Nat. Shooting Sports Foundation, Inc. v. State of California

Filed 6/28/18
IN THE SUPREME COURT OF CALIFORNIA
NATIONAL SHOOTING SPORTS )
FOUNDATION, INC., et al., )
)
Plaintiffs and Appellants, )
) S239397
v. )
) Ct.App. 5 F072310
STATE OF CALIFORNIA, )
) Fresno County
Defendant and Respondent. ) Super. Ct. No. 14CECG00068
____________________________________)
Civil Code section 3531 provides that “[t]he law never requires
impossibilities.” In this case, plaintiff National Shooting Sports Foundation, Inc.
(NSSF) argues that this provision authorizes a court to declare another statute,
Penal Code section 31910, subdivision (b)(7)(A), unenforceable when a
complainant alleges, and the court finds, that complying with the statute is
impossible. The Court of Appeal agreed. Because such an interpretation of
section 3531 is contrary to established principles of statutory interpretation, we
reverse.
I.
In 1999, the Legislature enacted the Unsafe Handgun Act (the Act) to
establish safety standards for all handguns manufactured, imported, and sold in the
state. (Pen. Code, former §§ 12125–12133, repealed by Stats. 2010, ch. 711, § 4,
eff. Jan. 1, 2012; reenacted as Pen. Code, §§ 31900–32110 without substantive
SEE CONCURRING OPINION
change by Stats. 2010, ch. 711, § 6, eff. Jan. 1, 2012.) Under the Act, the
California Department of Justice is charged with testing new handguns for their
compliance with the safety standards; it is also charged with maintaining a roster
of all handguns that may be manufactured, imported, or sold. (Pen. Code,
§ 32015.) A violation of the Act is punishable by imprisonment in a county jail
for up to one year. (Pen. Code, § 32000, subd. (a).)
In 2007, the Legislature amended the definition of unsafe handguns to
include “all semiautomatic pistols that are not already listed on the roster pursuant
to Section 32015 [if] not designed and equipped with a microscopic array of
characters that identify the make, model, and serial number of the pistol, etched or
otherwise imprinted in two or more places on the interior surface or internal
working parts of the pistol, and that are transferred by imprinting on each cartridge
case when the firearm is fired . . . .” (Pen. Code, § 31910, subd. (b)(7)(A)
(hereafter Penal Code section 31910(b)(7)(A)).) According to the statute, this
safety standard, known as dual placement microstamping, was to take effect on
“January 1, 2010 . . . provided that the Department of Justice certifies that the
technology used to create the imprint is available to more than one manufacturer
unencumbered by any patent restrictions.” (Ibid.) The Department of Justice
issued the certification on May 17, 2013. (Cal. Dept. of Justice, Div. of Law
Enforcement, Information Bull. No. 2013-BOF-03 (May 17, 2013)
[as of June 22, 2018]. All internet citations in this opinion are archived by
year, docket number, and case name at http://www.courts.ca.gov/38324.htm.) At
oral argument, the Attorney General noted that this certification confirms the lack
of any patent restrictions on the imprinting technology, not the availability of the
technology itself.
2
Following the certification, NSSF filed a complaint with a single cause of
action for declaratory and injunctive relief. Alleging that dual placement
microstamping technology is impossible to implement, the complaint challenged
Penal Code section 31910(b)(7)(A) as unenforceable under Civil Code section
3531. The Attorney General moved for judgment on the pleadings, and the trial
court, concluding that separation of powers precluded NSSF’s action, granted the
motion without leave to amend.
On appeal, the Court of Appeal observed that “the courts must defer to the
Legislature’s factual determination unless it is palpably arbitrary and must uphold
the challenged legislation so long as the Legislature could rationally have
determined a set of facts that support it.” (National Shooting Sports Foundation v.
State (2016) 6 Cal.App.5th 298, 306 (National Shooting).) But the court
continued by observing that “[n]evertheless, the judiciary can invalidate legislation
if there is some overriding constitutional, statutory or charter proscription.” (Ibid.)
The court assumed as true the allegation that it is impossible to manufacture a
semiautomatic pistol with dual placement microstamping and concluded that this
impossibility placed Penal Code section 31910(b)(7)(A) in tension with Civil
Code section 3531 as an overriding statutory proscription. The court held that
NSSF may present evidence of impossibility and that the judiciary may invalidate
Penal Code section 31910(b)(7)(A) if compliance is shown to be impossible.
(National Shooting, supra, 6 Cal.App.5th at p. 306.)
We granted review. The sole dispute before us is whether a court can
invalidate Penal Code section 31910(b)(7)(A) on the basis of Civil Code section
3531’s declaration that “[t]he law never requires impossibilities.” We are not
asked to consider a constitutional challenge to Penal Code section 31910(b)(7)(A)
or an administrative challenge to the Department of Justice’s 2013 certification
(see Code Civ. Proc., §§ 1085, 1094.5).
3
II.
In reviewing an order granting or denying a motion for judgment on the
pleadings, we accept as true all material allegations in the complaint. (Kimmel v.
Goland (1990) 51 Cal. 3d 202, 205.) Here we assume that complying with the
requirements of Penal Code section 31910(b)(7)(A) is impossible, and we consider
whether Civil Code section 3531’s declaration that “[t]he law never requires
impossibilities” renders the dual placement microstamping requirement invalid.
Civil Code section 3531 was enacted in 1872 under a part of the Civil Code
titled “Maxims of Jurisprudence,” which are “intended not to qualify any of the
foregoing provisions of th[e] code, but to aid in their just application.” (Civ.
Code, § 3509.) Neither party disputes that section 3531 is a maxim of
jurisprudence; they disagree on its legal effect. The Attorney General argues that
although section 3531 “can help courts ascertain and effectuate the Legislature’s
intent when construing statutes,” it does “not give rise to substantive rights or
causes of action, or empower courts to rewrite or invalidate later-enacted laws.”
NSSF argues that section 3531 has full legal effect like any other legislative
enactment.
We understand Civil Code section 3531 just as Civil Code section 3509
provides: It is an interpretative canon for construing statutes, not a means for
invalidating them. Impossibility can occasionally excuse noncompliance with a
statute, but in such circumstances, the excusal constitutes an interpretation of the
statute in accordance with the Legislature’s intent, not an invalidation of the
statute.
For example, our courts have excused compliance with a statute of
limitations where timely compliance was impossible; in such instances, the
excusal was based on an interpretation of the statute of limitations in accordance
with an underlying legislative intent to avoid unjust application of the statute.
4
(See Lewis v. Superior Court (1985) 175 Cal. App. 3d 366, 372 (Lewis) [“Careful
comparison of these statutory exceptions reveals the manifest common legislative
purpose of attempting to avoid unjust application of statutes of limitation where
circumstances effectively render timely commencement of action impossible or
virtually impossible.”].) Where “ ‘[t]he purpose of the statute is plain[, i.e.,] to
prevent avoidable delay for too long a period’ ” (id. at p. 374, quoting Christin v.
Superior Court (1937) 9 Cal. 2d 526, 532), we can adopt “a statutory construction
recognizing an implicit . . . exception” in particular circumstances (Lewis, at
p. 376). But impossibility does not authorize a court to go beyond interpreting the
statute and simply invalidate it altogether. Impossibility, as an aid to statutory
interpretation, is akin to the absurdity canon, which counsels courts to “avoid any
[statutory] construction that would produce absurd consequences.” (Flannery v.
Prentice (2001) 26 Cal. 4th 572, 578; see Lewis, at p. 377 [“It would be absurd to
attribute to the Legislature an intent to construe the language and underlying
purpose . . . so narrowly.”].)
The Court of Appeal relied on Board of Supervisors v. McMahon (1990)
219 Cal. App. 3d 286 (McMahon), but that case does not authorize judicial
invalidation of a statute on the ground that compliance is impossible. In
McMahon, Butte County challenged on various grounds the application of a state
statute requiring counties to contribute to the funding of a welfare program. (Id. at
pp. 291–292.) One of the county’s claims was that “its financial straits [left] it
literally unable to comply with the state mandate.” (Id. at p. 299.) McMahon
rejected this claim on the ground that the evidence did not demonstrate that
compliance was actually impossible. (Id. at pp. 300–302.) Nothing in McMahon
suggests that the court would have invalidated the statute if the evidence had
shown that compliance was in fact impossible. McMahon simply observed that
that “[c]onsistent with th[e] maxim” stated in Civil Code section 3531, “the law
5
recognizes exceptions to statutory requirements for impossibility of performance.”
(McMahon, at p. 300.) Recognizing an implied exception to a statutory
requirement is a far cry from vitiating the requirement altogether.
McMahon is consistent with the approach we took in Sutro Heights Land
Co. v. Merced Irr. Dist. (1931) 211 Cal. 670. In that case, we excused compliance
with a state statute requiring drainage efforts that would have brought “financial
ruin” and “irreparable injury” to an irrigation district and its landowners. (Id. at
p. 703.) Our reasoning made clear that in so holding, we were interpreting, not
invalidating, the statute: “We do not believe that, under this state of facts, it was
ever intended by those responsible for the enactment of the Drainage Act of 1907,
that an irrigation district, situated as is the defendant in this action, should be
compelled to work its own destruction by undertaking to provide drainage
facilities for the district, the expense of which is beyond its financial ability to
meet or pay for.” (Ibid.)
In sum, the case law recognizes that a statute may contain an implied
exception for noncompliance based on impossibility where such an exception
reflects a proper understanding of the legislative intent behind the statute. We are
not aware of any appellate precedent in California that has invoked Civil Code
section 3531 or impossibility of compliance to invalidate a statute itself.
NSSF cites three out-of-state cases to support its expansive reading of Civil
Code section 3531. In Gigliotti v. New York, Chicago & St. Louis R. Co. (Ohio
Ct.App. 1958) 157 N.E.2d 447, 452 (Gigliotti), the court observed that “[i]t is well
settled that the law is not so unreasonable as to require the performance of
impossibilities as a condition to the assertion of acknowledged rights . . . ; and,
when Legislatures use language so broad as to lead to such results, courts may
properly say that the Legislature did not intend to include those cases in which a
literal obedience has become impossible. If a statute apparently requires the
6
performance of something which cannot be performed, a court may hold it
inoperative.” (Id. at p. 452, italics added.) The court in Gigliotti was simply
stating, consistent with California case law, that impossibility of compliance can
render a statutory mandate “inoperative” in a particular instance insofar as it is
apparent that “the Legislature did not intend to include” that instance within the
ambit of the statutory mandate. (Ibid.)
Citing Gigliotti, the court in Ivaran Lines, Inc. v. Waicman
(Fla.Dist.Ct.App. 1984) 461 So. 2d 123, 126 held that “violation of a statute or
regulation . . . is excused where it appears without dispute that compliance with
the statute is impossible even in the exercise of reasonable diligence.” In excusing
compliance with the statute at issue, the court did not make clear whether it was
reading into the statute an implied exception for impossibility or declaring the
statute altogether invalid when compliance was impossible. (See id. at pp. 125–
126.) To the extent the court was doing the latter, we do not find it persuasive. Its
scant reasoning does not grapple with basic principles of statutory interpretation or
with the limited context in which Gigliotti recognized judicial authority to declare
a statute “inoperative” due to impossibility of compliance. (Gigliotti, supra, 157
N.E.2d at p. 452.)
Finally, in Buck v. Harton (M.D.Tenn. 1940) 33 F. Supp. 1014, a federal
district court invalidated a statute after finding that compliance was impossible,
but the court did so in the context of a constitutional challenge. Claiming that
impossibility of compliance with a statute burdens or violates a constitutional right
is quite different from invoking such impossibility as a challenge under one statute
to invalidate another.
Citing City and County of San Francisco v. Cooper (1975) 13 Cal. 3d 898,
915, the Court of Appeal observed that “the judiciary can invalidate legislation if
there is some overriding constitutional, statutory or charter proscription.”
7
(National Shooting, supra, 6 Cal.App.5th at pp. 305–306.) But nothing in Cooper
suggests that Civil Code section 3531 can be read as an “overriding . . . statutory
. . . proscription” (Cooper, at p. 915) that invalidates Penal Code section
31910(b)(7)(A). In Cooper, the plaintiff sought to invalidate a city ordinance and
school district resolution on the ground that “both measures were enacted under
the coercive influence of an ‘illegal’ public employee strike.” (Cooper, at p. 912.)
In rejecting this claim, we explained that the plaintiff’s facial challenge to the
locally enacted measures must be analyzed in relation to any overriding charter,
statute, or constitutional provision. (Id. at p. 918 [“In the absence of controlling
constitutional, statutory or charter limitations, local legislators retain authority to
determine the appropriate legislative response to an allegedly illegal strike.”].)
After determining that “there was no constitutional, statutory or charter provision
which barred either body from enacting legislation in response to, or as a result of,
an ‘illegal’ public employee strike” (id. at p. 913), we concluded that the local
measures could not be invalidated on the basis of public policy or any other
grounds (id. at pp. 913–918). Cooper does not suggest that a statute can be
invalidated by an earlier statute enacted by the same legislative body.
Here, the Legislature enacted the Unsafe Handgun Act to restrict the
manufacture, import, and sale of unsafe handguns, and the Legislature amended
the Act in 2007 so that once the Department of Justice has made the certification
specified in Penal Code section 31910(b)(7)(A), “all semiautomatic pistols that are
not already listed on the roster pursuant to Section 32015” are designated as
unsafe handguns if they lack dual placement microstamping. Neither the text nor
the purpose of the Act contemplates that a showing of impossibility can excuse
compliance with the statutory requirement once the statute goes into effect. The
Legislature specified that the statute’s requirement takes effect on January 1, 2010
provided that the Department of Justice issues the certification. We express no
8
view on the validity of the Department’s certification or whether it included an
adjudication of impossibility. Our conclusion here is that the statute does not
authorize courts to independently carve out exceptions for impossibility after that
administrative determination has been made.
NSSF has not brought a constitutional challenge to the statute, nor has it
petitioned for a writ of mandate against the Department of Justice for improperly
certifying the availability of dual placement microstamping technology (and we
express no view on the merits of those possibilities). Instead, NSSF has invoked
the impossibility of compliance as a basis for voiding the statute. But Civil Code
section 3531’s maxim that “[t]he law never requires impossibilities” is an
interpretive aid that occasionally authorizes an exception to a statutory mandate in
accordance with the Legislature’s intent behind the mandate. The maxim has
never been recognized, and we do not recognize it today, as a ground for
invalidating a statutory mandate altogether.
9
CONCLUSION
We reverse the judgment of the Court of Appeal and remand to that court to
affirm the trial court’s judgment granting the Attorney General’s motion for
judgment on the pleadings.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
EPSTEIN, J.*
* Presiding Justice of the Court of Appeal, Second Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
10
CONCURRING OPINION BY CHIN, J.
Penal Code section 32000 makes it a crime to manufacture, import, sell,
give, or lend any “unsafe handgun.” Penal Code section 32015, subdivision (a)
requires the Department of Justice to maintain a roster of handguns that have been
“determined not to be unsafe” (italics added), and therefore that may be sold in the
state. Finally, Penal Code section 31910, subdivision (b)(7)(A) (hereafter section
31910(b)(7)(A)) defines “unsafe handgun” to include “all semiautomatic pistols
that are not already [as of January 1, 2010] listed on the roster pursuant to Section
32015 [unless the pistol is] designed and equipped with a microscopic array of
characters that identify the make, model, and serial number of the pistol, etched or
otherwise imprinted in two or more places on the interior surface or internal
working parts of the pistol, and that are transferred by imprinting on each cartridge
case when the firearm is fired . . . .” Section 31910(b)(7)(A) is, by its terms,
conditioned on the Department of Justice issuing a certification that the relevant
microstamping technology is available to multiple manufacturers free of patent
restrictions, and the Department issued that certification on May 17, 2013.
This case concerns plaintiffs’ claim that compliance with the dual
placement microstamping requirement of section 31910(b)(7)(A) is impossible in
all situations, and therefore that the requirement should be invalidated generally.
Plaintiffs do not, however, make a constitutional argument. Instead, they rely on
1
Civil Code section 3531, a maxim of statutory construction that urges courts to
construe statutes to avoid impossibilities. Thus, plaintiffs argue that a maxim of
statutory construction can be the basis for completely invalidating a statute, not
merely interpreting one. That is clearly wrong for the reasons the majority
explains (see maj. opn., ante, at pp. 4–6), and therefore I concur.
The majority opinion, however, includes this problematic statement:
“Neither the text nor the purpose of the [Unsafe Handgun] Act contemplates that a
showing of impossibility can excuse compliance with the statutory requirement
once the statute goes into effect. The Legislature specified that the statute’s
requirement takes effect on January 1, 2010 provided that the Department of
Justice issues the certification. We express no view on the validity of the
Department’s certification or whether it included an adjudication of impossibility.
Our conclusion here is that the statute does not authorize courts to independently
carve out exceptions for impossibility after that administrative determination has
been made.” (Maj. opn., ante, at pp. 8–9, italics added.)
The foregoing statement expressly prohibits any court from construing
section 31910(b)(7)(A) narrowly so as to “excuse compliance” or recognize
“exceptions” based on impossibility. But as the majority concedes,
“[i]mpossibility can occasionally excuse noncompliance with a statute” (maj. opn.,
ante, at p. 4, italics added) and “a statute may contain an implied exception for
noncompliance based on impossibility . . .” (id. at p. 6). Thus, the majority’s
holding exceeds the scope of the rule it carefully delimits in its discussion of Civil
Code section 3531. (See maj. opn., ante, at pp. 4–7.)
In no less than five summations of its five-and-a-half page analysis, the
majority sets up a distinction between (1) using a maxim of statutory construction
to interpret a statute narrowly (which is permitted), and (2) using one to invalidate
a statute altogether (which is not permitted). Thus, on page 4 of its opinion, the
2
majority states: “Civil Code section 3531 . . . is an interpretative canon for
construing statutes, not a means for invalidating them. Impossibility can
occasionally excuse noncompliance with a statute, but in such circumstances, the
excusal constitutes an interpretation of the statute in accordance with the
Legislature’s intent, not an invalidation of the statute.” (Italics added and original
italics removed.) Next, on page 5 of its opinion, the majority states:
“Recognizing an implied exception to a statutory requirement is a far cry from
vitiating the requirement altogether.” (Italics added.) Next, on page 6 of its
opinion, the majority states: “In sum, the case law recognizes that a statute may
contain an implied exception for noncompliance based on impossibility where
such an exception reflects a proper understanding of the legislative intent behind
the statute. We are not aware of any appellate precedent in California that has
invoked Civil Code section 3531 or impossibility of compliance to invalidate a
statute itself.” (Italics added.) Next, on pages 6 and 7 of its opinion, the majority
states: “[C]onsistent with California case law, . . . impossibility of compliance can
render a statutory mandate ‘inoperative’ in a particular instance insofar as it is
apparent that ‘the Legislature did not intend to include’ that instance within the
ambit of the statutory mandate.” (Italics added.) Finally, on page 9 of its opinion,
the majority states: “Civil Code section 3531’s maxim that ‘[t]he law never
requires impossibilities’ is an interpretive aid that occasionally authorizes an
exception to a statutory mandate in accordance with the Legislature’s intent
behind the mandate. The maxim has never been recognized, and we do not
recognize it today, as a ground for invalidating a statutory mandate altogether.”
(Italics added.)
The distinction the majority draws could hardly be clearer, but then with
virtually no explanation, the majority simply ignores it, holding that no court may
3
construe section 31910(b)(7)(A) narrowly to “excuse compliance” or recognize
“exceptions” based on impossibility. (Maj. opn., ante, at pp. 8, 9.)
It may be that the majority’s decision to bar courts from recognizing
exceptions to section 31910(b)(7)(A) is a good one as a matter of public policy,
but it still must have some sound basis in law. If the majority is asserting, by way
of statutory construction, that this particular statute leaves no room for exceptions
based on impossibility, the majority never details how it reaches that conclusion
and cites no case in which the applicability of a maxim of statutory construction to
a particular statute has been held to be facially foreclosed, without consideration
of a particular context in which the statute is invoked. It might be that compliance
with section 31910(b)(7)(A), although generally possible, is impossible in a
particular circumstance that the Legislature did not consider, and the majority
gives no persuasive reason for precluding future litigants from making that
argument.
The only possible justification that the majority gives for its broad holding
is an unexplained reference to the Department of Justice’s certification. As noted,
the majority says: “Neither the text nor the purpose of the Act contemplates that a
showing of impossibility can excuse compliance with the statutory requirement
once the statute goes into effect. The Legislature specified that the statute’s
requirement takes effect on January 1, 2010 provided that the Department of
Justice issues the certification. We express no view on the validity of the
Department’s certification or whether it included an adjudication of impossibility.
Our conclusion here is that the statute does not authorize courts to independently
carve out exceptions for impossibility after that administrative determination has
been made.” (Maj. opn., ante, at pp. 8–9, italics added.)
The majority seems to be saying that the Department of Justice’s
certification procedure somehow means that this statute, unlike all other statutes,
4
is not subject to being construed narrowly, in a particular instance, to avoid an
impossibility that the Legislature did not consider. But the majority never states
what it is about the certification procedure that justifies ignoring the distinction
that the majority spends five and one-half pages delineating. The fact that the
majority bars courts from “carv[ing] out exceptions . . . after [the Department of
Justice’s] administrative determination has been made” (maj. opn., ante, at p. 9,
italics added) implies that the Department of Justice was empowered to adjudicate
whether this statute was subject to impossibility exceptions. Thus, although the
majority concedes that impossibility can sometimes provide a basis for
recognizing a statutory exception (maj. opn., ante, at pp. 4–7, 9), the majority
precludes courts from recognizing any such exception to section 31910(b)(7)(A),
implying that the question was one that should have been adjudicated at the
administrative level and that the only recourse is writ review of the Department of
Justice’s certification or a constitutional challenge. The implication that the
Department of Justice’s certification proceeding could have adjudicated the
question of exceptions to section 31910(b)(7)(A) based on impossibility is simply
wrong as a factual matter, and it is not an argument that the Attorney General
makes in his briefs in this court.
As the Attorney General noted at oral argument, the Department of
Justice’s certification addressed only whether any patents restricted access to the
relevant microstamping technology. A quick look at the legislative history of
section 31910(b)(7)(A) confirms this point. Subdivision (b)(7)(A) was added to
Penal Code section 31910 in 2007 by the enactment of Assembly Bill No. 1471
(2007–2008 Reg. Sess.) (Assem. Bill 1471). In considering Assem. Bill 1471, the
question arose whether microstamping was a “sole source technology.” (See Sen.
Com. on Pub. Safety, Rep. on Assem. Bill No. 1471 (2007-2008 Reg. Sess.) as
amended Apr. 10, 2007, p. 9 (Sen. Pub. Safety Rep.).) The report of the Senate
5
Committee on Public Safety noted that “[m]icrostamping technology is a patented
technology belonging to one company . . . .” (Ibid.) This report further noted,
however, that a board member of that company had issued a press release
clarifying “that a royalty free license will be provided and [will] cover its patented
microstamping technology as applied to semi-automatic handguns sold for civilian
use within the United States and its territories . . . .” (Id. at p. 10.) The Senate
Committee’s report added that the author of Assem. Bill 1471 would propose an
amendment to address the concern that patent restrictions might limit the
availability of the microstamping technology. The amendment would add the
following condition: “provided that the Department of Justice certify that the
technology used to create the imprint is available to more than one manufacturer
unencumbered by any patent restrictions.” (Sen. Pub. Safety Rep., at p. 11.) As
ultimately enacted, Assem. Bill 1471 included that language, thus giving rise to
the Department of Justice certification procedure on which the majority seems to
rely to support its broad holding.
It is clear, however, that the certification procedure had absolutely nothing
to do with adjudicating the question of impossibility-based exceptions to section
31910(b)(7)(A). Rather, it was limited to confirming that the patent holder of the
microstamping technology had in fact made the technology widely available, as
the press release had indicated it would do. And, consistent with that reading of
the statute, the certification that the Department of Justice issued states only this:
“The California Department of Justice has conducted a review of known and
available patent restrictions applicable to the microscopic-imprinting technology
described in § 31910, subdivision (b)(7)(A). Based on this review, the
Department certifies that, as of May 17, 2013, this technology is available to more
than one manufacturer unencumbered by any patent restrictions.” (Cal. Dept. of
Justice, Div. of Law Enforcement, Information Bull. No. 2013-BOF-03 (May 17,
6
2013) [as of June 28, 2018], italics added. All internet citations in this
opinion are archived by year, docket number, and case name at http://
www.courts.ca.gov/38324.htm.) By its own terms, this certification does not
address whether section 31910(b)(7)(A) allows exceptions based on impossibility;
rather, it addresses whether patent restrictions limit access to the relevant
technology. In summary, the implied basis of the majority’s broad holding (that
the Department of Justice was the place to adjudicate the question of
impossibility-based exceptions to section 31910(b)(7)(A), and therefore no court
can carve out such exceptions) is not grounded in fact. The Department of Justice
did not have authority to adjudicate that question, and it did not do so.
I agree with the majority that Civil Code section 3531 is a maxim of
statutory construction that authorizes courts to construe statutes to avoid
impossibilities. (See maj. opn., ante, at pp. 4–7, 9.) I also agree that a statutory
requirement cannot be completely invalidated based on Civil Code section 3531.
(See maj. opn., ante, at pp. 4–7, 9.) I disagree, however, that the Department of
Justice’s certification has any relevance to the question of carving out exceptions
to section 31910(b)(7)(A) based on impossibility. Hence, I reject the majority’s
broad holding that “the statute does not authorize courts to independently carve
out exceptions for impossibility after [the Department of Justice’s] administrative
determination has been made” (maj. opn., ante, at pp. 8–9, italics added). In my
view, courts remain free, based on legislative intent, to construe section
31910(b)(7)(A) as inapplicable to a particular case because compliance in that
case would be impossible.
Subject to that qualification, I concur.
CHIN, J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion National Shooting Sports Foundation, Inc. v. State of California
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 6 Cal.App.5th 298
Rehearing Granted
__________________________________________________________________________________
Opinion No. S239397
Date Filed: June 28, 2018
__________________________________________________________________________________
Court: Superior
County: Fresno
Judge: Donald S. Black
__________________________________________________________________________________
Counsel:
Lawrence G. Keane; Lewis Brisbois Bisgaard & Smith, Daniel C. DeCarlo and Lance A. Selfridge for
Plaintiffs and Appellants.
Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General,
Janill L. Richards, Principal Deputy State Solicitor General, Samuel P. Siegel, Associate Deputy State
Solicitor General, Douglas J. Woods and Thomas S. Patterson, Assistant Attorneys General, Tamar
Pachter, Emmanuelle S. Soichet, Mark R. Beckington and Nelson R. Richards, Deputy Attorneys General,
for Defendant and Respondent.
J. Adam Skaggs, Hannah Shearer; Munger, Tolles & Olson, David H. Fry and Craig A. Lavoie for Giffords
Law Center to Prevent Gun Violence as Amicus Curiae on behalf of Defendant and Respondent.
Caldwell Leslie & Proctor, Boies Schiller Flexner, Michael R. Leslie, Andrew Esbenshade and Amy E.
Pomerantz for Office of the Los Angeles City Attorney as Amicus Curiae on behalf of Defendant and
Respondent.
UCLA School of Law, Sean B. Hecht and Meredith J. Hankins for California Environmental Law
Professors Ann Carlson, Holly Doremus, Richard Frank, Meredith Hankins, Sean Hecht, Helen Kang, John
Leshy, Albert Lin, Dave Owen, Claudia Polsky, James Salzman, Daniel Selmy and Deborah Sivas as
Amici Curiae on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lance A. Selfridge
Lewis Brisbois Bisgaard & Smith
633 West 5th Street, Suite 4000
Los Angeles, CA 90071
(213) 250-1800
Janill L. Richards
Principal Deputy State Solicitor General
1515 Clay Street, 20th Floor
Oakland, CA 94612-0550
(510) 622-2130