concurring.
I agree with my colleagues that it is not necessary for the Alaska Supreme Court to decide in this case whether to adopt the rule of retroactivity announced by the United States Supreme Court in Griffith v. Kentucky.1 For the reasons explained in the majority opinion, our Supreme Court's decision in Doe v. State2 applies retroactively under any of the three potential rules of retroactivity: the Griffith rule, the Judd rule, or the Teague rule.
The very fact that there is no present need to decide whether to adopt the Griffith rule is a strong reason not to decide this issue. In my view, the parties to a case do a better job of briefing, and an appellate court does a better job of deciding, when the issue to be decided is important to the proper resolution of the case. Easy cases, as well as hard cases, create the risk of making bad law.
Moreover, there are reasons to favor our current rule of retroactivity-the Judd rule-over the rule announced in Griffith. One strong argument in favor of Judd is that Judd allows a court to weigh various factors in deciding the extent to apply a new rule retroactively. And there may be cases in which the retroactive application of a new rule could have a negative impact on law enforcement and the administration of justice. For instance, in State v. Glass,3 the Alaska Supreme Court, applying the Judd test, held that the new rule requiring the police to obtain a warrant before monitoring or recording a conversation would apply prospectively-only to those cases where the monitoring or recording took place after the Supreme Court announced the new warrant requirement.
There is something to be said for retaining the flexibility of the retroactivity rule in Judd, which allows the court to determine retroactivity on a case-by-case basis, weighing the impact of a new rule of law. In Glass, the Supreme Court concluded that law enforcement officials had reasonably relied on pre-Glass law, that they could not have been expected to foresee the Glass decision, and that their actions "were entirely reasonable and in good faith." 4 The court concluded that "[If the rule in Gloss were given complete retroactivity so that it would apply to cases already completed, the negative ef-*791feet on the administration of justice would be substantial." 5 The court noted that, if the Glass rule were applied retroactively, it would impact a number of cases.6 Many of the cases could have involved serious crimes and would have been harder to prove without the tape recorded conversations.
The court reasoned that where the police and prosecuting agencies have reasonably relied upon previously established law, retroactive application of a new rule of law ran the risk of creating disrespect for the legal system:
Practical problems arise from the undisputed fact that the police, prosecuting agencies and the public have relied upon the previous statements of the law, and that the great impact of and respect for the law in our society is based on such acceptance by the public generally. A change for the future can be digested but the application of a new interpretation to past conduct which was accepted by previous judicial decisions leads us to confusion and a hesitancy to accept any theory except one of gamesmanship with corresponding disrespect for our whole system of laws.7
There is a strong argument that the Supreme Court was correct when it decided to limit the retroactivity of the new rule in State v. Glass. Judd enabled the court to have the flexibility to consider the impact of its decision on the administration of justice to reach a just result. The principle of retroactivity announced by the United States Supreme Court in Griffith v. Kentucky would not have allowed the Alaska Supreme Court to weigh the impact of its decision as it was able to do by applying the rule in Judd. There is a considerable risk in abandoning the flexibility of the Judd retroactivity rule, and the court should not lightly abandon that decision, particularly in a case which does not require reaching that issue.
. 479 U.S. 314, 107 S.Ct. 708, 93 LEd.2d 649 (1987).
. 189 P.3d 999 (Alaska 2008).
. 596 P.2d 10 (Alaska 1979).
. Glass, 596 P.2d at 14.
. Id. (citations omitted).
. Id. at 15.
. Id. at 14 (quoting Judd v. State, 482 P.2d 273 at 278-79 (Alaska 1971)).