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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-794
- --------
- HENRY HARPER, et al., PETITIONERS v. VIRGINIA
- DEPARTMENT OF TAXATION
- on writ of certiorari to the supreme court of
- virginia
- [June 18, 1993]
-
- Justice Kennedy, with whom Justice White joins,
- concurring in part and concurring in the judgment.
- I remain of the view that it is sometimes appropriate
- in the civil context to give only prospective application to
- a judicial decision. -[P]rospective overruling allows courts
- to respect the principle of stare decisis even when they are
- impelled to change the law in light of new understanding.-
- American Trucking Assns., Inc. v. Smith, 496 U. S. 167,
- 197 (1990) (plurality opinion). When a court promulgates
- a new rule of law, prospective application functions -to
- avoid injustice or hardship to civil litigants who have
- justifiably relied on prior law.- Id., at 199 (internal
- quotation marks omitted). See Phoenix v. Kolodziejski,
- 399 U. S. 204, 213-215 (1970); Cipriano v. City of Houma,
- 395 U. S. 701, 706 (1969) (per curiam); England v.
- Louisiana State Bd. of Medical Examiners, 375 U. S. 411,
- 422 (1964). And in my view retroactivity in civil cases
- continues to be governed by the standard announced in
- Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971).
- Thus, for the reasons explained by Justice O'Connor,
- post, at 1-5, I cannot agree with the Court's broad dicta,
- ante, at 7-9, that appears to embrace in the civil context
- the retroactivity principles adopted for criminal cases in
- Griffith v. Kentucky, 479 U. S. 314 (1987). As Justice
- O'Connor has demonstrated elsewhere, the differences
- between the civil and criminal contexts counsel strongly
- against adoption of Griffith for civil cases. See American
- Trucking Assns., Inc. v. Smith, supra, at 197-199. I also
- cannot accept the Court's conclusion, ante, at 8-11, which
- is based on Justice Souter's opinion in James B. Beam
- Distilling Co. v. Georgia, 501 U. S. ___, ___ - ___ (1991)
- (slip op., at 9-12), that a decision of this Court must be
- applied in a retroactive manner simply because the rule
- of law there announced happened to be applied to the
- parties then before the Court. See post, at 5-11
- (O'Connor, J., dissenting); James B. Beam Distilling Co.
- v. Georgia, supra, at ___ - ___ (O'Connor, J., dissenting)
- (slip op., at 2-4). For these reasons, I do not join Part
- II of the Court's opinion.
- I nonetheless agree with the Court that Davis v. Michi-
- gan Dept. of Treasury, 489 U. S. 803 (1989), must be
- given retroactive effect. The first condition for prospective
- application of any decision is that it must announce a new
- rule of law. Ashland Oil, Inc. v. Caryl, 497 U. S. 916,
- 918 (1990) (per curiam); American Trucking Assns., Inc.
- v. Smith, supra, at 179; United States v. Johnson, 457
- U. S. 537, 550, n. 12 (1982); Chevron Oil Co. v. Huson,
- 404 U. S., at 106-107. The decision must -overrul[e] clear
- past precedent on which litigants may have relied- or
- -decid[e] an issue of first impression whose resolution was
- not clearly foreshadowed.- Id., at 106. Because Davis did
- neither, it did not announce new law and therefore must
- be applied in a retroactive manner.
- Respondent argues that two new principles of law were
- established in Davis. First, it points to the holding that
- 4 U. S. C. 111, in which the United States consents to
- State taxation of the compensation of -an officer or
- employee of the United States,- applies to federal retirees
- as well as current federal employees. Brief for Respond-
- ent 16-18. See Davis, 489 U. S., at 808-810. In Davis,
- however, we indicated that this holding was -dictate[d]-
- by -the plain language of the statute,- id., at 808, and we
- added for good measure our view that the language of the
- statute was -unambiguous,- -unmistakable,- and -leaves
- no room for doubt,- id., at 809, n. 3, 810. Given these
- characterizations, it is quite implausible to contend that
- in this regard Davis decided -an issue of first impression
- whose resolution was not clearly foreshadowed.- Chevron
- Oil, supra, at 106.
- The second new rule respondent contends the Court
- announced in Davis was that the state statute at issue
- discriminated against federal retirees even though the
- statute treated them like all other state taxpayers except
- state employees. Brief for Respondent 18-26. See Davis,
- supra, at 814, 815, n. 4. The Davis Court, however,
- anchored its decision in precedent. We observed that in
- Phillips Chemical Co. v. Dumas Independent School Dist.,
- 361 U. S. 376 (1960), -we faced th[e] precise situation-
- confronting us in Davis, and so Phillips Chemical con-
- trolled our holding. 489 U. S., at 815, n. 4. To be sure,
- Justice Stevens in dissent disagreed with these conten-
- tions and attempted to distinguish Phillips Chemical. 489
- U. S., at 824-826. The Court, however, was not per-
- suaded at the time, and I remain convinced that the
- Court had the better reading of Phillips Chemical. A
- contrary holding in Davis, in my view, would have created
- a clear inconsistency in our jurisprudence. Under Chevron
- Oil, application of precedent which directly controls is not
- the stuff of which new law is made.
- Far from being -revolutionary,- Ashland Oil Co. v.
- Caryl, supra, at 920, or -an avulsive change which caused
- the current of the law thereafter to flow between new
- banks,- Hanover Shoe, Inc. v. United Shoe Machinery Co.,
- 392 U. S. 481, 499 (1968), Davis was a mere application
- of plain statutory language and existing precedent. In
- these circumstances, this Court is not free to mitigate any
- financial hardship that might befall Virginia's taxpayers
- as a result of their state government's failure to reach a
- correct understanding of the unambiguous dictates of
- federal law.
- Because I do not believe that Davis v. Michigan Dept.
- of Treasury, supra, announced a new principle of law, I
- have no occasion to consider Justice O'Connor's argu-
- ment, post, at 21-25, that equitable considerations may
- inform the formulation of remedies when a new rule is
- announced. In any event, I do not read Part III of the
- Court's opinion as saying anything inconsistent with what
- Justice O'Connor proposes.
- On this understanding, I join Parts I and III of the
- Court's opinion and concur in its judgment.
-