A TALE OF TWO COURTS: THE ALASKA SUPREME COURT, THE UNITED STATES SUPREME COURT, AND RETROACTIVITY Paul E.McGreal* SINTRODUCTION Whether out of homage to superior wisdom, judicial economy, desire for uniformity, or simple agreement, many state courts look to decisions of the United States Supreme Court for guidance on state constitutional issues or other issues where an analogy from federal law might be helpful. Many state supreme courts, such as the Alaska Supreme Court expressly reserve the power to interpret protections under their state constitutions more broadly than similar protections under the federal Constitution. At times, those courts that faithfully adhere to this republican spirit find sharp division within their ranks.2 Copyright © 1992 by Alaska Law Review * B.A., Williams College, 1989; I.D., Southern Methodist University School of Law, 1992. Law Clerk to the Honorable Warren W. Matthews, Alaska Supreme Court, 1992-93. 1. See Roberts v. State, 458 P.2d 340, 342 (Alaska 1969) ("We are not bound in expounding the Alaska Constitution's Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution."); Baker v. City of Fairbanks, 471 P.2d 386,402 (Alaska A.2d 793, 800 (N. 1990); the1970) highest ("We court need thenot he stand land."); by idly see andalso passively, State v. Hempele, waiting for576 constitutional direction from Statev. Boland, 800 P.2d 111 1114 319(Wash. S.E.2d 1990); 254, Pool 260 v. (N.C. Superior 1984). Court, 677 P.2d 261, 271 (Ariz.Professor 1984); Lawrence State v. Sager Arrington, has argued that state courts should independently construe Sager, Foreword: State Courts and the their stateSpace constitutional Between provisions.the Norms andLawrence Rules of G. Constitutional Law, 63 'Ex. L. Rnv. 959 Strategic in a More (1985); see also Shirley S. Abrahamson, Divided We Stand: State Constitutions CONST. L.Q. 723, 724 (1991). As Professor Sager explains: PerfectState Union, judges 18 confront HAS'rINS institutional environments and histories that vary dramatically fom state to state, and that differ, in any one state, from the homogenized, abstracted, national vision fom which the Supreme Court is forced to operate. It is natural and appropriate that in fashioning constitutional rules the stte judges' instrumental impulses and judgments differ. Sager, supra, at 975-76. the New York Court of Appeals, the highest court of thatfor state, the recently2. Forrefused example, to adopt the United States Supreme Court's "open fields" doecrine search and seizure provision. People v. Scott, 593 N..2d 1328 (N.Y. state constitutional wholesale 1992). This decision provoked vigorous dissent from judges who viewed this ALASKA LAW REVIEW [Vol. 9:2 A state court may adopt a United States Supreme Court rule, constitu- tional or otherwise, without independent analysis or justification. A troublesome issue arises, however, should the Supreme Court reconsider that rle: Is the state court's adoption of federal precedent automatically called into question? If the state court advanced no independent support for the adopted federal rule, it seems logical that change in the underlying federal rule would require reconsideration, if not abandonment of the derivative state rule. Indeed, this situation often arises when a court fails to articulate sufficiently the rationale or basis for its decision? This type of ambiguity exists in Alaska law in the area of the retro- activity of new legal rules.4 Retroactivity issues generally arise when a court either overrules one of its prior decisions or announces a rule governing a particular area of law which has not been previously addressed. Insuch situations, the issue is whether the new rule will be applied to other cases either pending at the time of the announcement of the new rule, or filed after the announcement of the new rule but based on events occurring prior to its announcement. In deciding the retroactivity question, some state courts have adopted a version of the United States Supreme Court's retroactivity jurisprudence. The Supreme Court has generally treated the retroactivity of civil and criminal rules as different matters, applying a separate set of retroactivity rules in each area. The late 1980's, however, witnessed a revision of the Court's criminal retroactivity jurisprudence and the 1990 term ended with rejection of Supreme Court precedent as "New Federalism" gone wild. Id. at 1348 (Bellacosa, I., dissenting). 3. Professor Joseph Goldstein argues that the United States Supreme Court has a duty to set forth expressly the principles underlying its constitutional decisions: If Ours is to be an "intelligent democracy," if Our revolutions are to be peaceful, We the People. .. must be able to learn, from our Own reading of the Constitution and the Supreme Court's constructions of it, what ihts We have and do not have, what values are and are not protected, and what limits are and are not imposed on those who govern on Our behalf. For then We can meet Our respon- sibility as informed citizens to respond to what the Court did and why it did it. JoSEPH GonsDEIN, ToE INTELUGIBLE CoNsm oN: THE SUPREME COURT'S OBUGATION TO MAINTAIN nm CONSTITUTnON AS SOMETHING WE THE PEOPLE CAN UNDERSTAND 6 (1992). Professor Goldstein's point applies equally to non-constitutional rules. As the Alaska Supreme Court has recognized, the efficacy of law rests upon public consent and acceptance. See discussion infra text accompanying notes 146-147. A udiciary that neglects its duty to communicate its decisions to the public, in language the public can understand, may erode that acceptance as well as the law's basis in the informed consent of the govered. 4. As used in this article, the term "new legal rule" refers solely to rules of judicial origin. The question of retroactivity of legislative enactments presents a separate question beyond the scope of this article. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988); Bradley v. School Bd. of Richmond, 416 U.S. 696 (1974); Fairbanks N. Star Borough Sch. Dist. v. Crider, 736 P.2d 770 (Alaska 1987); see also Elmer E. Smead, The Rule AgainstRetroactive Legislation: A Basic PrincipleofJurisprudence, 20 MINN. L. REv. 775 (1936). 19921 RETROACTIVIIT civil retroactivity on the verge of a new day. How will state courts respond to these changes? Retroactivity doctrines are generally framed with reference to the procedural posture of the case in question. Courts distinguish between cases on direct review and collateralreview. A case pending on appeal before it has become final is considered on direct review. After a case has become final, a further attack on the judgment is considered on collateral review. Thus, distinguishing between these types of review depends upon whether a case is final. A case is generally considered final when the litigants have exhausted all avenues of direct appeal and the time for applying for a writ of certiorari has lapsed.' Courts generally discuss four options when considering the application of a new legal rule. First, a court may use "pure retroactivity" by applying the new legal rule to all cases that come before it, whether on collateral or direct review. Second, a court may use "fun retroactivity" by applying the new legal rule to all cases not final, i.e., cases on direct review, on the date of the rule's announcement. Third, a court may apply the new legal rule with "selective prospectivity," restricting application of the rule to the case announcing the new rule, all cases filed after that date, and selected cases filed before that date.6 Fourth, a court may resort to "pure prospectivity," restricting the application of the rule to those cases filed after the date the new legal rule was announced! Courts sometimes choose a hybrid of these four methods, attempting to tailor their decisions to the specifics of particular cases.8 The United States Supreme Court has recently reconsidered the retroactivity issue. Part H of this article briefly analyzes the Court's retroactivity jurisprudence as it has developed from the early 1960's to the present. Part II analyzes the Alaska Supreme Court's reliance upon the United States Supreme Court's retroactivity decisions and addresses the desirability and likelihood that the Alaska Supreme Court will follow the United States Supreme Court's change in this area. H. FEDERAL RETROACVI IN FLUX The United States Supreme Court has developed parallel doctrines of retroactivity in the civil and criminal contexts. These doctrines, while 5. Linkletterv. Walker, 381 U.S. 618,622 n.5 (1965). The Alaska Supreme Court has also applied a concept of finality. See infra notes 188, 267 and accompanying text. 6. See James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439, 2444 (1991). 7. See id. at 2443 (opinion of Souter, J.). 8. See infra text accompanying note 189. ALASKA LAW REVIEW [Vol. 9:2 never achieving identity, have recently converged towards a consistent approach. Significantly, the Supreme Court appears poised to recognize that retroactivity is an issue of constitutional nature, rooted in a proper understanding of the role of the judiciary.9 A. Linklettei; Griffith, and Teague: Retroactivity and Constitutional Criminal Procedure For about 180 years, the United States Supreme Court utilized the pure retroactivity approach in applying new rules of constitutional law.10 While the Court occasionally experimented with some form of prospectivity in applying statutes" or common law rules,' 2 it held the line on the pure retroactivity of constitutional decisions. Pure retroactivity made sense in light of the traditional common law notion that judges "found" law and legislatures "made" law.13 Under this theory, when a judge announced anew legal rule, the judge was really only "finding" the true law and giving it voice.