Criminal Law

Justice Moody’s Lament Unanswered: Michigan’s Unprincipled Retroactivity Jurisprudence

by Timothy A. Baughman

. . . all case-law, including that interpreting criminal statutes, operates retroactively, and such retroactivity is an essential part of our legal system.1

It is now going on two decades since Justice Blair Moody, Jr. lamented that "there has been inconsistency in both analysis and result in the Supreme Court of Michigan's application of its law-changing decisions," while calling for a "new and detailed look at both the factors which should enter into a retroactivity determination and the means by which this decision should be reached."2 It was his hope that his article would "provide a starting point for such reexamination and reanalysis."3

It is most unfortunate that Michigan retroactivity jurisprudence remains as "inconsistent" and "confused" as it was when Justice Moody urged that it was "time for the Michigan high court to take a long look" at that jurisprudence.4 If it was time for that look in 1982, it is certainly long past time in 2000. In an appropriate case, the court should examine the state of its retroactivity jurisprudence, to the extent that any real "jurisprudence of retroactivity" can be ascertained at present.

The statement by Professors LaFave and Scott quoted at the beginning of this article is an overstatement of a presumptive rule of the operation of case decisions, a rule that is most likely to be discarded in cases of law-changing decisions. All law-changing decisions, however, are not of one piece, and an appropriate retroactivity jurisprudence should set forth some different rules depending on the sort of authority the court is exercising in reaching the law-changing decision in question. Unlike the United States Supreme Court, the Michigan Supreme Court has explicit authority over practice and procedure, including the authority to promulgate and revise procedural rules of evidence.

As part of the Court's exercise of its judicial authority to decide cases, the Court has on occasion modified the common law, finding its authority to do so in Const 1963, art 3, § 7.5 To oversimplify, the Court will exercise authority to interpret statutes; interpret constitutional provisions, both state and federal; create, revise, and interpret court rules, including procedural rules of evidence; and construe and modify the common law. Retroactivity principles should differ depending on what it is the Court is doing.

In the few pages available here, the need for a principled retroactivity jurisprudence that focuses on the sort of authority exercised by the Court, and the Court's rightful authority itself, is suggested; full development of answers to the questions raised are beyond the scope of what can be undertaken here.


The common law, properly understood, provides little authority for the Court to make law changing decisions in the area of criminal law, despite constitutional authorization for change of the common law by either the judiciary or Legislature. This is because the power to define crimes and ordain punishments is a legislative, not a judicial, function,6 and the judiciary is not free to amend a penal statute to conform to its view of modern principles. Justice Campbell stated long ago that "Whatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation."7

It has long been settled that when, in enacting a statute, the Legislature employs, without elaboration or alteration, a term with a recognized and well-understood common-law meaning, the "Legislature intended no alteration or innovation of the common law not specifically expressed," and further that "it is never to be presumed that the Legislature intended to make any innovation upon the common law any further than the case absolutely require[s] in order to carry the act into effect."8

This principle plainly applies in criminal cases, for once the common-law definition of a term has been determined, then where "the Legislature [shows] no disposition to depart from the common-law remains."9 The use of a common-law term without alteration is as much an enactment of the meaning of that term into law as if the Legislature had spelled out the common-law meaning in detail in the statute, and the judiciary, of course, is not free to alter the meaning of a statute as it is free to alter common-law civil causes of action, such as negligence actions, which have no statutory base.10

Untenable problems of retroactivity are created when the court undertakes to change the meaning of a penal statute by modifying the common-law understanding of a term which the Legislature adopted in the statute. Thus, while constructions of a statute are generally applied retroactively, even when considering a matter of first impression, the court 'discovering' the meaning of the statute and not "creating" it,11 a law-changing decision that modifies a common-law principle or term employed in a statute is more in the nature of legislation, which presumptively operates only prospectively.

When, while construing the murder statute, the Supreme Court modified the common-law understanding of the term "murder" in People v Aaron12 by abrogating the common-law felony-murder rule that any killing during the course of any felony was murder, and when it modified the common-law understanding of homicide in People v Stevenson13 by abrogating the so-called "year and a day" rule of causation, the Court applied its decisions prospectively, for it was acting legislatively, though to do so is inconsistent with the ordinary rule of retroactivity of decisions construing statutes.

Further, as will be discussed below, an overruling that is wholly prospective, applying not even in the case before the Court, is at least arguably beyond the authority of the Court, as it does not resolve any "case." It is also dicta, as unnecessary to the decision of the case. Modifications of the common law, being legislative in nature, would thus seem to require some form of prospective application,14 with a fundamental issue being whether, under the particular circumstances, the court has the rightful authority to modify the common law at all, or whether instead the common-law term or principle involved has become embodied in statute, so that the Court should not be changing the law at all.


The practice and procedure authority granted exclusively to the judiciary by the Michigan Constitution includes the authority to create and modify court rules governing procedure and to create and modify procedural rules of evidence.15 Again, this authority appears to be akin to the exercise of a legislative power, and one would expect court rules and rules of evidence to be created and modified through an exercise of the Court's administrative authority, after notice to the bench and bar and a period allowing comment on the proposed change.16

The Court has, on occasion, modified a rule of evidence in a case decision. For example, in People v Allen,17 the Court modified MRE 609 regarding use of convictions to impeach defendants and witnesses in a case decision rather than by following the administrative procedure for publication, comment, and promulgation of a court rule or rule of evidence amendment.

The Court was then left with the question of application of its new rule. Portions of the new rule were held to be purely prospective, while other portions were held applicable to the cases before the Court, and to cases pending on appeal with the issue properly preserved. This limited retroactivity was achieved by a determination by the majority that certain portions of the new MRE 609 were merely "clarifications" of existing law, with the dissenters countering vigorously that the changes could not fairly be characterized merely as clarifications, but were instead changes to the rule, so that the applicability question should have been decided by giving purely prospective effect to the decision. Because purely prospective application of the amended rule was the only fair application, said the dissenters, this itself demonstrated that the amendment to the rule "should have been accomplished through the rulemaking process...."18

Where court rules or rules of evidence are involved, once again questions of retroactive application of a law-changing decision raises issues regarding whether the Court is appropriately exercising its authority in the first place.


When statutes and constitutional provisions are construed, the judiciary has no legislative or administrative authority, but only the "judicial power," which involves resolving the case before it and determining the meaning of the law created by either the Legislature or the people directly.19 When the Michigan Supreme Court exercises the "judicial power," it is, as said by Justice Cooley, concerned with a determination of what the existing law is, even in "changing" a mistaken interpretation, rather than making a "predetermination of what the law shall be for the regulation of all future cases," which is an act that "distinguishes...a legislative act from a judicial one."20

Michigan continues to apply, at least in most cases, a retroactivity test that has been abandoned in the federal system. That test applies three factors: 1) the purpose of the new rule; 2) the general reliance on the old rule; and 3) the effect of retroactive application of the new rule on the administration of justice.21 The concern that reliance on the old rule may well have created "settled expectations" is considered important in resolving the question of applicability of a new rule to cases already tried and to conduct that has already taken place. Construction of a statute or constitutional provision, even one overruling prior precedent, is considered an expression of what the law "is," a view that in the federal system has led to adoption of Justice Harlan's view that these law-changing decisions are applicable on direct appeal to the case before the Court and all cases then pending on appeal with the issue preserved.22

While the Michigan "three-step" approach protects settled expectations, it has the counter-effect of freeing the Court from concern for the practical effect of law-changing decisions, thereby removing an important restraint against legislating in the guise of deciding cases. The Michigan Supreme Court at some point needs to confront the changed federal retroactivity jurisprudence to examine whether Michigan should follow the same route. Of even greater concern are law-changing decisions that are given no retroactive effect, not even to the case before the Court.

The question of applying a decision "purely prospectively" raises grave questions involving the rightful authority of the Court. The Eighth Circuit in In re Grand Jury Subpoena Duces Tecum,23 addressing questions of privilege in regard to subpoenas issued by the Office of Independent Counsel, considered whether it could resolve the questions involved without applying them in the very case before it. The court concluded it could not. Citing recent United States Supreme Court cases on the point, the court stated that "purely prospective adjudication is at least unwise and most likely beyond our power...." In short, "a purely prospective decision is little more—perhaps nothing more—than an advisory opinion."24

The court based its conclusion on two United States Supreme Court decisions. In James Beam Distilling v Georgia25 Justice Scalia wrote that purely prospective opinions are outside of the judicial power confided in the judiciary by the Constitution, for the judicial power as historically understood is the "power to say what the law is" not the power to change it—when judges "make law" it is as "though they were 'finding' it."26

Pure prospectivity is pure legislation. Justice Blackmun agreed that "failure to apply a newly declared constitutional rule to cases pending on direct review violates basic norms of constitutional adjudication" This failure, said Justice Blackmun, results in a decision outside of the Court's authority to "decide only 'Cases' and 'Controversies,'" for "[u]nlike a Legislature, we do not promulgate new rules to 'be applied prospectively only....'"27

Subsequently, in Harper v Virginia Department of Taxation,28 the Court considered whether to apply its decision in Davis v Michigan Department of Treasury29 retroactively. Through Justice Thomas, a majority made clear what was implicit in the multiple opinions in Beam:

When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

Justice Scalia stated in his cogent concurring opinion: "The true traditional view is that prospective decisionmaking is quite incompatible with the judicial power and that courts have no authority to engage in the practice." Indeed, historically "fully retroactive decisionmaking was considered a principal distinction between the judicial and legislative power."30

The Michigan Supreme Court , however, has construed statutes and given purely prospective application to its construction without any consideration of whether it was failing to exercise judicial power, issuing an advisory opinion,31 or rendering its decision completely dicta. In People v Lemmon,32 the Court recently construed MCL 770.1, which permits the granting of a new trial on the ground that "justice was not done."

Overruling People v Herbert,33 the Court held that a trial judge may not grant a new trial by simply disagreeing with the credibility determinations of the jury; that is, by acting in effect as a "13th juror." Although concluding that "[t]he reasons cited by the trial judge in the opinion before us are an inadequate basis for disturbing the jury's evaluations of credibility," the Court nonetheless affirmed the grant of a new trial "because we find that the court did not err in ordering a new trial under the erroneous thirteenth juror standard previously permitted under Herbert." The Court concluded, without any analysis, that "the newly adopted limitations on Herbert apply prospectively to cases not yet final as of the date of this decision."34

Where the Court is not exercising legislative/administrative authority with regard to modifying the common law or amending or promulgating a court rule or rule of evidence, but exercising "judicial power" to decide a case involving the construction of a statute or constitutional provision, its authority in acting to decide the case is unquestionable. Whether it is exercising judicial power when it decides the question of the applicability of the decision to other cases, however, itself raises important questions of judicial authority the court needs to address.


As a matter of efficiency, the Michigan Supreme Court often attempts to resolve the question of the applicability of a law-changing decision to other cases in the case in which it is changing the law. This is a practice not followed by the United States Supreme Court, for the very good reason that the only question before the Court is the application of the "new" rule to the case being considered, and any discussion of application to other cases is wholly dicta.

For this reason, the United States Supreme Court considers the applicability question in a subsequent case, if it needs to consider it at all. This is not as inefficient as it seems. After development by the United States Supreme Court of a workable retroactivity jurisprudence, federal district courts and circuit courts of appeal can apply that jurisprudence to law-changing decisions of the United States Supreme Court to resolve the issue of the applicability of those decisions in pending and future cases, the Supreme Court then never having to take up the question.

If Michigan were to develop a coherent and consistent retroactivity jurisprudence, and one consistent with its rightful authority, depending upon the context in which it is acting, the Michigan Supreme Court could cease its dicta regarding the applicability of its decisions to other cases. Justice Moody's call for the development of this jurisprudence has gone unheeded for far too long. One can only hope that it is soon answered.


1 LaFave and Scott, Substantive Criminal Law § 2.4(c), p 143.

2 Blair Moody, Jr., "Retroactive Application of Law-Changing Decisions in Michigan," 28 Wayne L Rev 439, 441 (1982) (hereafter 'Moody').

3 Id.

4 Moody, at 509.

5 Const 1963, art 3, § 7: "The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force, until they expire by their own limitations, or are changed, amended or repealed." See e.g., Placek v Sterling Heights, 405 Mich 638, 275 NW2d 511 (1979), modifying the common law tort of negligence by abrogating contributory negligence in favor of comparative negligence.

6 As stated by Justice Campbell in In re Lamphere, 61 Mich 105, 108 (1886): "While we have kept in our statute-books a general statute resorting to the common law for all nonenumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision." (Emphasis added.)

7 61 Mich at 109-110. For a discussion of this entire area see Baughman, "Michigan's 'Uncommon Law' of Homicide," 7 Cooley L Rev 1 (1990).

8 Wales v Lyon, 2 Mich 276, 282 (1851). See also Garwols v Bankers Trust, 251 Mich 420 (1933).

9 People v Schmitt, 275 Mich 575, 577, 267 NW 741 (1936). (Emphasis added.) See also People v Utter, 217 Mich 74, 185 NW 830 (1921); People v Potter, 5 Mich 1 (1858).

10 See People v Couch, 436 Mich 414, 461 NW2d 683 (1990), where the Court noted that in enacting the murder statute with no alteration of the common-law definition the Legislature had "adopt[ed] and embrace[d]" the common-law definition, making it at least "debatable whether this Court still has the authority to change those definitions." 436 Mich at 420.

11 See LaFave and Scott, fn 2, for a discussion of the difficulties that can arise in terms of fair notice when a court overrules a prior decision governing whether particular conduct is or is not criminal under a penal statute.

12 People v Aaron, 409 Mich 672, 299 NW2d 304 (1980).

13 People v Stevenson, 416 Mich 383, 331 NW2d 143 (1982).

14 But see Placek v Sterling Heights, fn 7, where the Court changed the law of negligence dramatically and applied it to the case before it and all cases pending on appeal with the issue properly preserved, over a dissent arguing for prospectivity.

15 Const 1963, art 6, § 5. See McDougall v Shanz, 461 Mich 15 (1999) regarding the 'procedural/substantive' distinction with regard to the respective authority of the judiciary and the Legislature.

16 See MCR 1.201 regarding this procedure.

17 People v Allen, 429 Mich 558, 420 NW2d 499 (1988).

18 See dissent of Justice Boyle, 429 Mich at 702.

19 The people may directly create law by initiative or constitutional amendment.

20 Cooley, Constitutional Limitations, p 91.

21 See People v Sexton, 458 Mich 43, 60-61, 580 NW2d 404 (1998). This is not to suggest that Sexton's holding that the rule of People v Bender, 452 Mich 594, 551 NW2d 71 (1996) is to be applied only to that case and future cases is mistaken, as Bender itself raises a question of legitimacy. The 3-1-3 decision turns on Justice Brickley's concurring opinion, which creates a rule of criminal procedure without grounding it on any constitutional or statutory authority.

22 Griffith v Kentucky, 479 US 314, 322-23, 107 S Ct 708, 93 L Ed 2d 649 (1987).

23 In re Grand Jury Subpoena Duces Tecum, 112 F3d 910 (CA 8, 1997).

24 112 F3d at 925. (Emphasis added.)

25 James Beam Distilling v George, 501 US 529, 115 L Ed 2d 481, 111 S Ct 2439 (1991) (see concurring opinions of Justice Scalia and Justice Blackmun).

26 See generally, Scalia, A Matter of Interpretation (Princeton University Press: 1997), pp 3-48.

27 115 L Ed 2d at 496.

28 Harper v Virginia Department of Taxation, 509 US 86, 125 L Ed 2d 74, 113 S Ct 2510 (1993).

29 Davis v Michigan Department of Treasury, 489 US 803, 103 L Ed 2d 891, 109 S Ct 1500 (1989).

30 113 S Ct at 2523. See also Cooley, Constitutional Limitations, p 91.

31 The Michigan Supreme Court has explicit constitutional authority to issue advisory opinions. Const 1963, art 3, § 8. That authority, however, is a special authority, not part of the judicial power, and can only be exercised upon request from the governor or either house of the Legislature. Further, it may be exercised only as to the constitutionality of legislation after the legislation has been enacted but before it has gone into effect, which eliminates any question of retroactivity of the Court's opinion.

32 People v Lemmon, 456 Mich 625, 576 NW2d 129 (1998).

33 People v Herbert, 444 Mich 456, 511 NW2d 654 (1993).

34 Lemmon, at 647-648.

Timothy A. Baughman
Timothy A. Baughman received his B.A. from Albion College and his J.D. from Wayne State University Law School. Heis the Chief of Research, Training, and Appeals for the Wayne County Prosecutor’s Office. He has appeared four times in the U.S. Supreme Court, over 50 times in the Michigan Supreme Court, and is the author of two books and various articles on criminal law and criminal procedure.

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