# Westbrook v. Mihaly

> California Supreme Court · June 30, 1970 · 2 Cal. 3d 765

URL: https://www.frixlaw.com/law-library/cases/9621423

## Case

- **Full name:** ELOUISE WESTBROOK Et Al., Petitioners, v. EMMERY MIHALY, as Registrar of Voters, Etc., Et Al., Respondents; STEPHEN ADAMS, Petitioner, v. EMMERY MIHALY, as Registrar of Voters, Etc., Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** June 30, 1970
- **Citations:** 2 Cal. 3d 765; 87 Cal. Rptr. 839; 471 P.2d 487; 1970 Cal. LEXIS 306
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Sullivan
- **Cited by:** 140 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Strader v. Kansas Public Employees Retirement System, 403 U.S. 914 (1971).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9621423

## Opinion text

*802 MOSK, J.
I concur in the court’s conclusion that the two-thirds requirement for passage of bond issues is invalid, but I dissent from the majority’s refusal to apply its decision to the litigants before the court.
The majority tell the parties who initiated these proceedings, who used their talents and resources to seek and obtain a hearing in this court, and who invoked the constitutional principles upon which we here rely, that they are undeniably right, their concept of the law is totally vindicated—but they lose, their petition for a peremptory writ denied. This is indeed a Pyrrhic victory, or as John Dryden wrote in the 17th century: “Even victors are by victories undone.”
Few problems in both the criminal and civil fields have been fraught with more uncertainty than determination of the precise date on which newly discovered constitutional precepts become applicable. Justice Harlan referred to “the doctrinal confusion that has characterized our efforts” in this arena and the “many incompatible rules and inconsistent principles.” (Desist v. United States (1969) 394 U.S. 244, 258 [ 22 L.Ed.2d 248, 260 , 89 S.Ct. 1030 ] (dissenting opinion).) Legal scholars have been as hopelessly at odds over theories of retroactivity versus prospectivity. (See, e.g., Schaefer (1967) 42 N.Y.U.L. Rev. 631, as contrasted with Haddad (1969) 60 J.Crim.L. 417.)
The federal rule was originally settled, the Supreme Court adhering to the command of article III of the Constitution that it decide only existing controversies. “I know of no authority in this court to say,” wrote Justice Holmes with typical grandeur, that decisions “shall make law only for the future.” (Kuhn V. Fairmont Coal Co. (1910) 215 U.S. 349, 372 [ 54 L.Ed. 228, 239 , 30 S.Ct. 140 ] (dissenting opinion).) Two decades later in Great Northern Ry. Co. v. Sunburst Oil & Refining Co. (1932) 287 U.S. 358 [ 77 L.Ed. 360 , 53 S.Ct. 145 , 85 A.L.R. 254 ], the legitimacy of the technique of prospective overruling was firmly established.
However, Sunburst made it clear that “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law nonetheless for intermediate transactions . . . whenever injustice or hardship will thereby be averted.” {Id. atp. 364 [ 77 L.Ed. at p. 366 ].)
Thus three alternatives are available to a state court which has fashioned a new rule. It may apply the rule: (1) to acts occurring subsequent to the announcement only; (2) to acts occurring subsequent to the announcement *803 and also to the present litigants; or (3) to acts occurring subsequent to the announcement, to the present litigants, and also to acts which occurred prior to the announcement. (Note (1962) 71 Yale L.J. 909 , 933.) In the instant case the majority choose the first alternative. I prefer the second.
Only the most amorphous guidelines are available to determine which of the alternatives is appropriate in an individual case. Justice Cardozo referred to “considerations of convenience, of utility, and of the deepest sentiments of justice.” (Cardozo, The Nature of the Judicial Process (1921) 146-149). Justice Traynor spoke of “considerations of fairness and public policy.” (Forster Shipbuilding Co. v. County of Los Angeles (1960) 54 Cal.2d 450, 459 [ 6 Cal.Rptr. 24 , 353 P.2d 736 ].) A federal court indicated “that retroactivity should be determined from the circumstances of the particular case, having in mind the purpose which the new rule of law seeks to accomplish and the practical weighing of the comparative benefits and evils of retroactivity.” (Hanover Shoe Inc. v. United Shoe Machinery Corp. (3d Cir. 1967) 377 F.2d 776, 789 .)
I am unimpressed by the “weighing of .comparative benefits and evils,” or the reasons—indeed, there is a paucity of reasons—given by the majority for denying to petitioners the fruits of their victory. The majority speak of bonds “voted upon at now-forgotten elections’ 1 ’ (ante, p. 801). In addition to being a gratuitous reflection upon the delays of the judicial process-—-not markedly prolonged in this instance 1 —the simple fact is that these specific bond elections are not now-forgotten. They have been kept very much alive in current memory by this well-publicized litigation; both proponents and opponents at the election are eagerly awaiting the results of this lawsuit, and have undoubtedly made appropriate plans for the eventuality of a determination pro or con their position.
To invoke a prospective-only technique results in an arbitrariness toward individual litigants that is unchararacteristic of a court of justice. As Justice Harlan wrote in his dissent in Desist , it is a “truism that it is the task of this *804 court, like that of any other, to do justice to each litigant on the merits of his own case.”
The United States Supreme Court in Stovall v. Denno (1967) 388 U.S. 293, 301 [ 18 L.Ed.2d 1199, 1206 , 87 S.Ct. 1967 ], suggested that someone, i.e., the litigants before the court, must be given the benefit of decisions which create new rights. The high court held: “We recognize that Wade and Gilbert are, therefore, the only victims of pretrial confrontations in the absence of their counsel to have the benefit of the rules established in their cases. That they must be given that benefit is, however, an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum. Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law, militate against denying Wade and Gilbert the benefit of today’s decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.” (Fns. omitted.)
Other authorities have advanced the theory that prospective overruling destroys incentive for appeal, and if it becomes a frequent policy, it will tend to deter counsel from presenting “issues involving renovation of unsound or outmoded legal doctrines.” (Mishkin, Foreword, The Supreme Court 1964 Term, 79 Harv.L.Rev. 56, 61.)
A number of state courts have adopted substantial changes in the law and applied the new doctrine to the case at hand while otherwise giving it only prospective application. (See, e.g., Balts v. Balts (1966) 273 Minn. 419 [ 142 N.W.2d 66, 75 ].) California adopted this procedure when it eliminated governmental immunity (Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ]) and again when it imposed liability upon institutions financing tract developments. (Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850 [ 73 Cal.Rptr. 369 , 447 P.2d 609 ].)
In short, the majority subvert an otherwise irrefutable opinion by denying equable application of its benefits. The aggrieved parties who knocked on our door are turned away with approbation but without assistance. This, I believe, *805 cannot be rationalized. One can only hope the petitioners find some solace in their service pro bono publico.
I would issue the peremptory writ.
Mr. Justice Peters has authorized me to say that he, too, would issue the writ.
The majority conclusion and the timing of this opinion are particularly unfortunate. There were 26 bond issues voted upon this very month, at the June 2 primary election. Some of them received overwhelming, but not two-thirds, approval. (E.g., Proposition B (light bonds) in San Francisco was favored by a vote of 112,575 to 62,261; Proposition C (fire equipment bonds) in San Francisco received a favorable vote of 107,136 to 65,357.) It seems palpably unfair to doom those bond propositions to defeat when, had this opinion been rendered a month earlier or the election held a month later, the majority vote would have been deemed sufficient for passage of the measures. Despite such fortuity, the same Constitution was in effect on June 2 that governs us today.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621423. Public record. Not legal advice.