Taskett v. King Broadcasting Co.

Stafford, C.J.

(concurring in part; dissenting in part) — I concur with the majority’s holding that “a private individual . . . may recover actual damages for- a defamatory falsehood, concerning a subject of general or public interest, where the substance makes substantial dangers to reputation apparent, on a showing that in publishing the statement, the defendant knew or, in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect.” (Italics omitted.)

I also concur with the opinion insofar, but only insofar, as the holding appears to apply retroactively to the instant case. Generally, a party should be entitled to the fruits of his own lawsuit.

In this limited sense it is well settled in Washington that unless the decision changing an existing rule holds otherwise, the change made in the opinion is retroactively ap *453 plied to the case in which the change is adopted. This view is illustrated by the following cases overruling prior decisional rules of law. Memel v. Reimer, 85 Wn.2d 685 , 538 P.2d 517 (1975); Blaak v. Davidson, 84 Wn.2d 882 , 529 P.2d 1048 (1975); Lyons v. Redding Constr. Co., 83 Wn.2d 86 , 515 P.2d 821 (1973); Freehe v. Freehe, 81 Wn.2d 183 , 500 P.2d 771 (1972); Friend v. Cove Methodist Church, Inc., 65 Wn.2d 174 , 396 P.2d 546 (1964); Potts v. Amis, 62 Wn.2d 777 , 384 P.2d 825 (1963); Siragusa v. Swedish Hosp., 60 Wn.2d 310 , 373 P.2d 767 (1962); State ex rel. Chelan Elec. Co. v. Superior Court, 142 Wash. 270 , 253 P. 115 , 58 A.L.R. 779 (1927); Christianson v. Fayette R. Plumb, Inc., 7 Wn. App. 309 , 499 P.2d 72 (1972). In none of these cases, however, does the court mention the issue of retroactivity, either as it applies to the case decided or to similar prior cases.

■ Therefore, I am compelled to disagree with the majority’s apparent unlimited or general retroactive application of the rule of this case to all similar cases. Although respondents urged, as a defensive or “fall back” position in their brief, that any decision overruling Miller v. Argus Publishing Co., 79 Wn.2d 816 , 490 P.2d 101 (1971) should be applied prospectively only, the issue of retroactivity was neither raised by the parties nor was it decided by the court below. Thus, the majority’s determination is not only premature but wholly unnecessary to a resolution of the issues before us.

The usual practice of withholding determination as to the retroactive effect of a new decisional rule is supported by legal scholars who point out that the question of retroactivity should not be decided until a court has been presented with an actual case or controversy calling for

the discretionary decision of whether a court, having announced a new rule, should join to that announcement a statement on whether or not the new rule will be retroactively applied. Thus, the decision of whether to make an announcement with respect to retroactivity becomes, in these circumstances, almost precisely a decision as to whether the issue of retroactivity has been presented to *454 the court as — and not merely in association with — an actual case or controversy. In wide measure the same reasons — recited above — which at once justify and limit the court in hearing a question in the first place also justify and limit it in hearing the companion question of retroactivity.

. . . A court’s use of deliberate silence about the retroactive effect of a judicial decision should .be regarded as another technique of declining jurisdiction in the cause of institutional competence; in short — a passive virtue.

(Italics mine.) Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 908 , 935-36 (1962).

It is generally recognized that the question of the extent to which retroactive operation of an overruling decision should apply is a difficult one dependent on the nature of the particular overruling decision involved. It should not be answered as to particular situations unless parties in those situations are actually before the court. Otherwise, the extent of the retroactive effect of an overruling decision with respect to nonparties will merely constitute inappropriate dictum impinging upon such important factors as res judicata, vested rights, reliance, and the effect of retroactive application on administration of justice, to name only a few. Further, the question should not be answered until courts and legal scholars have had ample time to weigh the various ramifications as to the extent of retroactive operation. As stated in Prospective or Retroactive Operation of Overruling Decision, Annot., 10 A.L.R.3d 1371 , 1381 (1966):

[E]ven if the court1 expressly or implicitly recognizes that sufficient reasons for granting retroactive effect to the overruling decision are present in the overruling case itself, the court should nevertheless leave open the possibility that the denial of retroactive effect may or may not be appropriate in particular cases other than the overruling case . . .

Turning from the general to the particular treatment of cases in our own state, my research discloses that this court has not previously discussed the unlimited or general retro *455 active application of a particular case overruling a decisional rule of law. From this, it is logical to assume that heretofore the members of this court have felt it was more prudent to deal with the issue of unlimited or general retroactivity of opinions overruling decisional rules of law only when it arises in subsequent cases. Yet, the majority insists upon dealing with the issue at this time. The Washington cases cited by the majority to support the unlimited general retroactive overruling of a decisional rule of law do not support its position. 2 In fact, the cases are not in point. If applicable at all, they support only the rule that the change made in an opinion is retroactively applicable to the case in which the change is adopted (Memel v. Reimer, supra, Freehe v. Freehe, supra, and Blaak v. Davidson, supra); or, that a statute enacted by the legislature is deemed to have retroactive application if such legislative intent is found (Godfrey v. State, 84 Wn.2d 959 , 530 P.2d 630 (1975)).

The majority also has cited Chevron Oil Co. v. Huson, 404 U.S. 97 , 30 L. Ed. 2d 296 , 92 S. Ct. 349 (1971) as establishing the factors necessary to determine the issue of retroactivity in the present case. But, Chevron is as wide of the mark as the Washington State cases cited. First, Chevron involved a statute, not a decisional rule of law, as in the instant case. Second, in Chevron the United States Supreme Court applied the newly developing doctrine of prospective overruling 3 and held that the newly adopted rule would not be applied retroactively in the case decided. Finally, even assuming the applicability of Chevron despite the foregoing disparities, the majority has failed to follow the basic factor used by the Chevron court iñ applying its decision prospectively, i.e., it has ignored Chevron’s use of *456 the “new principle of law” or “reliance of the parties” criterion, which is the main factor used in civil cases. 10 A.L.R.3d 1371 (1966). Rather, the majority relies mainly on the “purpose of the rule” factor found in Williams v. United States, 401 U.S. 646 , 28 L. Ed. 2d 388 , 91 S. Ct. 1148 (1970).

Williams , however, is a criminal case and obviously inapposite. Further the law review note cited by the majority for support (Wilson, Retroactivity in Civil Suits: Linkletter Modified, 42 Fordham L. Rev. 653 (1974)), comments on the fact that the “purpose of the rule” factor (relied on by the majority in this civil action) is the general criterion used for the application of retroactivity in criminal cases. This note also indicates, at pages 653-54, that although the “purpose of the rule” factor has been used in a few federal civil cases, those cases were generally concerned with conditional challenges to in-prison disciplinary rules determined under due process procedures, i.e., criminal overtones were involved. In addition, it is important to observe, at page 659, that courts in civil cases focus on the “reliance factor,” the factor clearly rejected by the majority.

It is clear that insofar as the unlimited or general retroactivity of opinions overruling decisional rules of law is concerned, the opinion of the majority stands uniquely by itself, unsupported by even the cases upon which it relies. In the area of retroactivity this court should look primarily at the “reliance” or “new principle of law” factor in civil cases, as is done by other legal authorities and the applicable case law. Retroactivity should not be applied in a general unlimited manner as done here, but rather, only when the issue comes before the court as an actual case or controversy.

Memel v. Reimer, 85 Wn.2d 685 , 538 P.2d 517 (1975); Freehe v. Freehe, 81 Wn.2d 183 , 500 P.2d 771 (1972); Blaak v. Davidson, 84 Wn.2d 882 , 529 P.2d 1048 (1975); Godfrey v. State, 84 Wn.2d 959 , 530 P.2d 630 (1975).

For a discussion of the doctrine of prospective overruling, see State ex rel. State Fin. Comm’n v. Martin, 62 Wn.2d 645, 663 , 384 P.2d 833 (1963).