McClung

“It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases, *470 must of necessity expound and interpret that rule.” (Marbury v. Madison (1803) 5 U.S. 137, 177 [ 2 L.Ed. 60 ].)

This basic principle is at issue in this case. In Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 [ 90 Cal.Rptr.2d 804 , 988 P.2d 1083 ] (Carrisales), we interpreted Government Code section 12940 (hereafter section 12940), part of the California Fair Employment and Housing Act (FEHA). Later, the Legislature amended that section by adding language to impose personal liability on persons Carrisales had concluded had no personal liability. (§ 12940, subd. (j)(3).) Subdivision (j) also contains a statement that its provisions “are declaratory of existing law . . . .” (§ 12940, subd. (j)(2).) Based on this statement, plaintiff argues that the amendment did not change, but merely clarified, existing law. Accordingly, she argues, the amendment applies to this case to impose personal liability for earlier actions despite our holding in Carrisales that no personal liability attached to those actions.

We…

We held in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 [ 90 Cal.Rptr.2d 804 , 988 P.2d 1083 ] that the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) does not impose on nonsupervisory coworkers personal liability for harassment. The Legislature later amended Government Code section 12940, subdivision (j), to impose such personal liability. The statute as amended states that its provisions “are declaratory of existing law.” (Gov. Code, § 12940, subd. (j)(2).)

I agree with the majority that the Legislature could not, by amending the statute, clarify its meaning in a manner inconsistent with our decision in Carrisales . Thus, the amendment must be deemed to have changed, rather than merely clarified, the law. But unlike the majority, I conclude that by purporting to clarify its original intent, the Legislature clearly intended to apply this statutory change retroactively. We must honor this legislative intent, unless prevented from doing so by constitutional concerns.

The majority correctly recognizes that a statute may apply retroactively. As we stated in Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, *478 840-841…

"It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." ( Marbury v. Madison (1803) 1 Cranch 137 , 5 U.S. 137, 177 , 2 L.Ed. 60 .)

This basic principle is at issue in this case. In Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 , 90 Cal. Rptr.2d 804 , 988 P.2d 1083 ( Carrisales ), we interpreted Government Code section 12940 (hereafter section 12940), part of the California Fair Employment and Housing Act (FEHA). Later, the Legislature amended that section by adding language to impose personal liability on persons Carrisales had concluded had no personal liability. (§ 12940, subd. (j)(3).) Subdivision (j) also contains a statement that its provisions "are declaratory of existing law...." (§ 12940, subd. (j)(2).) Based on this statement, plaintiff argues that the amendment did not change, but merely clarified, existing law. Accordingly, she argues, the amendment applies to this case to impose personal liability for earlier actions despite our holding in Carrisales that no personal liability attached to those…