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.
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 ...