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June 3, 1985


The opinion of the court was delivered by:  Allen Sharp, Chief Judge.[fn*] [fn*] Sitting by designation pursuant to 28 U.S.C. § 292.


This court is now called upon to decide whether the recent decision of the Supreme Court of the United States in Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), is to be applied retroactively in view of the decision in Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978).

A brief look at the factual and procedural record in this case is in order.

The occurrence complained of in the Plaintiff's complaint here occurred on May 25 and 26, 1980. This complaint was filed purporting to allege a claim for constitutional violation under 42, U.S.C. § 1983, on March 2, 1984. A careful examination of the facial verbal fabric of Wilson v. Garcia and Beard v. Robinson leads solely to the conclusion that the latter is now inconsistent with the former. If the panel which decided Beard v. Robinson in 1977 (including this judge) had been given the benefit of Wilson v. Garcia, the result announced in Beard would have been contrary. This point was basically conceded by all counsel when this court heard argument on Defendants' motion for judgment on the pleadings in Springfield, Illinois, on May 29, 1985. The question then becomes whether or not the recent decision in Wilson v. Garcia should be retroactively applied given the factual and procedural posture of this case.

The question of the possible retroactive effect of Wilson v. Garcia is nowhere directly addressed in the Justice Stevens' opinion for the Supreme Court in that case. In the Defendants' brief filed May 24, 1985, there is a brief quotation out of context from the most recent Supreme Court decision in Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), stating the general rule that as a general rule, judicial decisions apply retroactively, and there is some language and reference to a so-called "presumption" to that effect. However, the reasoning and the result in Solem is certainly not helpful to the Defendants in this case and, indeed, is not determinative of the issues here presented. Solem is in line with the earlier decision of Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), which in effect held that the earlier decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not to be given retroactive effect. In this same vein, the Supreme Court in Solem has now decided that the case of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is not to be given retroactive effect. The language chosen by Justice Stevens in Part II of his dissent in Solem 465 U.S. at ___, 104 S.Ct. at 1351 is interesting and perhaps relevant to our discussion here. He there stated:

    The "retroactivity" analysis of today's
  majority merits separate scrutiny. The majority
  makes no attempt to define a "new rule" that
  gives rise to a retroactivity question, but
  merely assumes that Edwards created one. Ante,
  [465 U.S.] at ___ - ___ [104 S.Ct. at 1341-1342].
  Its reasoning for treating Edwards as having
  created a "new rule" is implicit, however, in its
  discussion of what it calls the "reliance factor"
  — the authorities' reliance on the "prior rule."
  The Court states that the police could not be
  faulted for failing to anticipate Edwards, since
  prior law could have been understood to permit a
  case-by-case evaluation of whether a suspect's
  decision to speak with police despite an earlier
  invocation of the right to consult with counsel was
  a knowing, voluntary and intelligent waiver of that
  right. The majority concludes that Edwards can be
  considered as announcing a new rule because the law
  prior to Edwards was "unsettled," and cites as
  evidence the fact that some lower courts had
  disagreed as to the correct interpretation of
  Miranda. Ante, at ___ [104 S.Ct. at 1344].
    This approach to defining a "new rule" for
  retroactivity purposes is completely
  unprecedented. The majority concedes that
  Edwards was not a "clear break" with the past,
  ante, [465 U.S.] at ___ - ___ [104 S.Ct. at
  1343-1344] yet that sort of change in the law has
  normally been required before a retroactivity
  question is even raised. For example, in Desist v.
  United States, 394 U.S. 244 [89 S.Ct. 1030, 22
  L.Ed.2d 248] (1969), the Court wrote: "However
  clearly our holding in Katz [v. United States,
  389 U.S. 347 [88 S.Ct. 507, 19 L.Ed.2d 576] (1967)] may
  have been foreshadowed, it was a clear break with
  the past, and we are thus compelled to decide
  whether its application should be limited to the
  future." Id. at 248 [89 S.Ct. at 1033]. The fact
  that the position ultimately rejected by this Court
  had been previously accepted in some but not all
  lower courts has never been sufficient to
  demonstrate that a new rule has been created.
  United States v. Estate of Donnelly,

  397 U.S. 286, 295 [90 S.Ct. 1033, 1038, 25
  L.Ed.2d 312] (1970). Until today it had been
  clear that no retroactivity arises when a
  decision is based on principles previously
  announced by this Court, even though there is no
  precedent squarely on point. Henderson v. Morgan,
  426 U.S. 637, 651-652 [96 S.Ct. 2253, 2260-2261, 49
  L.Ed.2d 108] (1976) (White, J., concurring). That
  the principles governing the decision in Edwards
  were well recognized before that case was decided
  is amply demonstrated by the host of cases that had
  previously condemned the police practices at issue.
  (footnotes omitted).

The reasoning and the result of neither the majority nor the dissent in Solem are determinative of the retroactive application of Wilson v. Garcia in the context of this case.

The leading decision on the retroactivity of nonconstitutional, noncriminal decisions is Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1975). In Huson the issue presented involved the retroactivity of an earlier decision in Rodigue v. Aetna Casualty and Surety Company, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). Rodigue had held that the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. was not governed by admiralty law. In Huson the Supreme Court held that the applicable state statute of limitations must be used under the aforesaid section 1331, but that it would be applied only prospectively. In arriving at this decision, the Supreme Court set out three factors to be considered in deciding whether a statute of limitations should be retroactive. Briefly and summarily stated, those three factors are as follows:

    1. The decision to be applied nonretroactively
  must establish a new principle of law, either by
  overruling clear past precedent or by deciding an
  issue of first impression whose resolution was
  not clearly foreshadowed.
    2. The merits and demerits in each case must be
  weighed and examined by looking at the prior
  history of the rule in question, its purpose and
  effect, and whether the retrospective operation
  will further or retard its operation.
    3. An examination into the possible inequity
  imposed by retroactive application must be

An excellent example of how a district judge should go about applying the Huson principles is found in Hambrick v. Royal Sonesta Hotel, 403 F. Supp. 943 (E.D.La. 1975). The approach of Chief Judge Heebe in Hambrick is most helpful to the examination that this court must make and is consistent with the standards most recently ...

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