NATIONAL SHOOTING SPORTS FOUNDATION v. STATE OF CALIFORNIARespondent’s Reply to Answer to Petition for ReviewCal.February 16, 2017Jn the Supreme Court of the State of California NATIONAL SHOOTING SPORTS FOUNDATION,INC.,et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent. Fifth Appellate District, Case No. F072310 ’ Case No. 8239397 SUPREME COURT FILED FEB 16 2017 Jorge Navarrete Clerk Fresno County Superior Court, Case No. 14CECGG0068 Deputy The Honorable Donald S. Black, Judge REPLY TO ANSWERTO PETITION FOR REVIEW XAVIER BECERRA Attorney General of California EDWARD C. DUMONT Solicitor General JANILL L. RICHARDS Principal Deputy Solicitor General DOUGLAS J. WooDS Senior Assistant Attorney General MARK R. BECKINGTON Supervising Deputy Attorney General SAMUELP.SIEGEL Associate Deputy Solicitor General *"NELSON R. RICHARDS Deputy Attorney General State Bar No. 246996 2550 Mariposa Mall, Room 5090 Fresno, CA 93721 (559) 477-1688 Nelson.Richards@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page INtrOGUctiOn .........ccctsseesesssessseseseseseeessescscscsrscsvssevsesuesssssatatssstisavscasssevesseseees 1 ALQUMEMEoccecscseesseeteeeesesssesessessssssessesssssvevavasecacsusatstsusavssisisssseseceseesecees 2 I. The Court of Appeal’s Decision Runs Counterto Settled Separation-of-Powers Principles «0.0.0.0...Veseesaeeees 3 II. The Court of Appeal’s Decision Recognizes an Unprecedented Facial Challenge to a Statute Based Only 07 @ Maximocecccsecescsesssssesesessevsvecscacacatacseecssseeeseses 4 Ill. The Court ofAppeal’s Decision May Encourage Similar “Impossibility” Claims in Other Contexts ........0.000... 7 COMCIUSION...... cece eeceseessesesteeseseecsessssseestacsessassvsvavausressssvaatssisssssevsvesecseeeseees 9 TABLE OF AUTHORITIES Page CASES American Coatings Assn., Inc. v. South Coast Air Quality Dist. (2012) 54 Cal.4th 446 oocccccscccesssessscsssssscesssstsrstsssessessssssssceseveesecees 8 Board ofSupervisors v. McMahon (1990) 219 Cal.App.3d 286 ..cccccccccsscscsssccssscessssssessstsessssssssssessceseseees 5, 6 Booska v. Patel © (1994) 24 Cal.App.4th 1786 ..ccccccccscssscssssssssessesessessessssssesssessssereesese. 6 Buck v. Harton (M.D. Tenn. 1940) 33 F.Supp. 1014 wo ccccecececessssescscscsseatsesecserceececee. 4 City and County ofSan Francisco v. Cooper (1975) 13 Cal.3d 898 oo. eeccecsescsssesessssssssesssssececssatstsvarsusssstsseaseveseseseecees 3 Coleman v. Dept. ofPersonnel Administration (1991) 52 Cal.3d 11020ccccccccsssscsesescsescsesseceesestetstessstaressscesseeseseees 7 Exparte Collie (1952) 38 Cal.2d 396 wo. eeccecescsesesecsssssesessstsssececacssstststssseaserseseceseeeevees 4 Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cah.3d Loccecescssesesssssessssssesescststsesececaeststsrstsseatsssscessseevees 4 Gigliotti v. New York, Chicago St. Louis Railroad Co. (1958) 107 Ohio App. 174 ...cccccccccssssssssesssssssesecesecsescststssssessesesssseeeevees 4 Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486... eecccccscsssssscscsssscssscecsssestsrsssesssscstsssssssesesseeces 2 In re Jenkins (2010) 50 Cal.4th 1167 o.cceccccccsccsssessssecscscsvssessessecssacsssestsatesssevsvevesees 7 Ivaran Lines, Inc. vy. Waicman (Fla.App. 1984) 461 S0.2d 123 oooceccccscsssssssssessecscsesrsestssssesrsssssesseseseces 4 i TABLE OF AUTHORITIES Page Jacobs v. State Bd. ofOptometry (1978) 81 CalApp.3d 1022 w.ccccccccccsssssscscssscesescstsssscscsesecscecesssssesees 6 McMackinv. Ehrheart (2011) 194 CalApp.4th 128 oo.cccccsessscsseccessssecsescstscseecsssesessssenees 6 O'Connell v. City ofStockton (2007) 41 Cal.4th 1061.00.00.seseseeeseescecusecessesaeesessseeeenssesstecessesuceesaaseasenes 3 People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471 (Ford V-8)..ccccccccccssscsssssscscssesesssssstscecscsececesseveves 3,5 Rossiv. Brown (1995) 9 Cal.4th 688 oo ccecccscssssssesesssssssscssscssecseseseesesssssvavssstseeseessses 4 Webster v. Superior Court (1998) 46 Cal.3d 338 ooeeccccccscscsssscscssscsscasstsnecsevevecatatssvavavacsssasavavevenes 4 STATUTES Civ. Code, § 3531eccecessssseesesssscsesessssssessssssscsesaceesaceaarssacacsesaveaees 2,5, 6 Code Civ.Proc., § 526, former 2nd subd. 4, now subd. (b)(4)......cceecsesseeee. 6 ill INTRODUCTION The State in its petition presented several reasons whythis Court should grant review. This case raises the significant question of the validity of a statewide law designed to bring to market cutting-edge microstamping technology that will help deter and solve crimes. The Court of Appeal’s decision—which recognizes a novelfreestanding “impossibility” claim based solely on a maxim ofjurisprudence—notonly threatens this gun safety law, but may invite other similar claims, resulting in courts second- guessing the Legislature’s determinations without the deferencethat traditionally accompanies judicial review ofstatutes. The decision below cannotbe reconciled with this Court’s decisions addressingsettled separation-of-powersprinciples, and holdingthat a statute may not be nullified by a maxim. In response, Appellants National Shooting Sports Foundation, Inc. and Sporting Arms and Ammunition Manufacturers’ Institute, Inc. (together, NSSF) argue that the law recognizing their impossibility claim is settled. But NSSFfails to identify a single case holding that a court may enjoin a law in all of its applications based on a maxim ofjurisprudence. In addition, NSSFcontendsthat the Court should wait to consider granting review until after the development of a complete factual record anda final judgment on the merits. But that approach will waste public resources trying a claim thatis defective as a matter of law. Andit leaves on the booksa decision that could be enlisted to derail the enforcement of other laws, including technology-forcing statutes and regulations. Review is necessary to resolve the important questions of law presented by this case and correct the mistaken course charted by the Court of Appeal. ARGUMENT NSSF does not dispute that, absent this Court’s intervention,thetrial court mayinvalidate the microstamping law statewide ifNSSF succeeds in convincingthetrier of fact that complianceis “impossible.”' Instead, NSSF attempts to minimize the benefits of the law, arguing that if implementing microstamping technology “‘is in fact impossible,” then the law will be “useless as a crime fighting tool . . . because no microstamping of any semi-automatic pistols will ever take place.” (Answer 14,fn. 4.) But the Legislature hasalready concluded that microstampingis feasible, and was of the view that requiring the technology for newlylisted semiautomatic pistols will moveat least some membersofthe industry to implement it. (See Petition 7-9.) NSSF’s observation merely highlights the important legal issues presented by this case, whichrelate to the proper, respective roles of the judiciary and the Legislature. Specifically, review is necessary to settle whether a court may enjoin a statute in all of its applications not becausethe statute violates a constitutional command,but instead because a trier of fact finds thatits implementationis, as a general matter, practically infeasible, as measured by a maxim ofjurisprudence. (See Petition 11-14; Civ. Code, § 3531 | [“[t]he law never requires impossibilities”].) As the State noted in its petition, authorizing a de novo challengeto the Legislature’s determination of feasibility runs contrary to both established separation-of-powers principles—which recognize the Legislature’s plenary legislative authority subject only to constitutional limits (see Howard Jarvis Taxpayers Assn.v. Padilla (2016) 62 Cal.4th 486, 498)—andtothe rule that a statute cannot ' Asthe State notedin its petition, the Court of Appeal did not address howtrial on “impossibility” might proceedas a practical matter. (Petition 14, fn. 10.) be “nullified or defeated by a maxim”(People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 476 (Ford V-8)). (Petition 11-14.) Allowing the Court ofAppeal’s decision to stand mayalso invite other freestanding, non- constitutional “impossibility” claims to other laws that encourage innovation andserve the public interest. Review is necessary to resolve these important questions oflaw. L THE COURT OF APPEAL’S DECISION RUNS COUNTER TO SETTLED SEPARATION-OF-POWERS PRINCIPLES NSSFargues that the Court of Appeal’s discussion of the separation- of-powers doctrine is consistent with “established law”—specifically, this Court’s decision in City and County ofSan Francisco v. Cooper (1975) 13 Cal.3d 898. (Answer 13-15; see also id. at 24.) According to NSSF, Cooperstands for the proposition that any “statutory . . . proscription[,]” including a maxim ofjurisprudence, empowers a court to invalidate legislation. (/d. at 15, citation and quotation marks omitted.) NSSF misreads Cooper. That case merely applies the longstanding tule that localities may not adoptlaws that conflict with generalstate laws. (City and County ofSan Francisco v. Cooper, supra, 13 Cal.3d at pp. 906- 911, 915-916; see also O’Connell v. City ofStockton (2007) 41 Cal.4th 1061, 1067.) Cooper does not, however, hold that a court may enjoin a later-enacted statute becauseit is in some sense “proscribed” by an earlier statute. Indeed, Cooperitselfrejects that contention: “It is a familiar principle of law thatno legislative [body], by normallegislative enactment, maydivestitself or future [bodies] of the powerto enactlegislation within its competence.” (Cooper, supra, 13 Cal.3d at p. 929; see also Rossi v. Brown (1995) 9 Cal.4th 688, 715-716 [same]; Ex parte Collie (1952) 38 Cal.2d 396, 398 [same].)° In addition, noneofthe out-of-state cases that NSSF cites have enjoinedstatutes because “compliance was impossible.” (Answer 15-16.). Instead, two of those cases held only that a party may assert an impossibility defense to negligence perse claims based on specific factual circumstances. (See Gigliotti v. New York, Chicago St. Louis Railroad Co. (1958) 107 Ohio App. 174, 180-181 [railroad could not be held liable for not complying with requirementthat it sound its whistle not less than “80 rods,” or 1320 feet, before a crossing where the distance between the station and the crossing was only 33 feet]; varan Lines, Inc. v. Waicman (Fla.App.1984) 461 So.2d 123, 124-126 [shipping company could not be found negligent for noncompliance with statute because State | administrative agency had not issued formsthat the law required to be completed].) Andthe third struck downthestatute at issue not becauseit was impossible to comply with, but instead becauseit violated several constitutional provisions. (See Buck v. Harton (M.D. Tenn. 1940) 33 F.Supp. 1014, 1020-1021.) II. THE COURT OF APPEAL’S DECISION RECOGNIZES AN UNPRECEDENTED FACIAL CHALLENGE TO A STATUTE BASED ONLY ON A MAXIM NSSFalso contendsthatit is well established that a freestanding impossibility claim can be grounded in a maxim ofjurisprudence,citing "In any event, if two statutes appearto conflict, the proper remedyis notto nullify the later-adopted statute. Instead, courts mustfirst attempt to reconcile the two statutes. (Webster v. Superior Court (1998) 46 Cal.3d 338, 348.) And whereit is not possible to harmonize, courts must “give effect to the more recently enacted law.” (Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d I, 7.) Board ofSupervisors v. McMahon (1990) 219 Cal.App.3d 286. (Answer 15; see also id. at 20, 24-25.) This argument overstates McMahon,and,in any event, fails to address this Court’s clear statement aboutthe function and limits of the maximsofjurisprudenceset forth in Ford V-8. In McMahon,the California Department of Social Services sued Butte County contending that a local measure was invalid because it attempted to prevent the county from funding a welfare program in the amounts required by state law. (Board ofSupervisors v. McMahon,supra, 219 Cal.App.3dat pp. 291-292.) The county in turn suedtheState, asserting that the measure wasvalid and cataloguing its own financial hardships. (/d. at p. 292.) The county soughtto prevent application of the statute on several grounds, includingthatits financial condition madeit “impossible” to comply with the State’s funding requirements. (Id.at pp. 299-300, citing cases and Civ. Code, § 3531.) The court of appeal rejected that argument. (bid.) It acknowledgedthat a court, exercising its powers in equity, may refuse to order a party to comply with a statutory mandate where the party establishes that complianceis impossiblebased on the facts of the particular case. (/d. at p. 302.) Butit held that the county had failed to establish that compliance—or substantial compliance—could not be achievedby, for example, reorganizing priorities and raising additional local funds. (/d. at p. 300.) The court reasonedthat “relief from state mandates must comefrom the legislature and notfrom the courts.” (Jd. at p. 301.) McMahonthusstands for the unremarkable proposition that a court exercising its equitable powersin the circumstancesofa particular dispute maydecline to issue an order requiring the impossible.? It does not suggest * The casescited by NSSF(Answer18-19) are consistent, holding only that a party may be excused from strict compliance with a statute (continued...) that a court may entertain a facial challenge to a statute based on Civil Code section 3531 andeffectively strike down a statute becauseit disagrees with the feasibility of what the Legislature has clearly and intentionally required.’ Perhaps recognizing the noveltyofits facial impossibility claim, NSSFsuggests that on remand to the trial court, it could simply re- formulate its “impossibility” claim as a “due process claim.” (Answer18, fn. 5.)” A due process claim would of course be cognizable—andonethat (...continued) undercertain fact-specific circumstances. (See McMackin v. Ehrheart (2011) 194 Cal.App.4th 128, 142 [party may be excused from statute of limitations if it can prove its delay was inducedbyother party’s wrongdoing]; Booska v. Patel (1994) 24 Cal.App.4th 1786 [landowner does not have absolute right to sever the roots of his neighbor’s tree, but instead must do whatis reasonable]; Jacobs y. State Bd. ofOptometry (1978) 81 Cal.App.3d 1022, 1030 [plaintiff seeking writ of mandate to compel organization to change its membershipcriteria need not submit an application to join organization beforefiling writ where organization has already informed him that he would not be accepted].) * Indeed, even McMahon notedthatthe county’s suit sought to expandthe court’s power to enjoin statutes. As the court explained, California law prohibits courts from entering injunctions that would “prevent the execution of a public statute by officers of the law for the public benefit.” (Board ofSupervisors v. McMahon, supra, 219 Cal.App.3d at p. 303, fn. 10, quoting Code Civ. Proc., § 526, former 2nd subd. 4, now subd.(b)(4).) And while California courts have recognized four exceptionsto this rule—that thestatute is facially unconstitutional, that the statute is being unconstitutionally applied, that the statute does not coverthe plaintiffs’ activities, and that the public official’s action exceeds his or her power—the court in McMahonheldthat “[nJone ofthese exceptions applie[d]”to the case before it, and saw “no basis” on the record there “to engraft another.” (Jbid.) ° (See also Answer16 [equating an impossibility cause of action with a claim challenging a statute as “arbitrary and unreasonable’); id. at 17 [noting that ifNSSF had“raised a constitutional challengeto the” (continued...) the State would win as a matter of law without any evidentiary trial. In resolving due process claims, courts evaluate only whetherthe challenged law “reasonablyrelates ‘to a properlegislative goal.’ [Citation].” (Coleman v. Dept. ofPersonnel Administration (1991) 52 Cal.3d 1102, 1125.) And legislative choices that are challengedas irrational under the Due Process Clause are “not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” (In re Jenkins (2010) 50 Cal.4th 1167, 1181, citations and quotation marks omitted.) But NSSF’s claim does not recognize theselimits.° Instead—as evidencedbyits recitation of expert testimony—NSSFseeksto put the Legislature’s determination that the technology is feasible on trial. (See Answer 26-27.) NSSF’s owndescription of how its claim will betried brings into sharp relief the significant separation-of-powers concernsthat the Court of Appeal’s decision creates, and underscores why this Court should not “await the development of a complete factual record” before granting review. (Answer 25-27.)’ Ill. THE COURT OF APPEAL’S DECISION MAY ENCOURAGE SIMILAR “IMPOSSIBILITY” CLAIMS IN OTHER CONTEXTS In addition to the considerations noted above, this Court should grant review to preventthe proliferation of “impossibility” lawsuits in other areas (...continued) microstamping law,the statute could be struck down on due process groundsif it was “‘wholly arbitrary’”}.) ° Indeed,in the courts below, NSSF repeatedly disclaimed any constitutional challenge to the microstamping law. (See Petition 9-10, 12, fn. 8.) "In any event, even ifNSSF were to voluntarily reframe its claim on remand, the Court ofAppeal’s decision recognizing an extra-constitutional, free-standing facial “impossibility” claim would remain as precedent. (See Part Ill, infra.) where regulated entities may want to avoid the perceived expense or inconvenienceoftechnology-forcing requirements. (Petition 15-16.) The State often adopts standards that incentivize regulated industries to develop solutions to problems “that might at the time appear to be economically or technologically infeasible.” (American Coatings Assn., Inc. v. South Coast Air Quality Dist. (2012) 54 Cal.4th 446, 466, citations and quotation marks omitted). NSSFargues that American Coatings is distinguishable becauseit was decided in the “environmental context,” and, NSSF asserts, involved standardsthat “could be reasonably anticipated to becomefeasible by the compliance deadline,” as evidenced by “several studies conducted by outside consultants.” (Answer 21.) NSSFstates that “the case has no persuasive valuein this litigation.” (Answer 23.) NSSF’s parsing ofAmerican Coatings misses the point. NSSF cannotrefute that the Court of Appeal’s decision, which broadly recognizes a free-standing facial challenge based on “impossibility,” may well becited in future challenges to a variety of technology-forcing (and technology- — nudging) regulations. If allowed to stand, the Court of Appeal’s decision mayberelied upon by those who mightfind it more cost-effective or advantageoustolitigate than innovate, contrary to the intent ofthe Legislature and to the detriment of the public. CONCLUSION This Court should grantthe petition for review. Dated: February 16, 2017 Respectfully submitted, XAVIER BECERRA Attorney General EDWARD C. DUMONT Solicitor General JANILL L. RICHARDS Principal Deputy Solicitor General DOUGLASJ. WOODS Senior Assistant Attorney General MARK R. BECKINGTON Supervising Deputy Attorney General NELSONR. RICHARDS Deputy Attorney General SAMUELP. SIEGEL Associate Deputy Solicitor General Attorneysfor Respondent CERTIFICATE OF COMPLIANCE I certify that the attached Reply to Answerto Petition for Review uses a 13 point Times New Romanfont and contains 2,301 words. Dated: February 16, 2017 XAVIER BECERRA Attorney General of California SAMUELP. SIEGEL Associate Deputy Solicitor General Attorneysfor Respondent 10 DECLARATION OF SERVICE BY U.S. MAIL Case Name: National Shooting Sports Foundation v. State of California (APPEAL) Case No.: 8239397 I declare: Jam employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not party to this matter. | am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin 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 February 16, 2017, I served the attached REPLY TO ANSWER TO PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney Generalat 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Lance A. Selfridge Lewis Brisbois Bisgaard & Smith, LLP 633 West Sth Street, Suite 4000 Los Angeles, CA 90071 Daniel C. DeCarlo Lewis, Brisbois, Bisgaard & Smith, LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Lawrence G. Keane, Esq. General Counsel National Shooting Sports Foundation, Inc. 11 Mile Hill Road Newtown, Connecticut 06470 Oliver W. Wanger Wanger Jones Helsley PC 265 E. River Park Circle, Suite 310 Post Office Box 28340 Fresno, CA 93729 Fifth District Court of Appeal 2424 Ventura Street Fresno, CA 93721 County of Fresno B.F. Sisk Courthouse Superior Court of California 1130 O Street Fresno, CA 93721-2220 I declare under penalty of perjury under the lawsofthe State of California the foregoing is true and correct andthatthis declaration was executed on February 16, 2017, at San Francisco, California. M. Campos Declarant SA2015105138 POS_Natl Shooting.doc Sighature
