RETROACTIVITY OF JUDICIAL DECISIONS

legislation ordinarily does not apply retroactively to conduct occurring prior to its adoption but only to actions taking place after enactment. Indeed, the potential unfairness of some retroactive legislation is so great that certain forms of legislative retroactivity are specifically prohibited by the Constitution. The ex post facto clauses of the Constitution prohibit retroactive criminal penalties, and the contract clause limits state legislation that would impair the obligation of pre-existing contracts. In addition, certain other fundamentally unfair forms of legislative retroactivity may violate constitutional due process guarantees.

Judicial decisions, on the other hand, ordinarily are retroactive in application. To some extent, such retroactivity is a consequence of the nature and function of the judicial decision-making process. Traditional lawsuits and criminal prosecutions concern the legal consequences of acts that have already taken place. If judicial decisions in such cases are to adjudicate the issues between the parties, those decisions necessarily must apply to prior events. The retroactive effect of judicial decisions, however, commonly extends beyond application to the particular parties involved in a case. To the extent that a judicial decision constitutes a new legal precedent, it will ordinarily be applied to all undecided cases that are subsequently litigated, regardless of whether the relevant events occurred before or after the new precedent was announced.

Although traditional judicial decisions are, in theory, completely retrospective in nature, two sets of legal doctrines place important practical limits on the actual breadth of decisional retroactivity. Statutes of limitations, which require suits to be brought within some specified period of time after the relevant events occur, limit the retrospective application of new precedents to the length of the prescribed limitations period; and the doctrines of res judicata and collateral estoppel prevent the relitigation of cases and issues that have been finally decided before the new precedent is announced. In addition, as in the case of retroactive legislation, there are some circumstances of fundamental unfairness in which constitutional principles may prevent the retroactive use of judicial decisions. By analogy to the constitutional prohibition of ex post facto laws, for example, the Supreme Court in Bowie v. City of Columbia (1964) held it unconstitutional to apply a new expansive judicial interpretation of a criminal statute to prior conduct.

The principal theoretical basis supporting the broad traditional retroactivity of judicial decisions is the abstract idea that courts (unlike legislatures) do not make, but merely find, the law. This theory in effect denies the existence of retroactivity; under the theory the events in question were always subject to the newly announced rule, although that rule had not been authoritatively articulated.

The theory that judicial decisions do not make law does not always reflect reality. Perhaps the clearest example of apparent judicial lawmaking is a court's overruling of an earlier judicial decision regarding the meaning of the common law, a statute, or a constitutional provision. Even when no earlier decision is overruled, judicial decisions or interpretations may announce genuinely new principles. When judicial decisions thus create new law, it is plausible to argue that the new principles should not be given the retroactive effect normally accorded to judicial decisions, but should instead be treated more like new legislation and given prospective effect only. These arguments are strongest when individuals or governments have relied (perhaps irrevocably) upon earlier decisions in shaping their conduct. In such circumstances, retroactive application may cause unanticipated and harmful results.

In response to these and similar considerations, some courts have used the practice of prospective overruling of prior decisions. Such a court, in overruling a precedent upon which substantial reliance may have been placed, may announce in obiter dictum its intention to reject the old doctrine for the future, but nevertheless apply the old rule to the case at hand and to other conduct prior to the new decision. Alternatively, the court may apply the new rule to the parties before it, thus making the announcement of the new rule holding rather than "dictum," but may otherwise reserve the rule for future application. In Great Northern Railway Company v. Sunburst Oil and Refining Company (1932) the Supreme Court held that the Constitution permits either of these forms of prospective overruling. The Sunburst decision gave constitutional approval to prospective judicial overruling of common law precedents and of decisions interpreting statutes. Such prospective overruling has primarily been used in two kinds of cases: new interpretations of statutes relating to property and contract rights, and the overruling of doctrines of municipal and charitable immunity from tort liability.

The most prominent and controversial recent issue concerning prospective overruling, however, has involved the retroactivity of new Supreme Court decisions enlarging the constitutional rights of defendents in criminal proceedings. During the 1950s and 1960s, the Court significantly broadened the rights of criminal defendants with respect to unconstitutional searches and seizures, police interrogation and confessions, the scope of the right against self-incrimination, and the inadmissibility of unconstitutionally obtained evidence. The Court has ruled that some of these new constitutional interpretations should not be given general retrospective application.

The extent of the possible retroactive application of new doctrines affecting the constitutionality of criminal convictions is greater than in most other areas of law because of the potential availability of post-conviction relief to prisoners whose convictions might be effectively challenged if the newly announced rules were applicable to prior convictions. Petitions for habeas corpus are not subject to statutes of limitations or to the ordinary operation of the doctrine of res judicata. Thus, in 1961, when the Supreme Court decided in mapp v. ohio that the Constitution prohibits states from basing criminal convictions upon evidence obtained in violation of the fourth and fourteenth amendments, full retroactivity of that decision would have permitted a great many prisoners to challenge their convictions, no matter when their trials had occurred. Because the Mapp decision was based upon the interpretation of constitutional provisions dating from 1791 and 1868, the theoretical arguments for full retroactivity were strong. However, Mapp overruled the opinion of the Court in wolf v. colorado (1949), which had held, directly contrary to Mapp, that the states were free to use unconstitutionally obtained evidence in most circumstances. Although police could hardly have legitimately relied upon Wolf in engaging in unconstitutional searches, state prosecutors and courts might have relied upon Wolf in using unconstitutionally obtained evidence. The primary reason given by the Court for the Mapp decision, moreover, was to deter police misconduct; the Mappexclusionary rule is not a safeguard against conviction of the innocent. Retroactive application of Mapp to nullify pre-existing convictions would thus arguably contribute little to the main purpose of the Mapp rule while permitting guilty defendants to escape their just punishment. Similar issues have surrounded the potential retroactivity of other new Supreme Court decisions enlarging the constitutional rights of criminal defendants.

The Supreme Court has resolved these retroactivity issues by employing a test focusing on three main criteria: whether the purpose of the new rule would be furthered by its retroactive application; the extent of the reliance by law enforcement authorities and courts on prior decisions and understandings; and the likely effect of retroactive application on the administration of justice. Using this approach the Court held, in Linkletter v. Walker (1965), that the Mapp decision would be applied to trials and direct appeals pending at the time of the Mapp decision, but not to state court convictions where the appeal process had been completed prior to announcement of the Mapp opinion. The same rule of general nonretroactivity has been applied to new constitutional interpretations prohibiting comment on a defendant's failure to take the witness stand at trial; establishing the miranda rules for police warnings to persons interrogated; prohibiting wiretapping without judicial search warrants; and limiting the permissible scope of searches incident to arrests. On the other hand, full retroactivity has been accorded to new decisions requiring provision of free counsel for indigents in criminal trials; requiring proof beyond a reasonable doubt in state criminal proceedings; and broadening the definition of constitutionally prohibited double jeopardy. In general, rules designed to protect innocent persons from conviction have been given full retroactive application, while rules primarily intended to correct police and prosecutorial abuses that do not implicate guilt have been given limited retroactivity. The practical significance of these retroactivity decisions has been diminished in recent years by Supreme Court decisions that limit the availability of post-conviction relief to incarcerated persons (for example, stone v. powell, 1976) and by the current Supreme Court's general opposition to continued expansion of defendants' constitutional rights in criminal proceedings.

Paul Bender
(1986)