I respectfully dissent.
The sole issue in this appeal is whether the 1990 amendments to Business and Professions Code1 section 2229 should have been applied retroactively in determining Borden’s penalty in this disciplinary proceeding.
The majority circumvents this issue by declaring that those amendments were not real changes but mere clarifications of the law. By so doing, the majority can reach the result it desires, but the effort does no justice either to the law or Borden, for whom the change in law clearly was detrimental.
A comparative reading of the plain language of section 2229 before and after the amendment demonstrates that the amendments constituted a change in the law. Prior to January 1,1991, section 2229 provided: “In exercising its disciplinary authority the Division of Medical Quality or a medical quality review committee or panel thereof shall, wherever possible, take such action as is calculated to aid in the rehabilitation of the licensee, or where, due to lack of continuing education or other reasons, restriction on scope of practice is indicated, to order such restrictions as are indicated by the evidence. It is the intent of the Legislature that the division and committees shall seek out those licensees who have demonstrated deficiencies in competency and then take such actions as are indicated, with priority given to those measures, including further education, restrictions from practice or other means that will remove such deficiencies.” (Stats. 1980, ch. 1313, § 2, p. 4473.)
In 1990, the Legislature amended section 2229 to read as follows:
“(a) Protection of the public shall be the highest priority for the Division of Medical Quality, a medical quality review committee, the California Board of Podiatric Medicine, and administrative law judges in exercising its disciplinary authority.
“(b) In exercising its disciplinary authority the Division of Medical Quality, Board of Podiatric Medicine, a medical quality review committee or *887panel thereof, or an administrative law judge, shall, wherever possible, take action as is calculated to aid in the rehabilitation of the licensee, or where, due to lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.
“(c) It is the intent of the Legislature that the division, the enforcement program, and committees shall seek out those licensees who have demonstrated deficiencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice or other means that will remove those deficiencies. Where rehabilitation and protection are inconsistent, protection shall be paramount.” (Stats. 1990, ch. 1597, § 14.)2
It is absurd to say the amendments merely clarified the law and did not change the law. The language of preamendment section 2229 emphasized rehabilitation of licensees where rehabilitation was possible. Section 2229, as amended in 1990, stated for the first time that “[pjrotection of the public shall be the highest priority for the Division of Medical Quality” and “[wjhere rehabilitation and protection are inconsistent, protection shall be paramount.” In essence, the amendment constituted a new hierarchy of priorities in the physician discipline system that cannot be viewed as a mere clarification.
The majority claims that the amendments to section 2229 merely reiterated the long-standing public policy of the state that the goal of the physician discipline system is to promote public protection. (See maj. opn., ante, atpp. 882-883.) Of course, public protection has been a goal of the system since its inception; no one can seriously dispute that proposition. However, the majority fails to demonstrate the law has always placed the highest priority on public protection. Indeed, the plain language of section 2229 prior to the 1990 amendments indicates otherwise by (1) mandating the disciplinary bodies to take action to aid in the rehabilitation of disciplined doctors and (2) expressly declaring the legislative intent to give priority to rehabilitative measures, i.e., “further education, restrictions from practice or other means that will remove such deficiencies [in compentency].”
Given this plain language of the statute before and after the subject amendments, I cannot accept the majority’s conclusion that the amendments constituted only a clarification. The question remains whether the change in the law should be applied retroactively.
“ ‘A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of *888the statute.’ ” (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 391 [182 P.2d 159].)
It is well settled that generally new nondecisional law operates prospectively. (See Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d 388.) Our Supreme Court reiterated this principle in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1207 [246 Cal.Rptr. 629, 753 P.2d 585]:
“In resolving the statutory interpretation question, we are guided by familiar legal principles. In the recent decision of United States v. Security Industrial Bank (1982) 459 U.S. 70, 79-80 [74 L.Ed.2d 235, 243-244, 103 S.Ct. 407], Justice (now Chief Justice) Rehnquist succinctly captured the well-established legal precepts governing the interpretation of a statute to determine whether it applies retroactively or prospectively, explaining: 'The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student. [Citations.] This court has often pointed out: “[T]he first rule of construction is that legislation must be considered as addressed to the future, not the past. . . . The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights. . . unless such be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’ ” [Citation.]’
“California authorities have long embraced this general principle. As Chief Justice Gibson wrote for the court in Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d 388—the seminal retroactivity decision noted above—‘[i]t is an established canon of interpretation that statues are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.’ (30 Cal.2d at p. 393.) This rule has been repeated and followed in innumerable decisions. [Citations.]” (Original italics.)
Thus, the analytical starting point is the presumption that statutes are ordinarily construed to operate prospectively—a presumption that can be rebutted if the Legislature manifested a contrary intent.
Did the Legislature intend the amendment to section 2229 to operate retroactively? There is no such express declaration in the legislation. “This factor is always considered significant because ‘[t]he Legislature is well acquainted with the rule requiring a clear expression or retroactive intent [citation], and the fact that it did not so express itself or did not make the amendment effective immediately is a significant indication it did not intend to apply the amendment retroactively.’ [Citation.]” (Wienholz v. Kaiser Foundation Hospitals (1989) 217 Cal.App.3d 1501, 1505 [267 Cal.Rptr. 1].)
Nonetheless, the absence of an express declaration that the Legislature intended the law to be applied retroactively is not necessarily determinative. *889(Fox v. Alexis (1985) 38 Cal.3d 621, 629 [214 Cal.Rptr. 132, 699 P.2d 309].) “A wide variety of factors may be relevant to our effort to determine whether the Legislature intended a new statute to be given retroactive effect. The context of the legislation, its objective, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction may all indicate the legislative purpose. [Citation.]” (Ibid.)
Nothing presented to us by the board indicates any clear and unavoidable implication of legislative intent to rebut the presumption against retroactivity here.
The 1990 amendment to section 2229 was part of Senate Bill No. 2375, also known as the “Medical Judicial Procedure Improvement Act” (Act). (Stats. 1990, ch. 1597, § 39.) Among other things, the Act amended 21 statutes and added 7 new statutes to the Business and Professions Code, amended a section of the Civil Code and added 8 new sections to the Government Code. In the uncodified statement of legislative intent, the Act provided:
“The 1989-90 Regular Session of the Legislature declares that the physician discipline system administered by the board’s Division of Medical Quality is inadequate to protect the health, safety, and welfare of the people of California against incompetent or impaired physicians.
“It is, therefore, the intent of the Legislature to restructure the physician discipline system of the Medical Board of California in order to give it authority to act quickly in extreme cases to impose interim protective measures or final sanctions short of license revocation or suspension; more information from a variety of enhanced reporting sources and increased public outreach; procedures which afford a fair review and hearing by an experienced administrative law judge without excessive delay; procedures to ensure a high quality hearing; and enhanced resources to finance such a system in the interests of protecting the people of California. It is therefore the intent of the Legislature to improve the discipline system of licensed physicians and allied health professionals by creating a more expeditious and efficient adjudicatory system and providing it the adequate resources for its performance. It is also the intent of the Legislature that the pay scales for investigators of the Medical Board of California be equivalent to the pay scales for special investigative agents of the Department of Justice, in order to attract and retain experienced investigators.” (Stats. 1990, ch. 1597, § 1.)
*890The Act constitutes a massive restructing of the physician discipline system for the state. Manifestly, the Legislature enacted Senate Bill No. 2375 as curative legislation to end inadequacies in the physician discipline system; it was a reform measure meant to effectuate change. These inadequacies were highlighted in a report by the Center for Public Interest Law entitled Physician Discipline in California: A Code Blue Emergency (Apr. 5, 1989). (See Sen. Com. on Bus. & Prof., Analysis of Sen. Bill No. 2375 (1989-1990 Reg. Sess.) as amended Apr. 5, 1990, p. 1.) Absent some declaration or even hint of retrospective intent in this reform package to overhaul the physician discipline system, the only reasonable inference to draw is that the Legislature had a prospective intent.
The board’s first argument in favor of retroactive application of the 1990 amendment to section 2229 is that the amendment was not a substantive change in the law but rather a clarification of existing law and therefore not subject to the general rule that statutes are not to be construed to apply retroactively. (See Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 575, fn. 3 [229 Cal.Rptr. 814, 724 P.2d 500] [“ ‘An exception to the general rule that statutes are not construed to apply retroactively arises when the legislation merely clarifies existing law. . . .’” (Citations omitted.)].) As indicated above, I disagree with the majority’s conclusion that the 1990 amendment to section 2229 was merely a clarification of existing law. I also note that it is somewhat disingenuous for the board to argue clarification here when it successfully argued before the Division of Medical Quality, as reflected in the division’s “Decision After Reconsideration”: “The penalty imposed by the Division in the prior decision is not consistent with the recent legislative mandate raising protection of the public above all other concerns, including rehabilitation of the licensee.”
The board’s present reading of the legislative history3 on this point is unpersuasive. First, the board asks us to virtually ignore language in the Legislative Counsel’s Digest, which, with respect to the amendment to section 2229, describes existing law and then states “[t]his bill would, instead, provide that the division . . . shall have the protection of the public as their highest priority. . . .” (Stats. 1990, ch. 1597.) The word “instead” certainly connotes that the legislation constitutes a substantive change rather than a clarification. Such usage does not appear to have been haphazard. We note that in summarizing 16 substantive areas of the Act, this Legislative Counsel’s Digest used the “would, instead, provide” language with discrimination; that is, the Digest employed the word “instead” in 6 instances, *891while using “would require,” “would also require,” “would redefine,” “would provide,” “would authorize,” “would revise,” “would also specify,” and “would also provide” to describe the legislation in the remaining areas. (Stats. 1990, ch. 1597.) These latter terms are more indicative of clarification than the “would, instead, provide” language.
Next, the board urges us to consider language4 in the Staff Analysis of Senate Bill No. 2375 prepared for the Senate Committee on Business and Professions for the hearing on the bill on April 23, 1990. However, as the board acknowledges in its appellant’s reply brief, that language in the analysis dealt with the California Medical Association’s view on what a parallel provision in Assembly Bill No. 3563 would have done—not the view of the staff of the Senate Committee on Business and Professions on the import of Senate Bill No. 2375. The board attempts to legitimize this use of analysis of different legislation by relying on Johnson v. Superior Court (1994) 25 Cal.App.4th 1564, 1569 [31 Cal.Rptr.2d 199], in which the Court of Appeal, in construing another section of the Act, relied upon a Senate committee staff analysis and its summary of the California Medical Association’s critique on Assembly Bill No. 3563. However, Johnson involved interpretation of Civil Code section 43.8 as it was amended by Senate Bill No. 2375; Assembly Bill No. 3563 contained language duplicating this amendment. The language of the amendment to section 2229 in Senate Bill No. 2375 differed from the language of Assembly Bill No. 3563. In any event, assuming arguendo that the language of the staff analysis on the import of Assembly Bill No. 3563, as quoted in footnote 4, ante, is indirect evidence of the legislative history of Senate Bill No. 2375, the probative value of such indirect evidence to our inquiry pales significantly in the face of the language of the Legislative Counsel’s Digest to Senate Bill No. 2375.5
In sum, I conclude there is nothing in this record to rebut the presumption that the 1990 amendment to section 2229 should be construed to operate prospectively. The legislation is silent on the issue of retroactive application. From my reading of the legislative history, I infer an implied legislative *892intent for a prospective application. And, as discussed above, I reject the notion the amendment was a mere clarification of existing law rather than a substantive change in the law.
All subsequent statutory references are to the Business and Professions Code unless otherwise specified.
In 1993 the Legislature further amended section 2229 (Stats. 1993, ch. 1267, § 24) with nonsubstantive changes that need not concern us.
Reference to the legislative history of a statute can assist a court in statutory construction. (Silva v. Superior Court (1993) 14 Cal.App.4th 562, 570, fn. 4 [17 Cal.Rptr.2d 577].) By order of this court on July 15, 1994, we took judicial notice of certain documents relating to the legislative history of Senate Bill No. 2375 that were supplied to us by the board.
The language, which discusses the priorities of the Division of Medical Quality under the legislation, is as follows: “Clarifies that public protection and rehabilitation of the licensee shall be the board[’]s highest priority and where rehabilitation and protection are inconsistent, protection shall be paramount.” (Sen. Com. on Bus. & Professions, Analysis of Sen. Bill No. 2375 (1989-1990 Reg. Sess.) as amended Apr. 5, 1990, p. 9.)
Moreover, in the Staff Analysis of Senate Bill No. 2375 as prepared for the Senate Committee on Business and Professions, the staff couched the central issue presented by the legislation as follows: “Whether the current reporting and discipline system, for specified health professionals, be revised for better patient protection and enhanced enforcement.” (Sen. Com. on Bus. & Professions, Analysis of Sen. Bill No. 2375, supra, as amended Apr. 5, 1990, p. 1.) A revision is more in keeping with substantive change than it is with a clarification.