Schade v. State

ERWIN, Justice

(dissenting).

I dissent from that portion of the majority opinion which changes the definition of the defense of insanity in criminal cases in Alaska. I do not think this case is a proper vehicle to change the law on insanity in view of the legislative action which changed the definition of insanity after the date of the trial herein.

Generally, a degree of awkwardness is inherent in any substantial change in the law. However, it is not uncommon for the high courts of the states and of the United States to make abrupt changes in the rules of common law and in constitutional interpretation. 1

Those changes result for the pressure of social needs to keep the law in tune to newly emerging conditions of society and to the advances of knowledge and technology. While such a change conflicts with the proposition that stability of the law is important to society — a concept embodied in the doctrine of stare decisis — precedent alone is not sufficient to insure justice. 2

We have previously considered the test for the prospective or retroactive application of a particular decision in Alaska and indicated how these competing interests are to be balanced. 3 These tests are simply not applicable to the case at bar because the change in the law concerning the defense of insanity in criminal cases resulted from legislative action rather than court decision. 4

The problem which arises in this case results because the legislation is silent on the question of what definition of the defense of insanity is to be applied to those cases brought to trial before the effective date of the new statute on July 1, 1972, 5 even though counsel conceded that the legislature was aware of such cases and that the bill had been prepared and presented by the Public Defender Agency which represented appellant herein and appeared in all other companion cases where the insanity issue was presented.

It is my view that the court should not change the rule on insanity applicable to *923 this case by previous court decision 6 and thus make the statute retroactive.

When the legislature makes an important change, it is usually preceded by committee hearings and debates which inform the public of the possibility of change and permit people to take steps to reduce the dislocation of the transition. For this reason alone it is incumbent upon the court to give comity to the acts of the legislature whenever possible unless this results in a denial of due process of law. 7

There is an important additional factor here. Contrary to the normal situation the change affected by a court under these circumstances has only limited application rather than general application because of the overall effect of the new statute in the future. The alternative solutions suggested to the court are narrowly defined and the assessment of the proper rule to be adopted for the great majority of cases has been seriously restricted. In effect, the court is limited to a consideration of the old standard or the new legislative standard. It, thus, may be forced to a choice of the least undesirable rule to avoid the creation of a small number of cases which are treated differently than those decided either before or after the new statute is effective even though another standard may be closer to the requirements of justice. 8

While I have no reservation about the court exercising the power to change the law where conditions show that the rule no longer serves the cause of justice, I do not find this case the appropriate one to change the test for insanity, even though I have no general disagreement with the A. L.I. test adopted by the majority. However, if a full range of alternatives concerning the definition of insanity were available, I would have favored the adoption of those modifications of the A.L.I. tests suggested by the United States Court of Appeals for the third circuit. 9

I would affirm the decision of the trial court.

. See Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: “Prospective Overruling” or Sunbursting, 51 Marquette L.Rev. 254 (1967) ; Schwartz, Retroactivity, Reliability, and Due Process : A Reply to Professor Mishkin, 33 U.Chi.L.Rev. 719 (1966) ; Comment, Prospective Overruling and Retroactivity : Application in the Federal Courts, 71 Yale L.J. 907 (1962) ; Comment, Linkletter, Shott, and the Retro-activity Problem in Escobedo, 64 Mich.L.Rev. 832 (1966) ; Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa.L.Rev. 650 (1962) ; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201 (1965) ; Comment, The Supreme Court 1964 Term, 79 Harv.L.Rev. 56 ; Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N.Y.U.L. Rev. 631 (1967).

. See n. 1 supra.

. Judd v. State, 482 P.2d 273, 279 (Alaska 1971) ; Gray v. State, 463 P.2d 897, 912-913 (Alaska 1970) ; Fresneda v. State, 458 P.2d 134, 143 (Alaska 1969) ; Salinas v. State, 373 P.2d 512, 516 (Alaska 1963).

. No decision lias been found which changes the test for insanity in the face of a statutory change (see generally 10 A.L.R.3d 1371 ) even though there have been jurisdictions which have indicated the matter would be left solely to the legislature. See State v. Gilmore, 242 Or. 463 , 410 P.2d 240 (1966). Several jurisdictions have indicated that the judicial change of the test for insanity would be prospective only. State v. Conte, 157 Conn. 209 , 251 A.2d 81 (1968) ; Dillard v. State, 274 N.E.2d 387 (Ind.1971) ; League v. State, 1 Md.App. 681 , 232 A.2d 828 (1967).

. AS 01.10.090 provides:

Retrospective statutes. No statute is retrospective unless expressly declared therein.

. Chase v. State, 369 P.2d 997 (Alaska 1962) ; see also Pope v. State, 478 P.2d 801, 805-806 (Alaska 1971), reli. den. 480 P.2d 697 (Alaska 1971).

. Cf. K & L Distributors, Inc. v. Murkowski, 486 P.2d 351, 357 (Alaska 1971).

. Por a list of alternative rules of insanity, see Pope v. State, 478 P.2d 801 , 806 n. 2 (Alaska 1971). It is interesting to note that in this case the appellant urged this court to adopt the Durham test as embodied in Durham v. United States, 94 U.S.App.D.C. 228 , 214 F.2d 862 (1954), rather than the A.L.I. test which is adopted.

.United States v. Currens, 290 F.2d 751 (3rd Cir. 1961).