dissenting, with whom KITE, Justice, joins.
[¶ 8] I dissent because I am convinced that the holding of Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo.2004) (Beaulieu II), relating to subject matter jurisdiction, should not be retroactively applied in this case.
[¶ 9] In Beaulieu II, this Court determined that a failure to comply with the execution and certification requirements of Article 16, § 7 of the Wyoming Constitution created a subject matter jurisdiction defect. In so holding, the Court specifically overruled Martinez v. City of Cheyenne, 791 P.2d 949 (Wyo.1990), which held that a failure to properly verily or certify a governmental claim as required by Article 16, § 7 “is nothing more than a defect or irregularity that is not jurisdictional.” Beaulieu II, ¶¶ 12-13.
[¶ 10] In Wooster v. Carbon County School Dist. No. 1, 2005 WY 47, 109 P.3d 893 (Wyo.2005), this Court declined to limit Beaulieu II to prospective application and affirmed summary judgment against Mr. Wooster because he had failed to comply with Article 16, § 7. In justifying its decision, the Court stated:
The dissent contends that the erroneous holding of Martinez should be applied to the instant case to save the appellant’s invalid claim, because Martinez was not overruled until Beaulieu II in 2004. We decline to do so, for three reasons. First, as recited above, the appellant’s notice of claim was presented to the appellee sixteen months after the publication of Beaulieu I, where we clearly announced that, to be valid, governmental claims had to be signed by the claimant and certified to under the penalty of perjury.
Wooster, ¶ 18.
[¶ 11] In this case, all essential facts upon which subject matter jurisdiction must be determined predate Beaulieu v. Florquist, *2932001 WY 33, 20 P.3d 521 (Wyo.2001) (Beaulieu I). The incident upon which appellants’ claim is based occurred in July, 1998. Appellants presented their Notice of Claim in June, 1999. They commenced this action by filing their complaint in May, 2000. Beau-lieu I was decided in 2001. The factual predicate which provides the foundation for the majority’s decision to allow retroactive application in Woosier is absent here.
[¶ 12] Pursuant to Martinez, appellee was required to timely raise lack of compliance with Article 16, § 7 as a defense to the claim. Failure to timely assert the defense resulted in waiver of the defense. Martinez, 791 P.2d at 958. Appellee did not raise the defense until April, 2004, nearly four years after litigation had commenced.
[¶ 13] Prior to Wooster, we consistently rejected retroactive application of a new rule of law when such application would produce substantial inequitable results. Wooster, ¶¶ 24-28 (Burke, J., dissenting). In making a determination as to whether a decision of this Court should be applied retroactively, we employ a three part test:
First, the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, [381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965) ]. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Cipriano v. City of Houma, [395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969)].
Hanesworth v. Johnke, 783 P.2d 173, 177 (Wyo.1989) (emphasis omitted).
[¶ 14] Application of that test inescapably leads to the conclusion that Beaulieu II should not be applied retroactively in this case.1
a. Beaulieu II created new law by overruling the clear past precedent of Martinez.
b. There is no valid purpose to be served by retroactive application.
c. Retroactive application produces substantial inequitable results in this ease. Appellants are prevented from having their case determined on the merits. Ap-pellee, which waived its Article 16, § 7 compliance defense, is fortuitously released from potential liability for its wrongful acts.
[¶ 15] In summary, Wooster is factually distinguishable and is not binding precedent with respect to the issue of retroactive application of Beaulieu II in this ease. Appellants meet the three requirements of the Hanesworth test and are entitled to protection from retroactive application of Beaulieu II. The decision of the district court should be reversed.
. See the dissent in Wooster for further discussion of proper application of the Hanesworth test as it relates to the holding of Beaulieu II. Wooster, ¶¶ 28-50.