Amicus Curiae Brief — Reynoldsville Casket Co. v. Hyde

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rid Buproms Court, US

‘O) FILED

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No. 94-5 ; DEC 13 1994

OFFICE OF THE SLERK

IN THE ——-——

SUPREME COURT OF THE UNITED STATES

OCTOBER 1994 TERM

Reynoldsville Casket Co., et al.,

Petitioners,

vs.

Carol Hyde,

Respondent.

On Writ of Certiorari to the

Supreme Court of Ohio

Brief for the State of Ohio

as Amicus Curiae in Support of Respondent

LEE FISHER

Attorney General

RICHARD A. CORDRAY

State Solicitor

(Counsel of Record)

SIMON B. KARAS

Deputy Chief Counsel

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-5026

COUNSEL FOR AMICUS CURIAE

STATE OF OHIO

QUESTION PRESENTED

Whether the Court’s decision in Bendix Autolite Corp.

v. Midwesco Enterprises, Inc. , 486 U.S. 888 (1988), should

be applied retroactively to bar civil cases that had already

been filed and were pending at the time that decision was

announced.

TABLE OF CONTENTS Page

Page

II]. THE COURT’S RECENT DECISION IN HARPER

QUESTION PRESENTED .......cccccccccece i DID NOT EXPRESSLY OVERRULE THE

COURT’S EARLIER DECISION IN CHEVRON

TABLE OF AUTHORITIES ................ il OIL, WHICH THUS CONTINUES TO LAY

DOWN THE CONTROLLING STANDARD FOR

INTEREST OF THE AMICUS CURIAE ......... l DETERMINING THE LEGALISSUE OF

RETROACTIVITY ON THE FACTS OF THIS

SUMMARY OF ARGUMENT ................ 3 EE eee 11

ABATE weet recesses tenn eee 4 IV. TO THE EXTENT THAT THE COURT'S

RECENT DECISION IN HARPER MAY BE

I. THE COURT EXPLICITLY CONCLUDED THAT CONSTRUED AS HAVING OVERRULED

IT WAS UNABLETO ADDRESS THE CHEVRON OIL UNDER ALL

RETROACTIVITY ISSUE IN BENDIX BECAUSE CIRCUMSTANCES, IT SHOULD BE

THE ISSUE HAD NOT BEEN PROPERLY RECONSIDERED AND EITHER MODIFIED OR

RAISED BY THE PARTIES ON THE RECORD Te bet doa cccccecceeee 15

BEFORE THE COURT, AND THEREFORE THE

RETROACTIVITY ISSUE SHOULD BE EE 17

DETERMINED IN THE FIRST INSTANCE IN

pe ee 5

Il. UNDER THE CHEVRON O/JL TEST FOR

RETROACTIVITY, THE COURT’S HOLDING IN

BENDIX SHOULD NOT BE _ APPLIED

RETROACTIVELY TO BAR RESPONDENT’S

LAWSUIT, WHICH HAD ALREADY BEEN

FILED AND WAS PENDING AT THE TIME

THAT BENDIX WAS DECIDED ........... 7

TABLE OF AUTHORITIES

CASES Page(s)

American Trucking Ass'ns, Inc. v. Scheiner,

483 U.S. 266 (1987) .................... 12

American Trucking Ass'ns, Inc. v. Smith,

496 U.S. 167 (1990) ................. 12, 15

Bacchus Imports, Ltd. v. Dias,

468 U.S. 263 (1984) .................... 13

Bendix Autolite Corp. v. Midwesco

Enterprises, 486 U.S. 888 ST ea arse on a passim

Chevron Oil Co. v. Huson,

wo passim

Davis v. Michigan Dep't of Treasury,

489 U.S. 803 (1989) .................... 13

Dean Milk Co. v. City of Madison,

S40 U.S. 349 (1951)... eee. 10

Goodman v. Lukens Steel Co.

482 U.S. 656 (1987) ................. 13, 15

Great Atlantic & Pacific Tea Co. y. Cottrell,

424 U.S. 366 (1976) .................... 10

Harper v. Virginia Dep’t of Taxation,

509 U.S. __, 113 S. Ct. 2510 (1993) ...... passim

James B. Beam Distilling Co. y. Georgia,

501 U.S. 529 (1991) .............. 5, 7, 13, 14

Keeton v. Hustler Magazine, Inc.,

465 U.S. 770 (1984) ...........0......... 2

Leeper v. Leeper,

319 A.2d 626 (N.H. 1974) ................. 2

May v. Leidli,

513 N.E.2d 1347 (Ohio App. 1986) ............ 9

McGee v. International Life Ins. Co.

355 U.S. 220 (1957) ..................... l

TABLE OF AUTHORITIES

CASES Page(s)

Payne v. Tennessee,

501 U.S. 808 (1991)... 16

Planned Parenthood v. Casey,

112 S. Ct. 2791 (1992)................... 16

Reich v. Collins,

63 U.S.L.W. 4032 (U.S. Dec. 6, ee 16

Rodrigue v. Aetna Casualty & Surety Co.,

PPO UB. TB CIDE) ww ccc ccc cece. 8

Saint Francis College vy. Al-Khazraji,

481 U.S. 604 (1987) ................. 12, 15

South Carolina v. Gathers,

490 U.S. 805 (1989) .................... 16

STATUTES & RULES

Ohio Rev. Code §2305.15 .................. 1,9

INTEREST OF THE AMICUS CURIAE

The State “has a manifest interest in providing

effective means of redress for its residents” against

tortfeasors who cause injury to them. McGee y.

International Life Ins. Co., 355 U.S. 220, 223 (1957). In

this case, the State of Ohio advanced this manifest interest by

enacting a statute tolling the limitations period in specified

circumstances. See Ohio Rev. Code §2305.15. Although

the Court subsequently held that this tolling statute imposed

an unconstitutional burden on out-of-state corporations under

the Commerce Clause, see Bendix Autolite Corp. vy.

Midwesco Enterprises, 486 U.S. 888 (1988), many Ohio

citizens had relied upon it for decades in making difficult

case-by-case determinations of exactly when would be the

most advantageous moment to file a particular lawsuit.

The issue in this case is whether the Court's holding

in Bendix should be applied retroactively to bar civil cases

that had been filed and remained pending at the time that

decision was announced. The State of Ohio respectfully

submits that such retroactive application would defeat the

legitimate reliance interests of Ohio citizens who had already

sought redress against tortfeasors in the Ohio state courts

before this Court issued its decision in Bendix. The amicus

curiae and its citizens thus are directly affected by the ruling

in this case.

Here, Respondent was injured in an automobile

accident. She brought suit in state court against Petitioner

Reynoldsville Casket Company and one of its employees.

The timing of her lawsuit was proper in view of the tolling

Statute in effect at the time; if that statute had not existed,

she may well have chosen to bring her suit earlier to avoid

any limitations problem. Choices such as those, about

whether and when to file a particular lawsuit, are often

dependent on many distinct factors, including the nature and

extent of the plaintiff's injuries, their subsequent recurrence

or deterioration, investigation of the facts of the incident,

ascertainment of proper defendants, identification of possible

witnesses, difficulties in securing counsel, and the ability of

the plaintiff to secure financial relief through other channels

such as various forms of collateral benefits. The important

point here is that many potential plaintiffs rely on the

prevailing understanding of the legal limitations period in

deciding whether and when to file suit on the basis of an

allegedly tortious incident. Any counsel consulted in such

circumstances would responsibly provide !egal advice on the

very same grounds.

The "manifest interest" of the States in protecting

their citizens is clearly present in tort cases:

"’A state has an especial interest in exercising

judicial jurisdiction over those who commit

torts within its territory. This is because torts

involve wrongful conduct which a state seeks

to deter, and against which it attempts to

afford protection, by providing that a

tortfeasor shall be liable for damages which

are the proximate result of his tort.’"

Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984)

(quoting Leeper v. Leeper, 319 A.2d 626, 629 (N.H. 1974)).

The State’s interest is particularly strong when the plaintiff,

as in this case, is a state resident.

This case thus implicates the authority of the State of

Ohio to protect the vested reliance interests of its citizens by

securing the forum in which its citizens had sought redress

against wrongdoing in reliance upon the laws that were in

effect at the time the lawsuit was filed. Accordingly, this

case directly affects the State’s authority to enforce principles

of the common law that have long served to create and

protect an orderly society within the State. For these

reasons, it is appropriate for the amicus curiae State of Ohio

to present its views about why the legitimate reliance

interests of its citizens should be recognized and respected by

the Court in this case.

SUMMARY OF ARGUMENT

The court below properly concluded, though for

different reasons than those presented here, that this Court’s

decision in Bendix should not be applied retroactively to bar

this lawsuit, which had already been filed and was pending

at the time the holding in Bendix was announced. As an

initial matter, this Court explicitly concluded that it was

unable to address and resolve the retroactivity issue in

Bendix, on the ground that the issue had not been properly

raised by the parties on the record before the Court.

Accordingly, the legal issue of retroactivity should not be

taken as having been implicitly decided in Bendix, where it

plainly was not resolved, but should be determined in the

first instance in this case.

Under the three-pronged test for determining

retroactivity laid down by the Court in Chevron Oil Co. v.

Huson, 404 U.S. 97 (1971), the holding in Bendix should not

be applied retroactively to bar the lawsuit at issue in this

case, which had already been filed and was pending at the

time that Bendix was decided. First, Bendix laid down a new

principle of law that overruled clear past precedent on which

litigants such as Respondent may have relied. Second,

retrospective operation of the rule announced in Bendix

would not further the purpose of that rule in any way.

Third, the retroactive application of Bendix to bar this

lawsuit would produce substantially inequitable results.

The Court’s recent decision in Harper v. Virginia

Dep’t of Taxation, 509 U.S. ___, 113 S. Ct. 2510 (1993),

did not expressly overrule the Court’s earlier decision in

Chevron Oil, which thus continues to lay down the

controlling standard for determining the legal issue of

retroactivity on the facts of this case. To the extent that the

Court’s recent decision in Harper may instead be construed

as having overruled the Chevron Oil decision under all

circumstances, it should be reconsidered and either modified

or abandoned.

ARGUMENT

The retroactivity issue presented in this case has not

been previously determined by this Court, either in Bendix

itself or in any subsequent case. The reliance interests

implicated on the facts of this case are strikingly similar to

those addressed in Chevron Oil more than twenty years ago,

and thus this case squarely raises the question whether the

Court’s decision in Chevron Oil maintains any continued

vitality in light of later decisions. For all of the reasons

discussed below, the amicus curiae submits that Chevron Oil

continues to provide an appropriate rule for resolving the

legitimate reliance interests involved in determining the

retrospective operation of decisions governing statute-of-

limitations issues. Accordingly, the Court should hold that

Respondent’s cause of action, which had already been filed

and was pending at the time that Bendix was decided, should

not be barred after the fact by retroactive application of

Bendix.

Swe ae ES ft Wr |

Se VUES EY RL a AT WTO

J ony

I. THE COURT EXPLICITLY CONCLUDED THAT

IT WAS UNABLE TO ADDRESS THE

RETROACTIVITY ISSUE IN BENDIX BECAUSE

THE ISSUE HAD NOT BEEN PROPERLY

RAISED BY THE PARTIES ON THE RECORD

BEFORE THE COURT, AND THEREFORE THE

RETROACTIVITY ISSUE SHOULD BE

DETERMINED IN THE FIRST INSTANCE IN

THIS CASE.

In Bendix itself, the Court held that the tolling statute

at issue in this case violated the Commerce Clause by

imposing an impermissible burden on interstate commerce.

486 U.S. at 892-95. It then determined that it should apply

that holding to the parties before the Court, arid did so. Id.

at 895. In subsequent decisions, the Court has suggested that

the reiroactive application of a prior decision should turn

substantially, if not entirely, on whether or not the Court had

applied its prior ruling to the parties before it in that

particular case. See, e.g., Harper, 113 S. Ct. at 2517-18;

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

538-41 (1991) (Souter, J.) (plurality opinion).

In both Harper and Beam, however, the Court noted

that the retroactivity issue would be determined differently,

and presumably should be understood to have remained open,

in any case where the Court indicated that it had "reserve[d]

the question whether its holding should be applied to the

parties before it." See Harper, 113 S. Ct. at 2518; Beam,

501 U.S. at 539. But that is exactly what the Court did in

Bendix; it specifically held that it could not determine the

retroactivity issue on the record before it because that issued

was precluded on purely procedural grounds.’ Although the

Court thus applied its holding in Bendix to the parties before

the Court, it did so only because it determined that on the

record of that case it was unable to consider and resolve the

legal issue of retroactivity at all. Thus, the legal issue of

whether Bendix should properly be applied retroactively in

later cases was specifically not decided by this Court.

Where a legal question expressly is not decided by the

Court because it cannot be reached on purely procedural

grounds, it should not be taken as having been foreclosed

when properly raised in a later case. See, e.g., Pacific

Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 9-12 (1991)

(quoting numerous prior opinions which concluded that

where the issue of the constitutionality of punitive damages

had been determined to be procedurally barred, that legal

issue remained open for consideration and resolution when

properly raised in a subsequent case). Therefore, the

retroactive application of Bendix should be regarded as an

open question to be determined in the first instance in this

case.

' In Bendix, the Court noted that the court below had "refused to

consider the [retroactivity] argument because it was raised for the first

time in Bendix’s reply brief. 820 F.2d at 189. As the argument was not

presented to the courts below, it will not be considered here." 486 U.S.

at 895. Thus, the Court expressly found itself unable to decide the legal

issue On purely procedural grounds.

II. UNDER THE CHEVRON OIL TEST FOR

RETROACTIVITY, THE COURT’S HOLDING

IN BENDIX SHOULD NOT BE APPLIED

RETROACTIVELY TO BAR RESPONDENT’S

LAWSUIT, WHICH HAD ALREADY BEEN

FILED AND WAS PENDING AT THE TIME

THAT BENDIX WAS DECIDED.

As explained in the preceding section, the

retroactivity issue presented in this case has not been

previously determined by the Court, either in Bendix itself or

in any subsequent case. The amicus curiae therefore submits

that Chevron Oil continues to provide an appropriate rule for

resolving the legitimate reliance interests involved in

determining the retrospective application of decisions

governing statute-of-limitations issues. See, e.g., Beam, 501

U.S. at 543 (Souter, J.) (plurality opinion) (suggesting that

the Chevron Oil analysis still governs the legal issue of

whether "retroactive application is chosen for any assertedly

new rule"); id. at 545-46 (White, J., concurring) (same); id.

at 550-559 (O’Connor, J., dissenting) (same); see also

Harper, 113 S. Ct. at 2517 ("Beam controls this case, and

we accordingly adopt a rule that fairly reflects the position of

a majority of Justices in Beam").? Applying the Chevron Oil

analysis on the facts of in this case, the Court should hold

that Respondent’s cause of action, which had already been

filed and was pending at the time that Bendix was decided,

should not be barred after the fact by retroactive application

of Bendix.

? This is, indeed, the very issue that the Court framed but found itself

unable to address in Bendix: whether the ruling that the Ohio tolling

statute is unconstitutional "should be applied prospectively only.” 486

U.S. at 895 (citing Chevron Oil).

The reliance interests involved in this case are

strikingly similar to those addressed in Chevron Oil itself.

In Chevron Oil, as here, the plaintiff brought suit more than

two years after he was injured. The injury occurred while

the plaintiff was working on an oil drilling rig. At that time,

the Outer Continental Shelf Lands Act, which governed such

injuries, was construed to incorporate general admiralty law,

including the equitable doctrine of laches. Based on its

application of that approach, the appeals court in Chevron Oil

had determined that the plaintiff's suit had been properly

instituted and directed that it should proceed to trial. See

Chevron Oil, 404 U.S. at 98-100.

Around the same time, however, the Supreme Court

issued its decision in Rodrigue v. Aetna Casualty & Surety

Co., 395 U.S. 352 (1969), which held that such suits were

governed by Louisiana’s one-year limitations statute for

personal injury actions. There was no question that the

Supreme Court’s decision in Rodrigue, which "entirely

changed the complexion of [the Chevron Oil] case," was

rendered only after the plaintiff had brought suit in Chevron

Oil. 404 U.S. at 99. The question before the Couri,

therefore, was whether the Rodrigue decision should be

applied retroactively to bar the plaintiff's lawsuit, which had

already been filed and was pending at the time that Rodrigue

was issued.

The analysis in Chevron Oil and in this case thus are

almost exactly the same. And under the three-pronged test

for determining retroactivity laid down by the Court in

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the holding

in Bendix should not be applied retroactively to bar the

lawsuit at issue in this case, which had already been filed and

was pending at the time that Bendix was decided. The

Chevron Oil test is as follows: :

Fe NL a A _ ay

First, the decision to be applied

nonretroactively must establish a new

principle of law ... by overruling clear past

precedent on which litigants may have relied

. Second, [we must] weigh the merits and

demerits in each case by looking to the prior

history of the rule in question, its purpose and

effect, and whether retrospective operation

will further or retard its operation.... Finally,

... Where a decision of this Court could

produce substantial inequitable results if

applied retroactively, there is ample basis in

our cases for avoiding the injustice or

hardship by a holding of nonretroactivity.

404 U.S. at 106-07 (citations and internal quotes omitted).

First, Bendix laid down a new principle of law that

overruled clear past precedent on which litigants such as

Respondent may have relied. The court below described and

explained this fact perhaps most authoritatively in the

following passage from its decision in this case: "In not

filing her complaint against [Petitioners] until 1987, Hyde

relied on Ohio’s tolling statute, R.C. 2305.15, and the most

recent interpretation of that statute by the court of appeals in

her appellate district, May v. Leidli (1986), 32 Ohio App.3d

36, 513 N.E.2d 1347. No court of binding precedent in

Ohio had ever ruled that R.C. 2305.15(A) was

unconstitutional. Nearly one year after Hyde’s complaint

was filed, Bendix was announced." Pet. A8.

Second, retrospective operation of the rule announced

in Bendix would not further the purpose of that rule in any

way. The holding in Bendix was that the Ohio tolling statute

imposed "an unreasonable burden on [interstate] commerce,"

486 U.S. at 895, which was held not to be justified by the

state interests asserted in defense of the statute, id. at 894-

95. Considered from another vantage point, Justice Scalia

characterized the Court’s approach as undertaking a judicial

determination of what “real-world deterrent effect on

interstate transactions will be produced by the incremental

cost of having to defend a delayed suit." /d. at 896 (Scalia,

J., concurring). From either perspective, the judgment

rendered by the Court in Bendix, pursuant to its dormant

Commerce Clause jurisprudence, was whether the Ohio

tolling statute would impermissibly burden interstate

commerce to such an extent as to undercut "the common

market created by the Framers of the Constitution." Great

Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 380

(1976).?

Once the holding in Bendix was announced, however,

the purposes served by the Court’s decision were entirely

fulfilled. The offending provision was invalidated for all

future situations in which commercial decisions would have

to be made by out-of-state corporations considering what

steps to take in the Ohio marketplace. But that ruling could

not and did not affect any business decisions made by such

corporations prior to the date of the Bendix decision. Any

supposed "deterrent effect on interstate transactions" created

by the Ohio tolling statute, 486 U.S. at 896 (Scalia, J.,

concurring), had already been felt, and could not be affected

in any way by the Court’s further choice of whether to apply

Bendix prospectively or retrospectively.

> Another common aspect of the problem posed by the dormant

Commerce Clause is whether the proposed measure would “invite a

multiplication of preferential trade areas destructive of the very purpose

of the Commerce Clause,” which again is to create and maintain a

common market throughout the Federal union. Dean Milk Co. v. City of

Madison, 340 U.S. 349, 356 (1951).

Third, the retroactive application of Bendix to bar this

lawsuit would produce substantially inequitable results. As

in Chevron Oil itself, "to hold that the respondent ’slept on

[her] rights’ at a time when [s]he could not have known the

time limitation that the law imposed upon [her]" would work

grave injustice in this case. 404 U.S. at 108. "Certainly,

the respondent’s potential redress for [her] allegedly serious

injury” is “entitled to similar protection," especially where,

as in this case, “nonretroactive application here simply

preserves [her] right to a day in court.” /d.

For these reasons, therefore, the retroactivity analysis

laid down in Chevron Oil leads to the conclusion that the

Bendix holding should not be appliec retroactively on the

facts of this case.

Ill. THE COURT’S RECENT DECISION IN HARPER

DID NOT EXPRESSLY OVERRULE THE

COURT’S EARLIER DECISION IN CHEVRON

OIL, WHICH THUS CONTINUES TO LAY

DOWN THE CONTROLLING STANDARD FOR

DETERMINING THE LEGAL ISSUE OF

RETROACTIVITY ON THE FACTS OF THIS

CASE.

The retroactivity analysis laid down in Chevron Oil

has received further scrutiny in several recent decisions.

None of those subsequent cases, however, purports to

overrule Chevron Oil as a general matter, and certainly no

such extraordinary ruling is apparent from the explicit

discussion contained in those cases. Therefore, Chevron Oil

is properly understood as continuing to set out the

retroactivity analysis that governs in those civil cases where

the issue is properly before the Court for determination.

And if instead the Court determines that Chevron Oil does

not govern the retroactivity issue as a general matter in all

civil cases, then at least Chevron Oil should continue to

apply in cases -- like this one -- which concern the potential

retrospective operation of a decision that would shorten the

limitations period so as to bar suits that had already been

filed and were pending at the time that decision was

rendered.

The legal issue of retroactive application has been

considered by the Court in three recent cases, all quite

distinct from Chevron Oil itself, which concerned state taxing

schemes that were judged to violate the Commerce Clause.

In American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167

(1990), four members of the Court applied the three-part

Chevron Oil test to determine whether the recent decision in

American Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266

(1987), which invalidated state highway use equalization

taxes, should be applied retroactively. See Smith, 496 U.S.

at 178-86 (O’Connor, J.) (plurality opinion). These Justices

expressly declined what they described as "a proposal that we

sub silentio overrule Chevron Oil." Id. at 190.

Four dissenting Justices in Smith, by contrast,

described Chevron Oil as a decision that did not lay down

general principles of retroactivity that apply to all civil cases.

Instead, these Justices understood Chevron Oil as establishing

principles that apply only in cases where the federal courts

properly exercise “equitable discretion." Smith, 496 U.S. at

220-222 (Stevens, J., dissenting). One such area involves

"the application of a statute of limitations, an area over

which the federal courts historically have asserted equitable

discretion to craft rules of tolling, laches, and waiver." /d.

at 221. The dissenting Justices cited two further decisions

that they described as having characterized the reach of

Chevron Oil in the same fashion, viz., as applying most

directly in cases that raise limitations issues. See id. at 222-

223; see also Saint Francis College v. Al-Khazraji, 481 U.S.

604, 608 (1987) (Chevron Oil "counsels against retroactive

application of statute of limitations decisions in certain

circumstances"); Goodman v. Lukens Steel Co., 482 U.S.

656, 662-663 (1987) (same). All of these Justices thus

concluded that Chevron Oil does and should continue to have

vitality at least in this specified sphere.

In Beam, the Court fragmented on the issue of

whether its ruling in Bacchus Imports, Ltd. v. Dias, 468

U.S. 263 (1984), which struck down state laws imposing

discriminatory excise taxes on imported alcoholic beverages,

should apply retroactively. Justice Souter, speaking for two

members of the Court, concluded that the principle of

selective prospectivity should not be employed in the Court’s

decisions. Therefore, because the Court in Bacchus had

applied its ruling to the parties before it without giving any

indication that the legal issue of retroactivity had been

reserved or otherwise could not be decided, it should be

given retrospective operation in all other cases. 501 U.S. at

539 (Souter, J.) (plurality opinion). Yet Justice Souter

Clearly did not intend to overrule Chevron Oil, and indeed

described the effect of his approach much more modestly,

saying only that to a limited extent, "our decision here does

limit the possible applications of the Chevron Oil analysis,

however irrelevant Chevron Oil may otherwise be to this

case." Id. at 543; see also id. at 545-46 (White, J.,

concurring) (declaring that the Beam decision did not sound

a retreat from Chevron Oil in cases where it properly applies

and noting that Chevron Oil had not been overruled). The

three dissenting Justices, more broadly, expressed fidelity to

the Chevron Oil retroactivity analysis in all civil cases, which

they viewed as grounded in "well-settled precedent." Jd. at

550 (O’Connor, J., dissenting).

_ In Harper, finally, the Court considered whether its

decision in Davis v. Michigan Dep’t of Treasury, 489 U.S.

803 (1989), which held that discriminatory state taxes on

Federal retirement benefits are unconstitutional, should be

given retrospective application. A majority of the Court held

that in any case where the legal issue of retroactivity is

decided and not reserved, the holding of that case should be

applied in like manner to all other parties who come before

the courts. See 113 S. Ct. at 2518. The Court thus stated

that it was adopting and endorsing the approach that had been

articulated by Justice Souter in Beam. Harper, 113 S. Ct. at

2517-18. Nowhere in the Court’s opinion did it purport to

overrule Chevron Oil as a general matter.‘

Justice Kennedy, in a concurrence that was joined by

Justice White, stated his view that "retroactivity in civil cases

continues to be governed by the standard announced in

Chevron Oil," and distanced himself from any "broad dicta"

to the contrary in the Court’s opinion. Harper, 113 S. Ct.

at 2525 (Kennedy, J., concurring). And Justice O’Connor,

in a dissent joined by the Chief Justice, stated her continuing

adherence to “our traditional retroactivity analysis as

articulated in Chevron Oil," id. at 2526 (O’Connor, J.,

dissenting), and undertook such an analysis in that case, id.

at 2631-36.

It thus appears that the Court has never overruled

Chevron Oil, and that its three-pronged inquiry continues to

govern the legal issue of retroactivity in any subsequent case

where the issue has been reserved or could not be resolved

in the initial decision. Even more to the point, a substantial

majority of Justices appears to continue to adhere to Chevron

Oil in cases that involve “the application of a statute of

* It should be noted, again, that Justice Souter in Beam did not

purport to overrule Chevron Oil, but instead described it as generally

“irrelevant” to the issues raised in that case. 501 U.S. at 543 (Souter, J.)

(plurality opinion).

limitations, an area over which the federal courts historically

have asserted equitable discretion." Smith, 496 U.S. at 221

(Stevens, J., dissenting). On both of these grounds,

therefore, the Chevron Oil analysis constitutes the proper test

for determining the legal issue of retroactivity on the facts of

this case.

IV. TO THE EXTENT THAT THE COURT’S RECENT

DECISION IN HARPER MAY BE CONSTRUED

AS HAVING OVERRULED CHEVRON OIL

UNDER ALL CIRCUMSTANCES, IT SHOULD BE

RECONSIDERED AND EITHER MODIFIED OR

ABANDONED.

As described in the preceding section, the Court has not

overruled Chevron Oil in any of the three cases in which the

Court has more recently considered its retroactivity

jurisprudence. Each of those cases, moreover, presented

quite distinct issues raised by the prior invalidation of state

taxing schemes. By contrast, as Justice Stevens noted in

Smith, 496 U.S. at 222-223 (Stevens, J., dissenting), the

Court has applied Chevron Oil with approval in two recent

cases that raised limitations issues, see Saint Francis, 481

U.S. at 608; Goodman, 482 U.S. at 662-663, issues that are

indistinguishable from those raised in this case. In this

context, at least, Chevron Oil continues to frame the proper

analysis of the legal issue of retroactivity.

Therefore, to the extent that Harper might be

erroneously construed as having overruled Chevron Oil under

all circumstances, Harper itself should be reconsidered and

either modified or abandoned. If Harper were to be taken as

having sub silentio overruled Chevron Oil under all

circumstances, then the important doctrine of stare decisis

would have been grossly disserved. "Considerations in favor

of stare decisis are at their acme in cases ... where reliance

interests are involved." Payne v. Tennessee, 501 U.S. 808,

828 (1991); see also Planned Parenthood v. Casey, 112 S.

Ct. 2791, 2809 (1992) (joint opinion of O’Connor, Kennedy,

and Souter, JJ.). That is plainly the case here, however, and

it is also true of every case in which Chevron Oil applies to

govern the retroactivity of a judicial decision shortening the

limitations period upon which litigants have relied in filing

suit. See, e.g., Chevron Oil, 404 U.S. at 108.

Moreover, nothing in Harper compels such a broad

reading to be given to its "dicta." See id., 113 S. Ct. at

2525 (Kennedy, J., concurring). If any such error were te

be made in widening the scope of that decision, then the

resulting extinguishment of legitimate vested reliance

interests could well contravene the dictates of the Due

Process Clause. See, e.g., Reich v. Collins, 63 U.S.L.W.

4032 (U.S. Dec. 6, 1994). And in that instance, the

"freshness of error not only deprives it of the respect to

which long-established practice is entitled, but also counsels

that the opportunity of correction be seized at once." South

Carolina v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J.,

dissenting). Thus, the Court in this case should declare

plainly that Harper is not to be construed as having overruled

the retroactivity analysis of Chevron Oil under all

circumstances and, in particular, that Harper does not do so

on the facts of this case.

CONCLUSION

For the foregoing reasons, as well as those set forth in

the Brief for Respondent, the decision of the Supreme Court

of Ohio should be affirmed and Respondent’s pending cause

of action should be permitted to proceed to trial in the state

courts.

Respectfully submitted,

LEE FISHER

Attorney General of Ohio