JAHNER
v.
DEPARTMENT OF CORRECTIONS
Docket No. 138320.
Michigan Court of Appeals.
Decided November 18, 1992, at 9:15 A.M.Monica A. Jahner, in propria persona.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Linda M. Olivieri, Assistant Attorney General, for the respondent.
Before: HOOD, P.J, and WAHLS and McDONALD, JJ.
PER CURIAM.
This is an appeal as of right from a circuit court's grant of summary disposition upholding an administrative decision by the Department of Corrections in which it refused to set aside a major misconduct ticket issued against petitioner for possession of marijuana. Petitioner, a prisoner proceeding in propria persona, argues that we should give limited retroactive effect to Martin v Dep't of Corrections, 424 Mich. 553; 384 NW2d 392 (1986). In Martin, the Supreme Court held that the policy directive under which petitioner was penalized was issued in violation of the Administrative Procedures Act and was therefore invalid. We agree with petitioner and reverse the circuit court's grant of summary disposition.
This Court's opinion in Martin[1] was rendered about a week after petitioner was found guilty of the substance abuse charge. She immediately raised the application of the holding in Martin to her case with a petition for rehearing. While the petition was pending, the Supreme Court's decision affirming this Court's opinion was issued. Petitioner's request for rehearing was denied by the department, *113 and she then filed a petition for judicial review in circuit court, which was dismissed as untimely. This Court reversed and remanded in an unpublished opinion per curiam.[2]
On remand, the circuit court granted summary disposition to respondent, pursuant to MCR 2.116(C)(10), holding that Martin should be applied prospectively only. Petitioner now appeals from that decision.
We note that there is a conflict between panels of this Court regarding whether Martin should be given full or limited retroactive application or whether it should be applied prospectively only. See Tauber v Dep't of Corrections, 432 Mich. 906 (1989) (the Supreme Court declining to resolve the conflict after certification by this Court). Two panels have held that Martin should be given prospective application only. See Tauber v Dep't of Corrections, 172 Mich. App. 332; 431 NW2d 506 (1988), and Guerrero v Dep't of Corrections, 165 Mich. App. 192; 418 NW2d 685 (1987).[3] Two other panels, including the panel that heard Martin on appeal after remand, have given it limited retroactive effect. See Martin v Dep't of Corrections, 168 Mich. App. 647; 425 NW2d 205 (1988) (Martin II), and Collins v Dep't of Corrections, 167 Mich. App. 263; 421 NW2d 657 (1988). We conclude that the reasoning of the cases that hold that Martin should be given limited retroactive effect is correct.
"The general rule in Michigan is that appellate court decisions are to be given full retroactivity unless limited retroactivity is justified." Fetz Engineering *114 Co v Ecco Systems, Inc, 188 Mich. App. 362, 371; 471 NW2d 85 (1991). In deciding whether to give retroactive application, "[t]here are three key factors" to be considered: "(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice." People v Hampton, 384 Mich. 669, 674; 187 NW2d 404 (1971). The fact that a decision may involve an issue of first impression does not in and of itself justify giving it prospective application where the decision does not announce a new rule of law or change existing law, but merely gives an interpretation that has not previously been the subject of an appellate court decision. Fetz, supra at 371-372.
On the other hand, our Supreme Court "has adopted a flexible approach" to retroactivity when dealing with "vested property rights, the magnitude of the impact of [a] decision on public bodies taken without warning or a showing of substantial reliance on the old rule." Tebo v Havlik, 418 Mich. 350, 360; 343 NW2d 181 (1984). Were it not for this flexibility, courts "would be severely hampered in [their] ability to make needed changes in the law because of the chaos that could result in regard to prior enforcement under that law." Id. Thus, "limited retroactivity" is the favored approach "when overruling prior law." Id. Prospective application is warranted when overruling settled precedent or deciding cases of first impression whose result was not "clearly foreshadowed." People v Phillips, 416 Mich. 63, 68; 330 NW2d 366 (1982).
We agree with the Guerrero panel that full retroactive application of Martin could result in chaos because of the overwhelming number of major misconducts that might need to be expunged. See Guerrero, supra at 196-197. On the other hand, we agree with the Collins and Martin *115 II panels that the Supreme Court's decision in Martin did not announce a new rule of law or a reversal of settled prior precedent, but rather was an application of settled administrative law to new facts. See Martin II, supra at 651; and Collins, supra at 267. Thus, neither full retroactive nor exclusively prospective application is warranted.
Applying the factors discussed in Hampton and in many other decisions, we note that the purpose of the Martin rule was to settle a conflict among panels of this Court and to invalidate a policy directive that was improperly promulgated. Collins, supra at 267. This purpose would not be frustrated by giving the decision only limited retroactive effect. Martin II, supra at 652; Collins, supra at 267.
Second, although there was reliance by respondent on its directive, there was no justifiable reliance on court precedent because the decisions were in conflict. Martin II, supra at 652; Collins, supra at 267-268. Thus, although we acknowledge that applying the third factor full retroactivity could create chaos, we note that there is no evidence that limited retroactivity would have the same disruptive effect. Martin II, supra at 652; Collins, supra at 268.
Thus, we agree with the Martin II and Collins panels that the Supreme Court's decision in Martin should be applied retroactively only to cases "which had not ripened into final adjudications" whether by "lapse or exhaustion of appellate rights." Martin II, supra at 653; Collins, supra at 268. That is, the issue may be addressed retroactively only in cases that were "pending" when the Martin decision was released whether at the predispositional, rehearing, judicial review, or appellate levels provided that the issue was properly *116 preserved. Martin II, supra at 653; Collins, supra at 268.
Regarding respondent's argument that petitioner's conduct was also prohibited by a duly promulgated rule, we note that the rule 1980 AACS, R 791.5513 in fact did not apply to petitioner because she was not eligible for good-time credits. Further, this was not the rule that respondent chose to proceed under at the administrative stage.
Reversed.
NOTES
[1] 140 Mich. App. 323; 364 NW2d 322 (1985).
[2] Jahner v Dep't of Corrections, decided May 16, 1989 (Docket No. 112031).
[3] Judge HOOD notes that he was on the panel in Guerrero, which considered the question of full retroactivity of Martin. While he adheres to the position that full retroactivity is not called for, he concludes that the limited retroactivity set forth in this opinion is the proper standard.