Consider the following fact pattern. An unaffected plaintiff filed a UCL "general public" action several years ago and has been litigating it ever since. After the November election, the defendant moved for judgment on the pleadings based on Prop. 64. The trial court held that Prop. 64 applies retroactively to pending cases, granted the motion, and dismissed the action with prejudice. The defendant, as the prevailing party, filed a memorandum of costs, seeking several thousand dollars in expenses incurred litigating the case over the past few years. Assume the case was meritorious when filed. The trial court denies the plaintiff's motion to tax, and makes a significant costs award.
A reader has suggested to me that Prop. 64, so applied, is an unconstitutional bill of attainder. The argument would go like this. If Prop. 64 applies to cases filed before its effective date, then it simply amounts to a decree that unaffected UCL plaintiffs shall lose their cases and shall become liable for the prevailing parties' costs. Moreover, the ballot materials and the proponents' advertising demonstrate that the intent of the amendment was to single out unaffected plaintiffs (and their lawyers) and punish them for the UCL cases they filed in the past. Once the amendment passed, there was nothing they could do to avoid becoming liable for costs.
I have to reserve final judgment on this until I look more closely at the caselaw on bills of attainder, but it does sound compelling. What do others think?