December 09, 1999
MAURICE DELANE DAVIS, APPELLANT, RANDALL PATRICK MARTIN, APPELLANT, MARK EDWARD CHILDS, APPELLANT,
MARGARET MOORE, ET AL., APPELLEES.
Before Steadman and Ruiz, Associate Judges, and Gallagher, Senior
The opinion of the court was delivered by: Gallagher, Senior Judge
Appeals from the Superior Court of the District of Columbia
(Hon. Iraline Green Barnes, Trial Judge)
Argued April 7, 1999
Opinion for the court by Senior Judge Gallagher.
Dissenting opinion by Associate Judge Ruiz at p. .
Appellants Maurice D. Davis, Randall P. Martin, and Mark E. Childs are parole violators under the supervision of the District of Columbia Department of Corrections ("DOC"). In accordance with a policy reached in 1987 by the District of Columbia Corporation Counsel ("Corporation Counsel") and implemented by the DOC, these parole violators had their prison sentences reduced by the amount of time spent on parole prior to their parole violations (i.e., "street time credit"). In United States Parole Comm'n v. Noble, 693 A.2d 1084 (D.C. 1997), aff'd on reh'g en banc, 711 A.2d 85 (D.C. 1998), this court rejected the Corporation Counsel's opinion and held that parole violators must forfeit accrued street time credit. After Noble, the DOC retroactively withdrew appellants' street time credit and restored their prison sentences to their original length of time. Appellants each filed a petition for a writ of habeas corpus objecting to the DOC's retroactive application of Noble to their sentences. The trial court denied appellants' petitions for a writ of habeas corpus. We affirm.
D.C. Code § 24-206 (a) (1996) provides that when a prisoner violates parole "[t]he time [the] prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced." This statute, enacted in 1932, has never been repealed and was enforced by the DOC until 1987.
In 1987, the District of Columbia enacted D.C. Code § 24-431 (a) (1996) as part of the Good Time Credits Act. *fn1 In an issued opinion, the Corporation Counsel mistakenly interpreted D.C. Code § 24-431 (a) as impliedly repealing D.C. Code § 24-206 (a). In accordance with the Corporation Counsel's opinion, the DOC began crediting accrued street time for parole violators. However, the United States Parole Commission ("USPC"), the federal agency responsible for supervising the parole of District of Columbia offenders who had been housed in federal penitentiaries, *fn2 did not adopt the Corporation Counsel's interpretation and continued its practice of withdrawing street time credit for parole violators, pursuant to D.C. Code § 24-206 (a). The discordant practices of the DOC and the USPC continued until the Noble decision in 1998.
In Noble, this court rejected the Corporation Counsel's interpretation of the two statutes and held that parole violators could not have their sentences reduced by their time spent on parole prior to revocation. 693 A.2d at 1105. The effect of the Noble decision was twofold: (1) it required the DOC to return to its pre-1987 practice in accordance with D.C. Code § 24-206 (a), and (2) it brought the DOC's practice back into accord with the USPC, which had continued to enforce D.C. Code § 24-206 (a) as related. Noble did not decide, however, whether the DOC should apply its holding retroactively or prospectively, but merely "flag[ged] the question." Id. at 1104. Therefore, the sole issue in this appeal is whether Noble should be applied retroactively to those prisoners who, like appellants, violated their parole prior to our decision in Noble.
Appellants argue that the four-factor balancing test established in Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) (en banc) *fn3 requires a prospective-only application of Noble. *fn4 The District of Columbia, on the other hand, contends that the Mendes analysis is not applicable because the Noble decision did not announce a new rule of law, and thus Noble should be applied retroactively.
"[A] threshold requirement for depriving a decision of retroactive effect is that such decision '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.'" O'Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1137 (D.C. 1985) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971) (emphasis added)). *fn5 Because we conclude that Noble does not announce a "new principle of law," the Mendes test does not apply.
Noble did not overrule "clear past precedent." Consequently, the issue becomes whether the holding in Noble was "clearly foreshadowed" by the circumstances surrounding its pronouncement, such that it was not a new rule of law. We hold that Noble must be applied retroactively because the entirety of the surrounding circumstances clearly foreshadowed its holding.
First, the revocation of street time credit mandated by the Noble holding had been legislated and administered by the District of Columbia for more than fifty years prior to Noble, pursuant to D.C. Code § 24-206 (a). This statute has never been repealed and was enforced by the DOC from 1932 until 1987. This administrative history distinguishes the present case from French v. District of Columbia Board of Zoning Adjustment, 658 A.2d 1023, 1031 (D.C. 1995), which appellants contend is dispositive of whether Noble was "clearly foreshadowed."
Appellants argue that Noble cannot be "clearly foreshadowed" because French justifies their "belief that following the Corporation Counsel's advice [would] present no legal hazards." 658 A.2d at 1031 ("Although the opinions of the Corporation Counsel are not valid legal authority, the mere fact that they have been issued by the city's top legal officer may cause interested persons (and government agencies) to rely on them in good faith."). However, because the circumstances surrounding the Corporation Counsel's opinion in this case are distinguishable from those circumstances in French, we find that French is not dispositive.
In French, we denied retroactive effect to a decision which abrogated the Corporation Counsel's earlier opinion on a matter. Id. at 1031-32. However, unlike the present case, in French, the Corporation Counsel's opinion was consistent with a "standard practice" that "traditionally" had been in effect up to the date of the French holding. Id. at 1031. Consequently, the French court determined that its holding was not "clearly foreshadowed," and thus its "new rule of law" should be afforded prospective effect. Id.
Unlike the French court's decision, Noble did not upset the "traditional," "standard practice" of handling a parole violator's street time credit. Quite the contrary, the Noble court reasserted the "traditional" method for handling street time credit which had been in place from 1932 until 1987. Therefore, contrary to appellants' contention, French is not dispositive of whether the Noble decision was "clearly foreshadowed." Instead, the administrative history of street time credit served to foreshadow the holding in Noble.
Second, the USPC and the DOC, both of whom were tasked with supervising parole for District offenders, applied different treatment to a parole violator's street time credit. Unlike the DOC, the USPC did not follow the Corporation Counsel's mistaken interpretation of D.C. Code § 24-431 (a), but continued to revoke parole violators' street time credit in accordance with D.C. Code § 24-206 (a). Thus, District of Columbia offenders placed in federal penitentiaries were not entitled to street time credit, even before Noble was decided. *fn6 After Noble, this court essentially required the DOC to adopt the USPC's continued practice of revoking a parole violator's street time credit. Certainly, appellants cannot claim that our decision in Noble created an unforeseen rule of law when it merely harmonized one agency's practice with another's.
Finally, the Ninth Circuit Court of Appeals' decision in Tyler v. United States, 929 F.2d 451, cert. denied, 502 U.S. 845 (1991), certainly predicted the reasoning and Conclusion reached in Noble. Just three years after the Corporation Counsel's ill-fated opinion and seven years before our en banc decision in Noble, the Ninth Circuit addressed the same issue raised in Noble. Joseph Tyler was convicted in the District of Columbia and incarcerated under the authority of the USPC. The USPC, acting under their interpretation of D.C. Code §§ 24-206 (a) and -431 (a), refused to credit Tyler's street time following the revocation of his parole. Tyler appealed, citing the Corporation Counsel's contrary opinion.
The Ninth Circuit Court of Appeals upheld the USPC's practice of excluding a parole violator's street time credit. 929 F.2d at 456-57. Moreover, the Tyler court's decision was based on many of the same reasons offered by this court in Noble, including a disfavor of implied statutory repeals and a rejection of the Corporation Counsel's interpretation of legislative history as flawed. Id. at 456. Of course, prisoners under the supervision of the DOC would not expect to be bound by the Ninth Circuit's holding. Nevertheless, in the context of foreshadowing, Tyler's significantly similar reasoning and identical Conclusion leads us to conclude that it was not beyond reason for appellants to expect that this court may someday conclude as the Tyler court did.
These three circumstances -- (1) the DOC's long-standing enforcement of D.C. Code § 24-206 (a) from 1932 to 1987; (2) the continued divergent application of street time credit between the USPC and the DOC; and (3) the Ninth Circuit Court of Appeals' Tyler decision in 1991 -- all add up to the Conclusion that the Noble holding was "clearly foreshadowed." Therefore, we hold that the Noble decision must be applied retroactively.
Ruiz, Associate Judge, Dissenting
In United States Parole Comm'n v. Noble, 711 A.2d 85 (D.C. 1998) (en banc) (Noble II), *fn7 the court ruled that under the Good Times Credit Act of 1986, a revoked parolee is not entitled to credit against his sentence for time spent on parole prior to revocation, a decision which overturned a contrary opinion of the District of Columbia Corporation Counsel that had guided the District of Columbia Board of Parole and formed the basis for Department of Corrections regulations *fn8 and practice for over ten years. In this appeal, we are asked to decide an issue we flagged in Noble I, supra note 1, 693 A.2d at 1104, whether the Noble ruling is to have retroactive application to those inmates whose parole was revoked during the time, prior to the Noble II decision, when the District of Columbia Board of Parole and the Department of Corrections held to the view that time spent on parole was not forfeited by parole revocation. *fn9 This determination, we are informed, will impact at least one thousand District of Columbia prisoners, at various stages of their incarceration, whose paroles have been revoked for any number of reasons. *fn10 All of the appellants before us would have completed their sentences in 1998 under the pre-Noble interpretation. If Noble applies to them, however, Martin and Childs have until November 2000 and January 2001, respectively, to serve out their sentences. *fn11
The majority concludes that Noble should be applied retroactively, without first engaging in the four-prong analysis we established in Mendes v. Johnson, 389 A.2d 781, 789 (D.C. 1978) (en banc), on the ground that the current situation does not even meet the threshold requirement for a retroactivity analysis, whether the subject ruling announces "a new principle of law." See O'Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1137 (D.C. 1985) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971)). That is an astounding Conclusion in view of the ten-year history of a contrary understanding by the Board of Parole and the practice of the Department of Corrections granting credit to revoked parolees, which was based on an interpretation by the Corporation Counsel, the chief legal officer of the District of Columbia. See Noble I, 693 A.2d at 1101 (citing French v. District of Columbia Bd. of Zoning Adjustment, 658 A.2d 1023, 1031 (D.C. 1995)). The fact that the Corporation Counsel had a long-standing opinion on the question decided in Noble is important to the issue before us in this appeal, whether Noble established "a new principle of law," and should be applied retroactively. Its importance in this context is easily distinguishable from the lesser weight to be given to the substance of the Corporation Counsel's opinion in the court's interpretation of the applicable statutes. See Noble I, 693 A.2d at 1099-1102. As we recognized in Noble I, "there can be reliance interests that justify prospective application of a court decision that rejects a formal opinion of the Corporation Counsel." 693 A.2d at 1104. This is precisely what we determined in French, where we declined to give retroactive application to a decision that contravened an opinion of the Corporation Counsel that was relied upon by the litigants, even though we had concluded that the Corporation Counsel's opinion contradicted the statute's plain meaning which "could not be clearer." 658 A.2d at 1030.
Whether Noble announced a "new rule of law," requiring retroactivity analysis, depends on whether its holding "was clearly foreshadowed." Nimetz v. Cappadona, 596 A.2d 603, 608 (D.C. 1991). *fn12 In deciding whether to eschew retroactivity analysis because a ruling does not announce a "new principle of law" on the ground that it was "clearly foreshadowed," it is important to keep in mind that the purpose of the "clearly foreshadowed" standard is to identify those cases where it is plain that the weighing of the Mendes factors in the context of an individual case is unnecessary because the interests sought to be protected by a retroactivity analysis are not implicated. The determination that a court ruling was "clearly foreshadowed" and thus did not announce a "new principle of law" that would require a retroactivity analysis, in other words, is nothing more than a summary Conclusion that it is evident that there would be no cognizable unfairness if the ruling were to be applied retroactively. This case presents with a background of contradictory statements by courts and administrative agencies preceding the Noble decision and the fact that an interpretation contrary to the one ultimately adopted was held and implemented by the District, which had the bulk of affected prisoners in its jurisdiction. These facts counsel against reaching a summary Conclusion that no retroactivity analysis is required here. In addition, we must be mindful that retroactive application of the Noble decision will affect a great many District of Columbia prisoners who will have their sentences extended beyond the date they had been originally assigned under official interpretations which they had every reason to believe were authoritative. Thus, I believe that the majority's truncated consideration of the retroactivity issue is unwarranted in the circumstances of this case.
The proper question to ask in deciding whether a ruling was "clearly foreshadowed," we have said, is "whether the rule is a 'clear break' from the past, a 'newly minted principle,' or a rule that an attorney 'should have known' was 'about to be changed, because of either judicial or legislative intimations to that effect.'" Nimetz, 596 A.2d at 608 (citations omitted). Answering those questions in the context of this case, I cannot agree with the majority's Conclusion that the Noble ruling was "clearly foreshadowed." First, there were no "judicial or legislative intimations" of the result in Noble in this jurisdiction. The plain language of the Good Time Credits Act of 1986 states that "every person" is to be given credit for time "spent . . . on parole." D.C. Law 6-218, 34 D.C. Reg. 484 (1987), D.C. Code § 24-431 (a) (1996). Moreover, earlier opinions of this court had indicated, albeit in dicta, that revoked parolees are entitled to credit for their street time prior to revocation. See Franklin v. Ridley, 635 A.2d 356, 358 (D.C. 1993); Luck v. District of Columbia, 617 A.2d 509, 510-11 (D.C. 1992). One would hope that those indications would not be found in published opinions of the court if the contrary view were "clearly foreshadowed." Second, Noble announced a "clear break" from the understanding and practice in the District of Columbia, where the Corporation Counsel had interpreted the statute consistent with its plain language, and the Department of Corrections so implemented it for over ten years, until this court's en banc decision in 1998. Although the Noble court ultimately disagreed with the Corporation Counsel's interpretation of the statute, in considering whether Noble was a "clear break" from past practice, we cannot blind ourselves to the reality in the District during the preceding ten years. See French, 658 A.2d at 1031 ("We are mindful nevertheless that, until today, the standard practice in the District of Columbia has been to accept the view of the Corporation Counsel, wrong as it is . . . .") In this appeal, the court must credit that the Corporation Counsel's opinion was a good faith and reasonable effort by the government official charged with advising District of Columbia agencies. In the face of the Corporation Counsel's opinion, the Conclusion that the Noble ruling was "clearly foreshadowed" necessarily implies not only that the Corporation Counsel's opinion was analytically flawed, but also that it was so unreasonable or incompetent that any reliance on it was unjustified. But see Noble I, 693 A.2d at 1114-15 (Schwelb, J., Dissenting); Luck, 617 A.2d at 515 (adopting administrative interpretation of the Good Times Credit Act based on the Corporation Counsel's opinion); French, 658 A.2d at 1030. I do not subscribe to any such implication. Finally, at both levels of consideration of the issue, by the division and by the en banc court, one member of this court vigorously Dissented, indicating that he still believes that the law entitles revoked parolees to credit for street time prior to revocation. See Noble II, 711 A.2d at 87; Noble I, 693 A.2d at 1106-17 (Schwelb, J., Dissenting). These factors are impossible to reconcile with the majority's Conclusion that Noble was "clearly foreshadowed." As the Supreme Court stated in refusing to apply retroactively a ruling that would have required new elections, the issue "involve[d] complex issues of first impression - issues subject to rational disagreement." Allen v. State Bd. of Elec., 393 U.S. 544, 572 (1968). In determining whether a new rule of law was not "clearly foreshadowed," the threshold test is met "if the question answered by the new rule was `subject to rational disagreement.'" Truesdell v. Halliburton Co., 754 P.2d 236, 239 (Alaska 1988). In Noble, the court resolved the "rational disagreement" among a number of responsible litigants.
The majority points to the fact that a federal court *fn13 and the United States Parole Commission, contrary to the District, had for some time interpreted the statute in the same manner ultimately adopted in Noble. This indicates, at best, that the issue was so disputed that it was the subject of diametrically opposed views at high levels of the District of Columbia and United States governments. *fn14 Rather than lending support to the Conclusion that resolution of the issue was "clearly foreshadowed" by the views of the United States Parole Commission and the Ninth Circuit, the contrary views of District of Columbia and federal officials underscore that Noble decided "a matter of first impression in a matter not clearly foreshadowed," at least in our court. French, 658 A.2d at 1031; cf. Nimetz. 596 A.2d at 603 ("even if we now decide an issue of first impression, the court has, in effect, forecast its resolution" (emphasis added). Similarly, the majority may not logically rely on the fifty years preceding the Good Times Credit Act of 1986, during which District of Columbia law was clear that revoked parolees forfeited street time credit. See D.C. Code § 24-206 (a) (1996). The majority points to that history as proof that the Noble ruling was "clearly foreshadowed" because its holding announced nothing more than the "traditional" method of denying street time credit for revoked parolees. Although the state of the law prior to enactment of the statute that is at issue in a court ruling may well be relevant to an interpretation of a later-enacted statute, prior law necessarily cannot be dispositive of the statutory question because the statute at issue did not exist. Noble did not simply decide, moreover, that the "traditional" method of § 24-206 (a) prevailed as it had before enactment of §24-431 (a). Rather, in a long and careful opinion, Noble wrestled with the apparently plain - and apparently contradictory -language of D.C. Code §§ 24-431 (a) and -206 (a). The apparent facial inconsistency between the two statutes was resolved by application of the rule against implied repeal which requires a harmonizing interpretation, if at all possible. See Noble I, 693 A.2d at 1087-94. The court was able to give effect to both sections by construing § 24-431 (a) as being of general application and § 24-206 (a) as providing for a specific case. See id. at 1092-94. In its analysis the court had to consider legislative history, the weight to be given to the executive's interpretation, and the rule of lenity. Although I joined Noble and believe it is correctly decided, it was not a judicial slam-dunk that flowed from judicial precedent or generally accepted interpretation. Quite to the contrary, the case came to the court in a highly contentious mode in the context of sharply differing administrative and judicial interpretations. Considering it to be a case of "exceptional importance," the court heard the case en banc. It is unlikely that so much judicial attention would have been focused on the matter if the result had been "clearly foreshadowed."
Having concluded that the Noble decision was not clearly foreshadowed, I turn to a retroactivity analysis, in the context of this case, of the factors set out in Mendes. We have identified those factors as justifiable reliance, avoidance of altering vested contract or property rights, desire to reward plaintiffs who seek to initiate just changes in the law, and fear of burdening the administration of Justice by disturbing decisions reached under overruled precedent. See Mendes, 389 A.2d at 789-91. Of these, reliance has played a major role in the court's analyses of retroactivity. See Washington v. Guest Servs., 718 A.2d 1071, 1076 (D.C. 1998); Mendes, 389 A.2d at 789. In Noble I and Noble II, the District of Columbia represented that for a period of more than ten years, the District of Columbia Board of Parole made decisions to revoke parole based on its understanding that revocation would not result in forfeiture of credit for street time prior to parole revocation. As appellants correctly note, implicit in that representation is that the Board might not have revoked parole in certain cases, particularly those where the parole violations were of a lesser order, because of the disproportionate consequence that revocation would impose on the amount of time remaining to be served. The Board would have considered not only the impact that extended incarceration would have on the life of the individual revoked parolee and his or her family, but also the added burden that such extended incarceration would impose on an already strained correctional system. The District of Columbia's previous representation that there was regular and continued reliance by the Board of Parole on the interpretation rejected by Noble is, in my view, if not ground for estoppel, an insurmountable barrier to a Conclusion that Noble should be applied retroactively. If the Board of Parole decided to revoke parole in individual cases based on its understanding that revocation would not result in a significant extension of incarceration, application of a contrary understanding to the consequence of revocation undermines the very basis of the executive's actions - actions which are not subject to judicial review on the merits and which may well be beyond the corrective power of the executive. *fn15 Retroactive application of Noble, in short, would implicate the integrity of decisions made by the Board of Parole. Although the decision whether and to what extent a judicial ruling is to be applied retroactively is for the court, see Mendes, 389 A.2d at 788, we must weigh that judicial imposition of a consequence unintended by the executive decision maker is a serious affront to the authority, vested in the Board of Parole, to make decisions affecting parole. That individual parolees relied on an interpretation contrary to that eventually adopted in Noble adds a human dimension to the number of expectations that are frustrated by the decision to apply Noble retroactively and deny "street time" credit to revoked parolees.
In this case, as in French, "the Board [of Parole] reasonably relied on the Corporation Counsel's opinion." 658 A.2d at 1031. Here, as in French, "no decision of this court ha[d] ever squarely [before Noble] addressed the precise issue at hand". Id. As in French, "[t]he Corporation Counsel's opinion was issued in  and, until now ha[d] never been challenged in this court." Id. Thus, as in French, "given the long history of this case and the hardship that would result if we were to ignore [appellant's] reasonable reliance on the Corporation Counsel's opinion, we conclude that a purely prospective rule is the fairest under the circumstances presented here." Id. at 1032 (citations omitted).
For these reasons, I Dissent and would not give retroactive application to this court's decision in Noble. Just as in Noble, the issue raised in this appeal is of "exceptional importance" because it affects a great number of District of Columbia prisoners and their families. In addition, the majority's Conclusion that Noble was "clearly foreshadowed" is at odds with our decision in French. On both grounds, this appeal should be reconsidered by the court en banc.