What do you think about this one?
It's a fairly simple legal inquiry. California allows a "putative spouse" to sue for wrongful death. To be a "putative spouse" one has to have a "good faith belief" that your marriage is valid (even though it's not). Is that a subjective or objective test? In other words, what if you in fact believe that your marriage is valid, but any reasonable person would have believed otherwise? Can you sue for wrongful death to your paramour if your belief that you were married to him was unreasonable? That's the issue.
Of course, there's a factual underpinning. Robert marries Christine in 1995. They have two kids, and then separate (and share custody). In 1999, Robert meets Nancy. He tells her that he's married but separated. All true. Two years later, they start living together, and Robert files for divorce. That's reasonable. Nancy and Christine know each other and see each other at various events.
Another two years hence, in 2003, Robert and Nancy get a marriage license. Which is a problem, since Robert's not yet divorced. But there's an easy way around that, right? The marriage license asks the parties if they've ever been married, and if so, how it ended. Robert says he's never been married before, and both Robert and Nancy sign the license. Three days later, they get married in a big ceremony.
We call that fraud. We also call it bigamy.
Two months later, Robert moves along the divorce proceedings by filing various papers, and on December 26, 2003, Robert obtains a divorce. Merry Christmas.
Of course, you were married in September, so your first (bigamous) marriage is void. Robert never corrects this, or tries to remarry Nancy. In 2004, Nancy forwards Robert's divorce papers to his union so she could be added to his insurance.
Robert gets killed in an accident at work in 2007. Nancy sues, but the fraud is discovered, and defendant moves for summary judgment, claiming that Nancy wasn't an actual or putative spouse. Nancy says, as one might predict, that she never looked at the part of the marriage license where Robert said he had never been married and didn't look at the divorce papers either when she forwarded to the union. And that Robert said never to talk about the prior marriage. So she believed it was valid.
The trial court grants summary judgment, holding that Nancy's belief that she was married (even if true) wasn't objectively reasonable. It does so following various cases that have expressly held that you're not a putative spouse merely because you subjectively believe that you're married. That belief must be reasonable, and here, it wasn't.
The Court of Appeal reverses. It disagrees with this prior precedent, and holds that only subjective belief matters.
Justice Rushing writes a particularly historical opinion, and does a good job analyzing the development of precedent. As is often the case with Court of Appeal opinions, it's a bit long in the tooth when it comes to extended discussion of prior precedent, but that's what you often get when you turn your bench memoranda into the actual opinion. Justice Rushing holds that the right rule is the one that existed long ago; that only the actual beliefs of the alleged putative spouse matter.
I'm not entirely persuaded. Not totally unpersuaded, but not completely persuaded either. Justice Rushing articulates his view well, and deals with the principal arguments on both sides, the best one in favor of existing precedent being that the Legislature has amended the statute many times since the Court of Appeal held that objective good faith is required and never overruled this holding (suggesting that it's right), and the best one in favor of changing precedent being that the old (common law) rule was that only subjective good faith was required and so when the Legislature codified this rule, that was the codification, and the Court of Appeal had no ability to modify this statutory principle.
But I wish Justice Rushing had discussed policy a bit more than he did. For example, since both actual and putative spouses can sue, the Court of Appeal's holding increases defendant's exposure to multiple lawsuits, potentially unjustifiably. Moreover, because one can only rarely grant summary judgment when the inquiry surrounds subjective intent, this holding opens the door for plaintiffs to simply say -- as Nancy essentially does here -- "Oh, I thought I was married," and hence get to trial before a sympathetic jury, even under factual circumstances that suggest (as here) that the bigamy was pretty much well known. Justice Rushing says that summary judgment is a drastic remedy anyway, but I'm not sure that's entirely responsive. One benefit of objective tests is that they screen out cases in which we don't trust juries. For example, where longtime partners die and there's a grieving widow who, oops, didn't actually get married and so cannot sue. We know what juries will tend to do in those types of cases. Objective tests stop that.
Now, if you trust juries, and/or if you're a fan of Big Love, then sure, a subjective test (or no test at all) makes sense. But the analysis here requires an assessment of these things. I don't think it suffices to say merely that the Legislature has said X and hence the judiciary is powerless to change that. It said "good faith". Saying what that means is a permissible judicial function.
Won't be surprised if this one goes up to the California Supreme Court. It should. Since whether you get to sue shouldn't matter on what panel you draw in the Court of Appeal.
