RETROACTIVITYRETROACTIVITYRETROACTIVITYRETROACTIVITYRETROACTIVITY
I. GENERAL PRINCIPLES
The issue of retroactivity can only arise in cases where
there has been a departure from existing law. State v.
Young, 87 N.J. 132, 139 (1981); State v. Burstein, 85 N.J.
394, 403 (1981); State v. Staruch, 326 N.J. Super. 245, 251-
52 (App. Div. 1999). The Constitution does not mandate
that retroactivity be accorded to all court-fashioned rules of
criminal procedure, even those based purely on federal
constitutional grounds, but instead such determinations
are questions of policy, for “the Constitution neither
prohibits nor requires retroactive effect.” Brown v.
Louisiana, 447 U.S. 323, 327, 100 S.Ct. 2214 (1980);
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731 (1965);
State v. Nash, 64 N.J. 464, 470 (1974). Generally, when
the Legislature repeals a statute, the repeal does not apply
retroactively to a final judgment. United States v. McGlory,
968 F.2d 309, 350 (3d Cir. 1992), cert. denied, 507 U.S.
962, 113 S.Ct. 1388, 122 L.Ed.2d 763 (1993). In the
realm of retroactivity, United States Supreme Court
decisions are only binding on state courts insofar as the case
involves federal constitutional authority, see Ker v.
California, 374 U.S. 23, 83 S.Ct. 1623 (1963) and Miller v.
United States, 357 U.S. 301, 78 S.Ct. 1190 (1958), and
most recently, New Jersey courts have declined to follow
changes in federal precedent in the area of retroactivity.
A. Federal Retroactivity Law
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731
(1965) is the seminal case where the United States Supreme
Court addressed federal retroactivity law. After
recognizing that the United States Constitution neither
required nor prohibited retroactivity, the Linkletter Court
determined that selecting the proper retroactive choice
entailed weighing “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.” Id. at 629, 85 S.Ct. at
1738.
In light of Linkletter, in order to determine whether
retroactivity will be accorded a given case under federal law,
the United States Supreme Court devised a tripartite test
which remains as the prevailing law in New Jersey. It
requires that in cases involving the retroactivity of a new
rule of law the court consider: (1) the purpose of the rule
and whether it would be furthered by a retroactive
application; (2) the degree of reliance placed upon the old
rule by those who administered it, and (3) the effect
retroactive application would have on the administration
of justice. Solem v. Stumes, 465 U.S. 638, 642-43, 104
S.Ct. 1338, 1341 (1984); Brown v. Louisiana, 447 U.S. at
327-328, 100 S.Ct. at 2219; Stovall v. Denno, 388 U.S.
293, 297, 87 S.Ct. 1967, 1970 (1967); Linkletter v. Walker,
381 U.S. at 629, 85 S.Ct. 1738; State v. Purnell, 161 N.J.
44, 58 (1999); State v. Nash, 64 N.J. 464, 471 (1974).Years later, in United States v. Johnson, 457 U.S. 537,
562, 102 S.Ct. 2579, 2595 (1982), the United States
Supreme Court revisited the issue of retroactivity and held
that the decisions of that Court construing the Fourth
Amendment were to be applied retroactively to all
convictions that were not yet final at the time the decision
was rendered. Under Johnson, for purposes of retroactivity,
a conviction is determined to be final where the judgment
of conviction was rendered, the availability of appeal
exhausted and the time for petition for certiorari has
elapsed or the petition is denied. Id. at 542, n.8, 102 S.Ct.
at 2583 n.8. See State v. Sarto, 195 N.J. Super. 565, 571-74
(App. Div. 1984). This concept is an important one in the
area of retroactivity because courts have distinguished
between retroactivity issues that are raised on direct appeal
and those raised in a collateral review proceeding. Indeed,
the Court in Johnson declined to address the retroactive
reach of its opinion in cases that raise Fourth Amendment
issues in collateral proceedings. Johnson, 457 U.S. at 562,
102 S.Ct. at 2595. The Court, however, also noted that
given the reach of Stone v. Powell, 428 U.S. 465, 96 S.Ct.
3037 (1976), the circumstances in which Fourth
Amendment challenges could be raised as a basis for a
collateral attack on the conviction (federal habeas corpus or
state post-conviction relief) were extremely limited. Id. at
562-63 n.20, 102 S.Ct. at 2595 n.20.The Supreme Court in Johnson therefore held that
Fourth Amendment decisions, except those that
constituted a “clear break with the past,” were to be applied
retroactively to all convictions that were not yet final when
the decision was handed down. Id. at 562, 102 S.Ct. at- Nevertheless, the Court expressly declined to
express its view on the retroactive application of decisions
construing any constitutional provision other than the
Fourth Amendment. Johnson, 457 U.S. at 562, 102 S.Ct. at
The limited applicability of the Johnson opinion
became apparent in Solem, supra, where the issue before the
Court was the retroactivity of Edwards v. Arizona, 451 U.S.
477, 101 S.Ct. 1880 (1984). In that decision, the Court
determined that the Johnson retroactivity analysis was
inapplicable because the matter before it was controlled by
prior precedent, arose on collateral review and did not