reasoning general presumption of retroactivity appropriate because "considerations of finality simply cannot justify the continued incarceration of someone who did not commit the crime of which he stands convicted" and it would be unjust and amount to judicial usurpation of the legislature to permit defendant to be convicted of "two crimes where the legislature intended only one"
How later courts described this case
- reasoning general presumption of retroactivity appropriate because "considerations of finality simply cannot justify the continued incarceration of someone who did not commit the crime of which he stands convicted" and it would be unjust and amount to judicial usurpation of the legislature to permit defendant to be convicted of "two crimes where the legislature intended only one"
- adopting a "general presumption in favor of full retroactivity for judicial decisions that narrow the scope of liability of a criminal statute," but denying retroactive application of a new rule of substantive criminal law where such a denial did not constitute a "gross miscarriage of justice"
- declining to adopt per se rule of retroactivity "because a review of the diverse contexts in which such challenges have arisen persuades us that there are various situations in which to deny retroactive relief may be neither arbitrary nor unjust"
- recognizing that courts may take judicial notice of public records
Written by the judges who cited it.
The opinion
PALMER, J.,
concurring. I agree with much of the plurality opinion and concur in the result that the plurality reaches. I am unable to join the plurality opinion, however, because I do not believe that we should decide the question of whether to adopt a per se rule in favor of full retroactivity under our common law. The plurality may be correct that there is persuasive reason to reject a per se rule, but we need not resolve the issue to decide the present case because, as the plurality also concludes, the petitioner, Peter Luurtsema, is entitled to full retroactivity regardless of whether we adopt such a rule. My primary reason for concluding that we should decline to decide the petitioner’s claim seeking a per se rule concerns another claim that this court is not deciding, that is, the petitioner’s constitutional due process claim. Although I also agree with the plurality that we need not and should not decide the constitutional claim, the plurality, in declining to address that claim, leaves open the possibility that principles of due process require full retroactivity in all cases. Indeed, that is what Justice Katz concludes in her concurrence. If Justice Katz is correct that due process requires full *798 retroactivity in all cases, then this court, in rejecting a per se rule for purposes of our common law, adopts a rule that is contrary to constitutional requirements, a result that should be avoided. I express no view as to whether Justice Katz is correct in her constitutional analysis, but I see no good reason to adopt a common-law rule — unnecessarily for purposes of the present case — that may conflict with constitutional principles. 1 Of course, sometimes it is useful to the bench and bar for this court to clarify an area of the law by considering and deciding an issue that, strictly speaking, is unnecessary to resolve the case. In my view, however, this case is not such a case, as it is exceedingly rare for a court to be confronted with a claim like the claim that the petitioner raises. I therefore concur.
The plurality notes that, under United States Supreme Court precedent, “ [when] a state court changes its interpretation of a statute, the construction does not require retroactivity.” (Emphasis in original.) Footnote 21 of the plurality opinion. The plurality further explains that its “common-law analysis assumes, arguendo, that Salamon did represent a change, rather than [a] clarification, of the law.” Id. I agree with both of these statements, but neither statement mitigates the concern that I have expressed regarding the potential that the plurality’s holding ultimately may be deemed to violate principles of due process. This is so because the plurality’s decision to reject a per se rule of full retroactivity indeed may violate principles of due process if this court were to determine — as Justice Katz contends — that Salamon represented a clarification of the law rather than a change in the law, a determination that the plurality does not make for purposes of the present case.