Wednesday, March 16, 2005
Court of Appeal Rules Law Allowing Domestic Partners To Maintain Suits for Wrongful Death Is Retroactive
By KENNETH OFGANG, Staff Writer/Appellate Courts
A California law allowing domestic partners to sue for wrongful death applies to cases in which the death occurred before the law took effect, the Court of Appeal for this district ruled yesterday.
“We find that on the plain language of the statute and the legislative history, the 2002 amendments to [Code of Civil Procedure] section 377.60 were intended to operate retroactively,” Justice Orville Armstrong wrote for Div. Five.
The panel also rejected the argument that retroactive application would deprive defendants of due process, citing the state’s strong interest in equality. Armstrong quoted then-Gov. Gray Davis, who—in signing AB 25, which includes the 2002 wrongful death amendments—said the bill was “about civil rights, respect, responsibility, and, most of all...family.”
The ruling came in a suit brought by Charles K. Bouley II against Long Beach Memorial Hospital and several doctors in May 2002.
Bouley alleged in his complaint that he and Andrew Lee Howard, who died in May 2001, registered in 2000 as domestic partners under Family Code Sec. 297, and that the defendants committed medical malpractice that contributed to Howard’s death.
The defendants demurred on several grounds, including lack of standing. They contended that under the law in effect when Howard died, a suit for wrongful death could only be brought on behalf of spouses or blood relatives.
Sec. 297 authorizes the creation of registered domestic partnerships by same-sex couples, as well as by two-sex couples if at least one of the partners is 62 years of age or older and eligible for Social Security benefits.
An amendment to the law, effective Jan. 1, 2002, explicitly grants domestic partners the right to sue for wrongful death. In addition, amendments effective Jan. 1 of this year—while the dismissal of Bouley’s suit was on appeal—specify that a domestic partner may sue for a wrongful death occurring prior to 2002.
Los Angeles Superior Court Judge Margaret Hay, who has since retired, sustained the demurrers and dismissed the suit, finding that the Legislature did not, in passing the original amendment, intend to retroactively grant domestic partners the right to sue for wrongful death occurring prior to 2002.
But Armstrong, writing for the Court of Appeal, said the 2002 and 2005 amendments both operate retroactively.
The justice cited a 1997 amendment to Code of Civil Procedure Sec. 377.60, which governs standing to sue for wrongful death. The amendment provides that the provisions of the law governing standing to sue govern all causes of action accruing on or after Jan. 1, 1993.
By adding domestic partners to the list of persons entitled to sue under Sec. 377.60, Armstrong explained, lawmakers “unambiguously” made that right retroactive because they did not repeal the 1997 amendment or make it inapplicable to domestic partners.
The justice acknowledged that the 1997 amendment had nothing to do with domestic partnerships, which did not then exist, but was designed to correct an unintended error that had deprived certain family members of the right to sue.
But the Legislature is presumed to know the effect that its acts will have on existing law, Armstrong said. And even if the 2002 amendments were not retroactive, the 2005 amendment clearly is, he said.
The justice rejected arguments with respect to the 2005 amendments, which the defendants claimed are inapplicable because they are part of legislation that, by its terms, does not apply to causes of action that have been “fully and finally adjudicated by the courts...or as to which the applicable limitations period has run.”
The term “courts,” the justice noted, is plural, and thus inclusive of appellate courts. Since the case was still on appeal as of Jan. 1, 2005, he said, the amendment effective that date applies.
As for the statute of limitations, he said, the suit was timely as of the date it was filed. “No new statutory period began to run while we or the trial court were deciding a legal issue in the case,” the jurist wrote.
Armstrong went on to reject the constitutional challenge to retrospective application.
To prevail in a due process challenge, the justice explained, there must be a showing not only that retroactivity will deprive the challenger of vested rights, but also that the deprivation would be so unfair—given such factors as the extent of reliance upon the rights involved—as to outweigh the state interests served by retrospective application.
The defendants, he said, failed to show that they had relied upon the alleged right not to be sued by domestic partners.
The only explanation they could muster, Armstrong explained, was that they would have purchased more insurance had they known that a broader class of persons would be able to sue. That’s a weak argument, he said, given the unpredictability of wrongful death awards.
The justice also rejected the argument that the state’s interest in protecting domestic partnership rights is a relatively weak one. He cited the governor’s signing message, along with the legislative declaration accompanying AB 205, which includes the amendments that strengthened domestic partner rights, effective this year.
The legislation essentially gives domestic partners all rights granted to married couples, other than with respect to state income tax or to benefits conferred solely on married persons by federal law.
The declared purpose of that law, Armstrong noted, “to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality...by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state’s interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.”
The case is Bouley v. Long Beach Memorial Medical Center, 05 S.O.S. 1292.
Copyright 2005, Metropolitan News Company