John J. Tollefsen Litigation Law Blog on Lawyers.com

Lunsford v. Saberhagen Holdings, Inc., --- P.3d ----, 2009 WL 1547826 (Wash. Jun 04, 2009) (NO. 80728-1-I)

When the Supreme Court announces a new rule of law or a change of existing law, the issues becomes whether it is applied to cases that arose prior to the ruling. The answer is that it depends on whether the court holds that it is prospective or retroactive. In explaining its ruling the court made the following comment: 

Stare decisis does not require, as the concurrence suggests, concurrence at 3, that we never alter our prior decisions, but merely that we take seriously our responsibility to do so carefully and clearly in order to cause as little hardship as possible to those who may have relied on our prior decisions.

The court should balance the equities when deciding whether the new rule is retroactive. Where changes in the law cannot be made without undue hardship, the court has discretion to apply a new rule of law purely prospectively-to all litigants whose claims arise after our decision. The court held that Robinson v. City of Seattle, 119 Wash.2d 34, 830 P.2d 318 (1992) merely meant that selective prospectivity (the rule only applies to selective cases) was abolished.

If rights have vested under a faulty rule, or a constitution misinterpreted, or a statute misconstrued, or ... subsequent events demonstrate a ruling to be in error, prospective overruling becomes a logical and integral part of stare decisis by enabling the courts to right a wrong without doing more injustice than is sought to be corrected.

The court held that all decisions are retroactive. The only exception to the general rule of retroactivity is pure prospectively which can be determined only in the case in which the new rule is announced.