NATIONAL SHOOTING SPORTS FOUNDATION v. STATE OF CALIFORNIA

Respondent’s Reply Brief on the Merits

Cal.October 11, 2017

Jn the Supreme Court of the State of Caltfornta NATIONAL SHOOTING SPORTS FOUNDATION,INC.,et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent. Case No. 8239397 SUPREME COURT FILED OcT 11 2017 Jorge Navarrete Clerk Fifth Appellate District, Case No. F072310 Deputy Fresno County Superior Court, Case No. 14CECG00068 The Honorable Donald S. Black, Judge RESPONDENT’S REPLY BRIEF ON THE MERITS XAVIER BECERRA Attorney General of California EDWARD C. DUMONT Solicitor General JANILL L. RICHARDS Principal Deputy Solicitor General THOMAS S. PATTERSON Senior Assistant Attorney General MARK R. BECKINGTON Supervising Deputy Attorney General NELSON R. RICHARDS Deputy Attorney General **SAMUELP. SIEGEL Associate Deputy Solicitor General State Bar No. 294404 1300 I Street Sacramento, CA 95814 (916) 210-6269 Sam.Siegel@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Introduction and Summary of ArguMeNt.0...... ce eceeeeseceeeseeeeseeenssesseceesens 6 ATQUMEMEoo. ceeseecsceecescesseneseaeeeeesessvaaeecesssseaaersaeessaeeseaeecensauesieerererseseesaeeaes 8 I. A Claim that the Microstamping Statute Is “Arbitrary” on Its Face Is a Constitutional Claim—a Claim that NSSF Did Not Pursue and that Would, in Any Event, Fadl ooo eeccccessesececesseeesnaeecesecseeceesseesseseeessaeeseaeeesessssaeseseeeseens 8 I. The Maximsof Jurisprudence Do Not Authorize Courts to Entertain Freestanding “Impossibility” CALMS 0.eee eeceeseeneeeneeecceecteeseeeeenteeaeeeaeeesateesneetsesseeseeeseeseees 1] Ul. The Separation of Powers Doctrine Prohibits Courts from Annulling Statutes Based on an Asserted Conflict With &@ MAXIM «0... eeeeessceesscersseeereeseeneeeeeeesaeeresessessesseeeeseeaes 18 COnclusiOn.........cececcceeeeseesentecccrscccnseseccaveccccssstsensttseseesesensanee ws seneeaseeneeneeentens 21 TABLE OF AUTHORITIES Page CASES 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216 0c ecccccccccsscsessssesescseesessesssessecscestevevenerees 8, 10, 11 American Coatings Assn., Inc. v. South Coast Air Quality Dist. (2012) 54 Cal.4th 446oeccccccscccsssesescsseseessssesecsecsevsssvscseseessesesseeees 19 Beeman v. Anthem Prescription Mgmt., LLC (2013) 58 Cal.4th 329oeccccccccccsssesescsecssescssessessesecevstecsessseeeasateatens 8 Board ofSupervisors v. McMahon . (1990) 219 Cal.App.3d 286 ..cccccccccccscccsssessescsssscsssssessecsssseceetsees 7,14, 15 Booskav. Patel (1994) 24 CalApp.4th 1786 ...ccccccccsssscsescsscesssesssscsscssvscscessecseseecetereas 16 Buck v. Harton (M.D. Tenn. 1940) 33 F.Supp. 1014 weecccccssssscsscsscssseseseecatens 17 Carmel Valley Fire Protection Dist. v. State . (2001) 25 Cal4th 287 oo. ccccecssscsssscstsssescsecessesseaserescsssssescssssacaceesas 18 Estate ofHorman (1971) 5 Cal.3d 62 oeecececsssscssesesssessscesscscscsecseesseecesesecsuscesevsevsusaserese 18 Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1 eceeececccccsecsceseesessesesesssseescsecsscssecsserssscstssasecseeateass 18 Galland v. City ofClovis (2001) 24 Cal4th 1003 oeeeccccccsscecsscsesesessecsscseessesscssessedecstsveseeersaneneas 8 Gigliotti v. New York, Chicago & St. Louis Railroad Co. (Ohio Ct.App. 1958) 157 N.E.2d 447 wooccccccccescsecsseesscrscsesssesssceeserseers 16 Howard Jarvis Taxpayers Assn. v. Padilla | (2016) 62 Cal4th 486...ecceceneseeeeessseeeeeseeeeseesesesesesssseresssevaneaes 9 TABLE OF AUTHORITIES (continued) Page In re Jenkins (2010) 50 Cal.4th 1167 oooeeeceeeeteeeneeeesseseeeeseceeeeeaeeeseeeeeeeeesseees 9,11 Ivaran Lines, Inc. v. Waicman (Fla.Ct.App. 1984) 461 S0.2d 123 o.oo ccssesssecssteceseeseessesseenees 16, 17 Jacobs v. State Bd. ofOptometry (1978) 81 Cal.App.3d 1022 0... ecceceecceceeeecseceseceeeesnecenseesseeseessnasessaeeee 16 Lockard v. City ofLos Angeles (1949) 33 Cal.2d 453 oocesessneeeeseceeeseceessenessareesseesseeeseeaeceseeseeesseeeeas 9 McMackin v. Ehrheart (2011) 194 CalApp.4th 128 oooeccccsseesesseceeeeeseeeetersteeteesseeseeeseeens 16 Methodist Hospital ofSacramento v. Saylor (1971) 5 Cal.3d 685 woo cceccccessceeeseceessesenseeesseeeseceeaeeeseeseseeesessessaeeesenas 10 Moore v. California State Bd. ofAccountancy (1992) 2 Cal.4th 999 oo. eccecseeceseeecssseeeeneieenseeciesssesesessneesenes 11,12, 14 Nougues v. Douglass (1857) 7 Call. 65 .occecccceesccsssecssseesseeseseeseeceesecsaeecseeeesseseseeseessaeseseessness 9 People v. One 1940 V-8 Coupe (1950) 36 Cal.2d 471 ooo ceeeecccseeececeeceeeesceeeeeseeesseeerseeecatensensesesenaeeeaes 12 Rossiv. Brown (1995) 9 Cal.4th 688 oo. cccccccccecssseeeseessecseesesseceeaeescaeecseeeseesssseseasessees 12 Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal4th952cececseeeesecesetsessecenesseesssessenecsaceteeenneeaes 20 Superior Court v. County ofMendocino (1996) 13 Cal.4th 45oeeccecseeeeseeeeecesseseeesaeeesensneessteneeees 18, 19, 20 Sutro Heights Land Co. v. MercedIrrigation District (1931) 211 Cal. 670 ceeccccceseecsensecseeseneeseneceeeseneesesesesaessessreessensees 15 TABLE OF AUTHORITIES (continued) Page Union Electric Co. v. EPA | (1976) 427 U.S. 246 oc eeeceecceecceneceeeeenecsneeeesaeeeaes veseeseeeseeseeaeeeaeeeseneeeas 19 Werner v. Southern California Associated Newspapers (1950) 35 Cal.2d 12] ooo. ceecceeeceeeeteeeeecteneeeeeeeessereneseessneeseaeeeees 19, 20 STATUTES Civil Code § 3509 oe ccecccscecessseseessesceseceeseceaeeecseessecseeeeseeesseeecesetsneceseeeeesuseseseesesenas 11 S531 eeeeecccceeeeeeeneeteeeeeeeeeeceseeecseeesstsseeeseseeseeessesensestsenreeneeesees passim § 3532cc ccccecccscssensessceessneceeeceseereceeeeeesesseecesseeeeaeasenttesasensensecssasseasasenuas 12 Penal Code § 31910, Subd. (D)(7) ...eeeeeeeceeceeeeeeteeeeseeseeeeseeesseessceaeeesstattaesnesesaeees 6, 14 CONSTITUTIONAL PROVISIONS California Constitution Article IV, § Loveeprsetaneeenesneaneseaneasasenevensssoassensenseneessseens 18 OTHER AUTHORITIES Plater, Statutory Violations and Equitable Discretion (1982) 70 Cal. L. Rev. 524... eccccccceseceeecesseenecneeeceseeesenseeeseeeesecsseneeseeseeeeaeesegs 14 Scott, Codified Canons and the Common Lawof Interpretation (2010) 98 Geo. L.J. 341 eeeececceseceseeeeesesensneesenees 13 INTRODUCTION AND SUMMARY OF ARGUMENT The Legislature was fully aware of the debate over the feasibility of handgun “microstamping”—an emerging technology that promisedto assist law enforcementin solving and preventing crimes—whenit considered adding that requirement to the list of criteria that new models of semiautomatic pistols must meet before they can be sold in California. Duringthosedeliberations, Appellants National Shooting Sports Foundation, Inc. and Sporting Arms and Ammunition Manufacturers’ Institute, Inc. (collectively NSSF), among others, expressed to the Legislature their strong viewsthat the technology wasnot ready for implementation. Still, the Legislature decided to create an incentive for ' industry to embrace and advancethe technology by enacting the statute challenged here. (Pen. Code, § 31910, subd. (b)(7).) After the law’s effective date, new models of semiautomatic pistols cannot be addedto the State’s roster of gunscertified for sale in California unless they come equipped with technology that imprints a microscopic array of identifying characters unique to the gun on eachfired cartridge, or some equally - effective alternative technology capable of connecting a spent cartridge to a particular gun. (/bid.) Manufacturers that elect not to implement such technology, or that cannot do so as a practical matter, are limited to selling the hundreds of handgun models already on the approved-for-sale list. NSSF advances a number of arguments to support the Court of Appeal’s judgment, which would grant NSSF an evidentiary hearing on the question of whetherit is “impossible” to implement microstamping technology, and for a court to invalidate the law on that basis. It contends that: courts are generally empowered under separation of powers principles to set aside lawsthat are “palpably arbitrary” (AnswerBrief on the Merits (ABM) 10, 26-28); Civil Code section 3531, a maxim,has “the same operative force”as other statutes and operates to strike down any law that, _as a factual matter, is impossible to comply with (ABM 10, 36-42); case law—primarily Board ofSupervisors v. McMahon (1990) 219 Cal.App.3d 286, and three out-of-state cases—support its freestanding, non- constitutional impossibility claim (ABM 42-45, 53-61); its impossibility claim does not present a separation of powersissue becauseit is not a challenge to the wisdom of the microstamping law (ABM 29-32); and the Legislature’s prerogative to engage in technology forcingis limited, requiring a showingthat the technology is achievable and, in any event,is specific to the pollution context (ABM 32-36). These arguments, addressed in more detail below, are without merit. Whileit is correct that a law may be challenged on the groundthatit is arbitrary, that is a constitutional claim, generally brought under the Due Process Clause. Below, NSSF madeclear that it was not pursuing any constitutional claim, leading thetrial court to dismiss its maxim-based complaint without leave to amend. A due process claim would not allow NSSFto put the Legislature’s implied findings and policy determinations on trial, as NSSF seeks to do in this case. Andthat constitutional claim would undoubtedly fail, because the microstampinglaw is rationally related to the Legislature’s goal of solving and preventing crimes. Further, NSSF fundamentally misconstrues the maxims’ function. Noneofthe many cases and secondary sources discussed by NSSF supports its claim that a court maystrike a law down onits face becauseit purportedly conflicts with a maxim. To the contrary, those authorities are consistent with the Staté’s position that a maxim, at most, can permit a court to excuse a party’s failure to comply with the letter of a statute, where ordering such compliance would be inconsistent with the statute’s intent. And NSSF’s owndescription of the evidentiary case it wishes to present demonstrates that recognizing its novel, freestanding “impossibility” claim would draw courts into policymaking decisionsthat, under the separation of powers doctrine, are for the Legislature alone to make. The Legislature elected to enact a technology-forcing statute, whichit was empowered to do. NSSFis certainly free to attempt to make the case that dual-microstamping andalternative technologies remain imperfect ten years after the Legislative adopted the microstamping law, and that the law should now be discontinued. But NSSF must make those arguments to the Legislature, not the courts. ARGUMENT I. A CLAIM THAT THE MICROSTAMPING STATUTEIS “ARBITRARY”ON ITS FACE IS A CONSTITUTIONAL CLAIM—A CLAIM THAT NSSF DID NOT PURSUE AND THAT WOULD,IN ANYEVENT,FAIL Asit did in the courts below, NSSF attempts to portrayits freestanding impossibility claim as not so novel. It argues that this claim is consistent with “long-established authority” permitting judicial review of laws that are “palpably arbitrary.” (See, e.g., ABM 62; see also ABM 10 [““This case ... presents an issue of fundamental fairness”’].) It is not. Byitself, the contention that the judiciary may annul lawsthat are facially “arbitrary” or “irrational” is uncontroversial. (Beeman v. Anthem Prescription Mgmt., LLC (2013) 58 Cal.4th 329, 363.) But the avenue through which a party raises such a challengeis a constitutional due process claim. (See, e.g., id. at p. 363; 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 297 (Garamendi); see also Gallandv. City ofClovis (2001) 24 Cal.4th 1003, 1030 [argument that governmentaction is “intrinsically arbitrary and irrational”is “best understood as a claimedviolation of substantive due process”’].) As NSSF has repeatedly stated, it is not pursuing a constitutional claim. (See, e.g., State’s Request for Judicial Notice, Ex. A, pp. 48-49 [representation from NSSF’s counsel at court of appeal argument that NSSF wasnot “bring[ing] a constitutional challenge”; see also 1 JA 93, 95; 4 JA 592-593; 6 JA 1166, 1170 [granting State’s motion to dismiss without leave to amend].) And this Court has long held that the Legislature has “‘the actual powerto pass anyactit pleases,’ subject only to those limits that may arise elsewherein the state or federal Constitutions.” (Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 498, quoting Nougues v. Douglass (1857) 7 Cal. 65, 70, italics in original.) While courts may review and annul unconstitutional laws, they may notinvalidate statutes “by injunction or otherwise” for other reasons. (Nougues, supra, 7 Cal. at p. 70; see also Opening Brief on the Merits (OBM) 26-29.) Lockard v. City ofLos Angeles (1949) 33 Cal.2d 453, which NSSF discussesat length, does not hold otherwise. (See ABM 26-28.) The Court there rejected a due process challenge to Los Angeles’s zoning ordinances. (Lockard, supra, 33 Cal.2d at p. 468.) That constitutional inquiry required the Court to assess whether the land use scheme was “arbitrary or unreasonable,” or whetherthe legislative decision was “clearly and palpably wrong.” (/d. at p. 461.) The Court held that the zoning lawsat issue passed that permissive test, and upheld them accordingly. (/d. at p. 468.) Lockard does not, as NSSF contends, recognize an extra- constitutional basis on which courts may “set aside” a statute. (ABM 27- 28.) Instead, that case unequivocally declares that the judiciary has a “duty to uphold the legislative power,” unlessit “exceed[s] constitutional limitations.” (Lockard, supra, 33 Cal.2d at pp. 461-462, italics added.) Moreover, NSSF doesnot dispute that its asserted impossibility claim differs from a due process claim in several important respects. (See OBM 33-36.) If accepted, NSSF’s theory would alter the relevant inquiry from a legal question about what the Legislature might rationally have concluded in deciding to adopt the microstamping law (see Jn re Jenkins (2010) 50 Cal.4th 1167, 1181) into a dispute about the underlying facts. (See discussion at OBM 34-35.)! For example, NSSF’s “impossibility” trial would require a court to determine whether the technology “violates the laws of physics” and attempt to determine whetherit is ever “achievable.” (ABM 33.) It would also meanthat a statute’s enforceability would turn on the adversarial process, the parties’ resources, and the rules of evidence, discovery, and personal jurisdiction. (See OBM 34-35; see also ABM 17-18 [arguing that microstamping law’s author’s statement on the technology’s feasibility should be ignored as “inadmissible hearsay’’].) In addition, NSSF’s claim would impermissibly circumvent those constitutional review standards that are designed to preserve the Legislature’s authority whenever possible—including the requirementthat courts resolve doubts abouta law’s constitutionality in “‘favor of the Legislature’s action,’” (Methodist Hospital ofSacramento v. Saylor (1971) 5 Cal.3d 685, 692 citation omitted), and the presumption in favor of upholding laws challenged as arbitrary and capricious under the Due Process Clause (Garamendi, supra, 8 Cal.4th at p. 292). (See also OBM 35-36.) NSSF’s novel, non-constitutional claim would subvert the careful balance our Constitution strikes between the legislative and judicial branches, and should berejected. In any event, there is no reasonable argumentthat the microstamping Jaw is constitutionally arbitrary. (See ABM 63, fn. 23 [summarily contending that a due process challenge to the microstamping law “would be meritorious”].) Under the Due Process Clause, legislative choices are 'NSSFsuggests at various places that the State has admitted certain factual propositions or that certain evidence is uncontroverted. (See,e.g., ABM 9, 14, 16-18, 34, 35.) In fact, discovery was proceeding when the trial court granted the State’s motion for judgment on the pleadings, and no trial had yet taken place. (1 JA 1160-1175.) The Court of Appeal reversed and remandedfora trial on “impossibility.” (Opn. 8, 12.) 10 “not subject to courtroom factfinding and maybe based onrational speculation unsupported by evidence or empirical data[.]” (Jenkins, supra, 50 Cal.4th at p. 1181, citation, quotation marks, anditalics omitted.) All 999that is required is a ““‘reasonably conceivable set of facts’” demonstrating a rational relationship between the lawandits goals. (Garamendi, supra, 8 Cal.4th at p. 292, citation omitted.) Here, a reasonable legislator could haverationally concluded that untraceable firearms pose unique public safety threats. And—with or without the evidence presented in the course of considering the bill—the Legislature could have “rational[ly] speculat[ed]” that the dual-microstamping requirement (or some equally effective alternative) was technologically feasible, or that it was appropriate to create an incentive for the industry to develop and implement such technology. (Jenkins, supra, 50 Cal.4th at p. 1181.)? Nothing moreis required to sustain a law challenged as constitutionally arbitrary. Il. THE MAXIMS OF JURISPRUDENCE DO NOT AUTHORIZE COURTS TO ENTERTAIN FREESTANDING “IMPOSSIBILITY” CLAIMS Asthe State explained in its openingbrief, the maxims of jurisprudence do not permit courts to enjoin enforcement of later-enacted laws. (OBM 20-24.) The maximsare instead interpretive aids that help courts “just[ly] appl[y]” statutes (Civ. Code, § 3509), and assist them in their effort to “ascertain and effectuate” the Legislature’s intent when construing laws (Moore v. California State Bd. ofAccountancy (1992) 2: Cal.4th 999, 1012 (Moore)). They do not, however, “qualify” other provisions of the Civil Code. (Civ. Code, § 3509.) And they may not be Indeed,in this case, the Legislature received a presentation - depicting microstampedcartridges that had been fired from pistols equipped with characters etched onto the gun’s breech face—thatis, a part other than the gun’s firing pin. (See RA 65-67; see also OBM 13-16.) 11 applied in a way that precludes enforcement of the express terms oflater- enacted statutes. (See Rossi v. Brown (1995) 9 Cal.4th 688, 715 [one Legislature “may not bind future” ones].) Consistent with these principles, this Court has squarely held that a statute’s “express terms” may not be “nullified or defeated” by a maxim. (People v. One 1940 V-& Coupe (1950) 36 Cal.2d 471, 476; see OBM 22-24.)? Andit has declared that the maxims may not be applied in a mannerthat would “frustrate the intent underlying the statute.” (Moore, supra, 2 Cal.4th at p. 1012.)* NSSFdisputes this understanding of the maxims. (See ABM 37- 39.) In its view, section 3531 carries the “[florce of [l]Jaw,” and entitles 299NSSFto seek a “‘judicial declaration’” that the microstamping law is “invalid and cannot be enforced” becauseit is impossible to comply with. (ABM 36-38, quoting 1 JA 15.) But NSSF identifies no authority that supports its expansive conception of the maxims. And manyofthe sources discussed by NSSF confirm that the maximsserve only as interpretive guides that—at most—allow courts to decline to orderstrict compliance with a statute, where doing so would producea result that the Legislature did not intend whenit adopted the law. 3 NSSFcontends that Ford V-8 Coupe “acknowledged”thatthe idle acts maxim has “operative force,” allowing courts to override statutory terms. (ABM 49-50.) To the contrary, the Court clearly and repeatedly. rejected the bank’s efforts to apply a maxim in a way that would have “nullified or defeated” the statute’s “express terms.” (Ford V-8 Coupe, supra, 36 Cal.2d at p. 476; see also ibid. [“Since the investigation was not made,[the bank’s] interest is forfeited ... and the provision of section 3532 of the Civil Code cannot avail to prevent it’”].) 4 NSSFattempts to dismiss Moore’s conclusion as “dicta” (ABM 5], fn. 18), but the Court’s clear and unequivocal statement that “any maxim of jurisprudence” maynotbe applied to “frustrate the intent underlying the statute” is consistent with longstanding precedent. (Moore, supra, 2 Cal.4th at p. 1012; see also ibid. [collecting cases].) 12 For example, onearticle that NSSF quotes at length explains that the impossibility canon directs courts “faced with ambiguous statutes” to avoid interpretations that would impose an “impossibly onerous” burden ona party. (Scott, Codified Canons and the Common Law ofInterpretation (2010) 98 Geo.L.J. 341, 395,italics added; see ABM40-41.) Where one interpretation of a statute would produce “unworkableresults,”the article argues, the impossibility maxim counsels courts to avoid it. ([bid.) More generally, the article describes the maximsastools that help courts remedy “imperfections in the legislative process” and address a law’s “unforeseen consequences.” (/d. at p. 390; see also OBM 20-24 [describing maximsin similar terms].) But nowhere does the author suggest that a court may rely on a maxim to nullify a law. To the contrary, his explanation of the maxims’ function illustrates why NSSF’s understanding of them is incorrect. In this case, NSSF does not rely on the impossibility maxim to advocate oneinterpretation of an otherwise “ambiguousstatute.” (Scott, supra, at p. 395.) Nor doesit argue that a particular interpretation of the microstamping law should be avoided because that construction would produce “unworkable results.” (/bid.) Its claim also does not seek to remedy an unintended consequenceofthe statute. (/d. at p. 391)° Instead, NSSFseeks a court order that would prevent the State from enforcing the Legislature’s expressly stated goal: to require all new models of semiautomatic pistols proffered for sale in California to come equipped with a “microscopic array” of identifying characters etched on “two or more” internal working parts, or some equally effective alternative of > Indeed, the alleged technological challenges that give rise to NSSF’ssuit were hardly “unforeseen” by the Legislature. (Scott, supra, at p. 390.) NSSFand others raised these same concerns to the Legislature and the Governor during their deliberations aboutthe bill. (See OBM 12-16.) The Legislature elected to proceed. 13 connecting a spent cartridge to the gun from whichit wasfired. (Pen. Code, § 31910, subd. (b)(7).) NSSF’s requested relief would be entirely inconsistent with the maxims’ purpose: to help courts “ascertain and effectuate” the Legislature’s purpose wheninterpreting statutes. (Moore, supra, 2 Cal.4th at p. 1012.)® The judicial authorities that NSSF cites also do not support its claim that a court may rely on section 3531 to enjoin another statute. Like the Court of Appeal, NSSFrelies heavily on Board ofSupervisors v. McMahon (1990) 219 Cal.App.3d 286, labeling it the case “central to the determination of this appeal.” (ABM 55; see also Opn. 8.) But as the State explained in its opening brief, McMahon doesnot hold that a party may assert a facial challenge to a statute based solely on section 3531. (See OBM 24-26.) Instead, that case supports—at most—the uncontroversial _ proposition that a court may rely on its equitable powers to excuse a specific, individual failure to perform a statutory duty “where circumstances makesuch performance impossible.” (/cMahon, supra, 219 Cal.App.3d at p. 299.). McMahon’s implicit recognition that a party mayraise a fact-specific impossibility defense does not support the very different assertion that a court may rely on the impossibility maxim to ®° The other article that NSSF discusses at length is also inapposite. (See ABM 41-42.) That author advocates.for a rule that would permit courts to relieve a party from a statute’s requirements for a short period of time while also ordering compliance “as immediately as feasible.” (Plater, Statutory Violations and Equitable Discretion (1982) 70 Cal. L. Rev. 524, 580.) Whatever the wisdom ofsuch a rule, here, NSSF does not seek a temporary reprieve from the microstamping law. Instead, it asks for a judicial declaration that the statute’s requirements are “not achievable at any time” and an orderstriking downthe statute on its face. (ABM 33.) 14 support an affirmative cause of action and authorize a court order that would nullify a statute altogether.’ This Court’s decision in Sutro Heights Land Co. v. Merced Irrigation District (1931) 211 Cal. 670, is similarly limited. (ABM 59-61.) There, a group of landowners sued anirrigation district, arguing that the Drainage Act of 1907 required the district to install “suitable drainage works” on their properties. (Sutro Heights, supra, 211 Cal. at p. 699.) The Court held that the plaintiffs were not entitled to an order directing the district to perform, because it would have brought“financial ruin upon the district.” (/d. at p. 703.) When the Legislature adopted the Drainage Act of 1907, the Court reasoned,it did not intend for the law to be applied in a mannerthat would “work[a district’s] destruction.” (/bid.) Stated differently, the Court held that the judiciary should not issue an order compelling “‘technical compliance with the letter of the law, where such compliance will violate the spirit of the law.’” (Ud. at p. 705, citation omitted.) | . NSSF’s affirmative lawsuit is plainly different from the impossibility defense raised bythe irrigation district in Sutro Heights. There, the district requested that the Court not order specific performance in a suit to enforce the Drainage Act. Here, NSSF seeksa blanket declaration that the microstampingstatute is “invalid as a matter of law,” and a court order enjoining the State from “taking any action to enforce”it. (1 JA 16-17.) And in Sutro Heights, the irrigation district prevailed because the relief sought by the opposing party would have produced a 7 NSSFappears to acknowledge that McMahonis narrow,noting at several points that the court there held only that section 3531 may be used as a “defense to the enforcement ofa statute.” (ABM 55; see also ABM 56, 57, 58 [similar].) 15 result inconsistent with the Legislature’s intent when it adopted the Drainage Act. Here, in contrast, NSSF seeks a court order that would prevent the Legislature’s clear directive from having any force at all, and would thwart the intent of the microstamping law.® NSSF’s three out-of-state authorities are likewise inapposite. (ABM 42-45.) Not one concludesthat a court may enjoin a State from enforcing a law in all of its applications because it is impossible to comply with. Two hold only that a party may assert impossibility as a defense to negligence per se claims undera specific set offacts. Thus, in Gigliotti v. New York, Chicago & St. Louis Railroad Co. (Ohio Ct.App. 1958) 157 N.E.2d 447, the court held that negligence could not be predicated on a train’s failure to comply with a statutory requirementthat it sound its whistle at least “80 rods” (1,320 feet) before a crossing, because the distance between the train’s point of departure and the crossing where the accident occurred was only 33 feet. (Ud. at pp. 451-452.) For similar reasons, the court in /varan Lines, Inc. v. Waicman (Fla.Ct.App. 1984) 461 So.2d 123, held that a shipping companythat sent a stolen car overseas withoutfirst obtaining a statutorily required certificate of right of possession from the sender was § The three additional California cases that NSSFbriefly alludes to are consistent with the State’s position here. (ABM 47-48.) They hold only that a court may excusea party from strict compliance with a statute under limited, fact-specific circumstances, where ordering compliance would produce an unjust or irrational result. (See McMackin v. Ehrheart (2011) 194 Cal.App.4th 128, 142 [party may be excused from statute of limitations whereits delay was induced byother party’s wrongdoing]; Booskav. Patel (1994) 24 Cal.App.4th 1786, 1789-1792 [landowner does not have absolute right to sever roots of neighbor’s tree, but instead must do what is reasonable under the circumstances]; Jacobs v. State Bd. of Optometry (1978) 81 Cal.App.3d 1022, 1030 [plaintiff seeking writ of mandate to compel organization to change its membershipcriteria need not submit application to join organization before filing writ where organization has already informed him that it would not be accepted].) 16 not liable to the vehicle’s true owner. (/d. at pp. 124-125.) The company’s failure to comply with the statute wasjustified, the court held, because the State had not made the necessary forms available before the shipping date. (id. at pp. 124-126.) Andin the third extra-jurisdictional case discussed by NSSF—Buck v. Harton (M.D. Tenn. 1940) 33 F.Supp. 1014—athree-judge district court struck down the law at issue not because it was impossible to comply with, but instead becauseit violated several constitutional provisions. (/d. at pp. 1020-1021.) NSSFraises two further arguments premised onits incorrect understanding of the maxims. First, NSSF argues that the separation of powers requires courts to invalidate statutes that are impossible to comply with, because no other “constitutional provision, statute or charter provision ... overrides” section 3531. (ABM 45-46.) If section 3531 is to be deprivedofits “operative force,” NSSFargues, it is the “Legislature, not the judiciary” that must “undertake that task.” (ABM 47.) Second, NSSF argues that the Legislature must intend section 3531 to operate as a “statutory proscription to the enforcement”of the microstamping law, becauseit has not repealed it. (ABM 48-49.) Both contentions assumethat the maxims havethe “operative force” that NSSF ascribes to them: that they are “statutory proscriptions” that the Legislature intended to control later-enacted statutes, and on which courts mayrely to strike downlater- enacted statutes. For the reasons discussed above and in the State’s opening brief (OBM 20-24), the maxims do notgive courts this power.’ ” In any event, NSSF’sassertions that a court must give effect to the first of two irreconcilable statutes, and that the Legislature must repeal section 3531 to protect its subsequent enactments from freestanding impossibility challenges, are at odds with a basic rule of statutory interpretation: where two statutes conflict and cannot be harmonized, courts (continued...) 17 Ill. THE SEPARATION OF POWERS DOCTRINE PROHIBITS COURTS FROM ANNULLING STATUTES BASED ON AN ASSERTED CONFLICT WITH A MAXIM NSSFarguesthat its construction of the maxims presents no separation ofpowers problem. (ABM 25-36.) This too is incorrect. The separation of powers doctrine prohibits one branch from “arrogat[ing] to itself the core functions of another branch.” (Carmel Valley Fire Protection Dist. v. State (2001) 25 Cal.4th 287, 297.) The Legislature1s vested with the power to make laws; that poweris one of its “core functions.” (/d. at p. 299; see also Cal. Const., art. IV, § 1.) And while courts may “pass[] upon the constitutional validity” of the Legislature’s actions, their power to review and enjoin statutes extends no further. (Superior Court v. County ofMendocino (1996) 13 Cal.4th 45, 53; see also OBM 26-28.) This limitation on judicial review is not an endtoitself. Instead, it affords the political branches the latitude necessary to respond to public concernsas they arise, and ensures that courts do not “sit as super- legislatures to determine the wisdom,desirability or propriety of statutes enacted by the Legislature.” (Estate ofHorman (1971) 5 Cal.3d 62, 77; see also OBM 29.) NSSF’s attempt to analogize this case to Superior Court v. County of Mendocino (1996) 13 Cal.4th 45 (Mendocino), falls short. (ABM 29-31.) There, the Court held that a law permitting counties to designate days on which courts could not be in session did not violate the separation of 666 999powers doctrine because the statute did not “materially impair’” the courts’ ability to fulfill their constitutional functions. (Mendocino, supra, 13 Cal.4th at pp. 58, 66, citation omitted.) In reaching that conclusion, the (...continued) must “give effect to the more recently enacted law.” (Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, italics added.) 18 Court recognized that one branch of government may “exercise a degree of oversight” of another without offending the separation of powers doctrine. (ABM 29.) But that general proposition does not support NSSF’s novel request for a court order declaring an otherwise constitutionalstatute void based on the court’s independent assessmentofthe law’s effectiveness. The judiciary “overs[ees]” the Legislature’s enactments by “pass{ing] upon the constitutional validity”of the laws it adopts. (Mendocino, supra, 13 Cal.4th at p. 53.) But,as discussed, the separation ofpowers doctrine forbids courts from annulling statutes unless they violate the Constitution. NSSFis also wrong in arguing that the Legislature’s decision at issue in this case “differs markedly” from the technology-forcing statutes it adopts in other contexts. (ABM 33; see also id. 32-36.) Both this Court and the U.S. Supreme Court have recognized that the legislative branches may enact laws designed to spur industry to develop devices or methods 399that appear to be “economically or technologically infeasible’” at the time the statute is adopted. (American Coatings Assn., Inc. v. South Coast Air | Quality Dist. (2012) 54 Cal.4th 446, 466, quoting Union Electric Co.v. EPA (1976) 427 U.S. 246, 256-257.) It was entirely reasonable for the Legislature to conclude that microstamping wasor could be madeto be technologically feasible, or that gun manufacturers could devise some equally effective alternative, or be limitedto selling the hundreds of handgun models already listed for sale. (See OBM 13-16 [detailing _ evidence considered by Legislature].) NSSF’s assertion that there has been no studythat “has ever been conducted showing any reasonable | anticipation that dual placement microstamping will ever be possible to implement” ignoresthat it is the Legislature’s prerogative to make this policy decision. (ABM 33.) Indeed, NSSF’s discussion of Werner v. Southern California Associated Newspapers (1950) 35 Cal.2d 121 confirmsthat its suit is 19 nothing more than an attempt to draw a court into the kind ofpolicymaking disputes that the separation of powers doctrine prohibits. (ABM 31-32.) In Werner, the Court held that the judiciary may not invalidate lawsthat“it may deem unwise,”norstrike down lawssolely becauseit “‘disagrees with the desirability of the legislation.’” (35 Cal.2d at pp. 129-130,citation omitted; see also OBM 29-30.) NSSFarguesthat this case is distinguishable because “[w]hile the wisdom”ofthe statute at issue in Werner “may legitimately be the subject of conflicting opinion,” there “can be no legitimate disagreementthat a statue requiring impossible compliance is not wise.” (ABM 32.) But unlessa statute raises constitutional concerns, a debate about a law’s wisdom is a policy dispute. (See Mendocino, supra, 13 Cal.4th at p. 53 [“[A]bsent a constitutional prohibition, the choice among competing policy considerations” lies with the Legislature].) In 2007, NSSF failed to persuade the Legislature that microstamping wasinfeasible, or that the gun-manufacturing industry could not come up with some equally effective alternative. The Legislature therefore elected to create an incentive for industry to bring these new technologies to market. Granted, ten years in, no semiautomatic pistol with microstamping or similar technology has been addedto the State’s roster of handguns approved for sale. NSSF is free to make the case that this particular legislative experiment should end. But that case must be madeto the Legislature. This Court’s admonition to the opponents of rent controlis equally apt here: “[A]s with most other such social and economic legislation, we leave to legislative bodies rather than the courts to evaluate whetherthe legislation has fallen so far short of its goals as to warrant repeal or amendment. Courts, on the other hand,retain the constitutional role of invalidating certain features and applications of [the challenged] law that have or will produce [unconstitutional] results.” (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 974.) 20 CONCLUSION The Court ofAppeal’s decision should be reversed. Dated: October 11, 2017 XAVIER BECERRA Attorney General of California EDWARD C. DUMONT Solicitor General JANILL L. RICHARDS Principal Deputy Solicitor General THOMASS. PATTERSON Senior Assistant Attorney General MARK R. BECKINGTON Supervising Deputy Attorney General NELSON R. RICHARDS Deputy Attorney General Somvel 2. Sigel [MM SAMUELP. SIEGEL Associate Deputy Solicitor General Attorneysfor Respondent 21 CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSuses a 13-point Times New Romanfont and contains 4,756 words, as counted by the Microsoft Word word-processing program, excluding the parts of the brief excluded by California Rules of Court, rule 8.520(c)(3). Dated: October 11, 2017 XAVIER BECERRA Attorney General of California Samal P. Sigg [MSM SAMUELP. SIEGEL Associate Deputy Solicitor General Attorneysfor Respondent 22 DECLARATION OF SERVICE BY U.S. MAIL Case Name: National Shooting Sports Foundationv. State of California (Cal Supreme Court) Case No.: $239397 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. J am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 11, 2017, I served the attached RESPONDENT’S REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Lance A.Selfridge Oliver W. Wanger LewisBrisbois Bisgaard & Smith, LLP Wanger Jones Helsley PC 633 WestSth Street, Suite 4000 265 E. River Park Circle, Suite 310 Los Angeles, CA 90071 Post Office Box 28340 Fresno, CA 93729 Daniel C. DeCarlo Lewis, Brisbois, Bisgaard & Smith, LLP Fifth Appellate District 633 West 5th Street, Suite 4000 Court of Appeal of the State of California Los Angeles, CA 90071 2424 Ventura Street Fresno, CA 93721 Lawrence G. Keane, Esq. , General Counsel County of Fresno National Shooting Sports Foundation,Inc. Downtown Courthouse 11 Mile Hill Road Superior Court of California Newtown, Connecticut 06470 1100 Van Ness Avenue Fresno, CA 93724-0002 I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on October 11, 2017, at San Francisco, California. M. Campos A.Carsha Declarant Signature SA2017105118 21032783.docx