Davis v. Moore

¶1concurring in part and dissenting in part.

¶2Although I concur with the majority’s conclusion that except in cases where due process or some other constitutional bar applies, our interpretation of statutes, such as the one in the instant appeal, should be given full retroactive effect,1 I write separately because I come to that conclusion for different reasons than those expressed in the majority opinion. I also disagree with the majority’s implicit holding that full retroactivity is to be given to all our *233rulings, including those in which we are not construing statutory material.2 I would retain the flexibility for judicial discretion afforded by Mendes3 to fulfill our responsibility, as the highest court in this jurisdiction, to develop and establish the common law of the District of Columbia in a manner that is attuned to the demands of change while being fair to particular parties.

¶3I

¶4The precise question before the court is whether our ruling in Noble4 should be applied retroactively. Noble involved interpretation of two statutes, D.C.Code § 24-206(a) (1996) and D.C.Code § 24-431(a) (1996). See 698 A.2d at 1085. The court prudently could have deferred the issue of whether cases involving the common law should be treated differently. “[TJhis court will decide only such questions as are necessary for a determination of the case presented for consideration.” District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 182 (D.C.1993) (quoting Johnson v. Morris, 87 Wash.2d 922, 557 P.2d 1299, 1305 (1976)). Not only does this appeal not present a common law question, and therefore could have been decided solely on the narrower statutory ground, but we have not had the benefit of the parties’ argument on the subject. See In re Goldsborough, 654 A.2d 1285, 1288 n. 5 (D.C.1995) (citing United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), for the proposition that “courts should not give ‘advance expressions of legal judgment’ in the absence of ‘that clear concreteness provided when a question emerges precisely framed and necessary for a decision from a clash of adversary argument’ ”). It is particularly anomalous, in an opinion that purports to curb the court from engaging in legislation, that the majority has ventured to decide an issue unnecessary to the disposition of this case. As the majority has chosen to decide the issue, however, I express my dissent from its broad ruling.

¶5II

¶6When we are called upon to interpret and apply a legislative enactment, we are necessarily constrained by the language of the statute, and, where appropriate, guided by its legislative history. As both preexist the court’s consideration and are the product of a separate branch of government, in such cases the court’s role is to give effect to the legislative will by divining what the legislative enactment means. In view of the nature of our task and respect for separation of powers, a court’s interpretation of a statute should be given full retroactive effect as it is no more than an expression of what the law has been since its enactment.

¶7Different considerations apply, however, when we are called upon to decide cases involving the common law. In those cases, there is no preexisting text that can be said to have announced the law upon its enactment, nor is there involved another branch of government to which we owe due respect for the exercise of authority *234within its proper sphere. Rather, in common law cases our task is to carefully consider our own precedents, weigh rulings from other jurisdictions for their persuasive authority, and, guided by judicial doctrines such as stare decisis and the uniquely judicial means of case-by-case adjudication, declare the common law of the District of Columbia. That process oftentimes results in the establishment of a new legal standard, imposing unprecedented consequences and responsibilities. See, e.g., Carl v. Children’s Hosp., 702 A.2d 159, 159-60 (D.C.1997) (en banc) (establishing an exception to the at-will employment doctrine for terminations that violate public policy); Williams v. Baker, 572 A.2d 1062, 1064 (D.C.1990) (en banc) (expanding scope of recovery for negligent infliction of emotional distress to include emotional distress not traceable to a physical injury if the claimant was in the zone of physical danger caused by defendant’s negligence).

¶8The development of the common law is ultimately the responsibility of the highest court of a particular jurisdiction. In the District of Columbia, that is this court. See D.C.Code § 11-102 (1995 Repl.) Adopting a rule of automatic retroactivity might chill our fulfillment of that responsibility because of concern that new rules of common law may unfairly burden particular parties that did not have reason to expect the change. But we should not unduly impede our ability or willingness to develop the common law, for we run the risk of perpetuating outmoded concepts that fail to adjust to changes in legal thought and circumstances in the society within which we operate. There is no impropriety in preserving room for proper judicial action in order to take account of how application of new rules may impact particular parties. That is the essence of case-by-case adjudication and what courts properly do every day.

¶9The majority adopts a rule of automatic retroactivity in all cases based primarily on the Supreme Court’s decisions to do so in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (criminal cases), and Harper, supra note 2, 509 U.S. at 97, 113 S.Ct. 2510 (civil cases). The majority does not dwell on their philosophical underpinnings, but I will do so because it is important to understand the thinking that adoption of a rule of full retroactivity implies and what it says about the nature of the judicial process.

¶10In Griffith, the Court’s holding was based on two “basic norms of constitutional adjudication.”5479 U.S. at 322, 107 S.Ct. 708. First, “[u]nlike a legislature, [a court] do[es] not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule.” Id.Second, “selective application of new rules violates the principle of treating similarly situated [parties] the same.” Id. at 323, 107 S.Ct. 708. Extending Griffith’s rule of automatic retroactivity to civil cases in Harper, because “ ‘the nature of judicial review’ strips us of the quintessentially ‘legislative]’ prerogative to make rules of law retroactive or prospective as we see fit,” 509 U.S. at 95, 113 S.Ct. 2510 (quoting Griffith, 479 U.S. at 322, 107 S.Ct. 708), a bare majority6 of the Supreme Court held that

*235[w]hen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

¶11509 U.S. at 97, 113 S.Ct. 2510.7

¶12On their face, these holdings seem unexceptional because they tell courts to adjudicate, not legislate, and to be fair; who could object to the judicial equivalent of apple pie? A closer look is warranted. The reasoning that underlies the full retro-activity doctrine is the view, derived from Blackstone, that “the province and duty of the judicial department is to declare what the law is, not what it shall be.”8Id. at 107, 113 S.Ct. 2510 (Scalia, J., concurring) (citation omitted). Explaining what courts do when they overrule precedents, that view holds that a court does “not pretend to make new law, but to vindicate the old one from misrepresentation.” Id.Overruled law, so this view asserts, is not set aside because it has become “bad law” in present circumstances, but because it was “not law.” Id.I doubt that most judges will recognize what they do reflected in the philosophical basis that underlies Griffithand Harper.9

¶13In Harper, four justices disagreed with the majority’s analysis,10 and would have maintained the rule in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), that permits pure or selective prospectivity in civil cases where the court determines that principles of fairness so dictate. This view is grounded on a recognition that

[w]hen the Court changes its mind, the law changes with it. If the Court decides, in the context of a civil case or controversy, to change the law, it must make [a] determination of whether the new law or the old is to apply to conduct occurring before the law-changing decision. Chevron Oil describes our long-*236established procedure for making this inquiry.

¶14Harper, 509 U.S. at 115, 113 S.Ct. 2510 (O’Connor, J., dissenting) (quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 550, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991)). This latter approach soundly rejects the Blackstonian philosophy of the immutable nature of the law. As Justice Frankfurter expressed,

[w]e should not indulge in the fiction that the law now announced has always been the law.... It is much more conducive to law’s self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of the law.

¶15Id. at 116-17, 113 S.Ct. 2510 (alteration in original) (quoting Griffin v. Illinois, 351 U.S. 12, 26, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring)).

¶16I agree that not only is it a fiction that new pronouncements of law have always been so, merely undiscovered; but it is a dangerous fiction that threatens to undermine the proper judicial authority it purports to preserve. A corollary to the Blackstonian-grounded view that overruled rules were never “law” is that what the courts who decided such overruled precedents did was not proper adjudication. Thus, under this view, the Supreme Court’s holding in Chevron Oil, overruled in Harper, was an unconstitutional action by the Court as it permitted what the Harpermajority now considers to be a violation of “basic norms of constitutional adjudication.” Id. at 97, 113 S.Ct. 2510. But see Great N. Ry. Co. v. Sunburst Oil and Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 77 L.Ed. 360 (1932) (“We think the federal constitution has no voice upon the subject” of retrospective versus prospective application of judicial decisions.). That six justices who joined Chevron so misunderstood basic norms of constitutional adjudication and fell prey to such fundamental lawlessness is a breathtaking conclusion. It cannot help instill public confidence in the judicial system or its judges to pronounce new legal rules as ever-present theorems of law — a proposition too easily unmasked by ordinary thoughtful people.

¶17This court’s consideration of retroactivity principles proves the folly. In Mendes, this court reviewed the history of Blackstone’s “declaratory theory” of the common law and Austin’s theory that law is a dynamic process of “redefinition and reformation.” 389 A.2d at 787-88. The en banc court then noted that

[bjecause it provided an overly simplistic and mechanical solution to a complex problem, adherence to the traditional Blackstonian precept of unlimited retro-activity of overruling decisions has been gradually eroded and no longer prevails. Incorporating the basic philosophy of the Austinian theory, contemporary courts have developed a more sophisticated approach to the retroactivity versus prospectivity problem premised on the recognition that no singular definitive formula can automatically dictate the retrospective or prospective effect to be given an overruling decision in any given context.

¶18Id. at 788.

¶19Today, without so much as mentioning the bases for the two theories, nor its reason for preferring one over the other, the en banc court makes a 180"turn, and, in my view, reverts to “an overly simplistic and mechanical solution to a complex problem.” Id. What is the serious reader supposed to think about the immutable nature of the law?

¶20The less conceptual, and perhaps more deeply-felt, basis for objecting to judicial discretion in deciding whether rulings are *237to have full or partially retroactive effect is to restrict judicial development of the law, for “[prospective decision making was known to foe and Mend alike as a practical tool of judicial activism, born out of disregard for stare decisis.” Harper, 509 U.S. at 107-8, 113 S.Ct. 2510, (Scalia, J., concurring). I will not venture into the unproductive morass that tends to accompany use of the phrase “judicial activism.” Suffice it to say that the wholesale tarring of overruled precedent as “not law” and of its authors’ actions as unconstitutional exercises of judicial authority must be deemed activist in anyone’s book.

¶21What makes a decision “judicial” and not an exercise in raw power is its discipline: principled decision-making after careful attention to precedent and persuasive argument and close application to fully-developed facts. Part of the discipline is judicial restraint in cases where co-equal branches of government better suited to the task have taken or may take action.11 A judicial decision should then be available for public inspection, rendered in clear language that makes its rationale transparent. The multi-factor analysis of Mendes, similar to that of Chevron Oil, provides a reasoned framework that a court can apply to reach just such disciplined decisions. That different judges could reach different results applying the same factors,12 does not make the task lawless or non-judicial; it is simply evidence that the judicial branch, like the government of which it is a part, is a human endeavor. Such honest human difference of opinion in terms of result (not caused by crass motives or laziness) is but an aspect of human sensitivity and alacrity in response to changes in the society of which we are a part. It is a virtue of our system of justice that I am not willing to sacrifice for whatever comfort may be derived at the abstruse altar of a never-changing law.

¶22I should not be understood to say that retroactive application is not the norm for judicial decisions. As Justice Holmes has said, “judicial decisions have had retrospective operation for near a thousand years.” Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 54 L.Ed. 228 (1910) (dissenting opinion). But, as the quote for which Justice Holmes is most famously known proclaims: “[t]he life of the law has not been logic: it has been experience.” Oliver Wendell Holmes, The Common Law 1 (Little, Brown and Co.) (1881). That life is the cumulative experience of innumerable judges, acting individually and collegially, to put their best thinking to particular situations, as they understand them to be. In the words of Justice Holmes:

[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or *238unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

¶23Id.

¶24That judges of varied backgrounds and personalities endeavor to apply legal norms to different facts presented to them over changing times, makes it inevitable that the common law will change as well. This is not a process of discovering what was always there, waiting to be found, but a profound effort of mind and spirit by human beings with an important responsibility. The common law is “not solidified but capable of growth at the hands of judges.” Linkins v. Protestant Episcopal Cathedral Found., 87 U.S.App. D.C. 351, 355, 187 F.2d 357, 360-61 (1950). That growth should be encouraged, but I fear that it may be stunted by adoption of an automatic rule of full retroactivity that removes from judges the ability to fairly apply new rules of law.

¶25The majority’s response is that my concern is unfounded and the discretion afforded by Mendes is unnecessary because we have not sought to stay retroactive application of recent common law developments.13 See ante at 230 n. 25. The argument does not hold, however, because, in the two cases cited, we declined to stay the usual retroactive application of judicial decisions once we determined that the Mendes factors were not met. See Washington v. Guest Services, Inc., 718 A.2d 1071, 1079-80 (D.C.1998) (no actual or hypothetical reasonable reliance on old law, no impairment of a legally cognizable vested right, nor significant burden to courts); Jones v. Howard University, Inc., 589 A.2d 419, 421 n. 3 (D.C.1991) (reliance on previous state of the law “highly improbable” and “little prospect” of burdening administration of justice). It cannot be forgotten that the incremental pace at which common law develops, coupled with the increasing importance of statutory law, ensures that cases where truly “new” rules of common law are announced or precedents overruled will not frequently occur. Moreover, our limited experience does not negate the advisability of Mendes, as other courts have used similar factors to apply new common law rules prospectively. See, e.g., Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 863 (1987) (applying prospectively new ruling requiring trial judge to conduct voir dire examination to determine voluntariness of defendant’s statement to private person); Commonwealth v. Paszko, 391 Mass. 164, 461 N.E.2d 222, 232 (1984) (applying prospectively an extension to admissions of the “humane practice” non-constitutional requirement that a jury be instructed to disregard defendant’s statement to cellmates if jury determines that the statement is involuntary); see also State v. Gordon, 913 P.2d 350, 354 (Utah 1996) (applying prospectively a new rule, adopted pursuant to court’s supervisory authority, prohibiting “dual representation” of an indigent defendant by counsel with concurrent prosecutorial duties); Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1252 n. 14 (3d Cir.1971) (applying prospectively, pursuant to supervisory authority, a rule precluding instructions concerning tax consequences). Nor does it mean that, in considering whether to expand the common law in Carland Williams(the two decisions we decided to *239apply retroactively in Washingtonand Jones), the en banc court was unaware of Mendes and that it provided an opportunity to consider separately the merits of retroactive application of the new rules announced in those cases. The majority also criticizes the Mendes factors as difficult to apply and essentially “ad hoc and standardless.” See ante at 228. It is a tribute to the nuanced approach of Mendes, and to this court’s circumspect application of its factors, that the court’s discretion to stay retroactive application has been so carefully employed. That history of restraint should calm any disquiet about “judicial activism.”

¶26There has not been a stampede by state courts rushing to adopt the full retroactivity rule of Harperin civil cases.14 This is based on state courts’ view that the law is not immutable and recognition of the very real role that judges play in its development. See, e.g., Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 881 P.2d 1376, 1381 (1994) (“We think that the jurisprudence of this state ... is more nearly consistent with the views of the Harper minority that voted to retain Chevron Oil than with those of the majority that decided to cast it aside.”). As a result, some state courts have declined to adopt the Harperrule, preferring to maintain the option to stay application of newly-announced rules when it would be inequitable to do so. See, e.g., id. at 398, 881 P.2d 1376; In re: Thiel, 241 Wis.2d 439, 449, 625 N.W.2d 321, 326, 2001 WI App 52, 2001 Wis.App. LEXIS 21 at * 8 (Wis.Ct. App.2001) (“[A]n appellate court may employ the technique of prospective application ... to mitigate hardships that may arise with the retroactive application of a new rule of law.”); see also McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 165-66 (Ala.1996) (weighing the Chevron Oil factors in applying the rule announced in the case); Hatten v. Mississippi, 628 So.2d 294, 295 (Miss.1993) (applying a rule prospectively); City of Oklahoma City v. Oklahoma ex rel. Oklahoma Dep’t of Labor, 918 P.2d 26, 32-33 (1996) (declining to give a rule unlimited retroac-tivity).

¶27Consistent with the source and nature of the common law which is uniquely our charge, I would maintain the flexible rule of Mendes for common law cases and reject, as unsuited to that task, the automatic rule of full retroactivity that the majority espouses.