.Ct.1996); Doe a Poritz, 142 N.J. 1, 662 A.2d 367 (1995); State v. Costello, 138 N.H. 587, 643 A.2d 531, 533 (1994); State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992); Kitze v Commonwealth, 23 Va.App. 213, 475 S.E.2d 830 (1996); State v. Manning, 532 N.W.2d 244 (Minn.Ct.App.1995). But ef. Rowe v. Burton, 884 F.Supp. 1372 (D.Alaska 1994) (holding registration is punitive where dissemination of information will result). In another case addressing the ex post facto implications of the Act, a different district judge in the Western District of Washington has concluded that the registration provision of the Act is constitutional, and we agree. Doe v Gregoire, 960 F.Supp. 1478, 1484 (W.D.Wash. 1997). Thus, we are satisfied that, as a matter of law, the registration provisions of the Act do not amount to punishment subject to the Ex Post Facto Clause. V 191 We next turn to the notification portion of the Act. The statute authorizes "[p]ublic agencies ... to release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection." Wash. Rev.Code § 4.24.550(1). The Washington Supreme Court construed this provision as requiring a public agency to "have some evidence of an offender's future dangerousness, likelihood of reoffense, or threat to the community, to justify disclosure to the public in a given case. This statutory limit ensures that disclosure occurs to prevent future harm, not to punish past offenses." State v Ward, 869 P.2d at 1070. The court also found an implied geographic limitation on the dissemination ofthe information. Id. at 1070-71. Notification provides the public with the offender's name, picture, age, date of birth, facts regarding the offender's convictions, and the general vicinity of the offender's domicile. The notification form also contains a caveat and a statement that harassment "wil l not be tolerated." The district court considered the overall design of the notification regime, including the additional requirements imposed by the Washington Supreme Court, and concluded that notification is not punitive. A As we did in the analysis of the registration provision, in applying the "intent -effects" test, we look first to the language of the notification provision of the statute. Section 116 of the Act provides: The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is a *1090 paramount governmental interest. The legislature further finds that the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Overly restrictive confidentiality and liability laws governing the release of information about sexual predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public's interest in public safety and in the effective operation of government. Release of information about sexual predators to public agencies and under limited circumstances, the general public, will further the governmental interests of public safety and ��, rl,ol, ;.0,� I-;E-IIturs. V..?. JI iliil to anginal i.l.5 rtivernTrcmi Works 9 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals. Therefore, this state's policy as expressed in section 117 of this act is to require the exchange of relevant information about sexual predators among public agencies and officials and to authorize the release of necessary and relevant information about sexual predators to members of the general public. 1990 Wash. Laws, ch. 3, § 116. The Washington Supreme Court read this pronouncement as "a clear regulatory intent to limit the exchange of relevant information to the general public to those circumstances which present a threat to public safety." State v. Ward, 869 P.2d at 1070. Russell and Stearns do not contend that the legislature intended the notification provisions to be punitive; instead, they argue that the law was enacted in an "hasty and impassioned response to public outcry" after a young boy was attacked by a sex offender. The Ex Post Facto Clause was designed to prevent exactly this sort of legislative action, they say. The language of section 116 makes clear that the legislature intended the notification provision to prevent future attacks by recidivist sex offenders, and that the law may have a deterrent purpose as well as a remedial one. Neither of these purposes would result in an ex post facto violation, however. There is no indication that the legislature intended to punish already -convicted offenders (rather than merely deterring them or preventing future crimes). However quickly a law was passed, and however heated the public sentiment around it, we look to the legislature's manifest intent -which is found in the text and structure of the law. See Hendricks, 521 U.S. at , 117 S.Ct. at 2082. The text and structure of the notification provisions reveal no intent to punish, but rather a regulatory purpose. Notification occurs only "when the release of the information is necessary for public protection." Wash. Rev.Code § 4.24.550(l). The notification generally must occur two weeks in advance of the offender's release from prison in order to allow "communities to meet with law enforcement to discuss and prepare for the release, to establish block watches, to obtain information about the rights and responsibilities of the community and the offender, and to provide education and counseling to their children." 1994 Wash. Laws, ch. 129, § 1. Notification is thus designed to avoid a hasty or retaliatory response from the community. The law is tailored to help the community protect itself from sexual predators under the guidance of law enforcement, not to punish sex offenders.9 Any remaining doubt about the purpose of the law is dispelled by the construction given it by the Washington Supreme Court, which we must regard as authoritative. The law contains careful safeguards to prevent notification in cases where it is not warranted and to avoid dissemination of the information beyond the area where it is likely to have the intended remedial effect. State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1070-71 (1994). *1091 Only information "relevant to and necessary for counteracting the offender's dangerousness" is disclosed, and always accompanied by a warning against violence toward the offender. Id. A law designed to punish an offender would not contain these strict limitations on notification. As to the second part of the "intent -effects" test, the question again is whether there is "the clearest proof' that the notification provision is so punitive in effect as to overcome the nonpunitive legislative intent. We consider the relevant MendozaMartinezfactors, including the historical use of notification provisions, in this part of the test. 1101 As Ursery noted, the most significant question under this stage of the analysis is whether the law, "while perhaps having certain punitive aspects, serve[s] important nonpunitive goals." Ursery, 518 U.S. at , 116 S.Ct. at 2148. Russell and Stearns argue that notification serves the goal of deterrence, which is a traditional goal of punishment. This overlooks the statements in Ursery and Bennis v. Michigan that a deterrent purpose can serve both civil as well as criminal goals. Id. at , 116 S.Ct. at 2149; Bennis v. Michigan, 516 U.S. 442, , 116 S.Ct. 994, 1000, 134 L.Ed.2d 68 (1996). That a sanction has a deterrent purpose does not make it punitive. Tort law, for example, attempts to deter certain conduct but neither imposes punishment nor is criminal in nature. See Bennis, 516 U.S. at , 116 S.Ct. at 1000. Although the Act may implicate deterrence, it does not implicate the other primary objective of criminal punishment, retribution, because it neither labels the offender as more culpable than before (though his or her culpability may be more widely publicized), nor does it turn on a finding of scienter. Some persons who have not been convicted of a sex Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 offense may be subject to notification -those incompetent to stand trial, or committed as sexual psychopaths or sexually violent predators, for example. See Wash. Rev.Code § 4.24.550(3). These are three of the hallmarks that distinguish retributive sanctions from other sanctions. See Hendricks, 521 U.S. at , 117 S.Ct. at 2082 (discussing retributive sanction as that which affixes culpability for prior criminal conduct, turns on a finding of scienter, and is triggered by a criminal conviction). Instead, the Washington notification provision has both strong remedial aspects and serves important nonpunitive goals: alerting the community to the presence of sexual predators adjudged likely to offend again, and giving guidance to the community to allow it to avert new and tragic sexual offenses. Next, Russell and Stearns strenuously argue that many historical punishments depended on the punitive effect of public notification -the "sting" of shame and humiliation. They claim that public notification is punishment because the punishments of the past -pillorying, branding, or the sanction described in Hawthorne's The Scarlet Letter -notified the community of the offender's misdeeds. Although historical punishments did notify the community and humiliate the offender, an adequate historical analysis is not that simple. Unlike the civil forfeiture provisions at issue in Ursery and Austin v Uniled States, 509 U.S. 602,113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), the notification provisions of the Act do not have identical historical antecedents. See W.P. v. Porilz, 931 F.Supp. 1199, 1215 (D.N.J.1996). History does not tell us whether this sort of notification ought to be regarded as punishment. At best, we can draw an analogy between the Act and the punishments of yesteryear. That analogy is not unassailable, however. Historical shaming punishments like whipping, pillory, and branding generally required the physical participation of the offender, and typically required a direct confrontation between the offender and members of the public. As the Third Circuit recently stated: "Public shaming, humiliation and banishment all involve more than the dissemination of information.... [T]hese colonial practices inflicted punishment because they either physically held the person up before his or her fellow citizens for shaming or physically removed him or her from the community." *1092 E.B. v Verniero, 119 F.3d 1077, 1099-1100 (3rd Cir.1997). Put another way, "the potential ostracism and opprobrium that may result from [notification] is not inevitable, as it was with the person whipped, pilloried or branded in public." Porilz, 931 F.Supp. at 1217. More importantly, the Washington law is not intended to be punitive -it has protective purposes -while shaming punishments "were intended to and did visit society's wrath directly upon the offender." Id. Other historical analogies are also instructive. It is at least as appropriate to compare the notification law to "wanted" posters and warnings about escaped prisoners or other dangerous persons -practices that have not been regarded as punishment, though they disclose essentially the same information, may rouse public excitement, and may carry a greater risk of vigilantism. This discussion reveals the perils of using historical parallels to determine whether a sanction is punishment. True, punishment in the past often relied on humiliation. But humiliation alone does not constitute punishment. A law imposing punishment has other ingredients -most importantly, an intent to punish. See Ursery, 518 U.S. at , 116 S.Ct. at 2147. As the Supreme Court has repeatedly stated, a statute does not punish merely because it works a detriment. Morales, 514 U.S. at 506 n. 3, 115 S.Ct. at 1602 n. 3; see Flemming v Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 1375-76, 4 L.Ed.2d 1435 (1960) (noting that "often -severe effects" of a regulation do not make it punishment). Plastering "wanted" posters all over town works a detriment to the person named in them, but even if he or she is innocent, there has been no punishment. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155,47 L.Ed.2d 405 (1976) (holding that man wrongly identified in police flier as active shoplifter not deprived of liberty or property interest). We are not persuaded that the analogy to historical shaming punishments is strong enough to overcome the law's nonpunitive intent. Without an identical historical antecedent, and with other persuasive analogies to nonpunitive traditional practices, we cannot conclude that there is "clear proof' of an overwhelming punitive effect. Next, Russell, Stearns and amicus curiae American Civil Liberties Union object that public notification imposes an affirmative disability or restraint because notification has a devastating effect on the offenders' personal and professional lives. Similarly, they claim that notification leads to excessively harsh results, including threats, ostracism, harassment, and vigilantism. Notification may well subject offenders to humiliation, public opprobrium, ostracism, and the loss of job opportunities. We actively weigh these detriments to offenders. But our inquiry '� i I i hon *101 1;r sF,,ars. No cImi,i to odgi;ial U.S Goverrim(-xiI 1Vorks 11 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 into the law's effects cannot consider the possible "vigilante" or illegal responses of citizens to notification. Such responses are expressly discouraged in the notification itself and will be prosecuted by the state. See Poritz, 931 F.Supp. at 1212. Indeed, courts must presume that law enforcement will obey the law and will protect offenders from vigilantism. See Arhvay, 81 F.3d at 1267. We conclude that, considering the entire range of possible community responses not prohibited by Washington law, the Act's effect is not so egregious as to prevent us from viewing the Act as regulatory or remedial. In doing so, we are sensitive to the fact that the Act may have a lasting and painful impact on a sex offender's life, which ought not be lightly disregarded. Yet, we cannot say that the Act violates the Constitution. Other regulatory sanctions have had harsh effects similar to the community's likely response and have been upheld. See De Veau r. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (forbidding work as a union official); Hawker v. People of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (revocation of a medical license); Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549 (1924) (deportation); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (termination of Social Security benefits). Moreover, "whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the `sting of punishment.' " Department of Revenue v. *1093 Kurth Ranch, 511 U.S. 767, 777 n. 14, 114 S.Ct. 1937, 1945 n. 14, 128 L.Ed.2d 767.10 C In sum, we conclude that the notification provisions were intended to be regulatory and not punitive. Weighing all of the considerations discussed above, and with an eye to the remaining Mendoza —Martinez factors, we hold that, as a matter of law, the possible effects of the notification provision are not so punitive in fact as to prevent us from legitimately viewing the Act as regulatory in nature. Even less do the possible effects amount to "the clearest proof' of a punitive effect sufficient to overcome the legislature's nonpunitive intent. This is especially so given the strong remedial goals of the notification provision. The notification provisions of the Act do not amount to punishment subject to the Ex Post Facto Clause. See Doe v. Pataki, 120 F.3d 1263, 1265-66 (2d Cir.1997); E.B., 119 F.3d at 1080-81; Doe v. Kelley, 961 F.Supp. 1105 (W.D.Mich.1997); Doe u Weld, 954 F.Supp. 425 (D.Mass.1996); W.P. v. Poritz, 931 F.Supp. 1199 (D.N.J.1996); People v. Afrika, 168 Misc.2d 618, 648 N.Y.S.2d 235 (N.Y.Sup.Ct.1996); Opinion of the Justices to the Senate, 423 Mass. 1201, 668 N.E.2d 738 (1996). But see Roe v Office ofA dull Probation, 938 F.Supp. 1080 (D.Conn.1996); State v Myers, 260 Kan. 669, 923 P.2d 1024 (1996).11 1M 1111 Russell and Stearns contend that the Act is constitutionally infirm because the accumulation and dissemination of information about them violates their right to privacy. They do not pinpoint the source of the right or identify its contours, however, and they fail to explain precisely how the Act violates it beyond collating and releasing information. For support, they cite only two cases, Whalen v Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), which they claim stand for the proposition that the mere collection of private information may constitute a violation of a constitutional right to privacy. Russell and Stearns are mistaken about the import of Whalen and Nixon. Neither established a general constitutional right to privacy in information collected in a database; instead, both cases noted that, if there was such a right, it was not violated by the provisions at issue. In Whalen, the Supreme Court upheld a New York statute that created a centralized computer file of the names and addresses of all persons who obtained certain prescription drugs. In doing so, the Court stated that, at most, the collection and use of such information by the government is accompanied only in some circumstances by an arguable constitutional duty to avoid unwarranted disclosures. Whalen, 429 U.S. at 598-604, 605-606, 97 S.Ct. at 875-79, 879-80. This is a far cry from the supposed right Russell and Stearns assert. Similarly, Nixon upheld the Presidential Recordings and Materials Preservation Act, which provided for temporary public custody of Presidential tapes and papers, against a right to privacy challenge by former President Nixon. In that case, the Court restated Whalen's dictum that "[o]ne element of privacy *1094 has been characterized as `the individual interest in avoiding disclosure of personal matters,' " Nixon, 433 U.S. at 457,97 S.Ct. at 2797 (quoting Whalen, 429 U.S. at 599, 97 S.Ct. at 876), but concluded that, to the extent there is a ?r Ttion,,,or, I t::ailc,:t's Ni- (Jane to oiiginal tj , Vel, 1 ,aVr"r; >. '12 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137,97 Daily Journal D.A.R. 11,517 such a right, it is not violated if the statute contains safeguards against "undue dissemination". Id. at 458, 97 S.Ct. at 2797- 98. In this case, the collection and dissemination of information is carefully designed and narrowly limited. Even if Whalen and Nixon had established a broad right to privacy in data compilations, the Act does not unduly disseminate private information about Russell and Stearns. Moreover, any such right to privacy, to the extent it exists at all, would protect only personal information. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The information collected and disseminated by the Washington statute is already fully available to the public and is not constitutionally protected, see Doe v. New York, 15 F.3d 264, 268 (2d Cir.1994), with the exception of the general vicinity of the offender's residence (which is published) and the offender's employer (which is collected but not released to the public). Neither of these two items are generally considered "private." Johnson v. Sawyer, 47 F.3d 716, 732- 33 (5th Cir.l 995) (en banc) (discussing common law invasion of privacy). Likewise, the Supreme Court in Paul a Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), held that damage to one's reputation by a state actor does not violate a liberty or property interest "apart from some more tangible interests such as employment." Id. at 701, 96 S.Ct. at 1161. The collection and dissemination of information under the Washington law does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property. In sum, Russell's and Stearns's privacy claims are fatally defective as a matter of law, and must fail. VII 1 121 Russell and Stearns make a final argument based on the Due Process Clause. They claim that because the Washington statute violates their privacy rights, it deprives them of a liberty interest without giving them notice and an opportunity to be heard. Since we have already rejected their privacy claims, we conclude that they have no liberty interest at stake, and hence we reject their due process claims. VIIl As a matter of law, the Act does not violate the Ex Post Facto Clause, the right to privacy, or the Due Process Clause. Russell and Stearns therefore have no likelihood of success on the merits of their ex post facto, privacy, and due process claims, and they are not entitled to a preliminary injunction. The decision of the district court denying the motion for a preliminary injunction was not an abuse of discretion. AFFIRMED. All Citations 124 F.3d 1079, 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 Footnotes 1 The legislature made several amendments to the Act in 1994, 1995, and 1996; "the Act" includes these amendments. These lawsuits were filed after the 1994 and 1995 amendments went into effect but before the effective date of the 1996 amendments. Because Russell and Stearns request only prospective relief, we construe the law as it exists today -including the 1996 amendments. Indeed, applying the 1996 amendments strengthens Russell's and Stearns' case because the amendments arguably increase the burdens of registration. See 1996 Wash. Laws, ch. 275, § 11. 2 Those subject to notification include convicted sex offenders, persons found not guilty by reason of insanity of a sex offense, persons found incompetent to stand trial for a sex offense and subsequently committed, persons committed as a sexual psychopath, and persons committed as a sexually violent predator. Wash. Rev.Code § 4.24.550(3). 3 We are bound by the Washington Supreme Court's interpretation of Washington law. Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir.1993); In re Kirkland, 915 F.2d 1236, 1241 (9th Cir.1990). Whether the Act abridges rights protected by federal law, however, is a federal question. 4 The State of Washington argues that Russell and Stearns did not properly raise their due process and privacy arguments in the district court. Although there is no bright -line rule to determine when a matter has been properly raised, a "workable !i,) JrF) wi s.on ° ra,-,.::, �vIo claim to oringiii=+i ? x..< 13 Russell v. Gregoire, 124 F.3d 1079 (1997) 97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 standard" is that the argument must be raised "sufficiently for the trial court to rule on it." In re E.R. Fegert Inc., 887 F.2d 955, 957 (9th Cir.1989). We need not decide whether these issues were waived, however, because we have discretion to hear arguments not raised in the district court "if the issue 'is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.'" A-1 Ambulance Service, Inc. v. County of Monterey, 90 F.3d 333, 339 (9th Cir.1996) (quoting Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985)). We exercise our discretion to entertain these claims because they are purely issues of law. 5 See also Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (whether tax on illegal marijuana violated Double Jeopardy Clause); Austin v. United States, 509 U,S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (whether Excessive Fines Clause applied to in rem civil forfeiture proceedings); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (whether civil penalty is punishment under Double Jeopardy Clause). In Ursery, the Supreme Court cautioned that these three cases have been confined to the specific contexts in which they were decided, Ursery, 518 U.S. at , 116 S.Ct. at 2147; United States v. McClinton, 98 F.3d 1199, 1202 (9th Cir.1996); see United States v. Sardone, 94 F.3d 1233, 1235-36 (9th Cir.1996), and hence we will not dwell on them. Prior to Ursery, the Third Circuit formulated a test for punishment under the Ex Post Facto Clause in Artway v. Attorney General of New Jersey, 81 F.3d 1235 (3rd Cir.1996) based largely on the Halper—Austin—Kurth Ranch trio of cases. Artwayinvolved an ex post facto challenge to New Jersey's "Megan's Law", which provided for registration and community notification for certain convicted sex offenders. Because the Supreme Court in Ursery has cast doubt on the application of Halper, Austin, and Kurth Ranch in this context, we decline to adopt Artway' s test for punishment. 6 We are mindful that Urserywas a Double Jeopardy case, and that it warned against lifting a test for punishment from one constitutional provision and applying it to another. Ursery, 518 U.S. at , 116 S.Ct. at 2146. In Hendricks, however, the Court used the same test for the Double Jeopardy and Ex Post Facto Clauses, Hendricks, 521 U.S. at —, 117 S.Ct. at 2081-86, leading us to conclude that the test for punishment is the same for both clauses. 7 Whether a particular sanction, or class of sanctions, has historically been considered punishment does not properly belong in an analysis of the intent of the legislature. Ursery discussed the history of the sanction at issue, but only in the context of the sanction's effects. See Ursery, 518 U.S. at , 116 S.Ct. at 2149. 8 "His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the 'authority immediately in charge of his surveillance,' and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by the continuity, and deprive of essential liberty." Weems, 217 U.S. at 366, 30 S. Ct, at 549. 9 The Third Circuit similarly found that the "dissemination of information beyond law enforcement personnel is reasonably related to the nonpunitive goals of Megan's Law." E.B. v. Verniero, 119 F.3d 1077, 1097-98 (3rd Cir.1997). 10 The State of Washington and the United States argue that the harsh results of notification come not as a direct result of the government action, but as a societal consequence of the offender's crime. Moreover, a state has no general duty to protect individuals against potential harm by third parties, DeShaney v. Winnebago County Dept of Social Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 1004, 103 L.Ed.2d 249 (1989), unless the state creates the danger and removes the individual's ability to protect himself, see Wood v. Ostrander, 879 F.2d 583, 588-90 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990). We need not address these arguments. 11 In reaching this conclusion, we disagree with Doe v. Gregoire, 960 F.Supp. 1478, 1486-87 (W.D.Wash.1997), to the extent it holds the notification provisions of the Act to be unconstitutional. That decision was rendered after Lynce but before Hendricks; it interpreted Lynce as abandoning the Ursery "intent -effects" test, and therefore it did not apply the "intent -effects" test in the manner we have outlined. As we explain above, and as Hendricks confirms, the Ursery test survives, notwithstanding Lynce. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125.E T KeyCite Yellow Flag - Negative Treatment West Headnotes (10) Not Followed on State Law Grounds Doe v. Department of Public Safety and Correctional Services, Md., March 4, 2013 123 S.Ct. 1140 [11 Constitutional Law Penal laws in general Supreme Court of the United States Constitutional Law Punishment in general Delbert W. SMITH and Bruce M. Botelho, Petitioners, V. John DOE I, et al. No. 01-729. 1 Argued Nov. 13, 2002. Decided March 5, 2003. Rehearing Denied April 28, 2003. See 538 U.S. 1009, 123 S.Ct. 1925. Synopsis Convicted sex offenders, and wife of one of offenders, brought § 1983 action challenging constitutionality of Alaska Sex Offender Registration Act (SORA) as a violation of the ex post facto clause. Following reversal of determination that plaintiffs would not be allowed to proceed under pseudonyms, 884 F.Supp. 1372, parties cross -moved for summary judgment. The United States District Court for the District of Alaska, H. Russell Holland, J., granted summary judgment to state. Plaintiffs appealed. The Court of Appeals, 259 F.3d 979, reversed and remanded. On grant of certiorari, the Supreme Court, Justice Kennedy, held that the Act was nonpunitive and therefore its retroactive application did not violate the ex post facto clause. Reversed and remanded. Justice Thomas filed a concurring opinion. Justice Souter filed an opinion concurring in the judgment. In considering whether a law constitutes retroactive punishment forbidden by the Ex Post Facto Clause, a court must ascertain whether the legislature meant the statute to establish civil proceedings; if the intention of the legislature was to impose punishment, that ends the inquiry, but if the intention was to enact a regulatory scheme that is civil and nonpunitive, the court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. U.S.C.A. Const. Art. 1, § 10, cl. 1. 499 Cases that cite this headnote j21 Constitutional Law Punishment in general For purpose of determining whether a law constitutes retroactive punishment forbidden by the Ex Post Facto Clause, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. U.S.C.A. Const. Art. 1, § 10, cl. 1. 288 Cases that cite this headnote 131 Action , Civil or criminal Whether a statutory scheme is civil or criminal is first of all a question of statutory construction; a court considers the statute's text and its structure to determine the legislative objective. 28 Cases that cite this headnote Justice Stevens filed a dissenting opinion. 141 Mental Health : - Registration and Justice Ginsburg filed a dissenting opinion in which Justice Community Notification Breyer joined. An imposition of restrictive measures on sex offenders adjudged to be dangerous was a legitimate nonpunitive governmental objective of state's Sex Offender Registration Act (SORA), even if that objective was consistent with the Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182,71 USLW 4125... purposes of the state's criminal justice system. AS 12.63.010 et seq. 156 Cases that cite this headnote 151 Action Civil or criminal Formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative, but not dispositive, of the legislature's intent as to whether a statute is civil or criminal. 8 Cases that cite this headnote 161 Constitutional Law - Registration Mental Health Sex offenders For purpose of ex post facto analysis, intent of Alaska Legislature in adopting Sex Offender Registration Act (SORA) was to create a civil, nonpunitive regime; although the Act's registration provisions were codified in state's criminal code, some of the Act's provisions related to criminal administration, and the state's criminal pleading rule required informing a defendant of the Act's requirements, the Act's stated objective of protecting the public from sex offenders was nonpunitive, the Act contained many provisions not involving criminal punishment, parts of the Act were codified in civil provisions, and the Act mandated no procedures other than duty to register, and instead vested authority to promulgate implementing regulations with administrative agency. U.S.C.A. Const. Art. 1, § 10, cl. 1; AS 12.63.010 et seq.; Alaska Rules Crim.Proc., Rule l I(c)(4). 267 Cases that cite this headnote 171 Constitutional Law Constitutional Prohibitions in General Constitutional Law Punishment in general In analyzing the effects of a law for purpose of ex post facto analysis, relevant factors include whether, in its necessary operation, the regulatory scheme has been regarded in our history and traditions as a punishment whether it imposes an affirmative disability or 181 restraint, whether it promotes the traditional aims of punishment, and whether it has a rational connection to a nonpunitive purpose, or is excessive with respect to this purpose. U.S.C.A. Const. Art. ],§ 10, cl. 1. 241 Cases that cite this headnote Constitutional Law Registration Mental Health - Sex offenders Effects of Alaska's Sex Offender Registration Act (SORA) were nonpunitive, and thus, retroactive application of the Act, whose purpose was also nonpunitive, did not violate the ex post facto clause; any stigma was not integral part of Act's objective, Act imposed no physical restraint, there was no evidence of substantial occupational or housing disadvantages for registrants that would not otherwise have occurred, periodic updates were not required to be made in person, Act's purpose was not retributive, Act had legitimate nonpunitive purpose of public safety, which was reasonably advanced by alerting public, duration of reporting duty was not excessive, and notification system was passive. U.S.C.A. Const. Art. 1, § 10, cl. 1; AS 12.63.010 et seq. 306 Cases that cite this headnote 191 Constitutional Law Power to enact The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. U.S.C.A. Const. Art. 1, § 10, cl. 1. 52 Cases that cite this headnote 1101 Constitutional Law - Registration Mental Health _ : Sex offenders Alaska's determination to legislate with respect to convicted sex offenders as a class in state's Sex Offender Registration Act (SORA), rather than require individual determination of their dangerousness, did not make the statute a punishment under the Ex Post Facto Clause. kt:1Aic:1s- No (lion. io ariginal 11 Fi- Gov mior-.,ni Works. 2 Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 US LW 4125... U.S.C.A. Const. Art. 1, § 10, cl. 1; AS 12.63.010 et seq. 832 Cases that cite this headnote West Codenotes Negative Treatment Reconsidered Alaska Stat. §§ 12.63.100, 12.63.010, 12.63.020 **1142 Syllabus* Under the Alaska Sex Offender Registration Act (Act), any sex offender or child kidnaper incarcerated in the State must register with the Department of Corrections within 30 days before his release, providing his name, address, and other specified information. If the individual is at liberty, he must register with local law enforcement authorities within a working day of his conviction or of entering the State. If he was convicted of a single, nonaggravated sex crime, the offender must provide annual verification of the submitted information for 15 years. If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. The offender's information is forwarded to the Department of Public Safety, which maintains a central registry of sex offenders. Some of the data, such as fingerprints, driver's license number, anticipated change of address, and whether the offender has had medical treatment afterwards, are kept confidential. The offender's name, aliases, address, photograph, physical description, description, license and identification numbers of motor vehicles, place of employment, date of birth, crime, date and place of conviction, length and conditions of sentence, and a statement as to whether the offender is in compliance with the Act's update requirements or cannot be located are, however, published on the Internet. Both the Act's registration and notification requirements are retroactive. Respondents were convicted of aggravated sex offenses. Both were released from prison and completed rehabilitative programs for sex offenders. Although convicted before the Act's passage, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with the wife of one of them, also a respondent here, brought this action under 42 U.S.C. § 1983, seeking to declare the Act void as to them under, inter alia, the Ex Post Facto Clause, U.S. Const., Art. I, § 10, cl. 1. The District Court granted petitioners summary judgment. The Ninth Circuit disagreed in relevant part, holding that, because its effects were punitive, the Act violates the Ex Post Facto Clause. *85 Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 1146-1154. (a) The determinative question is whether the legislature meant to establish "civil proceedings." Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501. If the intention was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, the Court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate **1143 the State's intention to deem it civil. E.g., ibid. Because the Court ordinarily defers to the legislature's stated intent, ibid., only the clearest proof will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. See, e.g., ibid. Pp. 1146-1147. (b) The Alaska Legislature's intent was to create a civil, nonpunitive regime. The Court first considers the statute's text and structure, Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435, asking whether the legislature indicated either expressly or impliedly a preference for one label or the other, Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450. Here, the statutory text states the legislature's finding that sex offenders pose a high risk of reoffending, identifies protecting the public from sex offenders as the law's primary interest, and declares that release of certain information about sex offenders to public agencies and the public will assist in protecting the public safety. This Court has already determined that an imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective. Hendricks, 521 U.S., at 363, 117 S.Ct. 2072. Here, as in Hendricks, nothing on the statute's face suggests that the legislature sought to create anything other than a civil scheme designed to protect the public from harm. Id., at 361, 117 S.Ct. 2072. The contrary conclusion is not required by the Alaska Constitution's inclusion of the need to protect the public as one of the purposes of criminal administration. Where a legislative restriction is an incident of the State's power to protect the public health and safety, it will be considered as evidencing an intent to exercise that regulatory power, Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... and not a purpose to add to the punishment. E.g., Flemming v. Nestor, supra, at 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435. Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent, see, e.g., Hendricks, 521 U.S., at 361, 117 S.Ct. 2072, but are open to debate in this case. The Act's notification provisions are codified in the State's Health, Safety, and Housing Code, confirming the conclusion that the statute was intended as a nonpunitive regulatory measure. Cf., ibid. The fact that the Act's registration provisions are codified in the State's Code of Criminal Procedure is not *86 dispositive, since a statute's location and labels do not by themselves transform a civil remedy into a criminal one. See United States v One Assortment of 89 Firearms, 465 U.S. 3545 364-365, and n. 6, 104 S.Ct. 1099, 79 L.Ed.2d 361. The Code of Criminal Procedure contains many other provisions that do not involve criminal punishment. The Court's conclusion is not altered by the fact that the Act's implementing procedural mechanisms require the trial court to inform the defendant of the Act's requirements and, if possible, the period of registration required. That conclusion is strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the authority to promulgate implementing regulations with the Department of Public Safety, an agency charged with enforcing both criminal and civil regulatory laws. Also telling is the fact that the Act does not require the procedures adopted to contain any safeguards associated with the criminal process. By contemplating distinctly civil procedures, the legislature indicated clearly that it intended a civil, not a criminal, sanction. United States v. Ursery, 518 U.S. 267, 289,116 S.Ct. 2135, 135 L.Ed.2d 549. Pp. 1147-1149. (c) Respondents cannot show, much less by the clearest proof, that the Act's effects negate Alaska's intention to establish a civil regulatory scheme. In analyzing the effects, the Court refers to the seven factors noted in Kennedy v. Mendoza — Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644, as a useful **1144 framework. First, the regulatory scheme, in its necessary operation, has not been regarded in the Nation's history and traditions as a punishment. The fact that sex offender registration and notification statutes are of fairly recent origin suggests that the Act was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing. Respondents' argument that the Act, particularly its notification provisions, resembles shaming punishments of the colonial period is unpersuasive. In contrast to those punishments, the Act's stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. The fact that Alaska posts offender information on the Internet does not alter this conclusion. Second, the Act does not subject respondents to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint. Hudson, 522 U.S., at 104, 118 S.Ct. 488. Moreover, its obligations are less harsh than the sanctions of occupational debarment, which the Court has held to be nonpunitive. See, e.g., ibid. Contrary to the Ninth Circuit's assertion, the record contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred. Also unavailing is that court's assertion that the periodic update requirement imposed an affirmative disability. The *87 Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision. While registrants must inform the authorities after they change their facial features, borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. Third, the Act does not promote the traditional aims of punishment. That it might deter future crimes is not dispositive. See, e.g., id., at 105, 118 S.Ct. 488. Moreover, the Ninth Circuit erred in concluding that the Act's registration obligations were retributive. While the Act does differentiate between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense, these broad categories and the reporting requirement's corresponding length are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective. Fourth, the Act has a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in their community. That the Act may not be narrowly drawn to accomplish the stated purpose is not dispositive, since such imprecision does not suggest that the Act's nonpunitive purpose is a "sham or mere pretext." Hendricks, supra, at 371, 117 S.Ct. 2072 (KENNEDY, J., concurring). Fifth, the regulatory scheme is not excessive with respect to the Act's purpose. The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not render the Act punitive. See, e.g., Haivker v New fork, 170 U.S. 189, 197, 18 S.Ct. 573, 42 I T hoi--• :on r -, tw-rs No claim to original U Li. Gova::rr' meml Works Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... L.Ed. 1002. Hendricks, supra, at 357-368, 364, 117 S.Ct. 2072, distinguished. Moreover, the wide dissemination of offender information does not render the Act excessive, given the general mobility of the population. The question here is not whether the legislature has made the best choice possible to address the problem it seeks to remedy, but whether the regulatory means chosen are reasonable in light of the nonpunitive objective. The Act meets this standard. Finally, the two remaining Mendoza —Martinez factors —whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already **1145 a crime —are of little weight in this case. Pp. 1149-1154. 259 F.3d 979, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined. THOMAS, J., fled a concurring opinion, post, p. 1154. SOUTER, J., filed an opinion concurring in the judgment, post, p. 1154. STEVENS, J., filed a dissenting opinion, *88 post, p. 1156. GINSBURG, J. filed a dissenting opinion, in which BREYER, J., joined, post, p. 1159. Attorneys and Law Firms John G. Roberts, Jr., Washington, DC, for petitioners. Theodore B. Olson, for United States as amicus curiae, by special leave of the Court, supporting the petitioners. Darryl L. Thompson, Anchorage, AK, for respondents. John G. Roberts, Jr., Jonathan S. Franklin, Catherine E. Stetson, Hogan & Hartson L.L.P., Washington, D.C., Cynthia M. Cooper, Anchorage, Alaska, Bruce M. Botelho, Attorney General, Patrick Gullufsen, Deputy Attorney General, Juneau, Alaska, for Petitioners. Verne E. Rupright, Rupright & Foster, Wasilla, Alaska, for John Doe II, Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, Alaska, Counsel for John Doe I & Jane Doe. Opinion *89 Justice KENNEDY delivered the opinion of the Court The Alaska Sex Offender Registration Act requires convicted sex offenders to register with law enforcement authorities, and much of the information is made public. We must decide whether the registration requirement is a retroactive punishment prohibited by the Ex Post Facto Clause. A The State of Alaska enacted the Alaska Sex Offender Registration Act (Act) on May 12, 1994. 1994 Alaska Sess. Laws ch. 41. Like its counterparts in other States, the Act is termed a "Megan's Law." Megan Kanka was a 7—year—old New Jersey girl who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim's family, had prior convictions for sex offenses against children. The crime gave impetus to laws for mandatory registration of sex offenders and corresponding community notification. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, 108 Stat.2038, as amended, 42 U.S.C. § 14071, which conditions certain federal law enforcement funding on the States' adoption of sex offender registration laws and sets *90 minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megan's Law. The Alaska law, which is our concern in this case, contains two components: a registration requirement and a notification system. Both are retroactive. 1994 Alaska Sess. Laws ch. 41, § 12(a). The Act requires any "sex offender or child kidnapper who is physically present in the state" to register, either with the Department of Corrections (if the individual is incarcerated) or with the local law enforcement authorities (if the individual is at liberty). Alaska Stat. §§ 12.63.010(a), (b) (2000). Prompt registration is mandated. If still in prison, a covered sex offender must register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the State. § 12.63.010(a). The sex offender must provide his name, aliases, identifying **1146 features, address, place of employment, date of birth, conviction information, driver's license number, information about vehicles to which he has access, and postconviction treatment history. § 12.63.010(b)(1). He must permit the authorities to photograph and fingerprint him. § 12.63.010(b) (2)• If the offender was convicted of a single, nonaggravated sex crime, he must provide annual verification of the submitted information for 15 years. §§ 12.63.010(d)(1), 12.63.020(a) Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... (2). If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. §§ 12.63.010(d)(2), 12.63.020(a) (1). The offender must notify his local police department if he moves. § 12.63.010(c). A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution. §§ 11.56.835, 11.56.840. The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. § 18.65.087(a). Some of the data, such as fingerprints, driver's license number, anticipated change of address, and whether the offender has had medical treatment *91 afterwards, are kept confidential. §§ 12.63.010(b), 18.65.087(b). The following information is made available to the public: "the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements ... or cannot be located." § 18.65.087(b). The Act does not specify the means by which the registry information must be made public. Alaska has chosen to make most of the nonconfidential information available on the Internet. 3.3 Respondents John Doe I and John Doe II were convicted of sexual abuse of a minor, an aggravated sex offense. John Doe I pleaded nolo contendere after a court determination that he had sexually abused his daughter for two years, when she was between the ages of 9 and 11; John Doe II entered a nolo contendere plea to sexual abuse of a 14 year -old child. Both were released from prison in 1990 and completed rehabilitative programs for sex offenders. Although convicted before the passage of the Act, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with respondent Jane Doe, wife of John Doe 1, brought an action under Rev. Stat. § 1979, 42 U.S.C. § 1983, seeking to declare the Act void as to them under the Ex Post Facto Clause of Article I, § 10, cl. 1, of the Constitution and the Due Process Clause of § 1 of the Fourteenth Amendment. The United States District Court for the District of Alaska granted summary judgment for petitioners. In agreement with the District Court, the Court of Appeals for the Ninth Circuit determined the state legislature had intended the Act to be a nonpunitive, civil *92 regulatory scheme; but, in disagreement with the District Court, it held the effects of the Act were punitive despite the legislature's intent. In consequence, it held the Act violates the Ex Post Facto Clause. Doe I v. Otte, 259 F.3d 979 (C.A.9 2001). We granted certiorari. 534 U.S. 1126, 122 S.Ct. 1062, 151 L.Ed.2d 966 (2002). m 111 121 This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The framework for our inquiry, however, is well established. We must "ascertain whether the legislature meant the statute to establish **1147 `civil' proceedings." Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "'so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.' " Ibid. (quoting UnitedStates v Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we "ordinarily defer to the legislature's stated intent," Hendricks, supra, at 361, 117 S.Ct. 2072, " `only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty," Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (quoting Ward, supra, at 249, 100 S.Ct. 2636); see also Hendricks, supra, at 361, 117 S.Ct. 2072; United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); United States v One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). A 131 Whether a statutory scheme is civil or criminal "is first of all a question of statutory construction." Hendricks, supra, at 361, 117 S.Ct. 2072 (internal quotation marks omitted); see also Hudson, supra, at 99, 118 S.Ct. 488. We consider the statute's text and its structure to determine the legislative objective. Flemming v Nestor; 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). A conclusion that I''i' tri (.l+ ii11,11 1 ! i rit L CT; 11 ik'7I' ' ':1+;ti;1:S. (i Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125. the legislature *93 intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it. 141 The courts "must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label orthe other." Hudson, supra, at 99, 118 S.Ct. 488 (internal quotation marks omitted). Here, the Alaska Legislature expressed the objective of the law in the statutory text itself. The legislature found that "sex offenders pose a high risk of reoffending," and identified "protecting the public from sex offenders" as the "primary governmental interest" of the law. 1994 Alaska Sess. Laws ch. 41, § 1. The legislature further determined that "release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety." Ibid. As we observed in Hendricks, where we examined an ex post facto challenge to a postincarceration confinement of sex offenders, an imposition of restrictive measures on sex offenders adjudged to be dangerous is "a legitimate nonpunitive governmental objective and has been historically so regarded." 521 U.S., at 363, 117 S.Ct. 2072. In this case, as in Hendricks, "[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil ... scheme designed to protect the public from harm." Id., at 361, 117 S.Ct. 2072. Respondents seek to cast doubt upon the nonpunitive nature of the law's declared objective by pointing out that the Alaska Constitution lists the need for protecting the public as one of the purposes of criminal administration. Brief for Respondents 23 (citing Alaska Const., Art. I, § 12). As the Court stated in Flemming v. Nestor, rejecting an ex post facto challenge to a law terminating benefits to deported aliens, where a legislative restriction "is an incident of the State's power to protect the health and safety of its citizens," it will be considered "as evidencing an intent to exercise that *94 regulatory power, and not a purpose to add to the punishment." 363 U.S., at 616, 80 S.Ct. 1367 (citing Hawker v. Nero fork, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898)). The Court repeated this principle in 89 Firearms, upholding a statute requiring **1148 forfeiture of unlicensed firearms against a double jeopardy challenge. The Court observed that, in enacting the provision, Congress " `was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest.' " 465 U.S., at 364, 104 S.Ct. 1099 (quoting Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974)). This goal was "plainly more remedial than punitive." 465 U.S., at 364, 104 S.Ct. 1099. These precedents instruct us that even if the objective of the Act is consistent with the purposes of the Alaska criminal justice system, the State's pursuit of it in a regulatory scheme does not make the objective punitive. 151 Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent. See Hendricks, supra, at 361, 117 S.Ct. 2072; Hudson, supra, at 103, 118 S.Ct. 488; 89 Firearms, supra, at 363, 104 S.Ct. 1099. In this case these factors are open to debate. The notification provisions of the Act are codified in the State's "Health, Safety, and Housing Code," § 18, confirming our conclusion that the statute was intended as a nonpunitive regulatory measure. Cf. Hendricks, supra, at 361, 117 S.Ct. 2072 (the State's "objective to create a civil proceeding is evidenced by its placement of the Act within the [State's] probate code, instead of the criminal code" (citations omitted)). The Act's registration provisions, however, are codified in the State's criminal procedure code, and so might seem to point in the opposite direction. These factors, though, are not dispositive. The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one. In 89 Firearms, the Court held a forfeiture provision to be a civil sanction even though the authorizing statute was in the criminal code. 465 U.S., at 364-365, 104 S.Ct. 1099. *95 The Court rejected the argument that the placement demonstrated Congress' "intention to create an additional criminal sanction," observing that "both criminal and civil sanctions may be labeled `penalties.' " Id., at 364, n. 6, 104 S.Ct. 1099. 161 The same rationale applies here. Title 12 of Alaska's Code of Criminal Procedure (where the Act's registration provisions are located) contains many provisions that do not involve criminal punishment, such as civil procedures for disposing of recovered and seized property, Alaska Stat. § 12.36.010 et seq. (2000); laws protecting the confidentiality of victims and witnesses, § 12.61.010 et seq.; laws governing the security and accuracy of criminal justice information, § 12.62.110 et seq.; laws governing civil postconviction actions, § 12.72.010 et seq.; and laws governing actions for writs of habeas corpus, § 12.75.010 et seq., which under Alaska law are "independent civil proceeding[s]," State v. Hannagan, 559 P.2d 1059, 1063 (Alaska 1977). Although some of these provisions relate to criminal administration, they are not in themselves punitive. The partial codification of I.ioi1:I11+Vt:l!:l:l-ro wit T;::=. � Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... the Act in the State's criminal procedure code is not sufficient to support a conclusion that the legislative intent was punitive. The procedural mechanisms to implement the Act do not alter our conclusion. After the Act's adoption Alaska amended its Rules of Criminal Procedure concerning the acceptance of pleas and the entering of criminal judgments. The rule on pleas now requires the court to "infor[m] the defendant in writing of the requirements of [the Act] and, if it can be determined by the court, the period of registration required." Alaska Rule Crim. Proc. 11(c)(4) (2002). Similarly, the written judgments for sex offenses and child kidnapings "must set out the requirements of [the Act] and, if it can be determined by the court, whether that conviction will require the offender or kidnapper to register **1149 for life or a lesser period." Alaska Stat. § 12.55.148(a) (2000). The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences *96 themselves punitive. When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance. The Act requires registration either before the offender's release from confinement or within a day of his conviction (if the offender is not imprisoned). Timely and adequate notice serves to apprise individuals of their responsibilities and to ensure compliance with the regulatory scheme. Notice is important, for the scheme is enforced by criminal penalties. See §§ 11.56.835, 11.56.840. Although other methods of notification may be available, it is effective to make it part of the plea colloquy or the judgment of conviction. Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive. Our conclusion is strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the authority to promulgate implementing regulations with the Alaska bepartment of Public Safety, §§ 12.63.020(b), 18.65.087(d)—an agency charged with enforcement of both criminal and civil regulatory laws. See, e.g., § 17.30.100 (enforcement of drug laws); § 18.70.010 (fire protection); § 28.05.011 (motor vehicles and road safety); § 44.41.020 (protection of life and property). The Act itself does not require the procedures adopted to contain any safeguards associated with the criminal process. That leads us to infer that the legislature envisioned the Act's implementation to be civil and administrative. By contemplating "distinctly civil procedures," the legislature "indicate[d] clearly that it intended a civil, not a criminal sanction." Ursery 518 U.S., at 289, 116 S.Ct. 2135 (internal quotation marks omitted; alteration in original). We conclude, as did the District Court and the Court of Appeals, that the intent of the Alaska Legislature was to create a civil, nonpunitive regime. *97 B 171 In analyzing the effects of the Act we refer to the seven factors noted in Kennedy a Mendoza Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168-169, and nn. 22-28, 83 S.Ct. 554. Because the Mendoza Martinez factors are designed to apply in various constitutional contexts, we have said they are "neither exhaustive nor dispositive," United States a Ward, 448 U.S., at 249, 100 S.Ct. 2636; 89 Firearms, 465 U.S., at 365, n. 7, 104 S.Ct. 1099, but are "useful guideposts," Hudson, 522 U.S., at 99, 118 S.Ct. 488. The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose. [81 A historical survey can be useful because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition, so that the public will recognize it as such. The Court of Appeals observed that the sex offender registration and notification statutes "are of fairly recent origin," 259 F.3d, at 989, which suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing. Respondents argue, **1150 however, that the Act —and, in particular, its notification provisions —resemble shaming punishments of the colonial period. Brief for Respondents 33-34 (citing A. Earle, Curious Punishments of Bygone Days 1-2 (1896)). Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required "to stand in public with signs cataloguing their offenses." Hirsch, .i rr •I-:ir -.. h Ly ,tj Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... From Pillory to Penitentiary: The Rise of Criminal *98 Incarceration in Early Massachusetts, 80 Mich. L.Rev. l 179, 1226 (1982); see also L. Friedman, Crime and Punishment in American History 38 (1993). At times the labeling would be permanent: A murderer might be branded with an "M," and a thief with a "T." R. Semmes, Crime and Punishment in Early Maryland 35 (1938); see also Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L.Rev. 1880, 1913 (1991). The aim was to make these offenders suffer "permanent stigmas, which in effect cast the person out of the community." Ibid.; see also Friedman, supra, at 40; Hirsch, supra, at 1228. The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one. T. Blomberg & K. Lucken, American Penology: A History of Control 30-31 (2000). Respondents contend that Alaska's compulsory registration and notification resemble these historical punishments, for they publicize the crime, associate it with his name, and, with the most serious offenders, do so for life. Any initial resemblance to early punishments is, however, misleading. Punishments such as whipping, pillory, and branding inflicted physical pain and staged a direct confrontation between the offender and the public. Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. See Earle, supra, at 20, 35-36, 51-52; Massaro, supra, at 1912-1924; Semmes, supra, at 39-40; Blomberg & Lucken, supra, at 30-31. By contrast, the stigma of Alaska's Megan's Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, *99 our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme. The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation. The State's Web site does not provide the public with means to shame the offender by, say, posting comments underneath **1151 his record. An individual seeking the information must take the initial step of going to the Department of Public Safety's Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry. We next consider whether the Act subjects respondents to an "affirmative disability or restraint." Mendoza —Martinez, supra, at 168, 83 S.Ct. 554. Here, we inquire how the effects of the *100 Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive. The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Hudson, 522 U.S., at 104, 118 S.Ct. 488. The Act's obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive, See ibid. (forbidding further participation in the banking industry); De Veau u Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (forbidding work as a union official); Hawker v. Neiv York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (revocation of a medical license). The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences. The Court of Appeals sought to distinguish Haivker and cases which have followed it on the grounds that the disability at issue there was specific and "narrow," confined to particular �� ; i'I-ii�r�� �cf�� i�.r:ur�:rs N�� � laim to ariainzl LI.S r �nvr�rr:r}��rrl'�lnrlrs ?.l Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... professions, whereas "the procedures employed under the Alaska statute are likely to make [respondents] completely unemployable" because "employers will not want to risk loss of business when the public learns that they have hired sex offenders." 259 F.3d, at 988. This is conjecture. Landlords and employers could conduct background checks on the criminal records of prospective employees or tenants even with the Act not in force. The record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords. The Court of Appeals identified only one incident from the 7—year history of Alaska's law where a sex offender suffered community hostility and damage to his business after the information he submitted to the registry became public. Id., at 987-988. This could have occurred in any event, because the information about the individual's conviction was already in the public domain. *101 Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and the resulting convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant. The Court of Appeals reasoned that the requirement of periodic updates imposed an affirmative disability. In reaching this conclusion, the Court of Appeals was under a misapprehension, albeit one created by the State itself during the argument below, that the offender had to update the registry in person. Id., at 984, n. 4. The State's representation was erroneous. The Alaska statute, on its face, does not require these updates to be made in person. And, as respondents conceded at the oral argument before us, the record contains no indication that an in -person appearance requirement has been imposed on any sex offender subject to the Act. Tr. of Oral Arg. 26-28. **1152 The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint imposed. 259 F.3d, at 987. This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally Johnson v United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender *102 who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause. The State concedes that the statute might deter future crimes. Respondents seize on this proposition to argue that the law is punitive, because deterrence is one purpose of punishment. Brief for Respondents 37. This proves too much. Any number of governmental programs might deter crime without imposing punishment. "To hold that the mere presence of a deterrent purpose renders such sanctions `criminal' ... would severely undermine the Government's ability to engage in effective regulation." Hudson, supra, at 105, 118 S.Ct. 488; see also Ursery, 518 U.S., at 292, 116 S.Ct. 2135; 89 Firearms, 465 U.S., at 364, 104 S.Ct. 1099. The Court of Appeals was incorrect to conclude that the Act's registration obligations were retributive because "the length of the reporting requirement appears to be measured by the extent of the wrongdoing, not by the extent of the risk posed." 259 F.3d, at 990. The Act, it is true, differentiates between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense. Alaska Stat. § 12.63.020(a)(1) (2000). The broad categories, however, and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective. The Act's rational connection to a nonpunitive purpose is a "[m]ost significant" factor in our determination that the statute's effects are not punitive. Ursery, supra, at 290, 116 S.Ct. 2135. As the Court of Appeals acknowledged, the Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125.., Act has a legitimate *103 nonpunitive purpose of "public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y]." 259 F.3d, at 991. Respondents concede, in turn, that "this alternative purpose is valid, and rational." Brief for Respondents 38. They contend, however, that the Act lacks the necessary regulatory connection because it is not "narrowly drawn to accomplish the stated purpose." Ibid. A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The imprecision respondents rely upon does not suggest that the Act's nonpunitive purpose is a "sham or mere pretext." Hendricks, 521 U.S., at 371, 117 S.Ct. 2072 (KENNEDY, J., concurring). In concluding the Act was excessive in relation to its regulatory purpose, the Court of Appeals relied in large part on two propositions: first, that the statute **1153 applies to all convicted sex offenders without regard to their future dangerousness; and, second, that it places no limits on the number of persons who have access to the information. 259 F.3d, at 991-992. Neither argument is persuasive. Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is "frightening and high." McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); see also id., at 33, 122 S.Ct. 2017 ("When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault" (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))). [9( [101 The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. *104 We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. See De Ileau, 363 U.S., at 160, 80 S.Ct. 1146; Hawker, 170 U.S., at 197, 18 S.Ct. 573. As stated in Hawker: "Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application...." Ibid. The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause. Our decision in Hendricks, on which respondents rely, Brief for Respondents 39, is not to the contrary. The State's objective in Hendricks was involuntary (and potentially indefinite) confinement of "particularly dangerous individuals." 521 U.S., at 357-358, 364, 117 S.Ct. 2072. The magnitude of the restraint made individual assessment appropriate. The Act, by contrast, imposes the more minor condition of registration. In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants' convictions without violating the prohibitions of the Ex Post Facto Clause. The duration of the reporting requirements is not excessive. Empirical research on child molesters, for instance, has shown that, "[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release," but may occur "as late as 20 years following release." National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 (1997). The Court of Appeals' reliance on the wide dissemination of the information is also unavailing. The Ninth Circuit *105 highlighted that the information was available "world-wide" and "[b]roadcas[t]" in an indiscriminate manner. 259 F.3d, at 992. As we have explained, however, the notification system is a passive one: An individual must seek access to the information. The Web site warns that the use of displayed information "to commit a criminal act against another person is subject to criminal prosecution." http:// www.dps.state.ak.us/nSorer/asp/ (as visited Jan. 17, 2003) (available in the Clerk of Court's case file). Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment. See D. Schram & **1154 C. Milloy, Community Notification: A Study of Offender Characteristics and Recidivism 13 (1995) (38% of recidivist sex offenses in the State of Washington took place in jurisdictions other than where the previous offense was committed). Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164,71 USLW 4182, 71 USLW 4125... The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. The Act meets this standard. The two remaining Mendoza —Martinez factors —whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime —are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation. Our examination ofthe Act's effects leads to the determination that respondents cannot show, much less by the clearest proof, that the effects of the law negate Alaska's intention to establish a civil regulatory scheme. The Act is nonpunitive, *106 and its retroactive application does not violate the Ex Post Facto Clause. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice THOMAS, concurring. I join the Court's opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that "there is no place for [an implementation -based] challenge" in our ex post facto jurisprudence. Seling v Young, 531 U.S. 250, 273, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001) (THOMAS, J., concurring in judgment). Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See id., at 273-274, 121 S.Ct. 727 ("[T]o the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the effect of its improper implementation"). As we have stated, the categorization of proceeding as civil or criminal is accomplished by examining "the statute on its face." Hudson v United States, 522 U.S. 93, 100,118 S.Ct. 488,139 L.Ed.2d 450 (1997) (internal quotation marks omitted). In this case, ASORA does not specify a means of making registry information available to the public. It states only that "[i]nformation about a sex offender ... that is contained in the central registry ... is confidential and not subject to public disclosure except as to the sex offender's ... name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a *107 statement as to whether the offender ... is in compliance with requirements of AS 12.63 or cannot be located." Alaska Stat. § 18.65.087(b) (2000). By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur. Justice SOUTER, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different **1155 path from mine, and I concur only in the judgment. As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called Kennedy -Ward test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United States v Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980); Kennedy v Mendoza —Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). We have said that " `only the clearest proof ' " that a law is punitive based on substantial factors will be able to overcome the legislative categorization. Ward, supra, at 249, 100 S.Ct. 2636 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See Hudson it United States, 522 U.S. 93, 113-114, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (SOUTER, J., concurring in judgment). This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way. I f oii:�.on ii,eldors No d ami to ariginal U S. GovertunonI 'VVnrks. 1�. Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from *108 our past cases, which have relied heavily on the legislature's stated label in finding a civil intent. See Hudson, supra, at 103, 118 S.Ct. 488; Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Allen v. Illinois, 478 U.S. 364, 3685 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986). The placement of the Act in the State's code, another important indicator, see Hendricks, supra, at 361, 117 S.Ct. 2072, also leaves matters in the air, for although the section establishing the registry is among the code's health and safety provisions, which are civil, see Alaska Stat. § 18.65.087 (2000), the section requiring registration occurs in the title governing criminal procedure, see § 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. § 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see Hudson, supra, at 103, 118 S.Ct. 488, offenders are obliged, at least initially, to register with state and local police, see §§ 12.63.010(b), (c), although the actual information so obtained is kept by the State's Department of Public Safety, a regulatory agency, see § 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute's intended character is clearly civil. The substantial indicators relevant at step two of the Kennedy -Ward analysis likewise point in different directions. To start with purpose, the Act's legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, § 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e.g., United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no *109 further, given pervasive attitudes toward sex offenders, see infra, at 1156, n. See Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (Ex Post Facto Clause was meant to prevent "arbitrary and potentially vindictive legislation"). The fact that the Act uses past crime as the touchstone, probably **1156 sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See Kennedy, supra, at 169, 83 S.Ct. 554. That argument can claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e.g., Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L.Rev. 1880, 1913 (1991). While the Court accepts the State's explanation that the Act simply makes public information available in a new way, ante, at 1150- 1151, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.* *110 To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the " `clearest proof ' " of penal substance in this case, see Hudson, 522 U.S., at 113-114, 118 S.Ct. 488 (SOUTER, J., concurring in judgment), and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment. Justice STEVENS, dissenting in No. 01-729 and concurring in the judgment in No. 01-1231.* These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-729 is whether the Alaska Sex Offender Registration Act is an **1157 ex post facto law, and in No. 01-1231 *111 it is whether Connecticut's similar law violates the Due Process Clause. 13 Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... The Court's opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants' freedom. The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information —including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment —at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much ofthis registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page. The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the "[w]idespread public access," ante, at 1150 (opinion in No. 01-729), *112 to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction. To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e.g., De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (upholding prohibition of convicted felons from working for waterfront unions); Hawker v. Neiv York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (upholding prohibition of doctors who had been convicted of a felony from practicing medicine). Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on **1158 him. See NLRB v. Allis—Chalmers Mfg. Co., 388 U.S. 175, 191-192, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e.g., N.J. Stat. Ann. § 45:1-21 (West Supp.2002). *113 Likewise, in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a " `mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.' " Id., at 352, 117 S.Ct. 2072. Nor was the conviction even a necessary predicate for the commitment. See ibid. (Kansas' civil commitment procedures also applied to individuals charged with a sexually violent offense but found incompetent to stand for trial, or found not guilty by reason of insanity or by reason of mental disease or defect). While one might disagree in other respects with Hendricks, it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute. No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, "recidivism is the statutory concern" that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 1154 (opinion in No. 01-729). That is the principal rationale that underlies the "three strikes" statute that the Court has upheld *114 in Ewing v. California, post, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). Reliance on that rationale here highlights the conclusion that the retroactive application ofthese statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution. I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment —retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. I I(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses. Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. **1159 I therefore concur in the Court's disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-729. Justice GINSBURG, with whom Justice BREYER joins, dissenting. As Justice SOUTER carefully explains, it is unclear whether the Alaska Legislature conceived of the State's Sex Offender Registration Act as a regulatory measure or as a *115 penal law. See ante, at 1154-1156 (opinion concurring in judgment). Accordingly, in resolving whether the Act ranks as penal for ex post facto purposes, I would not demand "the clearest proof' that the statute is in effect criminal rather than civil. Instead, guided by Kennedy v. Mendoza —Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), 1 would neutrally evaluate the Act's purpose and effects. See id., at 168-169, 83 S.Ct. 554 (listing seven factors courts should consider "[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute"); cf. Hudson v. United States, 522 U.S. 93, 115, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (BREYER, J., concurring in judgment) ("[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand."),I Measured by the Mendoza —Martinez factors, I would hold Alaska's Act punitive in effect. Beyond doubt, the Act involves an "affirmative disability or restraint." 372 U.S., at 168, 83 S.Ct. 554. As Justice STEVENS and Justice SOUTER spell out, Alaska's Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community -wide ostracism. See ante, at 1156, and n. (SOUTER, J., concurring in judgment); ante, at 1157 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). Furthermore, the Act's requirements resemble historically common forms of punishment. See Mendoza —Martinez, 372 U.S., at 168, 83 S.Ct. 554. Its registration and reporting provisions are comparable to conditions of supervised release or parole; its *116 public notification regimen, which permits placement of the registrant's face on a webpage under the label "Registered Sex Offender," calls to mind shaming punishments once used to mark an offender as someone to be shunned. See ante, at 1157 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231); ante, at 1156 (SOUTER, J., concurring in judgment). Telling too, as Justice SOUTER observes, past crime alone, not current dangerousness, is the "touchstone" triggering the Act's obligations. Ante, at 1155 (opinion concurring in IIios)si-.[,r i{r:{•1 r-;m. No cIatn, lit 0r10rst I C',ov0r-1171[_14i W;k5. Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125- judgment); see ante, at 1157-1158 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01- 1231). This touchstone adds to the impression that the Act retributively targets past guilt, i.e., that it "revisit[s] past crimes [more than it] prevent[s] future ones." Ante, at 1156 (SOUTER, J., concurring in judgment); see Mendoza - Martinez, 372 U.S., at 168, 83 S.Ct. 554. Tending the other way, I acknowledge, the Court has ranked some laws civil and nonpunitive although they impose significant disabilities or restraints. See, e.g., Flemming v Nestor; 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (termination ofaccrued disability benefits payableto deported resident aliens); Kansas v. Hendricks, **1160 521 U.S.346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (civil confinement of mentally ill sex offenders). The Court has also deemed some laws nonpunitive despite "punitive aspects." See United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). What ultimately tips the balance for me is the Act's excessiveness in relation to its nonpunitive purpose. See Mendoza -Martinez, 372 U.S., at 169, 83 S.Ct. 554. As respondents concede, see Brief for Respondents 38, the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. See ante, at 1152 (majority opinion). But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not *117 to any determination of a particular offender's risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. See ante, at 1146. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation.2 However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation. John Doe I, for example, pleaded nolo comendere to a charge of sexual abuse of a minor nine years before the Alaska Act was enacted. He successfully completed atreatment program, and gained early release on supervised probation in part because of his compliance with the program's requirements and his apparent low risk of reoffense. Brief for Respondents 1. He subsequently remarried, established a business, and was reunited with his family. Ibid. He was also granted custody of a minor daughter, based on a court's determination that he had been successfully rehabilitated. See Doe I v. Otte, 259 F.3d 979, 983 (C.A.9 2001). The court's determination rested in part on psychiatric evaluations concluding that Doe had "a very low risk of re -offending" and is "not a pedophile." Ibid. (internal quotation marks omitted). Notwithstanding this strong evidence of rehabilitation, the Alaska Act requires Doe to report personal information to the State four times per year, and permits the State publicly *118 to label him a "Registered Sex Offender" for the rest of his life. Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals. All Citations 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125, 03 Cal. Daily Op. Serv. 1974, 2003 Daily Journal D.A.R. 2474, 16 Fla. L. Weekly Fed. S 142 Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S; 321, 337, 26 S.Ct. 282, 50 L. Ed. 499. * I seriously doubt that the Act's requirements are "less harsh than the sanctions of occupational debarment" that we upheld in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960), and Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898). See ante, at 1151. It is true that the Act imposes no formal proscription against any particular employment, but there is significant evidence of onerous practical effects of being listed on a sex offender registry. See, e.g., Doe v. Pataki, 120 F.3d 1263, 1279 (C.A.21997) (noting "numerous instances in which sex offenders have suffered harm in the aftermath of 0 1 1-1iol seta Rei itors. No i if) origin I I�_E. G �ternin , t 1lVi�rl t 16 Smith v. Doe, 538 U.S. 84 (2003) 123 S.Ct. 1140, 155 L.Ed.2d 164, 71 USLW 4182, 71 USLW 4125... notification —ranging from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson"); E.B. v. Verniero, 119 F.3d 1077, 1102 (C.A.3 1997) ("The record documents that registrants and their families have experienced profound humiliation and isolation as a result of the reaction of those notified. Employment and employment opportunities have been jeopardized or lost. Housing and housing opportunities have suffered a similar fate. Family and other personal relationships have been destroyed or severely strained. Retribution has been visited by private, unlawful violence and threats and, while such incidents of 'vigilante justice' are not common, they happen with sufficient frequency and publicity that registrants justifiably live in fear of them"); Brief for Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (describing specific incidents). * [This opinion applies also to No. 01-1231, Connecticut Dept. of Public Safety v. Doe, post, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).] 1 The Mendoza —Martinez factors include "[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment —retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative [nonpunitive] purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned." 372 U.S., at 168-169, 83 S.Ct. 554. 2 For the reasons stated by Justice SOUTER, see ante, at 1156, n. (opinion concurring in judgment), I do not find the Court's citations to Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898), and De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960), see ante, at 1152-1153 (majority opinion), convincingly responsive to this point. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. r�-r _'0?1 I r)p Ifi :11z!;; .,5 ;,.io cia;fry to orug irt,il 1i. �,Ve1'(1r;q:!rfc VVC,, 17 People v. High, 119 Cal.App.4th 1192 (2004) 15 Cal.Rptr.3d 148, 04 Cal. Daily Op. Serv. 5821, 2004 Daily Journal D.A.R. 7875 121 Constitutional Law '- Sentencing and KcyCite Yellow Flag - Negative Treatment Imprisonment Declined to Extend by People v. Gorman, Cal.App. 5 Dist., June 6, 2008 Fines . - Constitutional and statutory 119 Cal.App.4th 1192 Court of Appeal, Third District, California. provisions Statute imposing state surcharge on fines The PEOPLE, Plaintiff and Respondent, assessed against defendants who commit misdemeanors and infractions is "garden V. variety" fine calculated on the size and severity Daniel Grady HIGH, of the base fine imposed, and does not purport to Defendant and Appellant. reimburse government for an expense incurred, and thus statute is penal in nature, and its No. Co 44943• retroactive application is prohibited by state and federal ex post facto clauses. West's June 28, 2004. Ann.Cal.Penal Code § 1465.7. Synopsis Background: Defendant pleaded no contest in the Superior Court, Butte County, Nos. CM016824, CM017853, CM018323, CM018439, Robert A. Glusman, J., to receiving stolen property, second degree burglary of a vehicle, manufacturing methamphetamine, possession of methamphetamine for sale, and admitted he was on bail at the time of the last offense, and trial court imposed prison sentence, and various fees, fines, and penalties. Defendant appealed. The Court of Appeal, IHolding:j Davis, Acting P.J., held that imposition of state court facilities construction penalty violated state and federal ex post facto clauses. Affirmed as modified. West Headnotes (5) 65 Cases that cite this headnote 131 Constitutional Law - Sentencing and Imprisonment Fines _ -- Constitutional and statutory provisions Imposition of state court facilities construction penalty, as adjunct to sentence imposed against defendant who pleaded no contest to manufacturing methamphetamine and second degree burglary of a vehicle, violated state and federal ex post facto clauses, as structure, operative principle, and descriptive language chosen by Legislature in enactment of penalty statute reflected penal purpose, in addition to intent to increase funds available for new state court facilities, and effective date of such statute postdated date of charged offenses. U.S.C.A. Const. Art. 1, § 10, cl. 1; West's Ann.Cal. Const. Art. 1, § 9; West's Ann.Cal.Gov.Code § 70372; West's Ann.Cal.Health & Safety Code § 11379.6(a); West's Ann.Cal.Penal Code § 459. )1) Constitutional Law - Punishment in general See 3 Witkin & Epstein, Cal. Criminal Laiv A prohibited ex post facto law is a retrospective (3d ed. 2000) Punishment, § 92; Cal. Jur. 3d, statute that increases a punishment beyond that Criminal Laiv: Post -Trial Proceedings, § 54. applicable at the time the crime was committed. 97 Cases that cite this headnote U.S.C.A. Const. Art. 1, § 10, cl. 1; West's Ann.Cal. Const. Art. 1, § 9. )4) Fines imposition and liability in general 14 Cases that cite this headnote All fines and fees must be set forth in the abstract of judgment. 1 Thoi-!.s , N',n d"-dro. tO origi al I S ti. `�OV iElTi!i ;I `�1{li>iS. People v. High, 119 Cal.App.4th 1192 (2004) 15 Cal.Rptr.3d 148, 04 Cal. Daily Op. Serv. 5821, 2004 Daily Journal D.A.R. 7875 367 Cases that cite this headnote 151 Courts : Time of amendment Criminal Law - Amendment or Correction Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction may order correction of abstracts of judgment that do not accurately reflect the oral judgments of trial courts in imposing criminal sentences. 82 Cases that cite this headnote Attorneys and Law Firms **149 *1195 William Davies, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent. Opinion DAVIS, Acting P.J. Defendant Daniel Grady High had a series of encounters with the Chico police, the Butte County Sheriffs Department, and the Butte Interagency Narcotics Task Force between February 2002 and January 2003. He pleaded no contest to receiving stolen property (Pen.Code, § 496, subd. (a) - count 413) in case No. CM016824; no contest to second degree burglary of a vehicle (Pen.Code, § 459-count 1C) in case No. CM017853; no contest to manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a) -count IA) in case No. CM018323; and no contest to possession of methamphetamine for sale (Health & Saf.Code, § 11378-count 2D) in case No. CM018439, and admitted he was on bail at the time of the last offense (Pen.Code, § 12022.1). ' On July 7, 2003, the trial court sentenced defendant in all four cases. It imposed a total prison sentence of 11 years and imposed various fees, fines, and penalties. On appeal, defendant asks that we (1) correct clerical errors in the abstract of judgment; and (2) strike the state surcharge (Pen.Code, § 1465.7) on count I and the state court facilities construction penalty (Gov.Code, § 70372) on counts lA and 1C because they violate the ex post facto clauses of the federal and state Constitutions. **150 We shall do so and affirm the judgment as modified. Discussion I. Prohibitions Against Punishments Imposed Ex Post Facto ill In the context before us, a prohibited ex post facto law is a retrospective statute that increases a punishment beyond that applicable at the time the crime was committed. In Stogner v California (2003) 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (Stogner ), the United States Supreme Court explained that the United States Constitution's ex post facto clause prohibits the federal *1196 government and the states "from enacting statutes with `manifestly unjust and oppressive' retroactive effects." (539 U.S. at p. 607, 123 S.Ct. at p. 2447, 156 L.Ed.2d at p. 551, italics omitted, citing Calder a Bull (1798) 3 U.S. (3 Dallas) 386, 391, 1 L.Ed. 648 (Calder ).) "Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws, it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties." (Trop u Dulles (1958) 356 U.S. 86, 95-96, 78 S.Ct. 590, 2 L.Ed.2d 630, fns. omitted.) In 1990, in Collins v. Youngblood, the United States Supreme Court described a three-part test for determining whether a law is penal in nature. Quoting Beazell a Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216, the court stated: " `It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as acrime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.' " (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, ill L.Ed.2d 30, quoting Beazell, supra, 269 U.S. at pp. 169-170, 46 S.Ct. 68, italics added.) In Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297, 279 Cal.Rptr. 592, 807 P.2d 434, the California Supreme Court concluded that article 1, section 10, clause 1 of the i hno;-soi) chin,, I to of Igin.--d ! l_ j_ ,ov( wroerli: �Nn,�3 e 2 People v. High, 119 Cal.App.4th 1192 (2004) 15 Cal.Rptr,3d 148, 04 Cal. Daily Op. Serv. 5821, 2004 Daily Journal D.A.R. 7875 United States Constitution provides the same protection from ex post facto laws as article I, section 9 of the California Constitution, and adopted the Collins/Beazell test in California. (See also People v. Mc Vickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955 (Mc Vickers ).) In People v. Rivera (1998) 65 Cal.AppAth 705, 708-709, 76 Cal.Rptr.2d 703 (Rivera ), we cited the "more burdensome" test to hold that a booking fee and a jail classification fee (Gov.Code, § 29550.2, subd. (a)) did not run afoul of the prohibition against ex post facto laws. We explained, "In assessing whether a statute imposes punishment, we inquire (1) whether the Legislature intended the sanction to be punitive and, if not, (2) whether the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the Legislature's intent." (Rivera at p. 709, 76 Cal.Rptr.2d 703.) " `The first part of the test ("intent") looks solely to the declared purpose of the legislature as well as the structure and design of the statute. [Citations.] The second part of the test ("effects") requires the party challenging the statute to provide "the clearest proof' that the statutory scheme is so punitive either in purpose or effect as to negate the State's *1197 nonpunitive intent. [Citations.]' " (ld. at p. 710, 76 Cal.Rptr.2d 703, quoting Russell v Gregoire (9th Cir.1997) 124 F.3d 1079, 1087.) **151 II. Penal Code Section 1465.7 and Government Code Section 70372 121 The parties agree that Penal Code section 1465.7 (state surcharge on fines) became effective after the date defendant committed the offense charged in count 1C, and that Government Code section 70372 (state court facilities construction penalty) became effective after the dates defendant committed the offenses charged in counts IA and 1 C.2 The Attorney General correctly concedes that imposition of the Penal Code section 1465.7 $2 state surcharge on fines for the theft -related offense in count 1C violates state and federal constitutional protections against statutes that make the punishment for a crime more burdensome after its commission. As Justice Mosk observed in Mc Vickers, "Commonly understood definitions of punishment are intuitive: there is little dispute that additional jail time or extra fines are punishment." (Mc Vickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.) The surcharge mandated by Penal Code section 1465.7, like its companion penalty assessment set forth in section 1464, is a "garden variety" fine calculated on the size and severity of the base fine imposed. It does not purport to reimburse government for an expense incurred. Rather, the revenue collected is deposited in the State General Fund. 131 The Attorney General contends that imposition of the Government Code section 70372 state court facilities construction penalty in counts lA and 1C is not similarly barred. Citing our opinion in Rivera, the Attorney General maintains that the state court facilities construction penalty "is more in the nature of a user fee than a penalty for criminal behavior." We therefore focus our discussion on Government Code section 70372. *1198 The Legislature enacted Government Code section 70372 as part of the Trial Court Facilities Act of 2002. (Stats.2002, ch. 1082, § 4 (Sen. Bill No. 1732 (2001-2002 Reg. Sess.).) The Lockyer—Isenberg Trial Court Funding Act of 1997 (the 1997 Act) had shifted funding of trial courts from counties to the state in order to provide a more stable funding source for trial court operations. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1732 (2002 Reg. Sess.) as amended Apr. 11, 2002, p. 1 (Judiciary Com. Analysis).) The 1997 Act also created a Task Force on Court Facilities (the Task Force) that was asked to review the status of court facilities and recommend how to allocate funding responsibilities for maintenance and construction between counties and the state. (Ibid.) **152 The Trial Court Facilities Act of 2002 was the first of what was expected to be a series of bills to implement the recommendations of the Task Force. (Judiciary Com. Analysis, supra, p. 2.) Senate Bill No. 1732 created a new fund, the Court Facilities Trust Fund, for the deposit of county payments for the operation and maintenance of court facilities transferred to the state. The fund would also be a source of funding to implement Task Force recommendations regarding repair, renovation, modification, and construction of court facilities. (Id., p. 3.) According to the staff analysis, the projected average cost of court facilities renovation, remodeling, expansion and construction would be $384.6 million per year for the next 10 years. (Id., p. 7.) Senate Bill No. 1732 proposed increases in fees, fines and penalties imposed in both civil and criminal proceedings to fund the needed construction. (Id., pp. 3-4, 7; see Gov.Code, §§ 70372, 70373, 70373.5.) The new penalties would "supplant existing penalties now authorized by statute for counties to collect." (Judiciary Com. Analysis, supra, at p. 9.) Although the Legislature enacted Government Code section 70372 as a method of increasing the funds available to i-t '.�i:,^i_� ",!o cli:ii11 to 0n imfl `l i i.. _�i lilC:i's l!Y1.''!'li �tiV f"IiS. People v. High, 119 Cal.App.4th 1192 (2004) 15 Cal.Rptr.3d 148, 04 Cal. Daily Op. Serv. 5821, 2004 Daily Journal D.A.R, 7875 remodel, renovate and construct new state court facilities, the structure, operative principle, and descriptive language chosen reflect a penal purpose as well. The state court facilities construction penalty is not simply a "user fee" as argued by the Attorney General. If it were a user fee, there would be a rational relationship between the amount of the assessment and the extent of the individual defendant's use. Unlike the booking fee and jail classification fee in Rivera, which were based on actual administrative costs, the state court facilities construction penalty is calculated on "every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses" at the rate of $5 for every $10. The penalty imposed tracks the seriousness of the underlying offense and its base penalty. The prospect of its imposition therefore has a similar deterrent effect to that of punitive statutes generally. It thereby " `promote[s] the traditional aims of punishment —retribution and deterrence.' " (Rivera, supra, 65 Cal.AppAth at p. 710, 76 Cal.Rptr.2d 703; see, e.g., *1199 Health & Saf. Code, § 11352.5; Pen.Code §§ 243.4, 308, 11413; Veh.Code, § 23566, subds. (a), (b).) In contrast, the Government Code section at issue in Rivera expressly linked the booking and jail classification fees to the actual administrative costs incurred in booking and processing those who are arrested and convicted. We characterized it as "[i]n effect, ...an administrative `user' fee." (Rivera, supra, 65 Cal.AppAth at p. 711, 76 Cal.Rptr.2d 703.) The descriptive language the Legislature chose for the court facilities construction penalty also confirms a punitive as well as a fundraising purpose behind the statute. The Legislature designated the Government Code section 70372 assessment a "penalty." (Gov.Code, § 70372, subd. (a).) The root word, "penal," means "of or relating to punishment or retribution." (Garner, Dict. of Modern Legal Usage (2d ed.1995) p. 647, col. 2.) The American Heritage Dictionary defines "penalty" as "[a] punishment established by law or authority for a crime or offense." (American Heritage Dict. (2d college ed.1982) p. 916, col. 2.) In contrast, the Legislature designated the booking fee and jai I classification fees at issue in Rivera as "fees." (Gov.Code, § 29550.2, subd. (a).) A "fee" is defined simply as "[a] fixed charge." (American Heritage Dict., supra, p. 495, col. 1.) **153 Since we have concluded that the Legislature intended the penalty mandated by Government Code section 70372 to be punitive as well as a source of money for the construction of court facilities, it is unnecessary to address whether the sanction is so punitive in effect as to prevent us from legitimately viewing it as regulatory or civil in nature. We will strike the $2 state surcharge imposed on defendant in count 1C and the $5 state court facilities construction penalty imposed in counts I and IC. Because the probation department failed to differentiate between the penalty recommended in count 1 A and count 2D, and the trial court neglected to correct that omission when it imposed the Government Code section 70372 penalty at sentencing, we will remand the cause to allow the trial court to identify the precise amount to be stricken in count IA. I1I. Clerical Errors in the Abstract of Judgment Defendant pleaded no contest to manufacturing methamphetamine in violation of Health and Safety Code section 11379.6, subdivision (a), in what became count IA in case No. CM018323, and no contest to possessing methamphetamine for sale in violation of Health and Safety Code section 11378 in what became count 2D in case No. CM018439. The abstract of judgment incorrectly shows defendant convicted of violating Health and Safety Code section 11379, subdivision (a), in count IA and Health and Safety Code section l 1838 in count 2D. *1200 There is also an error in the manner in which the trial court handled the monetary assessments in this case. Instead of reading the separate fines, fees, penalties and surcharges into the record at sentencing, the court simply stated: "The court will impose a theft fine pursuant to [Penal Code section] 1202.5 payable to Butte County Sheriffs Office in the sum of $34. The court will impose a criminal laboratory analysis fee in the total sum of $510, a drug program fee, together with surcharges and penalties in the total sum of $1,530, a clandestine drug lab fine, together with penalties, assessments and surcharges totaling $1,700." The minute order lists the $1,530 sum as a drug program fee. (Health & Sa£Code, § 11372.7.) Both the minute order and the abstract of judgment designate the $1,700 assessment as a clandestine drug lab fine. (Health & Saf.Code, § 11379.6, subd. (a).) 141 Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. (People v. Sanchez (1998) 64 Cal.AppAth 1329, 1332, 76 Cal.Rptr.2d 34 [laboratory fee]; People v. Hong (1998) 64 Cal.AppAth 1071, 1080, 76 Cal.Rptr.2d 23 [restitution fine].) The abstract of judgment form used here, Judicial Council form CR- 290 (rev.Jan.l, 2003) provides a number of lines for "other" 4:i .:il2 1 TI101" iS011 t� :11(er5 No 01r:trn to UrI:JEnal U.S, 1'=,ovenill oi-Li Works 4 People v. High, 119 Cal.App.4th 1192 (2004) 15 Cal.Rptr.3d 148, 04 Cal. Daily Op. Serv. 5821, 2004 Daily Journil D.A.R. 7875 financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. (Kong, supra, 64 Cal.AppAth at pp. 1078-1079, 76 Cal.Rptr.2d 23.) At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Pen.Code, § 1205, subd. (c).) Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, such as the laboratory fee imposed under Health and Safety Code section 11372.5, the fee must be included in the abstract of judgment. (Sanchez, supra, 64 Cal.AppAth at p. 1332, 76 Cal.Rptr.2d 34.) As the Sanchez court explained, "Just as a ` "[r]ose is a rose is a **154 rose is a rose [ ]" ' (Gertrude Stein, Sacred Emily (1913)[ ] (John R. v Oakland Unified School Dist. (1989) 48 Cal.3d 438, 459, 256 Cal.Rptr. 766, 769 P.2d 948 (cone. opn. of Eagleson, J.)), a fine is a fine is a fine is a fine and is part of the judgment which the abstract must ` "digest or summarize." ' [Citations.]" (Sanchez, supra, 64 Cal.AppAth at p. 1332, 76 Cal.Rptr.2d 34.) 151 "Courts may correct clerical errors at any time, and appellate courts ... that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 CalAth 181, 185, 109 Footnotes Cal.Rptr.2d 303, 26 P.3d 1040.) Accordingly, we shall direct the trial court to correct the cited clerical errors. *1201 Disposition The judgment is modified to strike the state surcharge and state court facilities construction penalty imposed in count IC and the state court facilities construction penalty imposed in count IA. The cause is remanded with directions to the trial court to: (1) identify the amount of the state court facilities construction penalty to be stricken in count IA; (2) separately list, with the statutory basis, all fines, fees and penalties imposed on each count; and (3) correct the clerical errors in recording the offenses of which defendant was convicted in counts IA and 2D. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract reflecting the modifications and corrections ordered by this court and to forward a certified copy of the abstract to the Department of Corrections. We concur: ROBIE and BUTZ, JJ. All Citations 119 Cal.AppAth 1192, 15 Cal.Rptr.3d 148, 04 Cal. Daily Op. Serv. 5821, 2004 Daily Journal D.A.R. 7875 1 We use the alpha suffixes set forth in the abstract of judgment for clarity. 2 Penal Code section 1465.7 provides, in relevant part: "(a) A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464JU (b) This surcharge shall be in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code and may not be included in the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464." The Legislature enacted Penal Code section 1465.7 in 2002 as urgency legislation effective September 30, 2002. (See statutory history, 51A West's Ann. Pen.Code (2004 supp.) foil. § 1465,7, p. 58; Stats.2002, ch. 1124, §§ 46, 63.) Government Code section 70372, subdivision (a), provides, in relevant part: "[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty .... in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses...... Enacted in 2002, Government Code section 70372 became effective January 1, 2003. (Stats.2002, ch. 1082, § 4.) In count 1A defendant was charged with manufacturing methamphetamine on December 10, 2002. In count 1C defendant was charged with burglarizing a vehicle on June 17, 2002. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. `i1'Jr, No i. ko OF ioA i� 1:wl=orli:'!i4_��li "�,niC7fYi�. J U.S. v. Baggett, 125 F.3d 1319 (1997) 97 Cal. Daily Op. Serv. 7713, 97 Daily Journal D.A.R. 12,370 KeyCite Yellow Flag - Negative Treatment Declined to Follow by U.S. v. Jackson, 9th Cir.(Cal.), August 31, 1999 125 F.3d 1319 United States Court of Appeals, Ninth Circuit. UNITED STATES of America, Plaintiff -Appellee, V. Joann BAGGETT, Defendant -Appellant. UNITED STATES of America, Plaintiff -Appellee, V. Curtis BURNEY, Defendant -Appellant. UNITED STATES of America, Plaintiff -Appellee, V. Victoria HAYES, Defendant -Appellant. UNITED STATES of America, Plaintiff -Appellee, V. Marls GRZESCZUK, Defendant -Appellant. Nos. 96-50492, 96-50494, 96-50495 and 96-50515. 1 Argued and Submitted Aug. 5, 1997• Decided Sept. 29, 1997• Synopsis Defendants were convicted in the United States District Court for the Southern District of California, William B. Enright, J., of aiding and abetting wire fraud, and defendants appealed. The Court of Appeals, Cynthia Holcomb Hall, Circuit Judge, held that: (1) district court's failure to specify statute on which restitution was based required remand; (2) application of amended version of Victim Witness Protection Act (VWPA) to defendants would violate ex post facto clause; and (3) application of amended version of Senior Citizens Against Marketing Scams Act (SCAMS Act) would not violate ex post facto clause. Affirmed in part and vacated and remanded in part. West Headnotes (7) [11 Criminal Law - Review De Novo Legality of restitution orders is reviewed de novo. 4 Cases that cite this headnote )2) Criminal Law - Sentence Sentencing and Punishment - Form and contents District court's failure to specify statute underlying restitution orders imposed upon defendants convicted of aiding and abetting wire fraud required remand for clarification before orders could be reviewed on their merits. 1 Cases that cite this headnote (3( Constitutional Law -,_ Sentencing and Imprisonment Sentencing and Punishment - Amendment or Other Modification Application of amended version of Victim Witness Protection Act (VWPA) to defendants convicted for conduct which occurred before amended version became effective would violate ex post facto clause, because amended version included substantive change to defendants' detriment in that it required court to impose full restitution without considering defendants' economic circumstances, whereas prior version required court to consider financial circumstances prior to setting restitution. U.S.C.A. Const. Art. 1, § 9, cl. 3; 18 U.S.C.A. § 3664(f)(1)(A); 18 U.S.C.(1994 Ed.) § 3664(a). 23 Cases that cite this headnote 141 Sentencing and Punishment Conduct of hearing While sentencing court did not have to make express findings of fact about defendants' financial condition, under former version of <:> '�0,. I i hoII pri Hu, 1.1lers. No clrainl to original U.:i. Caovcvllrin:1i1 %Yorks. U.S, v. Baggett, 125 F.3d 1319 (1997) 97 Cal. Daily Op. Serv. 7713, 97 Daily Journal D.A.R. 12,370 Victim Witness Protection Act (VWPA), record had to reflect that district court had at its disposal information relating to defendants' financial condition, such that district court considered defendants' future ability to pay. 18 U.S.C.(1994 Ed.) § 3664(a). 7 Cases that cite this headnote 151 Sentencing and Punishment Offender's Ability to Pay Under 1995 version of Victim Witness Protection Act (VWPA), restitution orders must be based on some evidence that defendants may be able to pay amount fixed when required to do so; possibility of unforeseeable windfall is not enough. 18 U.S.C.(1994 Ed.) § 3664(a). 3 Cases that cite this headnote 161 Sentencing and Punishment - Findings and statement of reasons Restitution orders could not be imposed under Senior Citizens Against Marketing Scams Act (SCAMS Act), absent factual determination by district court as to whether case met SCAMS Act's requirements. 18 U.S.C.A. §§ 2325-2327. 1 Cases that cite this headnote 171 Constitutional Law Sentencing and Imprisonment Sentencing and Punishment Amendment or Other Modification Application of amendments to Senior Citizens Against Marketing Scams Act (SCAMS Act) to defendants whose conduct occurred before amendments were enacted would not violate ex post facto clause, because amendments did not increase punishment available under SCAMS Act, but merely changed procedures under which district court orders restitution. U.S.C.A. Const. Art. 1, § 9, cl. 3; 18 U.S.C.A. §§ 2325-2327. Attorneys and Law Firms *1320 Karl A. Rupp and Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant - appellant Baggett. Barbara L. Davis, Law Office of Barbara L. Davis, San Diego, CA, for defendant -appellant Burney. Stephen D. Lemish, El Cajon, CA, for defendant -appellant Hayes. Grant L. Eddy, Ramona, CA, for defendant -appellant Grzesczuk. Julia Craig Kelety, Assistant United States Attorney, San Diego, CA, for plaintiff -appellee. Appeals from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding. D.C. Nos. CR-95-01994-1- WBE, CR-95-01994-2-WBE, CR-95-01994-4-WBE and CR-95-01994-3- WBE. Before: HALL and T.G. NELSON, Circuit Judges, and WINMILL, District Judge.* Opinion *1321 CYNTHIA HOLCOMB HALL, Circuit Judge. Defendants -appellants Joann Baggett, Curtis Burney, Victoria Hayes, and Mark Grzesczuk were convicted of multiple counts of aiding and abetting wire fraud. 18 U.S.C. §§ 1343, 2. They worked as telemarketers for a fraudulent telemarketing operation in Las Vegas, Nevada, called "Say No Now, Inc." ("SNN"). Baggett and Grzesczuk appeal their convictions and sentences. Burney and Hayes appeal their sentences. We have jurisdiction over the timely appeals under 28 U.S.C. § 1291. We remand for resentencing so that the district court may explain which statute it relied upon in ordering restitution and conform the restitution orders to the requirements of that statute.] 22 Cases that cite this headnote L BACKGROUND From July of 1994 through November of 1995, appellants induced victims to send money to SNN by telling them that in order to receive a valuable award they had won, they had I l honi,:Or RciIICf;�. -I- c!"T11; io 06,-m-laI i i S_ 2 U.S. v. Baggett, 125 F.3d 1319 (1997) 97 Cal. Daily Op. Serv. 7713, 97 Daily Journal D.A.R. 12,370 to make a charitable donation to SNN to help keep children away from drugs and alcohol. Almost none of the $1.2 million that SNN collected went to charitable causes. In addition, the victims were given prizes worth only about 15%of the money they sent to SNN. After their convictions for aiding and abetting wire fraud, appellants received prison sentences varying from 27 to 37 months. Appellants were also ordered to pay fines of $20,000 to $25,000 each and restitution ranging from $16,010 to $68,934. II. ANALYSIS OF THE RESTITUTION ORDERS A. Standard of Review III The legality of the restitution orders is reviewed de novo. United States v. Rice, 38 F.3d 1536, 1540 (9th Cir.1994). B. The Restitution Statutes 121 The record does not reveal which restitution statute the district court relied upon when making the restitution orders. The sparely -worded orders give little guidance. They simply include a list of monies owed to each victim, and state that each appellant shall pay the restitution "immediately." Neither does the sentencing transcript reveal which restitution statute was applied. The parties themselves are unclear on the question.2 This is a question that must be answered before appellants' claims can be considered on their merits. Cf. United States v. Stuver; 845 F.2d 73, 75 (4th Cir.1988) (remand required where district court did not specify restitution statute relied upon and order was improper under either statute). Two restitution statutes potentially apply here, and their requirements differ substantially. The Victim Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664 (1995), is the general restitution statute. It authorizes the district courts to order restitution to the victims of any crime under Title 18. 18 U.S.C. § 3663(a) (1). Victims of an offense involving a scheme or conspiracy are eligible for compensation provided that they are directly harmed by the defendant's criminal conduct in the course of the scheme or conspiracy. 18 U.S.C. § 3663(a)(2). With property offenses, the restitution order may require repayment of the full value of the property taken from each victim, 18 U.S.C. § 3663(b)(1), although the court may consider the defendant's financial circumstances before setting the amount of restitution. 18 U.S.C. § 3664(a). In addition, the court may require payment of restitution in installments. 18 U.S.C. § 3663(f). The Senior Citizens Against Marketing Scams Act of 1994, 18 U.S.C. §§ 2325-2327 (1994) ("SCAMS Act"), is a more fact -specific enactment. Individuals convicted of certain *1322 offenses as a result of telemarketing activities are subject to enhanced penalties, and must pay full restitution to their victims. "Victims" are defined as any "individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2327(f). The issuance of a restitution order is mandatory, regardless of the defendant's financial circumstances. 18 U.S.C. § 2327(b)(4)(A), (B)(i). However, the court may consider the defendant's economic circumstances when "determining the manner in which and the schedule according to which the restitution is to be paid." 18 U.S.C. § 2327(b)(4)(C)(i). Only a defendant whom the court finds to be destitute and unable to pay any restitution in the future is eligible for a nominal restitution order. 18 U.S.C. § 2327(b)(4)(D). The statutory landscape is complicated by the Mandatory Victims Restitution Act of 1996 ("MVRA"), Title II, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-321, 110 Stat. 1214. The MVRA substantially amended both the VWPA and the SCAMS Act. In the following discussion, we consider whether the original or the MVRA-amended versions of the statutes potentially apply to appellants, and we briefly attempt to give guidance to the district court in revising the restitution orders so that they comply with the applicable statute. 1) The Victim Witness Protection Act [31 The MVRA expressly provides that its amendments to the VWPA apply here. The MVRA states that it "shall, to the extent constitutionally permissible, be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act [April 24, 1996]." See 18 U.S.C. § 2248 (statutory notes). Appellants were convicted on May 21, 1996, for criminal activity that took place from July of 1994 through November of 1995. We must therefore determine whether applying the amended version of the VWPA would violate the Ex Post Facto Clause of the United States Constitution. To fall within the ex post facto prohibition, a law must be retrospective -that is it must apply to events occurring �� : z-i;ii: i0 !ai71J11':rll % 9 . �'..itY?Y �. .�r)Fks U.S. v. Baggett, 125 F.3d 1319 (1997) 97 Cal. Daily Op. Serv. 7713, 97 Daily Journal D.A.R. 12,370 before its enactment -and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433, ----, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997). Since appellants' criminal activity occurred before the MVRA's effective date, the MVRA has a retrospective effect. See United States v. DeSalvo, 41 F.3d 505, 512 (9th Cir.1994) (amendments to VWPA are retrospective when applied to defendant whose criminal activity occurred before amendments enacted). The MVRA also caused a substantive change in the VWPA to appellants' detriment. Most significantly, the amended version of the VWPA requires the court to impose "full" restitution without considering the defendant's economic circumstances. 18 U.S.C. § 3664(f)(1)(A) (1996). After ordering full restitution, the court must set a payment schedule. 18 U.S.C. § 3664(f)(2). If the defendant proves indigency, the court can order nominal periodic payments. 18 U.S.C. § 3664(f)(3)(B). But under the old version of the VWPA, the procedure is reversed: the court must first consider the defendant's financial circumstances before setting the amount of restitution to be paid. 18 U.S.C. § 3664(a) (1995). At the time appellants were sentenced, the amended VWPA thus had the potential to increase the amount of restitution they would have to pay, from an amount set by the court by taking into account appellants' financial circumstances, to full restitution. Accordingly, if the court determines that the VWPA should apply to this case, it must use the old version to avoid running afoul of the Ex Post Facto Clause. See United States v. Thompson, 113 F.3d 13, 15 n. 1 (2d Cir.1997) (dictum). 141 151 In setting the amount of restitution, the district court must therefore consider the amount of loss sustained by the victims; appellants' financial resources, financial needs and earning ability; and any other factors the court deems appropriate. 18 U.S.C. § 3664(a) (1995). While the court need not make express findings of fact about appellants' financial condition, "the record *1323 must reflect that the district court had at its disposal information relating to [appellants'] financial condition." United States v. Sablan, 92 F.3d 865, 871 (9th Cir.1996). In other words, the record must indicate that "the district court considered [appellants'] future ability to pay." United States v. English, 92 F.3d 909, 917 (9th Cir.1996) (internal quotation omitted). Of particular importance in this case, the restitution orders "must be based on some evidence that [appellants] may be able to pay the amount fixed when required to do so -the possibility of an unforeseeable windfall is not enough." United States v. Ramilo, 986 F.2d 333, 335 (9th Cir.1993) (emphasis added). The court may choose to order appellants to pay the restitution in installments. 18 U.S.C. § 3663(f)(1995). 2) The Senior Citizens Against Marketing Scams Act of 1994 161 The more fact -specific SCAMS Act also appears to apply to this telemarketing fraud case. However, we leave to the district court on remand the factual determination whether this case meets the SCAMS Act's requirements. See 18 U.S.C. § 2325(1)(A).3 The MVRA's amendments to the SCAMS Act apply to appellants unless barred by the Ex Post Facto Clause. 171 Once again, the MVRA has a retrospective effect since appellants' criminal activity occurred before the MVRA took effect in 1996. However, the MVRA did not increase the punishment available under the SCAMS Act.4 It merely changed the procedures under which the district court orders restitution by conforming them with the amended VWPA's procedures.5 See 18 U.S.C. § 2327(b)(2) (1996), incorporating 18 U.S.C. § 3664 (1996); see California Department of Corrections v. Morales, 514 U.S. 499, 506-07, 115 S.Ct. 1597, 1602, 131 L.Ed.2d 588 (1995) (no ex post facto violation where amendment to parole statute merely altered method of setting parole date, not substantive standards used to determine when prisoner should be paroled). If the district court finds that the SCAMS Act applies to appellants, it must amend the restitution orders to comply with the 1996 version of the SCAMS Act. Most importantly, 18 U.S.C. 3664(f)(2), incorporated into the SCAMS Act by 18 U.S.C. § 2327(b)(2), requires the district court to set a payment schedule according to the defendant's financial condition. I1I. CONCLUSION We cannot consider the substance of appellants' claims concerning the restitution orders until we know which restitution statute the district court applied. We therefore VACATE and REMAND as to the restitution orders so that the district court may: 1) clarify which restitution statute `I %I r,uiI rg01i tt~r�j. I'dF'j c.lalnn 0 orignal U :i Works U.S. v. Baggett, 125 F.3d 1319 (1997) 97 Cal. Daily Op. Serv. 7713, 97 Daily Journal D.A.R. 12,370 applies to appellants; and 2) amend the orders so that they conform with the applicable statute. As to all the remaining issues raised by appellants and discussed in an unpublished memorandum disposition, we AFFIRM. All Citations 125 F.3d 1319, 97 Cal. Daily Op. Serv. 7713, 97 Daily Journal D.A.R. 12,370 Footnotes Hon. B. Lynn Winmill, United States District Judge for the District of Idaho, sitting by designation. 1 We affirm the district court on the remaining issues, which are discussed in an unpublished memorandum disposition filed concurrently with this opinion. 2 The government asked the district court to order restitution under the SCAMS ACT, 18 U.S.C. §§ 2325-2327, but initially argued to this court that restitution should be affirmed under the Victim Witness Protection Act, 18 U.S.C. §§ 3663-3664. It switched positions in its supplemental brief, arguing that the order should be affirmed under the SCAMS Act. Appellants have consistently requested reversal of the restitution orders under the VWPA, failing to acknowledge the relevance of the SCAMS Act. 3 We note that there is no ex post facto bar to applying the SCAMS Act here. The indictment alleged that the fraudulent scheme continued to November 22, 1995, long after the SCAMS Act's effective date of September 3, 1994. See United States v. DeSalvo, 41 F.3d at 512-13. 4 At first glance, it might appear that the MVRA indirectly increased the potential punishment by repealing 18 U.S.C. § 2327(b)(4)(D). See Pub L No. 104-321, Title ll, § 205(e)(2)(C), 110 Stat. 1232. That old SCAMS Act provision allowed the district court to enter a nominal restitution order if it found on the record that the defendant was currently indigent and would not be able to pay any restitution in the foreseeable future. At the same time that the MVRA repealed that provision, however, it also incorporated 18 U.S.C. § 3664, an amended provision of the VWPA, into the SCAMS Act. See 18 U.S.C. § 2327(b)(2) (1996). Under 18 U.S.0 § 3664(f)(3)(B) (1996), the district court retains the discretion to order nominal payments if it finds that the defendant cannot pay restitution currently or in the future. 5 For instance, the MVRA eliminated the requirement in the old SCAMS Act, 18 U.S.C. § 2327(c)(1) (1994), that the U.S. Attorney consult with each victim and file an affidavit listing the victims' losses. Instead, the probation officer is to give the court a report including "to the extent practicable, a complete accounting of the losses to each victim." 18 U.S.C. § 3664(a) (1996), incorporated by 18 U.S.C. § 2327(b)(2) (1996). End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. ,r.j i hoilisnn �PLirj ., f Ilo d,fJ i to original U.:a 1Ivorks Burgess v. Salmon, 97 U.S. 381 (1878) 7 Otto 381, 24 L.Ed. 1104 KeyCite Yellow Flag - Negative Treatment Declined to Extend by Guangdong Wireking Housewares & Hardware Co., Ltd- v. U.S., Fed.Cir., March 18, 2014 97 U.S. 381 Supreme Court of the United States 141 BURGESS V. SALMON. October Term, 1878 **I ERROR to the Circuit Court of the United States for the Eastern District of Virginia. The facts are stated in the opinion of the court. West Headnotes (7) Generally, where the computation is to be made from an act done, the day on which the act is done is to be included. Internal Revenue _ Constitutional and statutory provisions In the forenoon of March 3, 1875, A. stamped, sold, and removed for consumption or use certain tobacco. On the afternoon of the same day the president approved an act, 18 Stat. 339, amending Rev.St. § 3368, increasing the tax on tobacco, but providing that such increase should "not apply to tobacco on which the tax under existing laws shall have been paid when this act takes effect." Held, that the increase of tax under that act did not apply to the tobacco so stamped, sold, and removed. 11 Cases that cite this headnote III Constitutional Law - Penal laws in general 151 Statutes - -- Passage, approval, or enactment; The ex post facto effect of law cannot be evaded time computed therefrom by giving a civil form to that which is essentially Generally, in absence of special circumstances criminal. the entire day on which a statute was passed may be included in determining time from which 41 Cases that cite this headnote statute was operative. 121 Constitutional Law - - Taxation Internal Revenue Constitutional and 161 Statutes '.:-- Passage, approval, or enactment; statutory provisions time computed therefrom Act March 3, 1875, 18 Stat. 339, c. 127, § Under U.S.C.A. Const, article 1, section 7, 2, provides for an increase in the revenue tax providing that every bill which shall have passed on tobacco, and prescribes a penalty against the House of Representatives and the Senate, any person who removes tobacco from his shall, before it becomes a law, be presented to the manufactory without the proper stamp being President of the United States who if he approves affixed and canceled. Held, that the increase of the bill shall sign it, but if not shall return it tax did not apply to tobacco stamped, sold, and with his objections to that house in which it removed before the passage of the act, even as originated, time of approval of bill passed by to the civil liability for the excess of the tax, Congress constituted earliest possible moment at since the ex post facto effect of the law cannot which it could become a law or at which it could be evaded by giving a civil form to that which is take effect. essentially criminal. 8 Cases that cite this headnote 49 Cases that cite this headnote I71 Statutes r - What Is Effective or Operative 131 Time Excluding First or Last Day Date; How Determined ' 111-lof ,; oil I tit:ti ltCr S. No rlairn to Original t.! S Govtirrinierit Works. Burgess v. Salmon, 97 U.S. 381 (1878) 7 Otto 381, 24 L.Ed. 1104 In determining date on which statutes take effect, fractions of the day are not recognized. 7 Cases that cite this headnote Attorneys and Law Firms *381 Mr. Assistant -Attorney -General Smith for the plaintiff in error. Mr. W. P. Burivell, contra. Opinion **2 @In the forenoon of March 3, 1875, A. stamped, sold, and removed for consumption or use from the place of manufacture certain tobacco, which, under sect. 3368 of the Revised Statutes, was subject to a tax of twenty cents per pound. On the afternoon of that day, the President approved the act of March 3, 1875 (18 Stat. 339), increasing the tax to twenty-four cents per pound, but providing that such increase should `not apply to tobacco on which the tax under existing laws shall have been paid when this act takes effect.' Held, that the increase of tax under that act did not apply to the tobacco so stamped, sold, and removed. MR. JUSTICE HUNT delivered the opinion of the court. The facts of this case, as agreed upon, were these: That Burgess was collector of internal revenue for the third collection district of Virginia, and in that capacity exacted from and received of Salmon & Hancock, and paid into the treasury of the United States, the sum of $377.80, as an additional tax of four cents a pound on a quantity of tobacco belonging to them. It was thus exacted on the third day of March, 1875, under the act of that date, which provides as follows: — 'That sect. 3368 of the Revised Statutes be amended by striking out the words `twenty cents a pound,' and inserting in lieu thereof the words `twenty-four cents a pound." .. . `Provided, that the increase of tax herein provided for shall not apply to tobacco on which the tax under existing laws shall have been paid when this act takes effect.' 18 Stat. 339. The act contains also the provision following, viz.: `Every person who removes from his manufactory tobacco without the proper stamp being affixed and cancelled ... shall, for each offence, be fined not less than $1,000 and not more than $5,000, and be imprisoned not less than one year and not more than two years.' *382 The tobacco in question was stamped, sold, and removed for consumption or use from the place of manufacture, and beyond the control of Salmon & Hancock, in the forenoon of March 3, 1875, and the above -named act of Congress was approved in the afternoon of that day, after the stamping and removal of this tobacco, which, when removed, had been stamped at twenty cents a pound. Payment of the additional four cents a pound was made under protest, and an appeal to the commissioner of internal revenue regularly taken and overruled. The manufacturers brought suit to recover back the amount, and recovered judgment in the court below. The collector thereupon sued out this writ of error. The case presents but a single point: Can a manufacturer be punished, criminally and civilly, --civilly here, —for the violation of a statute, when the statute was not in force at the time the act was done? In other words, Can a person be thus punished when he did not contravene the provisions of the statute? In still other words, Can one be punished for offending against the provisions of a statute from the effects of which he was expressly exempted? **3 We are relieved by the agreed statement, to which reference is made, from examining a question of importance, and perhaps of difficulty, respecting the punctum temporis when a statute takes effect. Does it, as the collector contends, have operation in the present instance on the third day of March, 1875, and cover the whole of that day, commencing at midnight of March the second? If the time may be inquired into, to ascertain at what hour or what fraction of an hour of the day the form of the law becomes complete, is it to be ascertained by the court as a question of law, or to be decided as an issue of fact? It is agreed by the parties to the record that in fact the duty of twenty per cent had been paid on the tobacco in question, and it had been removed from the storehouse, before the act of March 3, 1875, took effect; and we content ourselves by acting upon that agreement. We are of opinion that the government must fail, upon the facts agreed upon; to wit, that the duty of twenty per cent had *383 been paid and the tobacco had been removed before the act had been approved by the President. The seventh section of article 1 of the Constitution of the United States provides that every bill which shall have passed the House NPn �ii; i s <�i _ i i o irE�i ;.r�,_..-on•,rc�r,����t�i��i `��ic;rla. 2 Burgess v. Salmon, 97 U.S. 381 (1878) 7 Otto 381, 24 L.Ed. 1104 of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States. If he approve he shall sign it, but if not he shall return it, with his objections, to that House in which it originated.... who shall proceed to reconsider it.... If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law. In the present case, the President approved the bill; and the time of such approval points out the earliest possible moment at which it could become a law, or, in the words of the act of March 3, 1875, at which it could take effect. In Lapeyre v. United States (17 Wall. 191), it was said obiter, `The act became effectual upon the day of its date. In some cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible.' The question involved in that case was whether a proclamation issued by President Johnson, bearing date of June 24, 1865, removing certain restrictions upon commercial intercourse, took effect on that day, or whether it took effect on the day it was published and promulgated, which was on the 27th of the same month. It was held by a majority of this court that it took effect from its date. The question was upon the 24th or the 27th of June, and the point of the portion of a day was not involved. While the general proposition may be true, that where no special circumstances exist, the entire day on which the act was passed may be included, there is nothing in that case to make it an authority on the point before us. **4 In the Matter of Hoives (21 Vt. 619), it appeared that the Bankrupt Act was repealed March 3, 1843. Howes presented his petition on that day, and it was held that he was too late, that on questions of that nature there can be no divisions of a day. *384 In the Matter of Welman (20 id. 653), the question was the same, and decided in the same way. While stating the general rule as above, the court say they agree with Lord Mansfield in Coombs v. Pitt (4 Burr. 1423), that in particular cases the very hour may well be shown when it need and can be done. Arnold v. United States (9 Cranch, 104) is in affirmance of the same general principle. The act of July 1, 1812, there discussed, provided `that an additional duty of one hundred per cent upon the permanent duties now imposed by law ... shall be levied and collected on all goods, wares, and merchandises which shall, from and after the passage of this act, be imported into the United States from any foreign port or place.' The goods were brought into the collection district of Providence on the first day of July, 1812. The court say, `The statute was to take effect from its passage, and it is a general rule that, where the computation is to be made from an act done, the day on which the act is done is to be included.' See the case of Richardson (2 Story, 571), decided by the same judge, sustaining the view just taken. In the present case, the acts and admissions of the government establish the position that the duties exacted by law had been fully paid, and the goods had been surrendered and transported before the President had approved the act of Congress imposing an increased duty upon them. To impose upon the owner of the goods a criminal punishment or a penalty of $377 for not paying an additional tax of four cents a pound, would subject him to the operation of an ex post facto law. An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to that then prescribed. Carpenter et al. v. Commonivealth of Pennsylvania, 17 How. 456. Had the proceeding against Salmon & Hancock been taken by indictment instead of suit for the excess of the tax, and the one was equally authorized with the other, the proceeding would certainly have fallen within the description of an ex post facto law. In Fletcher v. Peck (6 Cranch, 87), it was decided that an *385 act of the legislature by which a man's estate shall be seized for a crime which was not declared to be an offence by a previous law, was void. In Cummings v. Missouri (4 Wall. 277), it was held that the passage of an act imposing a penalty on a priest for the performance of an act innocent at the time it was committed, was void. **5 To the same purport is Pierce v. Carskaden, 16 id. 234. The cases cited hold that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal. Cummings v. Missouri, supra; Potter's Dwarris, 162, 163, note 9. Judgment affirmed. I hon,Son ?��.�ilr r�. No rlaini to ofi,yinal I.1_S. Government Wnrks. 3 Burgess v. Salmon, 97 U.S. 381 (1878) 7 Otto 381, 24 L.Ed. 1104 End of Document All Citations 97 U.S. 381, 7 Otto 381, 1878 WL 18314, 24 L.Ed. 1104 © 2021 Thomson Reuters. No claim to original U.S. Government Works. r'� ,? f I-ion::;on Reiners. No Glami to original 11 S. Gave mmeni Oforksi U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct, 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 In KeyCite Red Flag - Severe Negative Treatment Abrogated by Hudson v. U.S., U.S.Okla., December 10, 1997 log S.Ct. 1892 Supreme Court of the United States UNITED STATES, Appellant V. Irwin HALPER. No. 87-1383. 1 Argued Jan. 17, 1989. 1 Decided May 15, i989. Synopsis United States brought action against former medical service manager for filing of allegedly inflated Medicare claims under the civil False Claims Act. The Government moved for summary judgment. The United States District Court for the Southern District of New York, 660 F.Supp. 531, Robert W. Sweet, J., granted summary judgment for Government, and Government moved for reconsideration. On reargument, the District Court, 664 F.Supp. 852, amended the judgment to award lesser damages, and the Government appealed. The Supreme Court, Justice Blackmun, held that: (1) a defendant who has already been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as deterrent or retribution, without violating the double jeopardy clause; (2) where prolific but small -gauge offender previously has sustained criminal penalty, and civil penalty sought in subsequent proceeding bears no rational relation to goal of compensating Government for its loss, but rather, appears to qualify as "punishment," the defendant is entitled to accounting of Government's damages and costs in order to allow trial court, in its discretion, to determine whether penalty sought in fact constitutes second punishment violative of double jeopardy clause and to set size of civil sanction that Government may receive without crossing line of permissible remedy and prohibited punishment; and (3) disparities between district court's approximation of Government's expenses, of $16,000, and defendant's potential liability under the False Claims Act, of more than $130,000, were sufficiently disproportionate that sanction under the Act would constitute second punishment in violation of double jeopardy. Vacated and remanded. Justice Kennedy joined the opinion of the court and filed separate concurring opinion. West Headnotes (H) III Double Jeopardy - Civil or criminal nature Government may demand civil compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or fixed sum plus double damages, without being deemed to have imposed second punishment on defendant who has been criminally punished, for purpose of double jeopardy analysis. U.S.C.A. Const.Amend. 5. 52 Cases that cite this headnote 121 Double Jeopardy _ - Proceedings, Offenses, Punishments, and Persons Involved or Affected Double jeopardy protection is intrinsically personal, and its violation can be identified only by assessing character of actual sanctions imposed on individual by machinery of state, through evaluating purposes actually served by particular civil sanction, rather than underlying nature of proceeding giving rise to sanction. U.S.C.A. Const.Amend. 5. 83 Cases that cite this headnote 131 Double Jeopardy - Civil or criminal nature Civil, as well as criminal, sanction constitutes punishment for double jeopardy purposes when sanction as applied in individual case serves goals of punishment. U.S.C.A. Const.Amend. 5. 171 Cases that cite this headnote 141 Double Jeopardy - Civil or criminal nature Defendant who has already been punished in criminal prosecution may not be subjected to additional civil sanction to extent that second sanction may not fairly be characterized as '6 Q,Tf S I °.(� i�f�l.i� 4_� Ok"Ic�it'i�l� i!.`._ F:nclvC.ftlfi'1�..=��U'Y�,�� . U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.26 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 remedial, but only as deterrent or retribution, exceed that authorized by legislature. U.S.C.A. given constitutional protection against double Const.Amend. 5. jeopardy. U.S.C.A. Const.Amend. 5. 322 Cases that cite this headnote 857 Cases that cite this headnote 181 Double Jeopardy _ ; Civil or criminal nature 151 Double Jeopardy - Fines, penalties, and Private party may file civil suit seeking damages forfeitures for conduct that previously was subject of Where prolific but small -gauge offender has criminal prosecution and punishment without previously sustained criminal penalty, and civil triggering protections of double jeopardy clause, penalty sought in subsequent proceeding bears even if civil sanctions imposed are punitive. no rational relation to goal of compensating U.S.C.A. Const.Amend. 5. Government for its loss, but rather appears to qualify as "punishment" in plain meaning of 132 Cases that cite this headnote word, defendant is entitled to accounting of Government's damages and costs in order to 191 Double Jeopardy - Civil or criminal nature allow trial court, in its discretion, to determine Government may not criminally prosecute whether penalties sought in fact constitute defendant, impose criminal penalty upon him, second punishment violative of double jeopardy and then bring separate civil action based on clause and to set size of civil sanction that same conduct and receive judgment that is not Government may receive without crossing line rationally related to goal of making Government between permissible remedy and prohibited whole without violating double jeopardy clause. punishment. U.S.C.A. Const.Amend. 5. U.S.C.A. Const.Amend. 5. 734 Cases that cite this headnote 293 Cases that cite this headnote 161 Double Jeopardy . Fines, penalties, and 1101 Double Jeopardy Fines, penalties, and forfeitures forfeitures Government may seek full civil penalty against Disparities between district court's $16,000 defendant who has not previously been punished approximation of Government's costs in for the same conduct without violating double investigating and prosecuting defendant's false jeopardy, even if the civil sanction imposed is Medicare claims as well as $585 actual damages punitive, as in such a case, double jeopardy and civil liability to which defendant convicted clause is not implicated. U.S.C.A. Const.Amend. of 65 counts of violating criminal false claims 5. statute was subject under civil False Claims 281 Cases that cite this headnote Act, at $2,000 per violation, or $130,000, were sufficiently disproportionate that civil penalty authorized by Act constituted second 171 Double Jeopardy - Fines, penalties, and punishment in violation of double jeopardy. forfeitures U.S.C.A. Const.Amend. 5; 31 U.S.C.A. §§ Government may seek and obtain both full civil 3729-3731. penalty and full range of statutorily authorized criminal penalties in same proceeding without 639 Cases that cite this headnote violating double jeopardy, even if civil sanction imposed is punitive, as in single proceeding 1111 Federal Courts . Particular cases the multiple punishment issue would be limited Civil False Claims Act action would be to ensuring that total punishment did not remanded to permit Government to demonstrate that district court's assessment of injuries i]ir:lr ., .. I.. ,,Irrr;; '•!, ! ,ur; 1'1 odgilial I 2 U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487,57 USLW 4526, Med & Med GD (CCH) P 37,847 suffered by Government from Medicare fraud and costs of investigating and prosecuting for false claims, approximating Government's expenses at no more than $16,000, was erroneous, in determining whether double jeopardy would be violated if defendant were held liable for more than $130,000, based on civil penalty of $2,000 per violation for 65 Medicare false claims counts. U.S.C.A. Const.Amend. 5; 31 U.S.C.A. §§ 3729-3731. 23 Cases that cite this headnote **1894 Syllabus* *435 After respondent, the manager of a company which provided medical services for patients eligible for federal Medicare benefits, was convicted, inter alia, of submitting 65 false claims for Government reimbursement in violation of the federal criminal false -claims statute, he was sentenced to prison and fined $5,000. Based solely on facts established by his criminal conviction, the District Court then granted the Government summary judgment in its suit against him under the federal civil False Claims Act (Act). Under the strict terms of that Act's remedial provision, as it then existed, respondent would have been liable for a civil penalty of $2,000 on each of the 65 false claims, as well as for twice the amount of the Government's actual damages of $585 and the costs of the action. However, because the statutorily authorized recovery of more than $130,000 bore no "rational relation" to the sum of the Government's actual loss plus its costs in investigating and prosecuting the false claims, which the court approximated at no more than $16,000, the court held that imposition of the full statutory amount would violate the Double Jeopardy Clause of the **1895 Fifth Amendment by punishing respondent a second time for the same conduct for which he had been convicted. Since it considered the Act unconstitutional as applied to respondent, the court limited the Government's recovery to double damages and costs. The Government took a direct appeal to this Court. Held: The statutory penalty authorized by the Act, as applied to respondent, violates the Double Jeopardy Clause. Pp. 1897-1904. (a) Although Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917, United States ex rel. Marcus v Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, and Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149, establish that proceedings and penalties under the Act are civil in nature, and that a civil remedy does not constitute multiple punishment violative of the Clause merely because Congress provided for civil recovery in excess of the Government's actual damages, those cases did not consider and do not foreclose the possibility that in a particular case a civil penalty authorized by the Act may be so extreme and so divorced from the Government's actual damages and expenses as to constitute prohibited "punishment." Pp. 1897-1901. (b) In the rare case such as the present, where a prolific but small -gauge offender previously has sustained a criminal penalty, and the civil *436 penalty sought in a subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, the defendant is entitled to an accounting ofthe Government's damages and costs in order to allow the trial court, in its discretion, to determine whether the penalty sought in fact constitutes a second punishment violative of the Clause and to set the size of the civil sanction the Government may receive without crossing the line between permissible remedy and prohibited punishment. Pp. 1901-1903. (c) While the District Court correctly found that the disparity between its approximation of the Government's costs and respondent's statutory liability is sufficiently disproportionate that the sanction provided by the Act constitutes a second punishment violative of double jeopardy, the case is remanded to permit the Government to demonstrate that that court's assessment of its injuries was erroneous, since it would be unfair to deprive the Government of an opportunity to present an accounting of its actual costs arising from respondent's fraud, to seek an adjustment of the court's approximation, and to recover demonstrated costs. Pp. 1903-1904. 664 F.Supp. 852 (S.D.N.Y.1987), vacated and remanded. BLACKMUN, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, post, p. Attorneys and Law Firms Michael R. Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant 3 U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 Attorney General Bolton, Deputy Solicitor General Merrill, Roy T. Englert, Jr., and Michael Jay Singer. John G. Roberts, Jr., by invitation of the Court, 488 U.S. 906, argued the cause and filed a brief as amicus curiae in support of the judgment below. Opinion Justice BLACKMUN delivered the opinion of the Court. In this case, we consider whether and under what circumstances a civil penalty may constitute "punishment" for the purposes of double jeopardy analysis.I *437 I Respondent Irwin Halper worked as manager of New City Medical Laboratories, Inc., a company which provided medical service in New York City for patients eligible for benefits under the federal Medicare program. In that capacity, Halper submitted to Blue Cross and Blue Shield of **1896 Greater New York, a fiscal intermediary for Medicare, 65 separate false claims for reimbursement for service rendered. Specifically, on 65 occasions during 1982 and 1983, Halper mischaracterized the medical service performed by New City, demanding reimbursement at the rate of $12 per claim when the actual service rendered entitled New City to only $3 per claim. Duped by these misrepresentations, Blue Cross overpaid New City a total of $585; Blue Cross passed these overcharges along to the Federal Government.2 The Government became aware of Halper's actions and in April 1985 it indicted him on 65 counts of violating the criminal false -claims statute, 18 U.S.C. § 287, which prohibits "mak[ing] or present[ing] ... any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent." Halper was convicted on all 65 counts, as well as on 16 counts of mail fraud. He was sentenced in July 1985 to imprisonment for two years and fined $5,000. *438 The Government then brought the present action in the United States District Court for the Southern District of New York against Halper and another, who later was dismissed from the case, see App. 21, 36, under the civil False Claims Act, 31 U.S.C. §§ 3729-3731. That Act was violated when "[a] person not a member of an armed force of the United States ... (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved." § 3729. Based on facts established by Halper's criminal conviction and incorporated in the civil suit, the District Court granted summary judgment for the Government on the issue of liability. 660 F.Supp. 531, 532- 533 (1987). The court then turned its attention to the remedy for Halper's multiple violations. The remedial provision of the Act stated that a person in violation is "liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action." 31 U.S.C. § 3729 (1982 ed., Supp. I1).3 Having violated the Act 65 separate times, Halper thus appeared to be subject to a statutory penalty of more than $130,000. The District Court, however, concluded that in light of Halper's previous criminal punishment, an additional penalty this large would violate the Double Jeopardy Clause. Although the court recognized that the statutory provisions fora civil sanction of $2,000 plus double damages fora claims violation was not in itself criminal punishment, it concluded that this civil remedy, designed to make the Government whole, would constitute a second punishment for double jeopardy *439 analysis if, in application, the amount of the penalty was "entirely unrelated" to the actual damages suffered and the expenses incurred by the Government. 660 F.Supp., at 533. In the District Court's view, the authorized recovery **1897 of more than $130,000 bore no "rational relation" to the sum of the Government's $585 actual loss plus its costs in investigating and prosecuting Halper's false claims. Ibid. The court therefore ruled that imposition of the full amount would violate the Double Jeopardy Clause by punishing Halper a second time for the same conduct. To avoid this constitutional proscription, the District Court read the $2,000—per—count statutory penalty as discretionary and, approximating the amount required to make the Government whole, imposed the full sanction for only 8 of the 65 counts. The court entered summary judgment for the Government in the amount of $16,000. Id., at 534. The United States, pursuant to Federal Rule of Civil Procedure 59(e), moved for reconsideration. The motion was granted. On reconsideration, the court confessed error in ruling that the $2,000 penalty was not mandatory for each count. 664 F.Supp. 852, 853-854 (1987). It remained firm, however, in its conclusion that the $130,000 penalty could not be imposed because, in the circumstances before ,I I i(.] or�I in l L.I 5 ,s�ti+� rrh tiia �i srVc5rl,s 4 U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 it, that amount would violate the Double Jeopardy Clause's prohibition of multiple punishments. Ibid. Looking to United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), for guidance, the court concluded that, although a penalty that is more than the precise amount of actual damages is not necessarily punishment, a penalty becomes punishment when, quoting Justice Frankfurter's concurrence in Hess, id., at 554, 63 S.Ct., at 389, it exceeds what " `could reasonably be regarded as the equivalent of compensation for the Government's loss.' " 664 F.Supp., at 854. Applying this principle, the District Court concluded that the statutorily authorized penalty of $130,000, an amount more than 220 times greater than the Government's measurable loss, qualified as punishment which, in *440 view of Halper's previous criminal conviction and sentence, was barred by the Double Jeopardy Clause. Because it considered the Act unconstitutional as applied to Halper, the District Court amended its judgment to limit the Government's recovery to double damages of $1,170 and the costs of the civil action. Id., at 855. The United States, pursuant to 28 U.S.C. § 1252, took a direct appeal to this Court. We noted probable jurisdiction, 486 U.S. 1053, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988), in order to determine the constitutionality of the remedial provisions of the civil False Claims Act as applied in Halper's case. II This Court many times has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The third of these protections - the one at issue here -has deep roots in our history and jurisprudence. As early as 1641, the Colony of Massachusetts in its "Body of Liberties" stated: "No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse." American Historical Documents 1000-1904, 43 Harvard Classics 66, 72 (C. Eliot ed. 1910). In drafting his initial version of what came to be our Double Jeopardy Clause, James Madison focused explicitly on the issue of multiple punishment: "No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence." 1 Annals of Cong. 434 (1789-1791) (J. Gales ed. 1834). In our case law, too, this Court, over a century ago, observed: "If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence." Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872 (1874). *441 The multiple -punishment issue before us is narrowly framed by the common understandings of the parties to this case. **1898 They do not dispute that respondent Halper already has been punished as a result of his prior criminal proceeding when he was sentenced to a jail term and fined $5,000. Nor do they dispute that the instant proceeding and the prior criminal proceeding concern the same conduct, the submission of 65 false claims.4 The sole question here is whether the statutory penalty authorized by the civil False Claims Act, under which Halper is subject to liability of $130,000 for false claims amounting to $585, constitutes a second "punishment" for the purpose of double jeopardy analysis. The Government argues that in three previous cases, Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), United States ex rel. Marcus v. Hess, supra, and Rex Trailer Co. v United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956), this Court foreclosed any argument that a penalty assessed in a civil proceeding, and specifically in a civil False Claims Act proceeding, may give rise to double jeopardy. Specifically, the Government asserts that these cases establish three principles: first, that the Double Jeopardy Clause's prohibition against multiple punishment protects against only a second criminal penalty; second, that criminal penalties are imposed only in criminal proceedings; and, third, that proceedings under, and penalties authorized by, the civil False Claims Act are civil in nature. In addition, the Government argues on the basis of these three cases and others, see, e.g., United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), that whether a proceeding or penalty is civil or criminal is a matter of statutory construction, and that Congress clearly intended the proceedings and penalty at issue here to be civil in nature. The Government, in our view, has misconstrued somewhat the nature of the multiple -punishment inquiry, and, in so doing, has overread the holdings of our precedents. Although, *442 taken together, these cases establish that proceedings and penalties under the civil False Claims Act are indeed civil in nature, and that a civil remedy does not rise to the level of "punishment" merely because Congress provided for civil recovery in excess of the Government's actual damages, they do not foreclose the possibility that in a particular case 1 I1f-d 1 :7;(_11 I .:' I "I'.) 11: 111'-• I+.V C]'14j1i 1. 1i ' �.; . ••i �1'!'�r I�lSii1 •! II U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 a civil penalty authorized by the Act may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment. In Mitchell, the Commissioner of Internal Revenue determined that the taxpayer fraudulently had asserted large sums as deductions on his 1929 income tax return. Mitchell was indicted and prosecuted for willful evasion of taxes. At trial, however, he was acquitted. The Government then brought an action to collect a deficiency of $728,709.84 in Mitchell's tax and, as well, a 50% additional amount specified by statute on account of the fraud. Mitchell argued that this second action subjected him to double jeopardy because the 50% addition was intended as punishment, and that the supposedly civil assessment proceeding therefore was actually a second criminal proceeding based on a single course of conduct. This Court did not agree. The Double Jeopardy Clause, it noted, "prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." 303 U.S., at 399, 58 S.Ct., at 633. Because Mitchell was acquitted (and therefore not punished) in his criminal prosecution, the Court was called upon to determine only whether the statute imposed a criminal sanction —in which case the deficiency proceeding would be an unconstitutional second attempt to punish criminally. Whether the statutory sanction was criminal in nature, the Court held, was a question of statutory interpretation; and, applying traditional canons of construction, the **1899 Court had little difficulty concluding that Congress intended that the statute impose a civil penalty and that the deficiency sanction was in fact remedial, providing reimbursement to *443 the Government for investigatory and other costs of the taxpayer's fraud. ld., at 398-405, 58 S.Ct., at 632-636. Since "in the civil enforcement of a remedial sanction there can be no double jeopardy," id., at 404, 58 S.Ct., at 636, the Court rejected Mitchell's claim. Mitchell at most is of tangential significance for our current inquiry. While the opinion makes clear that the Government may impose both a criminal and a civil sanction with respect to the same act or omission, and that whether a given sanction is criminal is a matter of statutory construction, it simply does not address the question we face today: whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes "punishment" for the purpose of double jeopardy analysis. If anything, Justice Brandeis' carefully crafted opinion for the Court intimates that a civil sanction may constitute punishment under some circumstances. As noted above, the Court distinguished between the Double Jeopardy Clause's prohibition against "attempting a second time to punish criminally" and its prohibition against "merely punishing twice." Id., at 399, 58 S.Ct., at 633. The omission of the qualifying adverb "criminally" from the formulation of the prohibition against double punishment suggests, albeit indirectly, that "punishment" indeed may arise from either criminal or civil proceedings. See also United States v. La Franca, 282 U.S. 568, 573, 51 S.Ct. 278, 280, 75 L.Ed. 551 (1931) (asking, but not answering, the question whether a penalty assessed in a civil proceeding may nonetheless constitute punishment for the purposes of double jeopardy analysis). United States ex rel. Marcus v. Hess is closer to the point, but it, too, does not preclude the District Court's judgment. In Hess, electrical contractors were indicted for defrauding the Government by bidding collusively on public -works projects. They pleaded nolo contendere and were fined $54,000. 317 U.S., at 545, 63 S.Ct., at 385. Subsequently, a group of private plaintiffs brought a gui tam action in the name of the United States against the defendants pursuant to a statute providing that a person guilty of defrauding the Government *444 was subject to a civil penalty of $2,000 for each violation, double the amount of actual damages, and the costs of the suit.5 The plaintiffs obtained a judgment for $315,000, of which $112,000 reflected the $2,000 per -count figure for the 56 counts and $203,000 was for double damages. ld., at 540, 63 S.Ct., at 382. The defendants challenged the judgment on double jeopardy grounds, arguing, as did the defendant in Mitchell, that the proceeding was barred as a second attempt to punish the defendants criminally. This Court dispensed with this claim of criminal punishment, precisely as it had in Mitchell, by reference to the statute. The Court held that the chief purpose of the statute "was to provide for restitution to the government of money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole." 317 U.S., at 551-552, 63 S.Ct., at 387-388. Since proceedings under the statute were remedial and designed to "protect the government from financial loss" —rather than to "vindicate public justice" —they were civil in nature. Id, at 548-549, 63 S.Ct., at 386-387. C1F'If.lili:2I I v 6 U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 Because the defendants in Hess had been punished in a prior criminal proceeding (as Mitchell had not), the Court faced a further double jeopardy problem: whether (as in **1900 the instant case) the second sanction was barred because it constituted a second punishment. Under the gui tam provision of the statute, the Government's share of the recovery was $150,000, id., at 545, 63 S.Ct., at 385, for actual damages of $101,500. Although the recovery was greater than the precise amount of the actual damages, the Court recognized, at least with respect to "the remedy now before [it]," that the lump sum and double damages provided by statute did not "do more than *445 afford the government complete indemnity for the injuries done it." Id., at 549, 63 S.Ct., at 386. Those injuries, of course, included not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government's efforts to root out deceptive practices directed at the public purse. Id., at 551-552, 63 S.Ct., at 387-388. Since the actual costs to the Government roughly equaled the damages recovered, in rejecting the defendants' double jeopardy claim, the Court simply did not face the stark situation presently before us where the recovery is exponentially greater than the amount of the fraud, and, at least in the District Court's informed view, is also many times the amount of the Government's total loss. Nor did the Court face such a situation in Rex Trailer. In that case, the defendants fraudulently purchased five trucks under the Surplus Property Act of 1944, by claiming veteran priority rights to which they were not entitled. They pleaded nolo contendere to criminal charges and paid fines aggregating $25,000. The Government then brought a civil action under the Surplus Property Act of 1944, 58 Stat. 765, 780, which provided three alternative civil remedies: (1) $2,000 for each act plus double damages and costs; (2) recovery "as liquidated damages" of twice the consideration agreed to be given; and (3) recovery of the property plus, "as liquidated damages," retention of the consideration given. See 350 U.S., at 149, n. 1, 76 S.Ct., at 220, n. 1. The Government sought the first of these remedies which the Court considered "comparable to the recovery under liquidated -damage provisions which fix compensation for anticipated loss." Id., at 153, 76 S.Ct., at 222. The Court rejected the defendants' claim that the $2,000— per—count penalty constituted a second punishment. Although the Court recognized that the Government's actual loss due to the defendants' fraud was difficult if not impossible to ascertain, it recognized that the Government did sustain injury due to the resultant decrease of motor vehicles available to Government agencies, an increase in undesirable speculation, and damage *446 to its program of promoting bona fide sales to veterans.6 Since the function of a liquidated damages provision was to provide a measure of recovery where damages are difficult to quantify, the Court found "on the record before it —where the defendants were liable for only $10,000—that they had not been subjected to a "measure of recovery ... so unreasonable or excessive" as to constitute a second criminal punishment in violation of double jeopardy. Id., at 154, 76 S.Ct., at 222. See also One Lot Emerald Cut Stones v United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972) (customs forfeiture "provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses"). III The relevant teaching of these cases is that the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis. These cases do not tell us, because the problem **1901 was not presented in them, what the Constitution commands when one of those imprecise formulas authorizes a supposedly remedial sanction that does not remotely approximate the Government's damages and actual costs, and rough justice becomes clear injustice. That such a circumstance might arise appears to be anticipated not only in Mitchell, as noted above, but also in the explicitly case -specific holdings of Hess and Rex Trailer. 121 We turn, finally, to the unresolved question implicit in our cases: whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause. As noted above, the Government takes *447 the position that punishment in the relevant sense is meted out only in criminal proceedings, and that whether proceedings are criminal or civil is a matter of statutory construction. The Government correctly observes that this Court has followed this abstract approach when determining whether the procedural protections of the Sixth Amendment apply to proceedings under a given statute, in affixing the appropriate standard of proof for such proceedings, and in determining whether double jeopardy protections should be applied. See United Statesv. Ward, 448 U.S., at248-251, 100 S.Ct., at 2641-2643. But while recourse to statutory language, hL,l.' 11 " i.':ii ifl rJfiCllf}�.1� I1.0 3(!llL11ilill! lil lAl!7fIi5 U.S. v. Halper, 490 U.S. 435 (1989) 109 S.M. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of the "humane interests" safeguarded by the Double Jeopardy Clause's proscription of multiple punishments. See Hess, 317 U.S., at 554, 63 S.Ct., at 389 (concurring opinion of Frankfurter, J.). This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state. 131 In making this assessment, the labels "criminal" and "civil" are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. /bid.g The *448 notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads. Cf. Hicks v. Feiock, 485 U.S. 624, 631, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988) ("[T]he labels affixed either to the proceeding or to the relief imposed ... are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law"). To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment **1902 when the sanction as applied in the individual case serves the goals of punishment. 141 These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e.g., Kennedy v. Mendoza Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963) (these are the "traditional aims of punishment"). Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives." Bell v. Wolfish, 441 U.S. 520, 539, n. 20, 99 S.Ct. 1861, 1874, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza —Martinez, 372 U.S., at 169, 83 S.Ct., at 568 (whether sanction appears excessive in relation to its nonpunitive purpose is relevant to determination whether sanction is civil or criminal). We therefore hold that under the Double Jeopardy Clause a defendant who already has been *449 punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. We acknowledge that this inquiry will not be an exact pursuit. In our decided cases we have noted that the precise amount of the Government's damages and costs may prove to be difficult, if not impossible, to ascertain. See, e.g., Rex Trailer, 350 U.S., at 153, 76 S.Ct., at 222. Similarly, it would be difficult if not impossible in many cases for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality of punishment. In other words, as we have observed above, the process of affixing a sanction that compensates the Government for all its costs inevitably involves an element of rough justice. Our upholding reasonable liquidated damages clauses reflects this unavoidable imprecision. Similarly, we have recognized that in the ordinary case fixed -penalty -plus -double -damages provisions can be said to do no more than make the Government whole. 151 We cast no shadow on these time-honored judgments. What we announce now is a rule for the rare case, the case such as the one before us, where a fixed -penalty provision subjects a prolific but small -gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment. *450 9 We must leave to the trial court the discretion to determine on the basis of such an accounting the size of the civil sanction the Government may receive without crossing the line between remedy and punishment. Cf. Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986) (reducing criminal conviction to lesser included offense in order to avoid double jeopardy bar); see also Peterson v. Richardson, 370 F.Supp. 1259, 1267 (N.D.Tex.1973), affd sub nom. Peterson v. Weinberger, it ' 1 1 I•ii:�l :.1:! � i , �..i�. ., i+li- •�.�I' I � i•-� .;}I ii:li i'r:� � � .�. .•.ti,,-;{; ii iii=:i is •''ll{rij=.` ii U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 508 F.2d 45 (C.A.5), cert. denied sub nom. Peterson v. Matheim, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975) (imposing less than full civil sanction authorized by False Claims Act when the full sanction would be unreasonable and not remotely related to actual loss). While the trial court's judgment in these matters often may amount to **1903 no more than an approximation, even an approximation will go far towards ensuring both that the Government is fully compensated for the costs of corruption and that, as required by the Double Jeopardy Clause, the defendant is protected from a sanction so disproportionate to the damages caused that it constitutes a second punishment. I101 1111 Returning to the case at hand, the District Court found a "tremendous disparity" between the Government's actual damages and the civil penalty authorized by the Act. 664 F.Supp., at 855. The court approximated the Government's expenses at no more than $16,000, as compared to the asserted liability of Halper in excess of $130,000. 660 F.Supp., at 534. Although the Government apparently did not challenge the District Court's figure —choosing instead to litigate the legal issue we now decide —we think it unfair to deprive the Government of an opportunity to present to the District Court an accounting of its actual costs arising from Halper's **1904 fraud, to seek an adjustment of the District Court's approximation, and to 161 171 181 191 We do not consider our ruling fairecover its demonstrated costs. While we agree with the reaching or disruptive of the Government's need to combat District Court that the disparity between its approximation fraud. Nothing in today's ruling precludes the Government of the Government's costs and Halper's $130,000 liability from seeking the full civil penalty against a defendant who is sufficiently disproportionate that the sanction constitutes previously has not been punished for the same conduct, a second punishment in violation of double jeopardy, we even if the civil sanction imposed is punitive. In such a remandthecasetopermittheGovernmenttodemonstratethat case, the Double Jeopardy Clause simply is not implicated. the District Court's assessment of its injuries was erroneous. Nor does the decision prevent the Government from seeking and obtaining both the full civil penalty and the full The judgment of the District Court is vacated, and the case range of statutorily authorized criminal penalties in the is remanded for further proceedings consistent with this same proceeding. In a single proceeding the multiple- opinion. punishment issue would be limited to ensuring that the total punishment did not exceed that authorized by the It is so ordered. legislature. See, e.g., Missouri a Hunter; 459 U.S. 359, 368-369, 103 S.Ct. 673, 679- 680, 74 L.Ed.2d 535 (1983) ("Where ... a legislature specifically authorizescumulative Justice KENNEDY, concurring. *451 punishment under two statutes ... the prosecutor may I join the opinion of the Court and write only to discuss seek and the trial court or jury may impose cumulative the limits of today's holding. As the Court points out, our to punishment under such statutes in a single trial"). Finally, holding will not undermine the Government's efforts to nothing in today's opinion precludes a private party from enforce the laws effectively, since appropriate alternatives filing a civil suit seeking damages for conduct that previously remain to ensure the Government's ability to make full use was the subject of criminal prosecution and punishment. of the sanctions authorized by statute. Ante, at 1903. Our The protections of the Double Jeopardy Clause are not rule permits the imposition in the ordinary case of at least a triggered by litigation between private parties.l In other fixed penalty roughly proportionate to the damage caused or *453 a reasonably liquidated amount, plus double damages. words, the only proscription established by our ruling is that Ante, at 1902. the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate Today's holding, I would stress, constitutes an objective rule civil action based on the same conduct and receive a judgment that is grounded in the nature of the sanction and the facts of that is not rationally related to the goal of making the the particular case. It does not authorize courts to undertake a Government whole. 1 Z broad inquiry into the subjective purposes that may be thought to lie behind a given judicial proceeding. Cf. Hicks a Feiock, 485 U.S. 624, 635, 108 S.Ct. 1423, 1431, 99 L.Ed.2d 721 *452 IV (1988); Kennedy v. Mendoza —Martinez, 372 U.S. 144, 168- 169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). Such an inquiry would be amorphous and speculative, and would mire the courts in the quagmire of differentiating among the U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 multiple purposes that underlie every proceeding, whether it relation to the damages suffered by the Government. Here it be civil or criminal in name. It also would breed confusion does not, so it must be considered punishment for purposes of among legislators who seek to structure the mechanisms the Double Jeopardy Clause. of proper law enforcement within constitutional commands. In approaching the sometimes difficult question whether an enactment constitutes what must be deemed a punishment, All Citations we have recognized that a number of objective factors bear on the inquiry. /bid. In the case before us, I agree with the 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW Court that the controlling circumstance is whether the civil 4526, Med & Med GD (CCH) P 37,847 penalty imposed in the second proceeding bears any rational Footnotes The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 The Double Jeopardy Clause reads: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...... U.S. Const., Arndt. 5. 2 The underlying details of Halper's fraud are of little importance with respect to his double jeopardy claim. In brief, providers such as New City bill for their service according to designated code numbers corresponding to the medical service provided. Code "9018" was the number for seeking reimbursement for service performed for the first or only patient seen at a private home or Skilled Nursing Facility the provider was required to visit. Code "9019" was the number for seeking reimbursement for service performed for each additional patient seen at the facility. At all relevant times, the allowable reimbursement for service under code "9018" was either $10 or $12. The allowable reimbursement under code "9019" was $3. Halper submitted 65 claims falsely seeking reimbursement under code "9018" for service properly reimbursable under the lower priced code "9019." See 660 F.Supp. 531, 532 (S.D.N.Y.1987). 3 The Act was amended by the False Claims Amendments Act of 1986, Pub. L. 99-562, 100 Stat. 3153, to increase the civil penalty to "not less than $5,000 and not more than $10,000 plus 3 times the amount of damages which the Government sustains because of the act of that person," and "the costs of a civil action brought to recover any such penalty or damages." 31 U.S.C. § 3729(a)(7) (1982 ed., Supp. V). 4 Indeed, as has been noted, the District Court found Halper liable strictly on the basis of the facts established in the criminal proceeding. 5 Under the qui tam provisions of the Act, 31 U.S.C. § 3730(b), a private party may bring suit in the name of the United States. If the suit is successful, the plaintiff may receive what the District Court deems to be a reasonable portion of the civil penalty and damages, though this share may not exceed 25% of the proceeds of the action and an amount for reasonable expenses necessarily incurred and costs. § 3730(c)(2). 6 The Court could have included the Government's investigative and prosecutorial costs. These also must be factored into a determination as to whether the sanction was disproportionate to the Government's loss. 7 This is not to say that whether a sanction constitutes punishment must be determined from the defendant's perspective. On the contrary, our cases have acknowledged that for the defendant even remedial sanctions carry the sting of punishment. See, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 551, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943). Rather, we hold merely that in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated. 8 As the name indicates, punitive damages, available in civil cases, serve punitive goals. Day v. Woodworth, 13 How. 363, 371, 14 L.Ed- 181 (1852). By the same token, strict liability crimes are principally directed at social betterment rather than punishment of culpable individuals. See United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922). 9 Had Halper been found liable under the False Claims Amendment Act of 1986, see n. 3, supra, the civil penalty against him would have amounted to more than $326,755. 10 That the Government seeks the civil penalty in a second proceeding is critical in triggering the protections of the Double Jeopardy Clause. Since a legislature may authorize cumulative punishment under two statutes for a single course of conduct, the multiple -punishment inquiry in the context of a single proceeding focuses on whether the legislature actually authorized the cumulative punishment. See Ohio v. Johnson, 467 U.S. 493, 499-500, 104 S.Ct. 2536, 2540-2541, U.S. v. Halper, 490 U.S. 435 (1989) 109 S.Ct. 1892, 104 L.Ed.2d 487, 57 USLW 4526, Med & Med GD (CCH) P 37,847 81 L.Ed.2d 425 (1984). On the other hand, when the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding. 1 We express no opinion as to whether a qui tam action, such as the one in Hess, is properly characterized as a suit between private parties for the purposes of this rule. In contrast to the plaintiff in a private -attorney -general action, the private party in a qui tam action brings suit in the name of the United States and shares with the Government any proceeds of the action. 31 U.S.C. § 3730. In Hess, the Court assumed but did not decide that a qui tam action could give rise to double jeopardy. Since this assumption was not essential to the judgment in Hess, we consider the issue unresolved. 12 It hardly seems necessary to state that a suit under the Act alleging one or two false claims would satisfy the rational - relationship requirement. It is only when a sizable number of false claims is present that, as a practical matter, the issue of double jeopardy may arise. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. r) 2()21 Thomson touters No claim to original U.S. Government Works. �� 11 Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R.-Fed. 737,139 L.Ed.2d 450, 66 USLW 4024— KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds In re Commitment of Rachel, W is App., November 21, 2001 118 S.Ct. 488 Supreme Court of the United States John HUDSON, Larry Baresel, and Jack Butler Rackley, Petitioners, V. UNITED STATES. No. 96-976. 1 Argued Oct. 8, 1997• 1 Decided Dec. 10, 1997. Synopsis Bank officers were indicted for misapplication of bank funds, for which monetary penalties and occupational debarment had previously been imposed by Office of Comptroller of Currency (OCC). After remand, 14 F.3d 536, the United States District Court for the Western District of Oklahoma, Ralph G. Thompson, J., 879 F.Supp. 1113, dismissed indictment on double jeopardy grounds, and United States appealed. The Court of Appeals for the Tenth Circuit, 92 F.3d 1026, reversed and remanded. Certiorari was granted. The Supreme Court, Justice Rehnquist, held that: (1) double jeopardy clause protects only against imposition of multiple criminal punishments for same offense when such occurs in successive proceedings; (2) statutory scheme under which OCC imposed monetary penalties and occupational debarment on bank officers demonstrated Congressional intent that such penalties be deemed civil penalties; (3) monetary penalties and debarment were not so punitive in form and effect as to render them criminal for double jeopardy purposes; and (4) facts that conduct for which OCC sanctions could be imposed could also be criminal and that sanctions had deterrent purpose were not sufficient to render sanctions criminally punitive in double jeopardy context. Affirmed. Justices Stevens and Souter filed opinions concurring in the judgment. Justice Breyer filed an opinion concurring in the judgment, in which Justice Ginsburg joined. West Headnotes (11) 111 Double Jeopardy Prohibition of Multiple Proceedings or Punishments Double Jeopardy : -- Civil or Criminal Nature Double jeopardy clause does not prohibit imposition of any additional sanction that could, in common parlance, be described as punishment and instead protects only against imposition of multiple criminal punishments for same offense, and then only when such occurs in successive proceedings; abrogating - United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901-1902, 104 L.Ed.2d 487. U.S.C.A. Const.Amend. 5. 472 Cases that cite this headnote 121 Double Jeopardy . -- Civil or Criminal Nature Whether particular punishment is criminal or civil for double jeopardy purposes is, at least initially, matter of statutory construction. U.S.C.A. Const.Amend. 5. 74 Cases that cite this headnote 131 Double Jeopardy - Civil or Criminal Nature In determining whether punishment is criminal or civil for double jeopardy purposes, court must first ask whether legislature, in establishing penalizing mechanism, indicated either expressly or impliedly any preference for one label or other. U.S.C.A. Const.Amend. 5. 154 Cases that cite this headnote Justice Scalia filed a concurring opinion, in which Justice 141 Double Jeopardy - Civil or Criminal Nature Thomas joined. In determining whether statutory scheme was so punitive in purpose or effect as to transform Cl'aIf11 to origin l !; C. GovonlRYwnt VVori'S- Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L_Ed.2d 450, 66 USLW 4024... what was clearly intended as civil remedy into criminal penalty for double jeopardy purposes, factors providing useful guideposts include: (1) whether sanction involves affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on finding of scienter; (4) whether its operation will promote traditional aims of punishment, namely retribution and deterrence; (5) whether behavior to which it applies is already crime; (6) whether alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to alternative purpose assigned. U.S.C.A. Const.Amend. 5. 486 Cases that cite this headnote 151 Double Jeopardy - Civil or Criminal Nature Factors relating to whether statutory scheme is so punitive as to transform what has been denominated as civil remedy into criminal penalty for double jeopardy purposes must be considered in relation to statute on its face, and only clearest proof will suffice to override legislative intent and transform civil remedy into criminal penalty. U.S.C.A. Const.Amend. 5. 413 Cases that cite this headnote 161 Constitutional Law _ Penalties and Sanctions in General Constitutional Law _ Penalties, Fines, and Sanctions in General Due process and equal protection clauses protect individuals from sanctions which are downright irrational. U.S.C.A. Const.Amend. 5. 8 Cases that cite this headnote 171 Fines . Excessive Fines Eighth Amendment protects against excessive civil fines, including forfeitures. U.S.C.A. Const.Amend. 8. 32 Cases that cite this headnote [81 Double Jeopardy . - Administrative or Non - Judicial Proceedings; Prison Discipline Double Jeopardy Fines, Penalties, and Forfeitures Statutory scheme under which Office of Comptroller of Currency (OCC) imposed money penalties and occupational debarment on bank officers for violation of federal banking law demonstrated Congressional intent that such penalties be considered civil in nature for double jeopardy purposes; provisions authorizing monetary penalties expressly provided that they were civil, and fact that authority to impose debarment was conferred upon administrative agency was prima facie evidence of intent to provide for civil sanction. U.S.C.A. Const.Amend. 5; 12 U.S.C.A. § 93(b)(1); Federal Reserve Act, § 29(a), as amended, 12 U.S.C.A. § 504(a); Federal Deposit Insurance Act, § 2 [8](1-3), 12 U.S.C.A. § 1818(e)(1-3). 52 Cases that cite this headnote 191 Double Jeopardy Administrative or Non - Judicial Proceedings; Prison Discipline Double Jeopardy - Fines, Penalties, and Forfeitures Monetary penalties and debarment imposed on bank officers by Office of Comptroller of Currency (OCC) for violation of federal banking statutes were not so punitive in form and effect as to render them criminal despite Congress' intent that they be considered civil in nature, and thus, double jeopardy clause did not bar criminal prosecution for essentially same conduct; revocation of privilege voluntarily granted and payment of money sanctions had not historically been viewed as punishment, penalties did not involve affirmative disability or restraint, and neither sanction required finding of scienter. U.S.C.A. Const.Amend. 5; 12 U.S.C.A. § 93(b)(1); Federal Reserve Act, § 29(a), as amended, 12 U.S.C.A. § 504(a); Federal Deposit Insurance Act, § 2[8](1-3), 12 U.S.C.A. § 1818(e)(1-3). 362 Cases that cite this headnote r i,i i. I ;(III CC?f �''Ji :i:� 1��� 7'Ir+.fly �((1 C)Pj�hlf '•1 ;.i _ov t,f-�1��1. e'll ff-11i)i ��s ,C Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... 1101 Double Jeopardy Administrative or Non - Judicial Proceedings; Prison Discipline Double Jeopardy _ Fines, Penalties, and Forfeitures Fact that conduct in violation of federal banking statutes for which Comptroller of Currency (OCC) could impose monetary penalties and occupational debarment could also be criminal was not sufficient to render such sanctions criminally punitive in double jeopardy context. U.S.C.A. Const.Amend. 5; 12 U.S.C.A. § 93(b) (1); Federal Reserve Act, § 29(a), as amended, 12 U.S.C.A. § 504(a); Federal Deposit Insurance Act, § 2[8](1-3), 12 U.S.C.A. § 1818(e)(1-3). 20 Cases that cite this headnote 1111 Double Jeopardy Administrative or Non - Judicial Proceedings; Prison Discipline Double Jeopardy Fines, Penalties, and Forfeitures Mere presence of deterrent purpose of monetary penalties and occupational debarment imposed by Office of Comptroller of Currency (OCC) on bank officers for violation of federal banking statutes was insufficient to render such sanctions criminal for double jeopardy purposes; sanctions at issue, while intended to deter future wrongdoing, also would serve to promote stability of banking industry. U.S.C.A. Const.Amend. 5; 12 U.S.C.A. § 93(b)(1); Federal Reserve Act, § 29(a), as amended, 12 U.S.C.A. § 504(a); Federal Deposit Insurance Act, § 2[8](1-3), 12 U.S.C.A. § 1818(e)(1-3). 52 Cases that cite this headnote **490 Syllabus* *93 The Office of the Comptroller of the Currency (OCC) imposed monetary penalties and occupational debarment on petitioners for violating 12 U.S.C. §§ 84(a)(1) and 375b by causing two banks in which they were officials to make certain loans in a manner that unlawfully allowed petitioner Hudson to receive the loans' benefit. When the Government later criminally indicted petitioners for essentially the same conduct, they moved to dismiss under the Double Jeopardy Clause of the Fifth Amendment. The District Court ultimately dismissed the indictments, but the Court of Appeals reversed, relying on United States v Halper, 490 U.S. 435, 448--449, 109 S.Ct. 1892, 1901-1902, 104 L.Ed.2d 487. Held: The Double Jeopardy Clause is not a bar to petitioners' later criminal prosecution because the OCC administrative proceedings were civil, not criminal. Pp. 492-496. (a) The Clause protects only against the imposition of multiple criminal punishments for the same offense. See, e.g., Helvering a Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917. Halper deviated from this Court's longstanding double jeopardy doctrine in two key respects. First, it bypassed the traditional threshold question whether the legislature intended the particular successive punishment to be "civil" or "criminal" in nature, see, e.g., United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, focusing instead on whether the sanction was so grossly disproportionate to the harm caused as to constitute "punishment." The Court thereby elevated to dispositive status one of the factors listed in Kennedy v. Mendoza - Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644, for determining whether a statute intended to be civil was so punitive as to transform it into a criminal penalty, even though Kennedy itself emphasized that no one factor should be considered controlling, id., at 169, 83 S.Ct., at 567. Second, Halper "assess[ed] the character of the actual sanctions imposed," 490 U.S., at 447, 109 S.Ct., at 1901, rather than, as Kennedy demanded, evaluating the "statute on its face" to determine whether it provided for what amounted to a criminal sanction, **491 372 U.S., at 169, 83 S.Ct., at 567. Such deviations were ill considered. Halper' s test has proved unworkable, creating confusion by attempting to distinguish between "punitive" and "nonpunitive" penalties. Moreover, some of the ills at which it was directed are addressed by other constitutional provisions. *94 Thus, this Court largely disavows Halper 's method of analysis and reaffirms the previous rule exemplified in Ward. Pp. 492-495. (b) Applying traditional principles to the facts, it is clear that petitioners' criminal prosecution would not violate double jeopardy. The money penalties statutes' express designation of their sanctions as "civil," see §§ 93(b)(1) and 504(a), and the fact that the authority to issue debarment orders is conferred upon the "appropriate Federal banking agenc [ies]," see § § 1818(e)(1)-(3), establish that Congress intended `J13 Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... these sanctions to be civil in nature. Moreover, there is little evidence -much less the "clearest proof' this Court requires, see Ward, supra, at 249, 100 S.Ct., at 2641-2642-to suggest that the sanctions were so punitive in form and effect as to render them criminal despite Congress' contrary intent, see United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 2148, 135 L.Ed.2d 549. Neither sanction has historically been viewed as punishment, Helvering, supra, at 399, and n. 2, 400, 58 S.Ct., at 633 and n. 2, 633, and neither involves an affirmative disability or restraint, see Flemmingv. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435. Neither comes into play "only" on a finding of scienter, Kennedy, 372 U.S., at 168, 83 S.Ct., at 567, since penalties may be assessed under §§ 93(b) and 504, and debarment imposed under § 1818(e)(1)(C)(ii), without regard to the violator's willfulness. That the conduct for which OCC sanctions are imposed may also be criminal, see ibid., is insufficient to render the sanctions criminally punitive, Ursery, supra, at 292, 116 S.Ct., at 2149, particularly in the double jeopardy context, see United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556. Finally, although the imposition of both sanctions will deter others from emulating petitioners' conduct, see Kennedy, supra, at 168, 83 S.Ct., at 567, the mere presence of this traditional goal of criminal punishment is insufficient to render a sanction criminal, as deterrence "may serve civil as well as criminal goals," e.g., Ursery, supra, at 292, 116 S.Ct., at 2149. Pp. 495-496. 92 F.3d 1026, affirmed. REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined, post, p. 496. STEVENS, J., post, p. 497, and SOUTER, J., post, p. 500, filed opinions concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joined, post, p. 501. Attorneys and Law Firms Bernard J. Rothbaum, Oklahoma City, OK, for petitioners. Michael R. Dreeben, Washington, DC, for respondent. Opinion *95 Chief Justice REHNQUIST delivered the opinion of the Court. The Government administratively imposed monetary penalties and occupational debarment on petitioners for violation of federal banking statutes, and later criminally indicted them for essentially the same conduct. We hold that the *96 Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution because the administrative proceedings were civil, not criminal. Our reasons for so holding in large part disavow the method of analysis used in United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901-1902, 104 L.Ed.2d 487 (1989), and reaffirm the previously established rule exemplified in United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 2641- 2642, 65 L.Ed.2d 742 (1980). During the early and mid-1980's, petitioner John Hudson was the chairman and controlling shareholder of the First National Bank of Tipton (Tipton) and the First National **492 Bank of Hammon (Hammon).] During the same period, petitioner Jack Rackley was president of Tipton and a member of the board of directors of Hammon, and petitioner Larry Baresel was a member of the board of directors of both Tipton and Hammon. An examination of Tipton and Hammon led the Office of the Comptroller of the Currency (OCC) to conclude that petitioners had used their bank positions to arrange a series of loans to third parties in violation of various federal banking statutes and regulations. According to the OCC, those loans, while nominally made to third parties, were in reality made to Hudson in order to enable him to redeem bank stock that he had pledged as collateral on defaulted loans. On February 13, 1989, OCC issued a "Notice of Assessment of Civil Money Penalty." The notice alleged that petitioners had violated 12 U.S.C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and 215.4(b) (1986) by causing the banks with which they were associated to make loans to nominee borrowers in a manner that unlawfully allowed Hudson to receive the benefit of the loans. App. to Pet. for Cert. 89a. The notice also alleged that the illegal loans resulted in losses to Tipton and Hammon of almost $900,000 and contributed to the failure of those banks. Id., at 97a. However, the notice contained no allegation of any harm to the Government *97 as a result of petitioners' conduct. "After taking into account the size of the financial resources and the good faith of [petitioners], the gravity of the violations, the history of previous violations and other matters as justice may require, as required by 12 U.S.C. §§ 93(b)(2) and 504(b)," OCC assessed penalties of $100,000 against Hudson and I Than rsr ri r f �;s llE. r:. No d3im to pFlglllal UJ S Gclvcri 4nern Works. Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... $50,000 each against Rackley and Baresel. Id., at 89a. On August 31, 1989, OCC also issued a "Notice of Intention to Prohibit Further Participation" against each petitioner. Id., at 99a. These notices, which were premised on the identical allegations that formed the basis for the previous notices, informed petitioners that OCC intended to bar them from further participation in the conduct of"any insured depository institution." Id., at 100a. In October 1989, petitioners resolved the OCC proceedings against them by each entering into a "Stipulation and Consent Order." These consent orders provided that Hudson, Baresel, and Rackley would pay assessments of$16,500, $15,000, and $12,500 respectively. Id., at 130a, 140a, 135a. In addition, each petitioner agreed not to "participate in any manner" in the affairs of any banking institution without the written authorization of the OCC and all other relevant regulatory agencies.2Id., at 13la, 141a, 136a. In August 1992, petitioners were indicted in the Western District of Oklahoma in a 22-count indictment on charges of conspiracy, 18 U.S.C. § 371, misapplication of bank funds, §§ 656 and 2, and making false bank entries, § 1005.3 The violations charged in the indictment rested on the same lending *98 transactions that formed the basis for the prior administrative actions brought by OCC. Petitioners moved to dismiss the indictment on double jeopardy grounds, but the District Court denied the motions. The Court of Appeals affirmed the District Court's holding on the nonparticipation sanction issue, but vacated and remanded to the District Court on the money sanction issue. 14 F.3d 536 (C.A.10 1994). The District Court on remand granted petitioners' motion to dismiss the indictments. This time the Government appealed, and the Court of Appeals reversed. 92 F.3d 1026 (1996). That court held, following Halper, that the actual fines imposed by the Government were not so grossly disproportional to the proved damages to the Government as to render the sanctions "punishment" for double jeopardy purposes. We **493 granted certiorari, 520 U.S. 1165, 117 S.Ct. 1425, 137 L.Ed.2d 534 (1997), because of concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper.4 We now affirm, but for different reasons. Ill The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of *99 all additional sanctions that could, " `in common parlance,' " be described as punishment. United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943) (quoting Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); see also Hess, supra, at 548-549, 63 S.Ct., at 386-387 ("Only" "criminal punishment" "subject[s] the defendant to `jeopardy' within the constitutional mean-ing"); Breed v Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) ("In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution"), and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). [21 [31 Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering, supra, at 399, 58 S.Ct., at 633. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Ward, 448 U.S., at 248, 100 S.Ct., at 2641. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," id., at 248-249, 100 S.Ct., at 2641, as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). 141 151 In making this latter determination, the factors listed in Kennedy v Mendoza -Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint'; (2) "whether it has historically been regarded as a punishment'; (3) "whether it comes into play only on a finding of scienter '; (4) "whether its operation will promote the traditional aims of punishment -retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears *100 excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face," id., at 169, 83 S.Ct., at 568, and "only the clearest proof " will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, !, I f!:JoIson i:,t2ci}sr,-rs No clap-, to oriyirr�l I I.: f ovc.:ioro(frrl )(Voi .: G} Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... supra, at 249, 100 S.Ct., at 2641-2642 (internal quotation marks omitted). Our opinion in United States v. Halper marked the first time we applied the Double Jeopardy Clause to a sanction without first **494 determining that it was criminal in nature. In that case, Irwin Halper was convicted of, inter alia, violating the criminal false claims statute, 18 U.S.C. § 287, based on his submission of 65 inflated Medicare claims each of which overcharged the Government by $9. He was sentenced to two years' imprisonment and fined $5,000. The Government then brought an action against Halper under the civil False Claims Act, 31 U.S.C. §§ 3729-3731 (1982 ed., Supp. II). The remedial provisions of the False Claims Act provided that a violation of the Act rendered one "liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because ofthe act of that person, and costs ofthe civil action." Id., § 3729. Given Halper's 65 separate violations of the Act, he appeared to be liable for a penalty of $130,000, despite the fact he actually defrauded the Government of less than $600. However, the District Court concluded that a penalty of this magnitude would violate the Double Jeopardy Clause in light of Halper's previous criminal conviction. While explicitly recognizing that the statutory damages provision of the Act "was not itself a criminal punishment," the District Court nonetheless concluded that application of the full penalty to Halper would constitute a second "punishment" in violation of the Double Jeopardy Clause. 490 U.S., at 438-439, 109 S.Ct., at 1896-1897. On direct appeal, this Court affirmed. As the Halper Court saw it, the imposition of "punishment" of any kind was *101 subject to double jeopardy constraints, and whether a sanction constituted "punishment" depended primarily on whether it served the traditional "goals of punishment," namely, "retribution and deterrence." Id., at 448, 109 S.Ct., at 1902. Any sanction that was so "overwhelmingly disproportionate" to the injury caused that it could not "fairly be said solely to serve [the] remedial purpose" of compensating the Government for its loss, was thought to be explainable only as "serving either retributive or deterrent purposes." See id., at 448-449, 109 S.Ct., at 1902 (emphasis added). The analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a "criminal" punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute "punishment." In so doing, the Court elevated a single Kennedy factor —whether the sanction appeared excessive in relation to its nonpunitive purposes —to dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they "may often point in differing directions." 372 U.S., at 169, 83 S.Ct., at 568. The second significant departure in Halper was the Court's decision to "asses[s] the character of the actual sanctions imposed," 490 U.S., at 447, 109 S.Ct., at 1901, rather than, as Kennedy demanded, evaluating the "statute on its face" to determine whether it provided for what amounted to a criminal sanction, 372 U.S., at 169, 83 S.Ct., at 568. We believe that Halper's deviation from longstanding double jeopardy principles was ill considered.s As subsequent *102 cases have demonstrated, Halper 's test for determining whether a particular sanction is "punitive," and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. See **495 Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 777, n. 14, 114 S.Ct. 1937, 1945, n. 14, 128 L.Ed.2d 767 (1994); United States v. Ursery, 518 U.S. 267, 284-285, n. 2, 116 S.Ct. 2135, 2145-2146, n. 2, 135 L.Ed.2d 549 (1996).6 If a sanction must be "solely" remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause. Under Halper 's method of analysis, a court must also look at the "sanction actually imposed" to determine whether the Double Jeopardy Clause is implicated. Thus, it will not be possible to determine whether the Double Jeopardy Clause is violated until a defendant has proceeded through a trial to judgment. But in those cases where the civil proceeding follows the criminal proceeding, this approach flies in the face of the notion that the Double Jeopardy Clause forbids the government from even "attempting a second time to punish criminally." Helvering, 303 U.S., at 399, 58 S.Ct., at 633 (emphasis added). 161 171 Finally, it should be noted that some of the ills at which Halper was directed are addressed by other constitutional *103 provisions. The Due Process and Equal Protection Clauses already protect individuals from sanctions which are downright irrational. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The Eighth Amendment protects against excessive civil fines, including forfeitures. Alexander a United States, i }ril` ;.i!I .+rfi.ti ;•, i•li ��l all II to Onj-]it Eel[ I i] 1• ^�.'t. IJ11 II I.�:I II '�i tlr i}I`. �? Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). The additional protection afforded by extending double jeopardy protections to proceedings heretofore thought to be civil is more than offset by the confusion created by attempting to distinguish between "punitive" and "nonpunitive" penalties. 181 Applying traditional double jeopardy principles to the facts of this case, it is clear that the criminal prosecution of these petitioners would not violate the Double Jeopardy Clause. It is evident that Congress intended the OCC money penalties and debarment sanctions imposed for violations of 12 U.S.C. §§ 84 and 375b to be civil in nature. As for the money penalties, both §§ 93(b)(1) and 504(a), which authorize the imposition of monetary penalties for violations of §§ 84 and 375b respectively, expressly provide that such penalties are "civil." While the provision authorizing debarment contains no language explicitly denominating the sanction as civil, we think it significant that the authority to issue debarment orders is conferred upon the "appropriate Federal banking agenc[ies]." §§ 1818(e)(1)-(3). That such authority was conferred upon administrative agencies is prima facie evidence that Congress intended to provide for a civil sanction. See Helvering, supra, at 402, 58 S.Ct., at 634- 635; United States v. Spector; 343 U.S. 169, 178, 72 S.Ct. 591, 596-597, 96 L.Ed. 863 (1952) (Jackson, J., dissenting) ("Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations"); Wong Wing v United States, 163 U.S. 228, 235, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896) (holding that quintessential criminal punishments may be imposed only "by a judicial trial"). 191 *104 Turning to the second stage of the Ward test, we find that there is little evidence, much less the clearest proof that we require, suggesting that either OCC money penalties or debarment sanctions are "so punitive in form and effect as to render them criminal despite Congress' intent to the contrary." Ursery, supra, at 290, 116 S.Ct. at 2148. First, neither money penalties nor debarment has historically been viewed as punishment. We have long recognized that **496 "revocation of a privilege voluntarily granted," such as a debarment, "is characteristically free of the punitive criminal element." HeNering, 303 U.S., at 399, and n. 2, 58 S.Ct., at 633 n. 2. Similarly, "the payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized as enforcible by civil proceedings since the original revenue law of 1789." Id., at 400, 58 S.Ct., at 633. Second, the sanctions imposed do not involve an "affirmative disability or restraint," as that term is normally understood. While petitioners have been prohibited from further participating in the banking industry, this is "certainly nothing approaching the `infamous punishment' of imprisonment." Flemming v. Nestor 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960). Third, neither sanction comes into play "only" on a finding of scienter. The provisions under which the money penalties were imposed, 12 U.S.C. §§ 93(b) and 504, allow for the assessment of a penalty against any person "who violates" any of the underlying banking statutes, without regard to the violator's state of mind. "Good faith" is considered by OCC in determining the amount of the penalty to be imposed, § 93(b)(2), but a penalty can be imposed even in the absence of bad faith. The fact that petitioners' "good faith" was considered in determining the amount of the penalty to be imposed in this case is irrelevant, as we look only to "the statute on its face" to determine whether a penalty is criminal in nature. Kennedy, 372 U.S., at 169, 83 S.Ct., at 568. Similarly, while debarment may be imposed for a "willful" disregard "for the safety or soundness of [an] insured depository institution," *105 willfulness is not a prerequisite to debarment; it is sufficient that the disregard for the safety and soundness of the institution was "continuing." § 1818(e)(1)(C)(ii). 1101 Fourth, the conduct for which OCC sanctions are imposed may also be criminal (and in this case formed the basis for petitioners' indictments). This fact is insufficient to render the money penalties and debarment sanctions criminally punitive, Ursery, supra, at 292, 116 S.Ct., at 2149, particularly in the double jeopardy context, see United States v Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993) (rejecting "same -conduct" test for double jeopardy purposes). 1111 Finally, we recognize that the imposition of both money penalties and debarment sanctions will deter others from emulating petitioners' conduct, a traditional goal of criminal punishment. But the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence "may serve civil as well as criminal goals." Ursery, 518 U.S., at 292, 116 S.Ct., at 2149; see also Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 1000, 134 L.Ed.2d 68 (1996) ("[F]orfeiture ... serves a deterrent purpose distinct from any punitive purpose"). For example, the sanctions at No cl i. !, to f)FiiiliiEa ° I.r`j, ��Ol;i'.t''liil�`�li VV rks � Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... issue here, while intended to deter future wrongdoing, also serve to promote the stability of the banking industry. To hold that the mere presence of a deterrent purpose renders such sanctions "criminal" for double jeopardy purposes would severely undermine the Government's ability to engage in effective regulation of institutions such as banks. In sum, there simply is very little showing, to say nothing of the "clearest proof' required by Ward, that OCC money penalties and debarment sanctions are criminal. The Double Jeopardy Clause is therefore no obstacle to their trial on the pending indictments, and it may proceed. The judgment of the Court of Appeals for the Tenth Circuit is accordingly Affirmed. *106 Justice SCALIA, with whom Justice THOMAS joins, concurring. I wholly agree with the Court's conclusion that Halper 's test for whether a sanction is "punitive" was ill considered and unworkable. Ante, at 494-495. Indeed, it was the absurdity of trying to force the Halper analysis upon the Montana tax scheme at issue in Department of Revenue of Mont. v Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), that prompted me to focus on the prior question whether the Double Jeopardy Clause even contains a multiple -punishments **497 prong. See id., at 802-803, 114 S.Ct., at 1957-1958. That evaluation led me to the conclusion that the Double Jeopardy Clause prohibits successive prosecution, not successive punishment, and that we should therefore "put the Halper genie back in the bottle." Id., at 803-805, 114 S.Ct., at 1959. Today's opinion uses a somewhat different bottle than I would, returning the law to its state immediately prior to Halper— which acknowledged a constitutional prohibition of multiple punishments but required successive criminal prosecutions. So long as that requirement is maintained, our multiple - punishments jurisprudence essentially duplicates what I believe to be the correct double jeopardy law, and will be as harmless in the future as it was pre-Halper. Accordingly, I am pleased to concur. Justice STEVENS, concurring in the judgment. The maxim that "hard cases make bad law" may also apply to easy cases. As I shall explain, this case could easily be decided by the straightforward application of well -established precedent. Neither such a disposition, nor anything in the opinion ofthe Court of Appeals, would require a reexamination of the central holding in United States v Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), or of the language used in that unanimous opinion. Any proper concern about the danger that that opinion might be interpreted too expansively would be more appropriately addressed in a case that was either incorrectly decided or that at least raised a close or difficult *107 question. In my judgment it is most unwise to use this case as a vehicle for the substitution of a rather open-ended attempt to define the concept of punishment for the portions of the opinion in Halper that trouble the Court. Accordingly, while I have no hesitation about concurring in the Court's judgment, I do not join its opinion. As is evident from the first sentence of the Court's opinion, this is an extremely easy case. It has been settled since the decision in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), that the Double Jeopardy Clause is not implicated simply because a criminal charge involves "essentially the same conduct" for which a defendant has previously been punished. See, e.g., United States v Dixon, 509 U.S. 688, 696, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993); Rutledge v. United States, 517 U.S. 292, 297 (1996). Unless a second proceeding involves the "same offense" as the first, there is no double jeopardy. The two proceedings at issue here involved different offenses that were not even arguably the same under Blockburger. Under Blockburger 's "same -elements" test, two provisions are not the "same offense" if each contains an element not included in the other. Dixon, 509 U.S., at 696, 113 S.Ct., at 2855-2856. The penalties imposed on the petitioners in 1989 were based on violations of 12 U.S.C. §§ 84(a)(1) and 375b (1982) and 12 CFR §§ 31.2(b) and 215.4(b) (1986). Each of these provisions required proof that extensions of credit exceeding certain limits were made, I but did not require proof of an intent to defraud or the making of any false entries in bank records. The 1992 indictment charged violations of 18 U.S.C. §§ 371, 656, and 1005 and alleged a conspiracy to willfully misapply *108 bank funds and to make false banking entries, as well as the making of such entries; none of those charges required proof that any lending limit had been exceeded. Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... Thus, I think it would be difficult to find a case raising a double jeopardy claim that would be any easier to decide than this one.2 **498 II The Court not only ignores the most obvious and straightforward basis for affirming the judgment of the Court of Appeals; it also has nothing to say about that court's explanation of why the reasoning in our opinion in United States v. Halper supported a rejection of petitioners' double jeopardy claim. Instead of granting certiorari to consider a possible error in the Court of Appeals' reasoning or its judgment, the Court candidly acknowledges that it was motivated by "concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper. "Ante, at 493. The Court's opinion seriously exaggerates the significance of those concerns. Its list of cases illustrating the problem cites seven cases decided in the last two years. Ante, at 493, n. 4. In every one of those cases, however, the Court of Appeals rejected the double jeopardy claim. The only ruling by any court favorable to any of these "novel" claims was a preliminary injunction entered by a District Court postponing implementation of New Jersey's novel, controversial *109 "Megan's Law." E. B. v Poritz, 914 F.Supp. 85 (D.N.J. 1996), rev'd, E. B. v. Verniero, 119 F.3d 1077 (C.A.3 1997). Thus, the cases cited by the Court surely do not indicate any need to revisit Halper. The Court also claims that two practical flaws in the Halper opinion warrant a prompt adjustment in our double jeopardy jurisprudence. First, the Court asserts that Halper 's test is unworkable because it permits only successive sanctions that are "solely" remedial. Ante, at 495. Though portions of Halper were consistent with such a reading, the express statement of its holding was much narrowed Of greater importance, the Court has since clarified this very point: "Whether a particular sanction `cannot fairly be said solely to serve a remedial purpose' is an inquiry radically different from that we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of its decision." United States v. Ursery, 518 U.S. 267, 285, n. 2,116 S.Ct. 2135, 2145, n. 2,135 L.Ed.2d 549 (1996). Having just recently emphasized Halper's narrow rule in Ursery, it is quite odd for the Court now to suggest that its overbreadth has created some sort of judicial emergency. Second, the Court expresses the concern that when a civil proceeding follows a criminal punishment, Halper would require a court to wait until judgment is imposed in the successive proceeding before deciding whether the latter sanction violates double jeopardy. Ante, at 494-495. That concern is *110 wholly absent in this case, however, because the criminal indictment followed administrative sanctions. There can be no doubt that any fine or sentence imposed on the criminal counts would be "punishment." If the indictment charged the same offense for which punishment had already been imposed, the prosecution itself would be barred by the Double Jeopardy Clause no matter how minor the criminal sanction sought in the second proceeding. Thus, the concerns that the Court identifies merely emphasize the accuracy of the comment in Halper itself that it announced **499 "a rule for the rare case ... where a fixed -penalty provision subjects a prolific but small -gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused." 490 U.S., at 449, 109 S.Ct., at 1902. n Despite my disagreement with the Court's decision to use this case as a rather lame excuse for writing a gratuitous essay about punishment, I do agree with its reaffirmation of the central holding of Halper and Department of Revenue of Mont. v Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Both of those cases held that sanctions imposed in civil proceedings constituted "punishment" barred by the Double Jeopardy Clause.4 Those holdings reconfirmed the settled proposition that the Government cannot use the "civil" label to escape entirely the Double Jeopardy Clause's command, as we have recognized for at least six decades. See United States v. La Franca, 282 U.S. 568, 574-575, 51 S.Ct. 278, 281, 75 L.Ed. 551 (1931); Helveringv. Mitchell, 303 U.S. 391, 398-399, 58 S.Ct. 630, 632-633, 82 L.Ed. 917 (1938). That proposition is extremely *111 important because the States and the Federal Government have an enormous array of civil administrative sanctions at their disposal that are capable of being used to punish persons repeatedly for the same offense, violating the bedrock double jeopardy principle J ' ,1 1 l 11:7l�.;:a}Ii ltira l Ca>' 11%1U i;'IcltJ'! Irti origin;:il U.S. Gov(;rl -or-)n1 Wi: r!,s. � Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... of finality. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity ...." Green v United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). However the Court chooses to recalibrate the meaning of punishment for double jeopardy purposes, our doctrine still limits multiple sanctions of the rare sort contemplated by Halper. 1V Today, as it did in Halper itself, the Court relies on the sort of multifactor approach to the definition of punishment that we used in Kennedy x Mendoza Martinez, 372 U.S. 144, 168- 169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), to identify situations in which a civil sanction is punitive. Whether the Court's reformulation of Halper 's test will actually affect the outcome of any cases remains to be seen. Perhaps it will not, since the Court recommends consideration of whether a sanction's " `operation will promote the traditional aims of punishment -retribution and deterrence,' " and " `whether it appears excessive in relation to the alternative [nonpunitive] purpose assigned.' " Ante, at 493-494 (quoting Kennedy, 372 U.S., at 168-169, 83 S.Ct., at 568). Those factors look awfully similar to the reasoning in Halper; and while we are told that they are never by themselves dispositive, ante, at 494, they should be capable of tipping the balance in extreme cases. The danger in changing approaches midstream, rather than refining our established approach on an incremental basis, is that the Government and lower *112 courts may be unduly influenced by the Court's new attitude, rather than its specific prescribed test. It is, of course, entirely appropriate for the Court to perform a lawmaking function as a necessary incident to its Article III responsibility for the decision of "Cases" and "Controversies." In my judgment, however, a desire to reshape the law does not provide a legitimate basis for issuing what amounts to little more than an advisory opinion that, at best, will have the precedential value of pure dictum and may in time unduly restrict the protections of the Double Jeopardy Clause. **500 "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 245, 49 L.Ed. 482 (1905); see also Ashu�ander v TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-484, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Accordingly, while I concur in the judgment of affirmance, I do not join the Court's opinion. Justice SOUTER, concurring in the judgment. I concur in the Court's judgment and with much of its opinion. As the Court notes, ante, at 494-495, we have already recognized that Halper 's statements of standards for identifying what is criminally punitive under the Fifth Amendment needed revision, United States v. Ursery 518 U.S. 267, 284-285, n. 2, 116 S.Ct. 2135, 2145-2146, n. 2, 135 L.Ed.2d 549 (1996) and there is obvious sense in employing common criteria to point up the criminal nature of a statute for purposes of both the Fifth and Sixth Amendments. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362-366, 104 S.Ct. 1099, 1104-1107, 79 L.Ed.2d 361 (1984); United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 2641-2642, 65 L.Ed.2d 742 (1980); Kennedy v Mendoza -Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963); see also Ward, supra, at 254, 100 S.Ct., at 2644 ("[I]t would be quite anomalous to hold that [the statute] created a criminal penalty for the purposes of the Self -Incrimination Clause but a civil penalty for all other purposes"). Applying the Court's Kennedy -Ward criteria leads me directly to the conclusion of Justice STEVENS's opinion concurring *113 in judgment. The fifth criterion calls for a court to determine whether "the behavior to which [the penalty] applies is already a crime." Kennedy v. Mendoza -Martinez, supra, at 168-169, 83 S.Ct., at 567. The efficient starting point for identifying constitutionally relevant "behavior," when considering an objection to a successive prosecution, is simply to apply the same -elements test as originally stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 1805 76 L.Ed. 306 (1932). See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). When application of Blockburger under Kennedy -Ward shows that a successive prosecution is permissible even on the assumption that each penalty is criminal, the issue is necessarily settled. Such is the case here, as Justice STEVENS explains. See ante, at 497 (opinion concurring in judgment). Applying the Kennedy -Ward criteria, therefore, I would stop just where Justice STEVENS stops. My acceptance of the Kennedy -Ward analytical scheme is subject to caveats, however. As the Court points out, under t, M) cleiii, to ori9imaI t1.�i, G,ovoini noi�I Works. - 10 Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024.., Ward, once it is understood that a legislature intended a penalty to be treated as civil in character, that penalty may be held criminal for Fifth Amendment purposes (and, for like reasons, under the Sixth Amendment) only on the "clearest proof' of its essentially criminal proportions. While there are good and historically grounded reasons for using that phrase to impose a substantial burden on anyone claiming that an apparently civil penalty is in truth criminal, what may be clear enough to be "clearest" is necessarily dependent on context, as indicated by the cases relied on as authority for adopting the standard in Ward Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), used the quoted language to describe the burden of persuasion necessary to demonstrate a criminal and punitive purpose unsupported by "objective manifestations" of legislative intent. Id., at 617, 80 S.Ct., at 1376. Rex Trailer Co. v. United Stales, 350 U.S. 148, 154, 76 S.Ct. 219, 222-223, 100 L.Ed. 149 (1956), cited as secondary authority, required a defendant to show that a "measure of recovery" was "unreasonable or excessive" before "what was *114 clearly intended as a civil remedy [would be treated as] a crim i nal penalty." One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972) (per curiam), cited Rex Trailer for that standard and relied on the case as exemplifying a provision for liquidated damages as distinct from criminal penalty. I read the requisite "clearest proof' of criminal character, then, to be a function of the strength of the countervailing **501 indications of civil nature (including the presumption of constitutionality enjoyed by an ostensibly civil statute making no provision for the safeguards guaranteed to criminal defendants. See Flemming, supra, at 617, 80 S.Ct., at 1376). I add the further caution, to be wary of reading the "clearest proof' requirement as a guarantee that such a demonstration is likely to be as rare in the future as it has been in the past. See United Slates v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989) ("What we announce now is a rule for the rare case"). We have noted elsewhere the expanding use of ostensibly civil forfeitures and penalties under the exigencies of the current drug problems, see Ursery, supra, at 300, 116 S.Ct., at 2153 (STEVENS, J., concurring in judgment in part and dissenting in part) ("In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools"); United States v. James Daniel Good Real Property, 510 U.S. 43, 81-82, 114 S.Ct. 492, 515-516, 126 L.Ed.2d 490 (1993) (THOMAS, J., concurring in part and dissenting in part), a development doubtless spurred by the increasingly inviting prospect of its profit to the Government. See id., at 56, n. 2, 114 S.Ct., at 502 n. 2 (opinion of the Court) (describing the Government's financial stake in drug forfeiture); see also id., at 56, 114 S.Ct., at 502 (citing Harmelin v Michigan, 501 U.S. 957, 978, n. 9, 111 S.Ct. 2680, 2693 n. 9, 115 L.Ed.2d 836 (1991) (opinion of SCALIA, J.) for the proposition that "it makes sense to scrutinize governmental action more closely when the State stands to benefit"). Hence, on the infrequency of "clearest proof," history may not be repetitive. *115 Justice BREYER, with whom Justice GINSBURG joins, concurring in the judgment. I agree with the majority and with Justice SOUTER that United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), does not provide proper guidance for distinguishing between criminal and noncriminal sanctions and proceedings. I also agree that United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980), and Kennedy v. Mendoza -Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), set forth the proper approach. I do not join the Court's opinion, however, because I disagree with its reasoning in two respects. First, unlike the Court I would not say that " `only the clearest proof' " will "transform" into a criminal punishment what a legislature calls a "civil remedy." Ante, at 493. I understand that the Court has taken this language from earlier cases. See Ward, supra, at 249, 100 S.Ct., at 2641-2642. But the limitation that the language suggests is not consistent with what the Court has actually done. Rather, in fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand. In Department of Revenue of Mont. v Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), for example, the Court held that the collection of a state tax imposed on the possession and storage of drugs was "the functional equivalent of a successive criminal prosecution" because, among other things, the tax was "remarkably high"; it had "an obvious deterrent purpose'; it was "conditioned on the commission of a crime'; it was "exacted only after the taxpayer ha[d] been arrested for the precise conduct that gives rise to the tax obligation"; its alternative function of raising revenue could be equally well served by increasing the fine imposed on the activity; and it departed radically from "normal revenue laws" by taxing contraband goods perhaps destroyed before the tax was imposed. Id., at 781-784, 114 S.Ct., at 1946-1948. This reasoning tracks the non-exclusive list of factors set forth in Kennedy, and it is, I believe, the proper approach. The "clearest proof' language *116 is ?(7 :�<Jnl i0 0,rigirial Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. Fed. 737, 139 L.Ed.2d 450, 66 USLW 4024... consequently misleading, and I would consign it to the same legal limbo where Halper now rests. Second, I would not decide now that a court should evaluate a statute only " `on its face,' " ante, at 493 (quoting Kennedy, supra, at 169, 83 S.Ct., at 568), rather than "assessing the character of the actual sanctions imposed," **502 Halper, supra, at 447, 109 S.Ct., at 1901; ante, at 494. Halper involved an ordinary civil -fine statute that as normally applied would not have created any "double jeopardy" problem. It was not the statute itself, but rather the disproportionate relation between fine and conduct as the statute was applied in the individual case that led this Court, unanimously, to find that the "civil penalty" was, in those circumstances, a second "punishment" that constituted double jeopardy. See 490 U.S., at 439, 452, 109 S.Ct., at 1896-1897, 1903-1904 (finding that $130,000 penalty was "sufficiently disproportionate" to $585 loss plus approximately $16,000 in Government expenses caused by Halper's fraud to constitute a second punishment in violation of double jeopardy). Of course, the Court in Halper might have reached the same result through application of the constitutional prohibition of "excessive fines." See ante, at 495; Alexander v United States, 509 U.S. 544, 558-559, 113 S.Ct. 2766, 2775, 125 L.Ed.2d 441 (1993); Halper, supra, at 449, 109 S.Ct., at 1902 (emphasizing that Halper- was "the rare case" in which there was an "overwhelmingly disproportionate" fine). But that is not what the Court there said. And nothing in the majority's opinion today explains why we should abandon this aspect of Halper's holding. Indeed, in context, the language of Kennedy that suggests that the Court should consider the statute on its face does not suggest that there may not be further analysis of a penalty as it is applied in a particular case. See 372 U.S., at 169, 83 S.Ct., at 568. Most of the lower court confusion and criticism of Halper appears to have focused on the problem of characterizing —by examining the face of the statute —the purposes of a civil penalty as punishment, not on the application of double jeopardy analysis to the penalties that are imposed in particular cases. It seems to me quite possible that *117 a statute that provides for a punishment that normally is civil in nature could nonetheless amount to a criminal punishment as applied in special circumstances. And I would not now hold to the contrary. That said, an analysis of the Kennedy factors still leads me to the conclusion that the statutory penalty in this case is not on its face a criminal penalty. Nor, in my view, does the application of the statute to the petitioners in this case amount to criminal punishment. I therefore concur in the judgment. All Citations 522 U.S. 93,118 S.Ct. 488,139 L.Ed.2d 450,162 A.L.R. Fed. 737, 66 USLW 4024, Med & Med GD (CCH) P 45,971, 97 Cal. Daily Op. Serv. 9228, 97 Daily Journal D.A.R. 14,861, 97 CJ C.A.R. 3226, 11 Fla. L. Weekly Fed. S 265 Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L, Ed. 499. Tipton and Hammon are two very small towns in western Oklahoma. 2 The consent orders also contained language providing that they did not constitute "a waiver of any right, power, or authority of any other representatives of the United States, or agencies thereof, to bring other actions deemed appropriate." App. to Pet, for Cert. 133a, 143a, 138a. The Court of Appeals ultimately held that this provision was not a waiver of petitioners' double jeopardy claim. 14 F.3d 536, 539 (C.A.10 1994). 3 Only petitioner Rackley was indicted for making false bank entries in violation of 18 U.S.C. § 1005. 4 E.g., Zukas v. Hinson, 124 F.3d 1407, (C.A.11 1997) (challenge to FAA revocation of a commercial pilot's license as violative of double jeopardy); E.B. v. Verniero, 119 F.3d 1077 (C.A.3 1997) (challenge to "Megan's Law" as violative of double jeopardy); Jones v. Securities & Exchange Comm'n, 115 F.3d 1173 (C.A.4 1997) (challenge to SEC debarment proceeding as violative of double jeopardy); United States v. Rice, 109 F.3d 151 (C.A.3 1997) (challenge to criminal drug prosecution following general military discharge for same conduct as violative of double jeopardy); United States v. Hatfield, 108 F.3d 67 (C.A.4 1997) (challenge to criminal fraud prosecution as foreclosed by previous debarment from Government contracting); Taylor v. Cisneros, 102 F.3d 1334 (C.A.31996) (challenge to eviction from federally subsidized housing based on guilty plea to possession of drug paraphernalia as violative of double jeopardy); United States v. Galan, 82 F.3d 639(C.A.5) (challenge to prosecution for prison escape following prison disciplinary proceeding as violative of double jeopardy), cert. denied, 519 U.S. 867, 117 S.Ct. 179, 136 L.Ed.2d 119 (1996). Hudson v. U.S., 522 U.S. 93 (1997) 118 S.Ct. 488, 162 A.L.R. F. 737, 139 L.Ed.2d 450, 66 USLW Fed. 4024... 5 In his concurrence, Justice STEVENS criticizes us for reexamining our Halperopinion rather than deciding the case on what he believes is the narrower Blockburger grounds. But the question upon which we granted certiorari in this case is "whether imposition upon petitioners of monetary fines as in personam civil penalties by the Department of the Treasury, together with other sanctions, is 'punishment' for purposes of the Double Jeopardy Clause." Pet. for Cert. I. It is this question, and not the Blockburger issue, upon which there is a conflict among the Courts of Appeals, Indeed, the Court of Appeals for the Tenth Circuit in this case did not even pass upon the Blockburger question, finding it unnecessary to do so. 92 F.3d, at 1028, n. 3. 6 In Kurth Ranch, we held that the presence of a deterrent purpose or effect is not dispositive of the double jeopardy question. 511 U.S., at 781, 114 S.Ct., at 1946-1947. Rather, we applied a Kennedy -like test, see 511 U.S., at 780- 783, 114 S.Ct., at 1946-1948, before concluding that Montana's dangerous drug tax was "the functional equivalent of a successive criminal prosecution," id., at 784, 114 S.Ct., at 1948. Similarly, in Ursery, we rejected the notion that civil in rem forfeitures violate the Double Jeopardy Clause. 518 U.S., at 270-271, 116 S.Ct., at 2138. We upheld such forfeitures, relying on the historical support for the notion that such forfeitures are civil and thus do not implicate double jeopardy. Id., at 292, 116 S.Ct., at 2149. j Title 12 U.S.C. § 84(a)(1) prohibits total loans and extensions of credit by a national banking association to any one borrower from exceeding 15 percent of the bank's unimpaired capital and surplus. Title 12 U.S.C. § 375b and 12 CFR §§ 31-2(b) and 215.4(b) (1986) impose similar lending limits on loans to bank officers and other insiders. 2 Petitioners challenge this conclusion by relying on dicta from Kansas v. Hendricks, 521 U,S. 346, 370, 117 S.Ct. 2072, 2086, 138 L.Ed.2d 501 (1997). There, after rejecting a double jeopardy challenge to Kansas' Sexually Violent Predator Act, the Court added: "The Blockburger test, however, simply does not apply outside of the successive prosecution context." Ibid. This statement, pure dictum, was unsupported by any authority and contradicts the earlier ruling in United States v. Dixon, 509 U.S. 688, 704-705, 113 S.Ct. 2849, 2860-2861, 125 L,Ed.2d 556 (1993), that the Blockburger analysis applies to claims of successive punishment as well as successive prosecution. See also 509 U.S., at 745- 746, 113 S.Ct., at 2881-2882 (SOUTER, J., concurring in judgment in part and dissenting in part) (explaining why the Blockburger test applies in the multiple punishments context). I cannot imagine a good reason why Blockburger should not apply here. 3 "We ... hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." United States v. Halper, 490 U.S. 435, 448-449, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989). 4 Other recent double jeopardy decisions have also recognized that double jeopardy protection is not limited to multiple prosecutions. See United States v. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 2139-2140, 135 L.Ed.2d 549 (1996); Kansas v. Hendricks, 521 U.S., at 369, 117 S.Ct., at 2085-2086 . Otherwise, it would have been totally unnecessary to determine whether the civil forfeitures in Urseryand the involuntary civil commitment in Hendricks imposed "punishment" for double jeopardy purposes, for neither sanction was implemented via criminal proceedings. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 176 Cal.App.2d 850, 1 Ca1.Rptr. 733 CENTRAL MANUFACTURING DISTRICT, INC. (a Corporation) et al., Respondents, V. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY, Appellant. Civ. No. 23953• District Court of Appeal, Second District, Division 2, California. Jan. 4, 196o. HEADNOTES (1) Municipal Corporations § 19-- Organ ization --Effect of Adverse Vote. In determining whether a proceeding for the incorporation of a city was commenced too soon after an adverse vote under Gov. Code, § 34325.1, providing that if a majority of the votes cast is against incorporation, no further proceeding for the incorporation of the "same or substantially the same area" shall be initiated for two years after the date of the election, a mere comparison of the acreages of the area rejected and the area proposed for incorporation was the proper approach to the application of the phrase "substantially the same area." See Cal.Jur.2d, Municipal Corporations, §§ 8-11. (2) Municipal Corporations § 19--Organization--Construction of Statute. The phrase "substantially the same," as used in Gov. Code, § 34325.1, barring for two years another incorporation proceeding of "substantially the same" area involved in a prior incorporation proceeding rejected by majority vote, has no precise connotation, and there is no formula or measuring rod by which to test it. (3) Municipal Corporations § 19--Organization--Effect of Adverse Vote. Under Gov. Code, § 34325.1, providing that if a majority of the votes cast in an incorporation proceeding is against incorporation, no further proceeding for the incorporation of "the same or substantially the same area" shall be initiated for two years after the date of the election, identity of 2.7 square miles of area in two proposed cities, incorporation of one of which had been previously rejected by the voters, with a total of 3.8 square miles not in common, did not warrant holding that incorporation ofthe second area would constitute incorporation of the same or substantially the same area as the rejected incorporation. (4) Appeal and Error § 1068--Right to Allege Error --Respondent. A respondent may assert a legal theory which, if found to be sound, should result in affirmance notwithstanding appellant's contentions. (Code Civ. Proc., § 956.) See Cal.Jur.2d, Appeal and Error, § 552 et seq.; Arn Jur., Appeal and Error, § 864 et seq. *851 (5) Appeal and Error § 1277--Questions of Law and Fact -- Findings on Conflicting Evidence. A respondent is bound by findings of fact based on substantially conflicting evidence. (6a, 6b) Municipal Corporations § 19--Organization--Effect of Pendency of Other Proceedings. Although Gov. Code, § 35308, relating to the effect on incorporation proceedings of the pendency of annexation proceedings, requires action disapproving pending annexation proceedings to be taken by ordinance, a city effectively terminated proceedings for the annexation of uninhabited territory, so that incorporation of such territory could proceed, by resolution where it was stated in such resolution that action was being taken pursuant to Gov. Code, § 35007, since that statute authorizes a city to terminate annexation proceedings at any time prior to the date set for hearing protests, was thus special in nature and controlling in its narrow field over the general provisions of § 35308, since it was enacted later in point of time than § 35308, and since it does not specify the form of the action to be taken thereunder. (7) Municipal Corporations § 212--Ordinances and Resolutions. In the absence of statutory or charter provisions to the contrary, a municipal legislative act may be in the form either of a resolution or of an ordinance. 4C1 (;I( li?i to p i,;ii1cl �l.v-DVer91n1^E-li ,,hJzlr!(s. Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 (8) Municipal Corporations § 212--Ordinances and Resolutions. For many purposes, resolutions and ordinances are equivalents. (9) Municipal Corporations § 212--Ordinances and Resolutions. Even where a statute or municipal charter requires the municipality to act by ordinance, if a resolution is passed in the manner and with the statutory formality required in the enactment of an ordinance, it will be as binding and effective as an ordinance. (10) Appeal and Error § 125--Objections--Adherence to Theory of Case. Where the lower court, by proper pleadings, was called on to determine, collaterally, whether a proposed annexation area under Gov. Code, § 35300 et seq., was inhabited or uninhabited and such issue was pursued by evidence and otherwise throughout the trial, respondent having joined in contesting such issue, respondent could not, when confronted with an adverse decision, contend on appeal that the city council's determination of the question, such question being political, was final and the court had no jurisdiction over a collateral attack thereon. SUMMARY APPEAL from a judgment of the Superior Court of Los Angeles County. Ellsworth Meyer, Judge. Reversed with directions. *852 Proceeding in mandamus to annul a proceeding for incorporation of a city. Judgment granting writ, reversed with directions. COUNSEL Harold W. Kennedy, County Counsel, and David D. Mix, Deputy County Counsel, for Appellant. Alexander Googooian as Amicus Curiae on behalf of Appellant. O'Melveny & Myers, Sidney H. Wall, William D. Moore, Robert W. Walker, John J. Balluff and Louis C. Viereck for Respondents. ASHBURN, J. Appeal from judgment in mandamus which annuls a proceeding for incorporation of an area to be known as city of Mirada Hills because it was initiated six months after the voters rejected incorporation of city of La Mirada Knolls, held to be in violation of section 34325.1 of the Government Code: "If a majority of the votes cast is against incorporation, no further proceedings for the incorporation of the same or substantially the same area shall be initiated for two years after the date of the election." (Emphasis added.) The trial court held that the proposed Mirada Hills included substantially the same area as the rejected La Mirada Knolls. The Board of Supervisors of the County of Los Angeles appeals from the judgment. Respondents' brief says: "Immediately following this unsuccessful incorporation election, the proposed city was redesigned. A small area along the eastern boundary and a small area along the western boundary were deleted. A small area adjoining the southwestern boundary was added. (This parcel is owned by the individual respondents, the Harveys.) A larger area of predominantly agricultural land adjoining the northeastern boundary was also added. The remainder of the proposed La Mirada Knolls, being the central and major part of that proposed city, remained undisturbed. When these deletions and additions had been made, the name was changed from 'La Mirada Knolls' to 'Mirada Hills.' " This is substantially accurate, as is shown by map received in evidence as Exhibit 2. However, the "small" areas mentioned by counsel prove to be quite substantial in the aggregate. It was stipulated that the area of La Mirada Knolls was 4.4 square miles; *853 that of Mirada Hills 4.8 square miles, which included 60 percent of the area of La Mirada Knolls; omitted from the new proposal were 1.7 square miles which had been in the first one; 2.1 square miles of Mirada Hills were never within La Mirada Knolls; the result is an area of 2.7 square miles common to both cities and an area of 3.8 square miles which is not common. In determining whether the proposed new city would be the incorporation of "the same or substantially the same area" as the rejected La Mirada Knolls, the trial judge confined the inquiry to "an acre by acre comparison of the two areas" as counsel phrase it, and excluded evidence of other factors such as those suggested in respondents' brief, viz.: "Respondents believe that the determination might well include a consideration of all those essential factors which are normally connected with the formation of new cities. A comparison of such factors as assessed valuation, population and registered voters would certainly shed some light on �o ri;)iiii fc) OYp'`91;15�1 Cii i� is Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 the problem. Was the same community the subject of both proceedings? Were the proponents the same? Has there been any substantial change in the residential areas? Is the central business district the same in both proceedings? In view of the many important factors involved in the formation of cities, a comparison of these other factors, in addition to the number of acres, would appear to be of great benefit in determining whether the two proposals involve the same thing." (l ) The statutory history shows the trial court's procedure to have been correct. Section 34325.1, as originally enacted in 1955, contained the same language as the present section, except that it provided a waiting period of one year instead of two. It was amended in 1957 (ch. 922, p. 2131; approved by Governor on June 8, 1957) to read: "if a majority of the votes cast is against incorporation, no further proceedings for the incorporation of the same or substantially the same area shall be initiated for one year after the date of the election. In determining whether the same or substantially the same area is involved the board of supervisors shall consider and compare the total acreage, assessed value, registered voters, and estimated number of inhabitants, of each area and the factors common to both such areas. " (Emphasis added.) As a substantial amendment to a statute implies legislative intent to make a change in the law (Estate of Todd, 17 Cal.2d 270, 274 [109 P.2d 91331; *854 Olivas v. Weiner, 127 Cal.App.2d 597, 599 [274 P.2d 4766]), the quoted amendment broadened the inquiry beyond mere comparison of acreages. That was in June, 1957, but the Legislature changed its mind in July of the same year, took this new language out of the statute and restored it to its original form except that the waiting period was changed from one year to two years (Stats. 1957, ch. 2363, p. 4096, approved by Governor on July 10, 1957). Of course the last amendment thus became the only change in the original section (45 Cal.Jur.2d, § 63, p. 585). We think this history shows, and we hold, that the mere comparison of acreages is the proper approach to the application of the statutory phrase "substantially the same area." There is no conflict in the evidence upon this phase ofthe case and the question of whether "substantially the same area" was included in the Mirada Hills proceeding becomes one of law to be determined independently by the appellate court, which will respect but not be bound by the ruling below. Thus we are brought to the necessity of reading the maps (of which Exhibit 2 is a reliable exemplar) and considering the stipulated acreage stated in terms of square miles as above set forth, and deciding whether the trial judge was mistaken in his appraisal of the same. Persuasive precedents are practically nonexistent. (2) The phrase "substantially the same" has no precise connotation and there is no formula or measuring rod by which to test it. In Atchison etc. Ry. Co. a Kings County Water Dist., 47 Cal.2d 140 [302 P.2d 1], the court dealt with the question of exclusion from a water district of the Santa Fe right-of-way which ran through the district. The alleged right to exclusion depended upon a showing "that the land will not be substantially and directly benefited by its continued inclusion in the district" (p. 143). The court, after quoting the generalities of dictionary and like definitions of the words "substantially" and "substantial" said, at page 144: "'Substantial' is a relative term, its measure to be gauged by all the circumstances surrounding the matter in reference to which the expression has been used." The phrase "substantially the same" is an elusive one which presents a case to case problem. In Adams v. Edwards, l Fed.Cas. 112, 114 (case No. 53), a patent case, the judge instructing the jury said: "And I do not say, as one of my brethren upon the bench has said, that there is no definite signification to the word 'substantial.' When we say a thing is substantially the same, we mean it is *855 the same in all important particulars. It must be of the same material, when the material is important; it must be of the same thickness, when thickness is important; it must be applied in the same way, condition, and extent, to the doors as well as the sides, when either of these circumstances makes an essential difference." Rachford v. City of Port Neches (Tex.Civ.App.), 46 S.W.2d 1057, 1059, was an action for foreclosure of a tax lien and the defendant resisted upon the ground that the city was not legally incorporated. Without deciding the question of collateral attack, the court ruled as follows upon the matter in which we are interested: "On September 11, 1926, an election was held to incorporate the 'City of Port Neches.' The incorporation was defeated in this election. This proposed incorporation included the town of Port Neches and also the town of Nederland, two miles from Port Neches, with all the territory between these two towns. The'City of Port Neches,' appellee herein, was incorporated as the result of an election held on July 26, 1927. It includes no part of the town of Nederland and only about one-half the territory included in the 1926 election. Appellant insists that the 1927 election was in violation of article 1134, R.S. 1925, regulating the holding s .' I':� ia„ (i.3Fo�� !f� are in l la. �t�rrsmcni �.'Vc]rks. 3 Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 of elections for incorporation, which expressly provides that 'a new election shall not be ordered in less than one year.' The material change in the proposed boundaries of the city of Port Neches authorized the 1927 election, though it was in fact held in less than one year from the 1926 election." State ex rel. Hunt v. Montgomery County Board of Elections (Ohio App.), 135 N.E.2d 882, upon which respondents rely, dealt with a petition for writ commanding board to order an election upon a petition for detachment of relator's property from the Village of Kettering. Page 883: "The territory described in the petition incorporates 1,882 acres of land, 1,368 of which were included in a proposal to detach 3,090 acres from the Village of Kettering voted upon at an election held April 21, 1953. At this election the proposal to detach territory was defeated. The Board bases its refusal to call an election, as requested, solely on that part of R.C. section 709.39 which provides:'If a majority ofthe ballots cast at such election are cast against detachment, no further proceedings shall be had in relation thereto for a period of two years.' We are of opinion that the Board correctly interpreted the quoted part of R.C. section 709.39, and properly refused to order the *856 election sought by the petitioners." The ruling: "It is urged by relator that the territory included in the present petition is not the same, or substantially the same, as incorporated in the election proposal of 1953, and, therefore, the election now requested should proceed. Of course it is not the same territory as it includes about 500 acres outside ofthat presented to the voters in the 1953 election for detachment of territory. However, 1,368 acres of the territory included in the description in the present petition is the same as voted upon in 1953. This acreage represents over 44%, or a substantial part, of the 3,090 acres voted upon in 1953; a substantial part being affected, the statutory bar operates." (P. 883.) It is to be noted that the statute there under consideration does not use the phrase "same or substantially the same," but says, "in relation thereto." The holding that a "substantial part" was affected by the inclusion in the second detachment proceeding of one-half of a previously defeated detachment was predicated upon a statute which did not contain the phrase "same or substantially the same" and that was the language of counsel. The cited case of Johnson v. City of San Pablo, 132 Cal.App.2d 447 [283 P.2d 57], throws no light upon our present problem. (3) We have concluded that the identity of 2.7 square miles of area in the two proposed cities, with a total area of 3.8 square miles not in common, does not warrant a holding that the incorporation of Mirada Hills would constitute the incorporation of the same or substantially the same area as La Mirada Knolls, and that the trial court erred in ruling that it offends the statute. Respondents assert error in the trial court's rejection of their claim that the Mirada Hills incorporation proceeding was precluded by the pendency of an annexation proceeding instituted by the city of Santa Fe Springs and including a portion of the Mirada Hills territory. Reliance is placed upon section 35308, Government Code, which reads: "When a valid and sufficient petition for the annexation of any territory to a city has been received by its legislative body or its legislative body has initiated proceedings as hereinafter provided and until an ordinance disapproving such annexation becomes effective (a) no notice of intention to incorporate a new city shall be filed which includes any of the territory described in the annexation proceedings; (b) no notice of intention to *857 circulate a petition for the annexation of any such territory under the Annexation Act of 1913 shall be filed or consented to by the legislative body of any city; (c) no petition shall be filed with, and no proceedings shall be instituted by, the legislative body of any city for the annexation of any such territory under this division." Appellant objects to consideration of this argument upon the ground that a respondent may not be heard to urge error against him. That is the general rule but not a universal one. Section 956, Code of Civil Procedure, as amended in 1957, reads: "Upon an appeal from a judgment the court may review the verdict or decision, and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment, or which substantially affects the rights of a party. The court may also on such appeal review any order on motion for a new trial. The respondent, or party in ivhose favor the judgment ivas given, may, without appealing from such judgment, request the court to and it may review any of the foregoing matters for the purpose of determining whether or not the appellant ivas prejudiced by the error or errors upon ivhich he relies for reversal or modification of the judgment from ivhich the appeal is taken. The provisions of this section do not authorize the court to review any decision or order from which an appeal might have been taken." (Italicized matter inserted in 1957.) (4) This new matter seems to be a codification of the existing rule established by court decisions; they recognize that a respondent may assert a legal theory which, if found to be sound, should result in affirmance notwithstanding appellant's contentions. (Mott v Horstmann, 36 Cal.2d 388, 393 [224 A I-i:i:[ }r, [..1iF:{lii>[I }{.-:7 I ii'Vo'Iii['.:[::'fi �Nr�;l;ti Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 P.2d I I]; Sears v. Rule, 27 Cal.2d 131, 140 [163 P.2d 443]; City of Glendale v. Crescenta etc. Water Co., 135 Cal.App.2d 784, 798 [288 P.2d 105].) ( 5) Necessarily, respondent is bound by findings of fact based upon substantially conflicting evidence. (Metzenbaum a Metzenbaum, 115 Cal.App.2d 395, 404 [252 P.2d 31, 966].) Respondents here contend that the Santa Fe Springs annexation was still pending and preclusive of the Mirada Hills annexation because it had not been terminated by ordinance in accordance with said section 35308, Government Code (quoted supra.), the city having attempted to accomplish that result by mere resolution. The setting in which this question arises should be understood. The Santa Fe Springs annexation proceeding was brought *858 under the Annexation of Uninhabited Territory Act of 1939 (Gov. Code, §§ 35300-35326). Section 35303 prescribes that: "For purposes of this article territory shall be deemed uninhabited if less than twelve registered voters reside within it at the time of the filing of the petition for annexation or the institution of proceedings on motion of the city legislative body." The initiatory Resolution Number 124, passed on January 21, 1958, contains a finding that the territory proposed to be annexed "has less than twelve registered voters residing therein." It also set March 13, 1958, at 7:30 p. m. as the time for hearing of objections. On February 13, 1958, before the time for hearing had arrived, the city council adopted Resolution Number 144 which, after certain recitals, says: "Now, Therefore, the City Council of the City of Santa Fe Springs Does Resolve, Determine and Order as Follows: Section 1: All annexation proceedings of the City of Santa Fe Springs regarding Annexation No. 23 are hereby terminated pursuant to the authority contained in Section 350071 of the Government Code." Respondents' amended petition for mandamus alleges in paragraph 9 that "on the day said Resolution No. 124 was adopted there were less than twelve registered voters residing within the boundaries of the territory described in said resolution." Also: "14. Prior to the hour set for hearing objections to said Southside No. 23 annexation, protests against said annexation were filed with the City Council of the City of Santa Fe Springs.... 15. From and after January 21, 1958, to and including the date of filing this amended petition, said City Council of said City of Santa Fe Springs did not adopt and has not adopted an ordinance disapproving said Southside No. 23, and no ordinance disapproving said annexation *859 has ever become effective; and said annexation has not been terminated." At the trial these issues were opened by respondents who called witnesses and offered other evidence in support of the allegations. Appellant joined in trying these issues and made no objection to canvassing the same. The court found that the averments of said paragraph 9 (re number of registered voters in area) were untrue, thus removing that area from the possibility of annexation as uninhabited territory. This finding was based upon substantially conflicting evidence. The court also found to be true the allegations of paragraph 15 re termination of annexation by resolution instead of ordinance, but concluded that "[t]he annexation of the City of Santa Fe Springs known as 'Southside No. 23' was terminated by Resolution No. 144, and said annexation did not prohibit or interfere with the incorporation proceedings for said proposed City of Mirada Hills." (6a) Respondents' reliance upon said section 35308 proves to be misplaced. It was enacted in 1955 (ch. 915, § 14, p. 1544) effective June 6, 1955, and operative on July 1, 1955. But section 35007 was enacted later in the same session by chapter 1757, section 3, page 3247, approved by Governor on July 6, 1955. Section 8 of this latter amending act says: "The right of a city to terminate annexation proceedings prior to the date set for the hearing of protests without prejudice to a new proceeding filed within a year is the existing law. However, the provisions regarding filing and hearing of protests pursuant to the provisions of Section 35007 shall hereafter apply." (P. 3248.) If there be any inconsistency between section 35007 and 35308, the former must prevail for it is later in point of time and is special in nature, thus controlling within its narrow field the general provisions of section 35308 (cf. City of Port Hueneme v City of Oxnard, 52 Cal.2d 385, 395-396 [341 P.2d 318]). In other words, section 35007 relates only to termination prior to the date set for hearing of protests, while section 35308 is general in its breadth and operation; the time for an ordinance arrives after the hearing has been had. (See §§ 35314-35315.) Resolution Number 144 of the City of Santa Fe Springs specifically states that the action terminating the annexation is taken pursuant to section 35007. Although section 35308 requires action to be taken by ordinance and, if applicable in the present situation, a resolution probably would not suffice (McQuillin, Municipal Corporations *860 (2d ed.), vol. 2, § 664, p. 661; Reed v. Wing, 168 Cal. 706, 712 [144 P. 964]), section 35007 does not specify the form of action to be taken and hence settled principles dictate the sufficiency of a resolution. The . � � i,,.� �--;.;: •; .� i�^rs. Nc� ch::r�ls7 ariyu��l 11.5 �:��wF.r,�rrlr;ril uVorl�s, - - - - �� Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 difference between an ordinance and a resolution is well stated in 35 California Jurisprudence 2d, section 392, page 200: "The enactments of a city's legislative branch are known as ordinances and resolutions. Strictly speaking, there is a difference between the two. An ordinance in its primary and usual sense means a local law. It prescribes a rule of conduct prospective in operation, applicable generally to persons and things subject to the jurisdiction of the city. 'Resolution' denotes something less formal. It is the mere expression of the opinion of the legislative body concerning some administrative matter for the disposition of which it provides. Ordinarily it is of a temporary character, while an ordinance prescribes a permanent rule of conduct or of government. However, for many purposes the two words are equivalent terms." See also 37 American Jurisprudence, section 142, page 755. (7) Croii,e v. Boyle, 184 Cal. 117, 149 [193 P. 111]: "But in the absence of statutory or charter provision to the contrary, a legislative act may be either in the form of a resolution or of an ordinance. [Citations.] ( 8) For many purposes resolutions and ordinances are equivalent terms. [Citations.] ( 9) 'And it has been held that even where the statute or municipal charter requires the municipality to act by ordinance, if a resolution is passed in the manner and with the statutory formality required in the enactment of an ordinance, it will be binding and effective as an ordinance. [Citations.] The charter of San Francisco, although providing that all legislative action shall be by ordinance ... expressly authorizes in section 13 the passage of resolutions providing for the appropriation or disposition of public property or the expenditure of public money. It is thus provided that this particular form of legislative action may be had by either ordinance or resolution...." (6b) The trial court correctly concluded that the use of a resolution instead of an ordinance to terminate the annexation under section 35007 was permissible and that the annexation proceeding was not a bar to the Mirada Hills incorporation. There is another equally sound reason for the same result. Because there were more than 12 registered voters in the area the Santa Fe annexation proceeding was void. *861 (10) Counsel for respondents argue in effect that they are entitled to challenge the court's finding of 12 or more registered voters in the annexation area because as a matter of law that question is concluded by the finding of the city council in Resolution Number 124 "that said territory has less than twelve registered voters residing therein'; that this is a political question; the finding of the city council is conclusive and it precludes the exercise of jurisdiction over that subject by the courts when the attack is collateral as at bar. People 1z City of Richmond, 141 Cal.App.2d 107 [296 P.2d 351], refutes this argument decisively. It was a proceeding in quo warranto to test an annexation under the same Uninhabited Territory Act involved in the instant case. The lower court held the proceeding to be void because it found there were more than 11 registered voters in the territory to be annexed. Concerning the claim that the city council had determined the area to be uninhabited, that that was a political question and the council's decision conclusive, the court said: "Richmond claims that in the absence of fraud the findings of the city council (including its finding that the territory was uninhabited) were final; that there was no proof of fraud; hence, it was incompetent for the trial court to make findings contrary to those made by the city council.... Section 35303 of the Government Code defines 'uninhabited' but is silent as to who determines the inhabited or uninhabited character of land proposed for annexation. Section 35313 may by inference confer such a power as an incident to the exercise of the power it gives the local legislative body to 'hear and pass upon all protests.' [P. 116.] ... "Even if the city had power to decide whether this territory was uninhabited, we must not forget this presents a jurisdictional question, upon which depends the very power of the city to act. A discussion ofthe judicial nature of an inquiry concerning the existence of facts upon which the jurisdiction, the very capacity of an agency to act depends, will be found in 4 Cal.Jur. 1110-1113, section 71; in 10 Cal.Jur.2d 163-165, section 85; in 5 A.L.R.2d 675; and in cases cited in each. "Finally, the city (as a special defense pleaded in its answer) presented these very questions for decision by the court de novo, not by way of review of a decision by the city. [P. 117.] ... "The city then proceeded to and did try these issues on that theory, clear through to the end of the trial, including the *862 arguments of counsel after the taking of the evidence. The parties put in their evidence on these issues just as in any other trial before a court of first instance, just as if there had been no determination by the city or by any other tribunal subordinate to the superior court. It would be strange indeed if a party could thus tender material issues to the superior court, present evidence to that court on those issues and suffer, `'=J21 '! i!OII:;(;(] � :.�:'I�_;E':, ado i:!E1i; , to oi-i[ illa.i [ i ��dl'�i' i3` cni � � .. � - - - - - .a a� _: r �� ;�. '°�` is r�, •,. 6 Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 indeed induce, the opposite party to do likewise, and then, confronted with an adverse decision, claim upon appeal that this was all a mistake, that the entire trial in the superior court should have been conducted as if a mere review of an earlier trial and determ ination by the city council, a mere agent of the very party defendant who thus tendered these issues to and tried them de novo before the superior court. No one questions the competency of the city thus to ignore the decision of its own agent and relitigate these issues before the superior court, a court of unquestionably competent jurisdiction. [P. 118.] ... "The doctrine which requires an appellant to stay with the theory upon which he tried the case, clearly applies here. (See 3 Witkin, Cal. Proc. 2264-2267.) Quite recently, we made similar disposition of a like contention by the city of San Pablo, involving annexation proceedings by that city and the city of Richmond (see Johnson v. City of San Pablo, supra, 132 Cal.App.2d 447, footnote on page 454.) "It necessarily follows that the defendant city was without jurisdiction to proceed under the Annexation of Uninhabited Territory Act and that the judgment must be affirmed." (Pp. 118-119.) The note on page 454 of the opinion in Johnson v. City of San Pablo, 132 Cal.App.2d 447, reads as follows: "Appellants further state that the San Pablo city council, when it gave consent to the commencement of annexation proceedings, impliedly found that all of the territory in question was inhabited and that such a finding was 'final and conclusive in the absence of a showing that there was an abuse of discretion or fraud on the part of the ... council in making such finding.' "If appellants are thereby claiming that the character of that territory (inhabited or uninhabited) is not the subject of judicial inquiry in the current actions, they are mistaken. It is an issue under the pleadings. The parties treated it as an issue during the trial. The fact that the 2,800-acre tract of *863 submerged land is an uninhabited, separable and distinguishable portion of the area, appears upon the face of the record. The additional evidence taken by the court (including the testimony of Mr. Finley) went in without objection. "Under the circumstances, it is clear that the issue under discussion is justiciable and that the trial court was entitled to consider all of the evidence introduced thereon. [Citations.]" To the same effect see People v. Cardiff Irr Dist., 51 Cal.App. 307, 314, 315 [197 P. 384]. The questions here discussed were not involved in People v City of Whittier, 133 Cal.App. 316 [24 P.2d 219], and People v. City of Garden Grove, 165 Cal.App.2d 794 [332 P.2d 841]. Those cases are not opposed to the views expressed in the Richmond case, supra. In Richmond, as in this case, the party who sought to invoke the conclusive determination rule had raised in its pleading the issue of whether the area was uninhabited, had pursued the matter by evidence and otherwise throughout the trial, the opponent had joined in contesting that issue, and that same party upon appeal had tried to shift theories, arguing that there was no jurisdiction to try the question at all. The situation suggests, as does the Richmond opinion, the analogy of the law of res judicata. Hill v. City Cab etc. Co., 79 Cal. 188,191 [21 P. 728], speaking of the rule that a party cannot collaterally assail a judgment unless it is void on its face, says: "But this rule is not that a judgment which is void will be enforced as if it were valid, but that it cannot be shown to be void except in certain ways. If the party, however, should admit the facts which show the judgment to be void, or if he should allow them to be established without opposition, then, as a question of law upon such facts, we do not see why the case is not like that where a judgment is void upon its face. In the present case, the findings establish the fact that there was no service of summons upon or authorized appearance by the defendant." Brockway etc. Co. v. County of Placer, 124 Cal.App.2d 371, 376 [268 P.2d 524]: "In 15 California Jurisprudence, pages 61, 62, it is said:'The public policy underlying the doctrine of collateral attack is not such as to prevent the interested parties from waiving the protection of the rule limiting collateral inquiries to the face of the record. The rule is not that a judgment which is void will be enforced as if it were valid, but that it cannot be shown to be void except in certain ways. *864 And if the parties admit or stipulate, or fail to object to the evidence of, the facts showing a lack of jurisdiction, it is then established that the judgment is void as effectively as shown by the record; and ivhenever such fact is brought to the attention of the court, it is the duty of the court to so declare as a matter of laiv.' (Italics supplied.) "In Thompson v Cook, 20 Cal.2d 564, 569 [127 P.2d 909], the Supreme Court states the rule as follows: '... [A]lthough the judgment or order is valid on its face, if the party in favor of whom the judgment or order runs admits facts showing its invalidity, or, without objection on his part, evidence is admitted which clearly shows the existence of such facts, then 1 , holI Fsol', 1 'e'..wpfs No dan'; W ringiI of I i.;�_ 60veI llfi ent L''Vorl(s. 7 Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County, 176 Cal.App.2d 850... 1 Cal.Rptr. 733 it is the duty of the court to declare the judgment or order void.' ... "There is nothing sacred about the rule limiting collateral attack; it is a rule of convenience designed to bring an end to litigation when parties have had an opportunity to have their day in court." See also 29 California Jurisprudence 2d, section 190, page 147. Other points raised in the briefs require no separate discussion. The judgment is reversed with instructions to the trial court to deny the peremptory writ of mandate. Fox, R J., and Herndon, J., concurred. A petition for a rehearing was denied February 2, 1960, and respondents' petition for a hearing by the Supreme Court was denied February 24, 1960. Schauer, J., was of the opinion that the petition should be granted. *865 Footnotes 1 Gov. Code, § 35007: "The legislative body shall have power to terminate annexation proceedings at any time prior to the date set for the hearing of protests. However, if protests against the annexation of the election are filed with the legislative body prior to the hour set for hearing objections thereto, the city legislative body shall proceed to hear and pass upon all protests so made in the manner provided for in Section 35121 or 35313, whichever is applicable to the proceedings, even though the proceedings have been terminated. If the city legislative body finds that a majority protest as therein provided is made, no further proceedings for the annexation of any of the territory shall be taken for one year after the finding. If the city legislative body finds that a majority protest as therein provided for is not made or it finds that no protests have been filed, new proceedings for the annexation of all or part of the same territory to the city may be instituted and proceeded with as provided in this chapter at any time after the date of such finding." End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works, `'I I ICYi illiCif I I'{`=:i.ltt-i ` i ,Irlil I. t+.1 [)I ii�iri:ll {1.:7. �iI?<< r' lily. ii. '[Volk5. City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 KeyCite Yellow Flag - Negative Treatment Declined to Extend by Yesson v, San Francisco Municipal Transportation Agency, Cal.App. 1 Dist., January 30, 2014 12 Cal.App.3d 550, go Cal.Rptr. 843 CITY OF SAUSALITO et al., Plaintiffs and Appellants, V. COUNTY OF MARIN et al., Defendants and Respondents; GULF OIL COMPANY OF CALIFORNIA et al., Interveners and Respondents Civ. No. 26883. Court of Appeal, First District, Division 4, California. October 30, i970. SUMMARY In an action for declaratory and injunctive relief against Marin County, its board of supervisors, planning commission, planning director, and director of public works, plaintiffs sought to invalidate certain actions taken in the process of applying a zoning ordinance to a 2,100-acre tract in the county. Individual plaintiffs owned land adjacent to the tract and the incorporated limits of plaintiff city were coterminous with some of its boundaries. Two corporations, owners of the tract, intervened in the action as parties defendant. The judgment for defendants in effect upheld the validity of an ordinance amending the county's zoning ordinance to rezone the tract as a planned community district and the validity of board actions purporting to adopt a master plan for the tract and to approve a precise development plan for specific portions of the tract. (Superior Court of Marin County, Harold J. Haley, Judge.) On appeal, the judgment was affirmed insofar as it validated one ordinance involving defective notice and the rezoning of the affected property as a planned community district pursuant to the county's zoning ordinance. The judgment was reversed insofar as it validated the master plan for the property purportedly approved by a resolution rather than by ordinance, as required, a further ordinance for which there was no published notice of hearing, and the precise development plan purportedly adopted by such ordinance and all subsequent proceedings affecting the property and challenged in the pleadings and at the trial. The cause was remanded with directions to enter an appropriate judgment in plaintiffs' favor, invalidating such proceedings and actions, and granting relief as prayed in the complaint, consistent with the views expressed. (Opinion by Rattigan, J., with Devine, P. J., and Christian, J., concurring.) *551 HEADNOTES Classified to California Digest of Official Reports (1) Statutes § 22--Prospective and Retrospective Operation. A statute that is procedural in nature, as distinguished from one that is substantive, may be given effect as to pending and future litigation even where the event underlying the cause of action therein occurred before the statute took effect. But whether it can be classified as procedural depends on its effect rather than its form. (2a, 2b) Zoning and Planning § 6(4)--Operation of Zoning Laws -- Construction. Gov. Code, § 65801, relates generally to procedural steps required in local zoning proceedings, but its effect is substantive in establishing a standard for validation of those proceedings by a reviewing court, whose procedures it does not reach; and the Legislature's failure to state that the statute was to be applied only to judicial review of zoning irregularities occurring after its enactment, when considered with the many actions of zoning litigation pending to which a proper validating act might be effective, indicated the Legislature's intent that the statute should operate in cases not reduced to final judgment at the time of its passage. (3) Statutes § 24--Prospective and Retrospective Operation -- Rule Against Retroactive Operation. Where the Legislature has not set forth in so many words whether it intended a statute to be applied retroactively, the rule against retroactive application should not be followed blindly in complete disregard of factors that may give a clue to legislative intent and should be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent. (4) Zoning and Planning § 7--Remedies. ail j(t;%1 ili41T! op I`lnrs ivlU cI aini to original U-1-3,3, Govorr'trwl .i4 Wc)rl<S. City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 In an action to invalidate certain actions taken by a county in the process of applying its zoning ordinance to a certain tract of land, the trial court properly invoked Gov. Code, § 65801, establishing a standard for validation of zoning proceedings by a reviewing court, to rezoning proceedings for which the notice published was less than that required by statute, though § 65801 had not become law until after enactment of the rezoning ordinance. (5) Zoning and Planning § 2(1)--Validity of Zoning Laws. Though the Legislature could not entirely dispense with notice as to rezoning proceedings, it was not constitutionally required to provide for notice of 10 days' duration; Gov. Code, § 65801, imposing a test of prejudice as the basis of invalidating a zoning ordinance for irregularity in notices has, in effect, *552 substituted the adequacy of notice in fact, as distinguished from its formulary duration, as the test of its adequacy for purposes of due process. (6) Constitutional Law § 127--Retrospective Laws --Laws Changing Remedies or Procedure. Though the Legislature cannot cure non-compliance with jurisdictional prerequisites necessary for due process, it can dispense with statutory requirements for jurisdiction as to procedural matters if it had the right to omit such requirements in the first instance and if it acts consistently with due process. (7) Constitutional Law § 127--Retrospective Laws --Laws Changing Remedies or Procedure. The legislative power prescribing the procedure to be pursued in any given proceeding may also legally provide that an irregularity, jurisdictional or otherwise, consisting of a failure to carry out legislative directions as to such procedure, will not render void the object sought to be obtained where the irregularity does not involve due process. (8) Zoning and Planning § 2(l)--Validity of Zoning Laws. A county board of supervisors' adoption of a master plan by resolution failed to comply with state statutes where the effect was to rezone a large tract of land by regulating land and building uses therein, as to agriculture, industry, business, and residence purposes, within the meaning of Gov. Code, § 65850, which authorizes a board to take such action by ordinance only. [See Cal.Jur.2d, Zoning, § 63; Am.Jur., Zoning (1st ed § 9).] (9) Zoning and Planning § 5--Enactment, Amendment and Repeal of Zoning Laws. A zoning ordinance constitutes the exercise of a governmental and legislative function and is subject to change by the legislative power. (10) Statutes § 73--Amendment and Adoption. The power to legislate includes by necessary implication the power to amend existing legislation, and the amendment of a legislative act is itself a legislative act. (11) Zoning and Planning § 5--Enactment, Amendment and Repeal of Zoning Laws. Rezoning of use districts or changes of uses and restrictions within a district can be accomplished only through an amendment of a zoning ordinance, and the amendment must be made in the same mode as its original enactment. (12) Courts § 94(3)--Decisions as Precedents --Construction of Statutes. In an action challenging the validity of a resolution adopting a *553 master plan of development, a prior case mentioning the adoption of the master plan by resolution was not controlling where the appeal in the prior case neither determined nor involved the validity of such resolution. (13) Zoning and Planning § 5--Enactment, Amendment and Repeal of Zoning Laws. Though a resolution adopting a master plan was legislative in substance and for purposes of referendum proceedings, it was invalid in form where it was not executed by ordinance. (14) Zoning and Planning § 2(1)--Validity of Zoning Laws. Though a resolution for a master plan of development was adopted by a county board of supervisors after noticed and extensive hearings and with the same three -vote majority that I I'horlisnn rwiters No rlain� to ohgula{ Government Works 2 City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 would have been required to enact an ordinance (Gov. Code, § 25005), courts are not at liberty to ignore the very real difference between a resolution and an ordinance. (15) Counties § 91--Ordinances. A resolution of a county board of supervisors is ordinarily not equivalent to an ordinance; a resolution is usually a mere declaration as to future purpose or proceedings of the board, whereas an ordinance is a local law adopted with all the legal formality of a statute. (16) Counties § 93--Ordinance--Enactment. A resolution adopted without the formality required of an ordinance cannot be deemed an ordinance. (17) Counties § 92--Ordinances--Conformity to State Law. The legislative requirements for the publication of a county ordinance after its passage (Gov. Code, §§ 5001, 25124), its deferred effective date in the typical case (Gov. Code, § 25123), its mandatory recording in an ordinance book (Gov. Code, §§ 25102, subd. (b); 25122), and the codification of ordinances generally (Gov. Code, §§ 25126-25130, 50022.2-50022.5) do not apply to resolutions of a county board of supervisors. (18) Zoning and Planning § 2(1)--Validity of Zoning Laws. Under case law and by legislative definition, the difference between a resolution and an ordinance is substantive, and a resolution with the practical effect of rezoning a tract could not be construed as amounting to an ordinance and was invalid for failure of the county board of supervisors to exercise rezoning power by ordinance as required by state law (Gov. Code, § 65850, subd. (a)) and for failure to amend the existing zoning ordinance by legislative action of equal dignity; the defect being substantive, *554 it could not be cured under the validating power vested in the trial court by Gov. Code, § 65801, expressly limited to the validation of irregularities in local zoning procedure only. (19) Zoning and Planning § 5--Enactment, Amendment and Repeal of Zoning Laws. The enactment of a proposed amendment to a local zoning ordinance in the absence of the notice of hearing required by the state Planning and Zoning Law is not an irregularity within the reach of the validating power vested in a reviewing court by Gov. Code, § 65801, and such an amendment cannot be construed as amending the existing zoning ordinance as to the portions of a tract of land affected thereby; nor did such amendment by implication repeal any provision of the existing zoning ordinance with which it was incompatible. (20) Zoning and Planning § 2(1)--Validity of Zoning Laws. Where a county zoning ordinance permitted adoption of a precise plan of development only after approval and filing of a master plan for a planned community district, an ordinance adopting a precise development plan for a tract of land before the enacting board of supervisors had validly, that is, by ordinance, adopted a master plan for the tract was wholly incompatible with the county zoning ordinance and invalid. COUNSEL Myers, Praetzel & Pierce and Robert P. Praetzel for Plaintiffs and Appellants. Douglas J. Maloney, County Counsel, for Defendants and Respondents. Bagley, Bianchi & Sheeks and John W. Rosenberg for Interveners and Respondents. RATTIGAN, J. In this action for declaratory and injunctive relief, plaintiffs sought to invalidate certain actions taken by the County of Marin in the process of applying its zoning ordinance to "Marincello," a large (2,100-acre) tract located within that county. The individual plaintiffs own land adjacent to the tract: the incorporated limits of the plaintiff city, while not including any part of the tract, are coterminous with some of its boundaries. The named defendants included the County of Marin and its board of supervisors, *555 planning commission, planning director, and director of public works. Frouge Corporation ("Frouge") and Gulf Oil Company ("Gulf'), Delaware corporations who own Marincello, intervened in the action as parties defendant. The trial court made findings of fact in defendants' favor and entered judgment accordingly. Plaintiffs appeal from the judgment; Frouge, Gulf and the County of Marin appear as respondents. The judgment in effect upholds (1) the validity of a Marin County ordinance which was enacted by the board �,In r_lpu"i to on fi,,,0 11 V ) City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 of supervisors in February 1965, and which amended the county's zoning ordinance to rezone Marincello as a "P- C district" ("planned community district"); and the validity of subsequent board actions taken pursuant to the zoning ordinance and purporting, successively, (2) to adopt a "master plan" for Marincello as a P-C district and (3) to approve a "precise development plan" for a specific portion thereof. On the appeal, plaintiffs challenge the judgment in all three respects. Because we hold against plaintiffs on the first point but in their favor on the second and third, and because the first point is independent of the others, we consider the three points separately. The Rezoning Proceedings (November 1964-February 1965) In November, 1964, and pursuant to the Marin County zoning ordinance, Frouge and Gulf petitioned the planning commission for a rezoning of Marincello from a "D" classification (in which the ordinance permitted certain residential and agricultural uses not specified in the record) to "P-C" ("Planned Community District"). The planning commission favorably recommended the rezoning to the board of supervisors. On January 19, 1965, and pursuant to notice published six days earlier (on January 13), the board commenced a public hearing on the request. After hearing from several persons on January 19, the board continued the matter to February 2, 1965, for further hearing. No notice of the continued hearing was published. After further hearing the matter on February 2, the board on that date adopted Ordinance No. 1411, amending the Marin County zoning ordinance to rezone Marincello from "D" to "P-C" as requested by its owners. Plaintiffs challenge the validity of Ordinance No. 1411 upon the ground that notice of the board's proceedings was published only six days before the proceedings were convened, although the statute then in effect (former Gov. Code, § 65654)1 required such publication 10 days in advance *556 of the hearing noticed. In this regard, the trial court found as follows: "IX. Proper notice of the hearing was given, but was published for six days rather than ten days ... X. Publication of notice for six instead of ten days was not, in any way, prejudicial to plaintiffs, individually or collectively, or any other persons similarly situated. X1. Publication of said notice for six instead of ten days did not cause plaintiffs to suffer substantial injury or any injury whatsoever. XII. It is not probable that a different result would have ensued if the notice had been published for ten days instead of six days." Under "Conclusions of Law" the court further stated: "I.... [Marincello] ... was properly and legally rezoned from zone 'D' to zone 'P-C' in substantial compliance with applicable law. Marin County Ordinance No. 1411 is, in all respects, a valid and effective enactment of the Marin County Board of Supervisors."2 The trial court thus determined that Government Code section 65801 applied to the rezoning proceedings although it had not become law until after the enactment of Ordinance No. 1411,3 found, as the section permits (see fn. 3, ante), that plaintiffs had not been prejudiced by the short notice given of the proceedings; and concluded, as the statute requires in such case, that the rezoning proceedings (and Ordinance No. 1411) were valid. *557 Plaintiffs do not dispute the sufficiency of the evidence to support the just -quoted findings; they challenge the trial court's invocation of Government Code section 65801 (as indicated by its conclusions of law) upon the asserted grounds that the statute could not be applied (1) retroactively (see fn. 3, ante) or (2) substantively. These contentons cannot be sustained; we affirm the judgment insofar as it validates Ordinance No. 1411. Retroactivity of Section 65801 (1) A statute which is "procedural" in nature - as distinguished from one which is "substantive" - may be given effect as to pending and future litigation even if the event underlying the cause of action therein occurred before the statute took effect. (Aetna Cas. & Surely Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393-394 [182 P.2d 159]; Church v. County of Humboldt (1967) 248 Cal.App.2d 855, 857 [57 Cal.Rptr. 79].) Whether it can be classified as "procedural," however, depends upon its effect rather than its form. ( Aetna Cas. & Surety Co. v Ind. Acc. Com., supra, at p. 394.) ( 2a) The subject matter of Government Code section 65801 relates generally to "procedural" steps required in local zoning proceedings, but its effect is "substantive" because it establishes a standard for validation of those proceedings by a reviewing court whose "procedures" it does not reach. It therefore falls within the general rule that a statute will not be retroactively applied unless legislative intent to the contrary is clear. (DiGenova v. State Board of Education (1962) 57 Ca1.2d 167, 174 [18 Cal.Rptr. 369, 367 P.2d 865]; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, at p. 394.) r:i�jiii! io oI;( fY�l L%., -�(11/ City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 Although it is sometimes stated that such intent must be "expressly declared" by the Legislature (see, e.g., DiGenova v. State Board of Education, supra; Pen. Code, § 3; Gov. Code, § 9608), the general rule "is not a straitjacket. (3) Where the Legislature has not set forth in so many words what it intended, the rule ... should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (In re Estrada (4965) 63 Cal.2d 740, 746 [48 Cal.Rptr. 172, 408 P.2d 948].) It reasonably appears that the Legislature enacted section 65801 as a curative statute for the purpose of terminating recurrence of judicial decisions which had invalidated local zoning proceedings for technical procedural *558 omissions. (E.g., Hurst v. City of Burlingame (1929) 207 Cal. 134 at pp. 139-141 [277 P. 3081; Hein v. City of Daly City (1958) 165 Cal.App. 2d 401 at pp. 405-406 [332 P.2d 1201; Williams v. City of San Bruno (1963) 217 Cal.App.2d 480 at pp. 486-490, 491 [31 Cal.Rptr. 854]. See Cal. Zoning Practice (Cont.Ed.Bar 1969) § 4.17, pp. 113-114.) This legislative purpose would be fully served only if the section were applied in future judicial review (to which it is clearly addressed: see its text, quoted in fn. 3, ante), but regardless of whether the offending procedural omission occurred before or after the section's enactment. (2b) The Legislature was presumably aware, from the high and growing frequency of zoning litigation in California, that many actions such as this one were pending (or impending, as this one was) when it enacted the section in 1965, and it must have been equally aware of the relevant rule that "a proper validating act may be effective as to pending litigation." (Miller v. McKenna (1944) 23 Cal.2d 774, 781 [147 P.2d 531]. See Wall v. State of California (1946) 73 Cal.App.2d 838, 845 [167 P.2d 740].) Still, it did not - as it could have done - state that the section was to be applied only in judicial review of zoning irregularities which occurred after its enactment. In light of these "pertinent factors," we do not find it "impossible to ascertain the legislative intent"; to the contrary, such factors "indicate the Legislature must have intended that the ... statute should operate in all cases not reduced to final judgment at the time of its passage." ( In re Estrada, supra, 63 Cal.2d 740 at p. 746.) ( 4) Accordingly, the trial court properly invoked section 65801 in point of time. Substantive Application of Section 65801 Of the trial court's substantive application of section 65801, plaintiffs first contend that the statute cannot be construed to dispense with the 10-day notice requirement because such was essential to due process. It is clear that some notice of hearings upon the proposed P-C rezoning was required for due process purposes, because of the effect of zoning upon the ownership and use of property. (Gilgert v. Stockton Port Dist. (1936) 7 Cal.2d 384, 391 [60 P.2d 847]. See Litchfield v. County of Marin (1955) 130 Cal.App. 2d 806, 812 [280 P.2d 117]; Cal. Zoning Practice, op. cit. supra, § 10.35, pp. 447-448.) In cases where such effect appears, however, "no constitutional mandate ... [specifies] ... how that notice is to be given or which form it must take. Therefore the Legislature in prescribing the notice to be given as an essential element of due process is limited only by the inferred constitutional mandate that the notice must be such as would according to common experience be reasonably adequate to the purpose." ( Litchfield v. County of Marin, supra at p. 813 (italics added).) (5) Thus, while the Legislature could not dispense with notice entirely, it was not constitutionally *559 required to provide for notice of 10 days' duration; section 65801, imposing a test of prejudice as the basis of invalidating a zoning ordinance for "irregularity" in "notices," has in effect substituted the adequacy of notice in fact, as distinguished from its formulary duration, as the test of its adequacy for purposes of due process. Plaintiffs argue that the Legislature could not validly do this because the 10-day notice requirement was "mandatory and jurisdictional." As spelled out in former Government Code section 65654, the requirement was mandatory in terms (see fn. 1, ante), and the previously cited decisions which invalidated local zoning actions, for noncompliance with notice and other requirements prescribed by state law, rested upon essentially jurisdictional grounds. (Hurst a City of Burlingame, supra, 207 Cal. 134 at pp. 138-139; Hein v. City of Daly City, supra, 165 Cal.App.2d 401, at pp. 404, 405-406; Williams v. City of San Bruno, supra, 217 Cal.App.2d 480 at pp. 486, 489-490, 491. See Cal. Zoning Practice, op. cit. supra, § 4.17, pp. 113-114.) But, while it thus appears that the notice requirement was literally "mandatory" and historically treated as "jurisdictional," it does not follow that the Legislature was powerless to cure noncompliance with it by enacting a validating statute. Plaintiffs' argument to the contrary fails to recognize the distinction between jurisdictional prerequisites necessary for due process and those imposed by statute as to procedural matters. (6) While the Legislature cannot cure noncompliance )�Pl'. rP1li1'� i City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 with the former, it can dispense with statutory requirements for "jurisdiction," as to procedural matters, if it had the right to omit such requirements in the first instance and if it acts consistently with due process. (Miller v. McKenna, supra, 23 Cal.2d 774 at pp. 781-782; Watkinson v. Vaughn (1920) 182 Cal. 55, 58-61 [186 P. 753]; Litchfield v. County of Marin, supra, 130 Cal.App.2d 806 at p. 812.) ( 7) "[T]he legislative power which prescribes the procedure to be pursued in any given proceeding may also legally provide that an irregularity ('jurisdictional' or otherwise, where it does not involve 'due process'), consisted of a failure to carry out the directions in the legislative act as to such procedure, will not render void the object sought to be attained." (In re East Bay etc. Water Bonds of 1925 (1925) 196 Cal. 725, 735-736 [239 P. 38].) The Master Plan and Subsequent Proceedings This aspect of the appeal requires preliminary analysis of the Marin County zoning ordinance (which, at times pertinent hereto, appeared as title 22 ["Zoning"] of the Marin County Code).4 Under chapter 22.44 thereof *560 ("P-C District - Planned Community District"), a P-C district "may be established for parcels of undeveloped land" which consist of "open acreage" and are "suitable for, of sufficient size, and can be developed for at least one neighborhood" as the latter term is defined in the county's streets and highways plan. (§ 22.44.020.) After a P-C district is "formed," the "owner or owners of the land within such district shall submit a master plan for the development of all the neighborhood units in which the district is located, which master plan shall be subject to the approval and adoption of the Marin county planning commission and the Marin county board of supervisors in accordance with the provisions of the conservation and planning law of the State of California."5 (§ 22.44.030.) Until the master plan has been "adopted" for the district, the land within it "shall be considered to be in an A-2:13-3, limited agricultural district" (§ 22.44.080), and any development of the land is limited to such "improvement, land or road grading or subdivision of lands" as will be "in compliance with the regulations governing A-2:13-3, limited agricultural districts." (§ 22.44.030.)6 "After the approval and filing of the master plan [for a P- C district], no development and/or land improvement and/ or building construction shall be commenced unless and until" (as pertinent here) the planning commission and the board of supervisors had approved a "precise development plan" for any "specific portion of the district" proposed to be developed. (§ 22.44.040, subd. 2.) Approval of a "precise development plan" shall be "by ordinance." (§ 22.44.050.) Neither a master plan nor a precise development *561 plan can be approved unless it complies with "the minimum standards as established in the Marin county subdivision ordinance" (which standards are not specified in the zoning ordinance) and certain "limitations" ("density" of families per acre, "building site areas," and building "coverage," "heights" and "bulk") which apply to single-family and two-family residences only. (§ 22.44.090.) Except to the extent that the just -mentioned "limitations" import that residential uses will be permitted in a P-C district, nothing in the ordinance specifies what building or land uses will be permitted or excluded in such district. Some time after the rezoning of Marincello as a P-C district by the enactment of Ordinance No. 1411, Frouge and Gulf submitted a master plan for its development. After conducting hearings in compliance with the Marin County zoning ordinance, the planning commission approved the plan subject to certain specified conditions. After further hearings in compliance with the ordinance, the board of supervisors approved the plan by resolution (which was adopted by a board vote of three to two). Subsequently, Frouge and Gulf submitted a "precise development plan" which affected the Tennessee Valley area of Marincello and which had to do, principally, with an access road in that area. After hearings before the planning commission and the board of supervisors, the board adopted the precise development plan on April 12, 1966, by enacting Ordinance No. 1507 to that effect. In similar proceedings conducted thereafter (in 1966 and 1967, and after hearings in each instance), the board enacted two ordinances adopting additional "precise development plans" for portions of Marincello and adopted several resolutions amending the master plan in various respects. None of the board hearings conducted in these matters (commencing with, and including, Ordinance No. 1507) was preceded by published notice of hearing. Concerning Resolution No. 8749 and Ordinance No. 1507, the trial court made these findings: "XVII. On November 12, 1965, the Board of Supervisors adopted Resolution No. 8749 ... approving the Master Plan [for Marincello]. XXI. After public hearings before the Planning Commission ... and the Board of Supervisors ... the Board of Supervisors adopted Marin County Ordinance No. 1507 ... approving the first Precise Development Plan for said property." (Plaintiffs requested findings concerning the subsequent 1966-1967 proceedings mentioned above. The trial court i'Jf) 11liw to origif A �. �?pAi'L.fP,73YlE�€ I1 0,forks. � 6 City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 made none, nor did it mention the subsequent proceedings in its conclusions of law. No reason for such omissions appears in the record.) As submitted and finally adopted, the master plan called for a wide variety *562 of land and building uses, of building details, in Marincello.? Notwithstanding this fact, the trial court stated under "Conclusions of Law" that "II. The Master Plan ... was adopted and approved in strict compliance with all applicable law and is a valid and effective Master Plan for the development and use of ... [Marincello] ..." As to the adoption of Ordinance No. 1507, the court further concluded that "III. The first precise development plan for said property was adopted and approved in strict compliance with all applicable law and Marin County Ordinance No. 1507 is a valid and effective enactment of the Marin County Board of Supervisors." Of these proceedings, plaintiffs first contend that adoption of the master plan by resolution was invalid because the plan amounted to a full-scale rezoning of Marincello which could validly be effected only by ordinance. We agree with this contention. According to the evidence, the Marincello tract was undeveloped land before Ordinance No. 1411 rezoned it as a P-C district in February 1965. *563 As a result of that ordinance and pending adoption of the master plan, the land was in effect zoned "A-2:13-3," on an interim basis, with all development thereof prohibited except as permitted by the "A-2:13-3" designation. (See text at fn. 6, ante.) The master plan (1) in effect excluded agricultural uses from the tract where the interim classification had permitted them; (2) provided for 800 acres of apartments, with 419.1 acres to be used for "high-rise residential dwelling structures," subject to a height limitation of 150 feet, where the interim classification had permitted single-family residential structures only; (3) supplanted the limited commercial uses permitted by the interim classification with intensive and varied commercial uses of 529.8 acres (about 25 percent of Marincello's full acreage); and (4) permitted industrial use of 175 acres (about 8 percent of the total) where the interim classification had not permitted industrial use at all. (See fins. 6 and 7, ante.) The board's adoption of these proposals in the master plan brought the situation within the rule, stated of a similarly zoned district in an essentially indistinguishable procedural sequence, that such "change or alteration in the actual physical characteristics of the district and its configuration amount to a rezoning of the district and may only be accomplished pursuant to the provisions of the state statutes and the local ordinances consistent therewith providing for zoning and rezoning." (Millbrae Assn. for Residential Survival v City of Millbrae (1968) 262 Cal.App.2d 222, 245-246 [69 Cal.Rptr. 251].) (8) The board's adoption of the master plan by resolution failed to comply with "state statutes" because the operation operated to rezone Marincello by regulating land and building uses therein "as between agriculture, industry, business ... [and residence] ... purposes" within the meaning of section 65850, and that section authorized the board to take such action by ordinance only.$ Moreover, the interim ("A-2:13-3") status of Marincello, when zoned as a P-C district, had been effected by ordinance (No. 1411) which amended the Marin County zoning ordinance in the first instance and which had been enacted under the authority vested in the board by section 65850.9 Marincello thus held its "A-2:13-3" status, after February 2, 1965, by virture of a zoning ordinance as amended. (9) "A zoning ordinance constitutes the exercise of a governmental and legislative function and is subject to change by the legislative power. [Citations.] ( 10) ... The amendment of a *564 legislative act is itself a legislative act. The power to legislate includes by necessary implication the power to amend existing legislation. Rezoning of use districts or changes of uses and restrictions ivithin a district can be accomplished only through an amendment of a zoning ordinance, and the amendment must be made in the same mode as its original enactment. [Citations.]" (Italics added.) (Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834-835 [323 P.2d 71 ]]; Richter v. Board of Supervisors (1968) 259 Cal.App.2d 99, 105 [66 Cal.Rptr. 522]; 8A McQuillin, Municipal Corporations (1965 rev. vol.) § 25.245, pp. 164-165.) Respondents contend that the board's action in adopting the master plan was analogous to the granting of a conditional use permit, which ordinarily does not require legislative action amending an underlying zoning ordinance because the act of granting such permit is administrative in character and does not involve a change in the ordinance. In support of this argument respondents cite Case v. City of Los Angeles (1963) 218 Cal.App.2d 36 [32 Cal.Rptr. 271], upon which the trial court apparently relied in analyzing the board's action. The Case analogy would apply, however, only where the underlying zoning ordinance provides for the issuance of such permits and "establishes criteria" for the determination of "such matters" by the local agency it authorizes to issue the permit. (§ 65901.) The zoning ordinance in Case contained City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 such provisions ( Case v. City of Los Angeles, supra, at pp. 37-38, 40), as did the ordinances respectively involved in the decisions cited by the Case court on this point. (Essick v. City of Los Angeles (1950) 34 Cal.2d 614, 617, 624 [213 P.2d 492]; Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 360-361 [203 P.2d 37].) By contrast, the Marin County zoning ordinance prescribed no "criteria" for a P-C district, pending adoption of a master plan for a specific district, except for the previously mentioned "limitations" which applied to "family" occupancy only and which did not permit non-residential uses within the district. Because the Case decision is clearly distinguishable, respondents' analogy fails. As the Millbrae court stated in denying a similar contention, "The argument urged by interveners that the ... changes are analogous to the granting of a use permit ... is not applicable here. The cases cited by them apply to situations where the property is validity zoned for a particular purpose and the ... conditional uses are permitted as being within the scope and purpose of the zoning ordinance. Here, ... the proposed changes do not constitute 'use permits' amounting to permissible variances but are substantial alterations in the zoning which is peculiarly indigenous to the established zoning district." (Millbrae Assn. for Residential Survival a City of Millbrae, supra, 262 Cal.App.2d 222 at p. 246. Cf. Cal. Zoning Practice, op. cit. supra, §§ 7.63-7.64, pp. 298-299.) *565 Because it thus appears that a "legislative act" was necessary to accomplish the purposes intended for Resolution No. 8749, we should here consider the effect of Wheelright v. County of Marin (1970) 2 Cal.3d 448 [85 Cal.Rptr. 809, 467 P.2d 537] (decided during the pendency of this appeal). The Wheelright case developed when certain Marin County voters undertook to circulate and file a referendum petition protesting the enactment of Ordinance No. 1507 by the same board of supervisors on April 12, 1966, adopting a "precise development plan for the construction ofthe Tennessee Valley access road into Marincello." ( Id., at p. 452.) The factual issue presented was whether the circulators had produced enough valid signatures on the petition to qualify the question for the ballot. ( Id., at pp. 451-452.) Affirming a superior court judgment against them in this regard ( id., at pp. 454-457), the Supreme Court also held that Ordinance No. 1507 was in fact subject to referendum proceedings (Cal. Const., art. IV, § 1 [now art. IV, § 25]) because its subject matter made it legislative, rather than administrative, in character. Wheelright v. County of Marin, supra, at pp. 457-458.) (12) As a background fact, the Wheelright court mentioned the prior adoption of the Marincello master plan "by resolution" in 1965 ( id., at p. 452), but the appeal before it neither determined nor involved the validity of the resolution (No. 8749), nor of Ordinance No. 1507, against the challenge asserted in the present case. While Wheelright is not controlling here (for the latter reason), the decision does indicate that Resolution No. 8749, by reason of its content and scope, was also "legislative" in character. ( Wheelright v. County of Marin, supra, at pp. 457-458.) This being so, the question is whether it was such "legislative action" as would validly accomplish its intended purposes. ( 13) We answer the question in the negative because, although the resolution was "legislative" in substance and for purposes of referendum proceedings (id.), it was invalid inform because it was not executed by ordinance. (14) Despite the facts that Resolution No. 8749 was adopted by the board of supervisors after noticed and extensive hearings, and with the same three -vote majority which would have been required to enact an ordinance (§ 25005), we are not at liberty to ignore the very real difference between a "resolution" and an "ordinance." ( 15) "The resolution of a board of supervisors is ordinarily not equivalent to an ordinance. A resolution is usually a mere declaration with respect to future purpose or proceedings of the board. An ordinance is a local law which is adopted with all the legal formality of a statute." (McPherson a Richards (1933) 134 Cal.App. 462, 466 [25 P.2d 534]. See Housing Authority u Superior Court (1950) 35 Cal.2d 550, 558-559 [219 P.2d 457]; 5 McQuillin, Municipal Corporations (1969 rev. vol.) §§ 15.02-15.08, pp. 42-66; 37 Am.Jur., Municipal *566 Corporations, § 142, pp. 754-755.) ( 16) A resolution adopted without the "formality" required of an ordinance cannot be deemed an ordinance. (5 McQuillin, op. cit. supra, § 15.02, pp. 46-47.) A duly enacted county ordinance is a "law of this State" within the meaning of a penal statute proscribing the violation of such law (In re Groves (1960) 54 Cal.2d 154, 158 [4 Cal.Rptr. 844,351 P.2d 1028]; County ofPlumas v. Wheeler (1906) 149 Cal. 758, 768 [87 P. 909]); a board resolution is not. (17) The Legislature has been explicit concerning this distinction. It has exacted certain "formalities" in the enactment of an ordinance by the supervisors of a county (§§ 25120-25121), but not of their adoption of a resolution. It has specified certain requirements relative to the publication of a county ordinance after its passage (§§ 50021, 25124), its deferred effective date in the typical case (§ 25123), `:) %(''"i i l"10i}ic7C`�: . .'-1!i"F'I"f, ++,�{� Ci<<.`•iil iC) py-!,llf?�?I i, :� �r)Vi:r11"IiF.`!11; 1r�7(lil'�S, � � City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 its mandatory recording in an "ordinance book" (§§ 25102, subd. (b), 25122); compare § 25102.1, as to the recording of resolutions, and the codification of ordinances generally (§§ 25126-25130, 50022.2-50022.5); none of these requirements apply to board resolutions. By statute, the Legislature has made the terms "ordinance" and "resolution" synonymous in a very few instances, each of which is highly specialized and applies to a city only (Gov. Code, § 60004; Sts. & Hy. Code, §§ 8007, 8305); in innumerable other statutes authorizing or directing actions by county boards of supervisors, it has been careful to state whether the specific action shall be taken by "ordinance" or by "resolution" in each case.10 It has emphasized the distinction between the two terms by further providing that, when a statute requires local legislative action by resolution but a local charter requires that it be taken by ordinance, "action by ordinance is compliance with the statute for all purposes (§ 50020); it has made no converse statutory provision to the effect that a "resolution" will suffice, where a statute requires action by "ordinance," under any circumstances. (18) Because the difference between a "resolution" and an "ordinance" is thus substantive, under case law and by deliberate legislative definition, the one (Resolution No. 8749) cannot be construed as having amounted to the other in this case. Accordingly, and because the practical effect of Resolution No. 8749 was to rezone Marincello, it was invalid for failure to exercise the board of supervisors' rezoning power by ordinance as state law requires (§ 65850, subd. (a), quoted in fn. 8, ante), and for failure to amend the Marin County zoning ordinance by legislative action of equal *567 dignity therewith. (Johnston v. City of Claremont, supra, 49 Cal.2d 826 at pp. 834-835; Richter v. Board of Supervisors, supra, 259 Cal.App.2d 99 at p. 105; 8A McQuillin, Municipal Corporations, op. cit. supra, § 25.245, pp. 164-165.) Because the defect was substantive, it could not have been cured under the validating power vested in the trial court by section 65801: that section, although effective in November 1965, without any necessity of retroactive application (see fn. 3, ante), could not reach substantive defects because it was expressly limited to the validation of irregularities in local zoning " procedure" only. (See its text, quoted id.) Absent the availability of validation, the resolution was fatally defective under the general rule that "... a county is a creature of limited powers, having only those powers which are delegated to it by the Constitution or the Legislature. And when a county acts as it does here under authority derived from a statute, it must strictly follow the statutory provisions; the mode of the power is also the measure of the power. [Citations.]" ( Richter v. Board of Supervisors, supra, at p. 105.) (19) The effect of Ordinance No. 1507 in this situation, and its validity in and of itself, must be measured by somewhat different standards. One of them arises from the previously stated fact that the hearing which produced its enactment on April 12, 1966, was preceded by no published notice of hearing at all. As we have also stated (see fn. 1, ante, and accompanying text), the state Planning and Zoning Law required some such notice of a hearing upon a proposed amendment to a local zoning ordinance, and the complete absence of such notice is not an "irregularity" within the reach of the validating power vested in a reviewing court by section 65801 of the state law. (See fn. 3, ante.) For these reasons, Ordinance No. 1507 cannot be construed as having operated to amend the Marin County zoning ordinance as to the portion of Marincello it affected: although it was an "ordinance" where Resolution No. 8749 was not, it did not produce any part of the result which had been totally undelivered by the resolution. Apart from its failure to amend the Marin County zoning ordinance, but for the same reasons just stated therefor, Ordinance No. 1507 did not by implication repeal any provision of the zoning ordinance with which it was incompatible. (See Iscoff v. Police Com. (1963) 222 Cal.App.2d 395, 409 [35 Cal.Rptr. 189]; 6 McQuillin, Municipal Corporations, op. cit. supra (1969 rev. vol.) §§ 21.20-21.22, pp. 223-231.) (20) Because it purported to adopt a precise development plan for Marincello before the enacting board of supervisors had validly (i.e., by ordinance) adopted a master plan for the tract, Ordinance No. 1507 was wholly incompatible with the provision of the Marin County zoning ordinance (§ 22.44.040, quoted supra) which permitted adoption of a precise plan only after "approval and *568 filing of the master plan" for a P-C district. Hence, it (Ordinance No. 1507) was invalid: not because it was formally defective under state law (as was true of Resolution No. 8749), but because its enactment violated an applicable local ordinance which state law precluded it from reaching and which required a valid master plan as a condition precedent of its valid enactment. In summary, and as to the trial court's findings and conclusions quoted herein, the court's statements in its conclusion No. "II" (that "the Master Plan ... was adopted and approved in strict compliance with all applicable law and is a valid and effective Master Plan ...") are incorrect because I'�ort� :7Cil-! I i::I.l1,!::I s Ieiv r! I CJno11) iI 1.1 7. 4. iove.i iirnej-it WrlI itS. City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal.Rptr. 843 they are unsupported by the finding ("XVII") that the board action was taken by the resolution. The court's statements in conclusion No. "III" (that "[T]he first precise development plan for ... [Marincello] ... was adopted and approved in strict compliance with all applicable law [,] and Marin County Ordinance No. 1507 is a valid and effective enactment ...") are incorrect because the enactment mentioned did not, in fact, succeed the valid adoption of a master plan as the Marin County zoning ordinance requires. The inaccuracies in the quoted conclusions mean that the trial court's finding do not support the judgment with respect to the validity of Resolution No. 8749 and Ordinance No. 1507; in both respects, we must therefore reverse the judgment and direct the entry of a new one. As we do this, we should also take into account the successive proceedings which, in 1966 and 1967, followed the enactment of Ordinance No. 1507. The ordinances which were thereafter enacted, as to Marincello, were invalid for the same reasons that Ordinance No. 1507 was; the resolutions thereafter adopted on the same subject were similarly invalid because they purported to amend a master plan which did not exist. All were encompassed in the pleadings, and plaintiffs requested findings concerning them. As no reason appears for the trial court having ignored these matters in its findings and conclusions, none appears that we should ignore them on the appeal. We therefore include them in the directions hereinafter stated to the trial court. The Question of Laches Respondents also contend that the appeal must fail upon the asserted ground that appellants were guilty of ]aches, as a matter of law, for having unreasonably delayed the commencement of this action. As part of this contention, it is urged that the interveners were prejudiced by the claimed delay because they started development of Marincello as soon as the formal rezoning ordinance (No. 1411) had been enacted. But the record does not support the latter assertion: the trial court excluded any evidence of the interveners' activities, as claimed, upon the stated ground that the Marin County zoning ordinance prohibited development in a P-C district "even *569 after the adoption of a master plan and prior to the adoption of a precise plan," and made no finding concerning delay or ]aches. Respondents have not appealed from the judgment in these or any respects. Lacking evidence that they were prejudiced by any delay, we are unable to determine that appellants' forbearance from suit amounted to laches. (See 4 Witkin, Summary of Cal. Law (7th ed. 1960) Equity, § 13, pp. 2796-2798.) Moreover, appellants commenced the action about four months after the master plan had purportedly been approved with the adoption of Resolution No. 8749 (and before any proceedings occurred relative to any precise development plan). The "delay" thus involved is not shown to have been unreasonable. Therefore, and because nothing in the record supports the contention that appellants were guilty of laches as a matter of law, we decline to hold to that effect. Insofar as it validates Marin County Ordinance No. 1411 and the rezoning of the affected property as a "P-C district" pursuant to the Marin County zoning ordinance, the judgment is affirmed. Insofar as it validates the "master plan " for said property purportedly approved by Resolution No. 8749 of the Marin County Board of Supervisors, Marin County Ordinance No. 1507 and the "precise development plan" purportedly adopted thereby, and all subsequent proceedings affecting said property and challenged in the pleadings and at trial herein, the judgment is reversed. The cause is remanded to the trial court with directions to enter an appropriate judgment, in plaintiffs' favor, invalidating such proceedings and actions, and granting relief as prayed in the complaint in this action, consistent with the views herein expressed. Each side shall bear its own costs on appeal. Devine, P. J., and Christian, J., concurred. The petition of the interveners and respondents for a hearing by the Supreme Court was denied December 23, 1970. Tobriner, J., did not participate therein. *570 Footnotes 1 Former section 65654 was repealed and reenacted in a 1965 recodification of the Planning and Zoning Law. (See Stats. 1965, ch. 1880, §§ 8, p. 4350, 6, pp. 4347-4348.) It previously provided (as it does now), by reference to other sections, that the 10-day published notice "shall" be given. (See Gov. Code, present §§ 65853, 65854, subd. (a), 65856.) The code elsewhere provides that in its construction the word "shall" is "mandatory." (Id., § 14.) 10 City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal Rptr. 843 2 Later in its "Conclusions of Law," the court also stated: "IV. The provisions of Government Code Section 65801 are a legislative mandate to the Courts and provide standards against which the [trial] Court was required to determine the validity of the proceedings herein." 3 The provisions of section 65801 appeared for the first time in the 1965 recodification of the Planning and Zoning Law. (See fn. 1, ante; Stats. 1965, ch 1880, § 6, p. 4346 ) The full recodification, including section 65801, took effect on September 17, 1965 (Stats. 1965 [vol. 1 ] p. A-3), some seven months after the board of supervisors enacted Ordinance No. 1411. This action was filed in March 1966, and decided by the trial court in November 1968. Now appearing in chapter 4 ("Zoning Regulations") of the Planning and Zoning Law, section 65801 provides as follows: "Formal rules of evidence or procedure which must be followed in court shall not be applied in zoning matters, except to the extent that a county or city may provide therefor. No action, inaction or recommendation regarding any zoning matter by any legislative body or any administrative body or official of any county or city shall be held void or invalid or be set aside by any court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect or omission (hereinafter called 'error') as to any matter pertaining to petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals or any matters of procedure whatever, including, but not limited to, those included in this section, unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of was prejudicial, and that by reason of such error the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial or that injury was done if error is shown." (Italics added.) 4 Hereinafter, and unless otherwise indicated, all seven -digit section numbers (e.g., "§ 22.44.020") refer to the Marin County zoning ordinance, others to the state Planning and Zoning Law (Gov. Code, tit. 7 [commencing with § 65000]) as recodified in 1965. (See fn. 1, ante ) 5 A footnote to the caption of the zoning ordinance makes clear that this reference is to the state Planning and Zoning Law. (Gov. Code, tit. 7 [commencing with § 65000].) The ordinance does not specify whether the board of supervisors, approving a "master plan," should act by ordinance or resolution. 6 The building and land uses permitted by the "A-2:13-3" designation are not accurately connoted by the term "limited agricultural district." Under other provisions of the zoning ordinance, only the designation "A-2" refers to a "limited agricultural district." (Chapter 22.12 is entitled "A-2 Districts - Limited Agricultural Districts.") Classification as an "A-2" district permits "all agricultural uses," limited commercial uses involving the keeping of animals only, "philanthropic and charitable institutions, hospitals" and related uses, and "all uses permitted in R-1 districts." (§ 22.12.020.) "R-1 districts" are called "One -Family Residence Districts." (Chapter 22.22.) The uses permitted therein include single-family dwellings, various "noncommercial recreational uses" (such as "golf courses"), "crop and tree farming and truck gardening," restricted "home occupations," and certain institutions such as schools and churches. (§ 22.22.020.) Application of the "B-3" designation to any district has the effect of imposing therein a scheduled set of building requirements (area, average width, and front and side setbacks), but does not affect the building or land uses permitted in the district. (§ 22.46.010.) Thus, the uses permitted by the "A-2:134' designation are (1) agricultural, (2) single-family residential, and (3) uses which are generally related to both but which are (4) principally noncommercial in character. Industrial uses are not permitted in a district so designated. 7 In the master plan as submitted, an introductory statement reads in pertinent part as follows: '... Marincello will be not only a 'planned community'; it will be a 'new city' embracing the full spectrum of land uses. The existing P-C District regulations contained to [sic] the Marin County Zoning Ordinance appear to be designed to accommodate the typical suburban residential subdivision containing single-family residences, limited numbers of multiple residential structures (usually two-story garden apartments) and a commercal area intended to serve as a neighborhood shopping center, or occasionally as a regional shopping center. Marincello will be much more. Included within its boundaries will be all classes of residential uses from single-family residential, as well as the complete commercial and light industrial facilities required to create an entirely self-contained and totally independent community.. " As approved by the board of supervisors, the master plan called for single-family residential units on 512 acres of Marincello, "multiple garden apartment" residences on 461.5 acres, and "high-rise residential dwelling structures" on 419 1 acres. The plan provided for commercial uses in six commercial zones covering 529 acres. In some or all of the zones, the commercial uses to be permitted included retail shops, theatres, neighborhood services, automobile service stations and garages, motels and hotels, restaurants, tourist and convention accommodations, entertainment facilities, "professional City of Sausalito v. County of Marin, 12 Cal.App.3d 550 (1970) 90 Cal. Rptr. 843 uses," offices, movie studios and drive-ins. The "usable floor area" contemplated for commercial uses was almost 3 million square feet. The plan also called for a "light industrial zone" of 175.6 acres, in which "light industrial and technical crafts uses" and "A- P" uses would be permitted in about 1.6 million square feet of "usable floor area." According to the master plan application, "light industry and technical crafts" meant manufacturing activities in the "electronic and space-age industries," and in such industries as "food, food processing, ordnance equipment and printing and publishing." As used in the Marin County zoning ordinance, the designation "A-P" means "administrative -professional"; "A-P uses" include several types of professional business premises, "radio broadcasting offices and studios" and "television offices and studios." The full community would have an average ("overall') density of 3.5 dwelling units per gross acre, and a maximum building -height limitation, in some zones, of 16 stories (not to exceed 150 feet). 8 As pertinent here, section 65850 provides that "the legislative body of any county ... by ordinance may: (a) Regulate the use of buildings, structures and land as between agriculture, industry, business, residence and other purposes." (Italics added.) 9 When Ordinance No. 1411 was enacted on February 2, 1965, section 65850 appeared in the Government Code as section 65800. It was repealed, reenacted and renumbered, without substantive change, in the 1965 recodification of the Planning and Zoning Law which took effect on September 17, 1965. (See fns. 1 and 3, ante.) 10 Although such cases are far too numerous to permit a full catalog here, we observe that the index of one current Government Code lists at least 50 sections thereof which require county supervisors to act by ordinance, and at least 30 more requiring action by resolution. (37A West's Gov. Code Ann. (1964 ed.) Index, pp. 507-508 ["Ordinances," "Counties "], 574 ["Resolutions," "County Supervisors"].) End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. '12