Maurice Delane Davis, Randall Patrick Martin, Mark Edward Childs v. Margaret Moore
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DISTRICT OF COLUMBIA COURT OF APPEALS
NOS. 98-SP-1234 & 98-SP-1240
MAURICE DELANE DAVIS, APPELLANT,
NO. 98-SP-1261
RANDALL PATRICK MARTIN, APPELLANT,
NO. 98-SP-1319
MARK EDWARD CHILDS, APPELLANT,
V.
MARGARET MOORE, et al., APPELLEES.
Appeals from the Superior Court of the
District of Columbia
(Hon. Iraline Green Barnes, Trial Judge)
(Argued April 7, 1999
Decided December 9, 1999)
Jonathan S. Franklin, with whom Jonathan L. Abram and E. Desmond Hogan were on
the brief, for appellants.
Stephen B. Kinnaird and Mary L. Wilson, Assistant Corporation Counsel, with whom Jo
Anne Robinson, Acting Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel,
were on the brief, for appellees.
Wilma A. Lewis, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr.,
Elizabeth H. Danello, and Lisa Hertzer Schertler, Assistant United States Attorneys, and Michael
A. Stover, General Counsel, United States Parole Commission, filed a brief as amicus curiae.
Before STEADMAN and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.
Opinion for the court by Senior Judge GALLAGHER.
Dissenting opinion by Associate Judge RUIZ at p. .
GALLAGHER, Senior Judge: Appellants Maurice D. Davis, Randall P. Martin, and Mark E.
Childs are parole violators under the supervision of the District of Columbia Department of Corrections
("DOC"). In accordance with a policy reached in 1987 by the District of Columbia Corporation Counsel
2
("Corporation Counsel") and implemented by the DOC, these parole violators had their prison sentences
reduced by the amount of time spent on parole prior to their parole violations (i.e., "street time credit").
In United States Parole Comm’n v. Noble, 693 A.2d 1084 (D.C. 1997), aff’d on reh’g en banc,
711 A.2d 85 (D.C. 1998), this court rejected the Corporation Counsel's opinion and held that parole
violators must forfeit accrued street time credit. After Noble, the DOC retroactively withdrew appellants'
street time credit and restored their prison sentences to their original length of time. Appellants each filed
a petition for a writ of habeas corpus objecting to the DOC's retroactive application of Noble to their
sentences. The trial court denied appellants' petitions for a writ of habeas corpus. We affirm.
I.
D.C. Code § 24-206 (a) (1996) provides that when a prisoner violates parole "[t]he time [the]
prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced."
This statute, enacted in 1932, has never been repealed and was enforced by the DOC until 1987.
In 1987, the District of Columbia enacted D.C. Code § 24-431 (a) (1996) as part of the Good
Time Credits Act.1 In an issued opinion, the Corporation Counsel mistakenly interpreted D.C. Code § 24431 (a) as impliedly repealing D.C. Code § 24-206 (a). In accordance with the Corporation Counsel's
opinion, the DOC began crediting accrued street time for parole violators. However, the United States
Parole Commission ("USPC"), the federal agency responsible for supervising the parole of District of
Columbia offenders who had been housed in federal penitentiaries,2 did not adopt the Corporation
1
D.C. Code § 24-431 (a) states that "[e]very person shall be given credit on the maximum and the
minimum term of imprisonment for time spent in custody or on parole as a result of the offense for which
the sentence was imposed."
2
As we noted in Noble, supra:
The primary responsibility for the incarceration of persons who violate
(continued...)
3
Counsel's interpretation and continued its practice of withdrawing street time credit for parole violators,
pursuant to D.C. Code § 24-206 (a). The discordant practices of the DOC and the USPC continued until
the Noble decision in 1998.
In Noble, this court rejected the Corporation Counsel's interpretation of the two statutes and held
that parole violators could not have their sentences reduced by their time spent on parole prior to
revocation. 693 A.2d at 1105. The effect of the Noble decision was twofold: (1) it required the DOC
to return to its pre-1987 practice in accordance with D.C. Code § 24-206 (a), and (2) it brought the
DOC's practice back into accord with the USPC, which had continued to enforce D.C. Code § 24-206
(a) as related. Noble did not decide, however, whether the DOC should apply its holding retroactively
or prospectively, but merely "flag[ged] the question." Id. at 1104. Therefore, the sole issue in this appeal
is whether Noble should be applied retroactively to those prisoners who, like appellants, violated their
parole prior to our decision in Noble.
II.
Appellants argue that the four-factor balancing test established in Mendes v. Johnson, 389 A.2d
781 (D.C. 1978) (en banc)3 requires a prospective-only application of Noble.4 The District of Columbia,
2
(...continued)
District of Columbia criminal statutes, and for the supervision of such
individuals, is lodged in the District government. As a result of
overcrowding at District of Columbia facilities, however, some District of
Columbia offenders are housed at federal correctional institutions. When
a District of Columbia prisoner is released on parole from a federal facility,
the parole is supervised by the United States Parole Commission in
conformity with District of Columbia law.
693 A.2d at 1085-86 n.2 (citations omitted).
3
Mendes established the following four factors for determining the retroactive affect of a new rule of
(continued...)
4
on the other hand, contends that the Mendes analysis is not applicable because the Noble decision did
not announce a new rule of law, and thus Noble should be applied retroactively.
"[A] threshold requirement for depriving a decision of retroactive effect is that such decision 'must
establish a new principle of law, either by overruling clear past precedent . . . or by deciding an issue of first
impression whose resolution was not clearly foreshadowed.'" O'Connell v. Maryland Steel
Erectors, Inc., 495 A.2d 1134, 1137 (D.C. 1985) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97,
106 (1971) (emphasis added)).5 Because we conclude that Noble does not announce a "new principle
of law," the Mendes test does not apply.
3
(...continued)
law:
(1) the extent of the reliance of the parties on the old rule (including the
degree of justifiable reliance and the hardship which might result to the
litigants as a result of retrospective application); (2) avoidance of altering
vested contract or property rights; (3) the desire to reward plaintiffs who
seek to initiate just changes in the law; and (4) the fear of burdening the
administration of justice by disturbing decisions reached under the
overruled precedent.
Id. at 789 (footnote omitted).
4
Appellants also argue that a retroactive increase in their punishment would violate the Ex Post Facto
Clause and the Due Process Clause. Both arguments are unavailing. First, the Ex Post Facto Clause is
not applicable because it applies to legislative action only. Marks v. United States, 430 U.S. 188, 191
(1977). Second, retroactive application of a court's interpretation of a statute violates the Due Process
Clause only if the judicial construction is "unforeseeable." Johnson v. Kindt, 158 F.3d 1060, 1063 (10th
Cir. 1998), cert. denied, 119 S. Ct. 811 (1999). For the same reasons discussed under the following
"clearly foreshadowed" analysis, Noble was foreseeable and thus its retroactive application does not
violate the Due Process Clause.
5
In O'Connell, the court went on to state that the "threshold requirement" was "not conclusive." 495
A.2d at 1137. However, after O'Connell the Supreme Court in Ashland Oil, Inc. v. Caryl, 497 U.S.
916, 921 (1990) applied the "threshold requirement" conclusively when it held that because the decision
"did not . . . decide a wholly new issue of first impression, it does not meet the first prong of the Chevron
Oil test [, and thus] . . . applies retroactively." See also United States v. Johnson, 457 U.S. 537,
550 n.12 (1982).
5
Noble did not overrule "clear past precedent." Consequently, the issue becomes whether the
holding in Noble was "clearly foreshadowed" by the circumstances surrounding its pronouncement, such
that it was not a new rule of law. We hold that Noble must be applied retroactively because the entirety
of the surrounding circumstances clearly foreshadowed its holding.
First, the revocation of street time credit mandated by the Noble holding had been legislated and
administered by the District of Columbia for more than fifty years prior to Noble, pursuant to D.C. Code
§ 24-206 (a). This statute has never been repealed and was enforced by the DOC from 1932 until 1987.
This administrative history distinguishes the present case from French v. District of Columbia Board
of Zoning Adjustment, 658 A.2d 1023, 1031 (D.C. 1995), which appellants contend is dispositive of
whether Noble was "clearly foreshadowed."
Appellants argue that Noble cannot be "clearly foreshadowed" because French justifies their
"belief that following the Corporation Counsel's advice [would] present no legal hazards." 658 A.2d at
1031 ("Although the opinions of the Corporation Counsel are not valid legal authority, the mere fact that
they have been issued by the city's top legal officer may cause interested persons (and government
agencies) to rely on them in good faith."). However, because the circumstances surrounding the
Corporation Counsel's opinion in this case are distinguishable from those circumstances in French, we find
that French is not dispositive.
In French, we denied retroactive effect to a decision which abrogated the Corporation Counsel's
earlier opinion on a matter. Id. at 1031-32. However, unlike the present case, in French, the
Corporation Counsel's opinion was consistent with a "standard practice" that "traditionally" had been in
effect up to the date of the French holding. Id. at 1031. Consequently, the French court determined
that its holding was not "clearly foreshadowed," and thus its "new rule of law" should be afforded
prospective effect. Id.
6
Unlike the French court's decision, Noble did not upset the "traditional," "standard practice" of
handling a parole violator's street time credit. Quite the contrary, the Noble court reasserted the
"traditional" method for handling street time credit which had been in place from 1932 until 1987.
Therefore, contrary to appellants' contention, French is not dispositive of whether the Noble decision was
"clearly foreshadowed." Instead, the administrative history of street time credit served to foreshadow the
holding in Noble.
Second, the USPC and the DOC, both of whom were tasked with supervising parole for District
offenders, applied different treatment to a parole violator's street time credit. Unlike the DOC, the USPC
did not follow the Corporation Counsel's mistaken interpretation of D.C. Code § 24-431 (a), but
continued to revoke parole violators' street time credit in accordance with D.C. Code § 24-206 (a). Thus,
District of Columbia offenders placed in federal penitentiaries were not entitled to street time credit, even
before Noble was decided.6 After Noble, this court essentially required the DOC to adopt the USPC's
continued practice of revoking a parole violator's street time credit. Certainly, appellants cannot claim that
our decision in Noble created an unforeseen rule of law when it merely harmonized one agency's practice
with another's.
Finally, the Ninth Circuit Court of Appeals’ decision in Tyler v. United States, 929 F.2d 451,
cert. denied, 502 U.S. 845 (1991), certainly predicted the reasoning and conclusion reached in Noble.
Just three years after the Corporation Counsel's ill-fated opinion and seven years before our en banc
decision in Noble, the Ninth Circuit addressed the same issue raised in Noble. Joseph Tyler was
convicted in the District of Columbia and incarcerated under the authority of the USPC. The USPC, acting
under their interpretation of D.C. Code §§ 24-206 (a) and -431 (a), refused to credit Tyler's street time
6
Notably, at the time of their sentencing, appellants did not know whether they would be incarcerated
in a federal penitentiary and be subject to the USPC's application of D.C. Code § 24-206 (a) or held in
a District of Columbia prison and be subject to the DOC's mistaken application of D.C. Code § 24-431
(a).
7
following the revocation of his parole. Tyler appealed, citing the Corporation Counsel's contrary opinion.
The Ninth Circuit Court of Appeals upheld the USPC's practice of excluding a parole violator’s
street time credit. 929 F.2d at 456-57. Moreover, the Tyler court's decision was based on many of the
same reasons offered by this court in Noble, including a disfavor of implied statutory repeals and a
rejection of the Corporation Counsel’s interpretation of legislative history as flawed. Id. at 456. Of course,
prisoners under the supervision of the DOC would not expect to be bound by the Ninth Circuit's holding.
Nevertheless, in the context of foreshadowing, Tyler's significantly similar reasoning and identical
conclusion leads us to conclude that it was not beyond reason for appellants to expect that this court may
someday conclude as the Tyler court did.
These three circumstances -- (1) the DOC's long-standing enforcement of D.C. Code § 24-206
(a) from 1932 to 1987; (2) the continued divergent application of street time credit between the USPC and
the DOC; and (3) the Ninth Circuit Court of Appeals’ Tyler decision in 1991 -- all add up to the
conclusion that the Noble holding was "clearly foreshadowed." Therefore, we hold that the Noble
decision must be applied retroactively.
Affirmed.
RUIZ, Associate Judge, dissenting: In United States Parole Comm'n v. Noble, 711 A.2d
85 (D.C. 1998) (en banc) (Noble II),1 the court ruled that under the Good Times Credit Act of 1986, a
revoked parolee is not entitled to credit against his sentence for time spent on parole prior to revocation,
1
The en banc court adopted the opinion of the division that first heard the case, United States
Parole Comm'n v. Noble, 693 A.2d 1084 (D.C. 1997) (Noble I).
8
a decision which overturned a contrary opinion of the District of Columbia Corporation Counsel that had
guided the District of Columbia Board of Parole and formed the basis for Department of Corrections
regulations2 and practice for over ten years. In this appeal, we are asked to decide an issue we flagged in
Noble I, supra note 1, 693 A.2d at 1104, whether the Noble ruling is to have retroactive application
to those inmates whose parole was revoked during the time, prior to the Noble II decision, when the
District of Columbia Board of Parole and the Department of Corrections held to the view that time spent
on parole was not forfeited by parole revocation.3 This determination, we are informed, will impact at least
one thousand District of Columbia prisoners, at various stages of their incarceration, whose paroles have
been revoked for any number of reasons.4 All of the appellants before us would have completed their
sentences in 1998 under the pre-Noble interpretation. If Noble applies to them, however, Martin and
Childs have until November 2000 and January 2001, respectively, to serve out their sentences.5
2
35 D.C. Reg. 1077, 1078 (1988) (to be codified at 28 DCMR § 601.7).
3
Upon our decision in Noble II, the District, acting on the assumption that the decision would be
applied retroactively, recalculated the "face sheets" of those inmates whose paroles had been revoked so
as to add to the time remaining on their sentence the "street time" that Noble announced was forfeited by
revocation. It appears that the District has elected not to seek to reincarcerate persons who were released
once their sentences were deemed to have been completed using the District’s pre-Noble interpretation.
4
Of the appellants before us, Randall Martin's parole was revoked because he was arrested on an
assault charge of which he has since been acquitted. He had been sentenced to two to six years for
attempted distribution of cocaine; at the time his parole was revoked, Martin had been on parole for two
and half years. Pre-Noble his full sentence would have been served on May 30, 1998. Post-Noble that
date was pushed back to November 4, 2000. Martin was re-paroled in January 1999.
Mark Childs was sentenced in 1993 to sixteen to forty-eight months for attempted distribution of
cocaine. He had been on parole during two separate periods exceeding two years when his parole was
revoked in 1998. Pre-Noble his full sentence would have been served on June 10, 1998. Post-Noble,
on January 8, 2001.
Maurice Davis was sentenced in 1991 to thirty to ninety months for attempted distribution of
cocaine. He was paroled in June 1996 and had been on parole approximately four months when his parole
was revoked in October of that year. Pre-Noble his full sentence would have been served on December
27, 1998; post-Noble, completion of the sentence was delayed by 110 days.
5
Presumably Davis had served his full sentence as of the spring of 1999. See note 4.
9
The majority concludes that Noble should be applied retroactively, without first engaging in the
four-prong analysis we established in Mendes v. Johnson, 389 A.2d 781, 789 (D.C. 1978) (en banc),
on the ground that the current situation does not even meet the threshold requirement for a retroactivity
analysis, whether the subject ruling announces “a new principle of law.” See O’Connell v. Maryland
Steel Erectors, Inc., 495 A.2d 1134, 1137 (D.C. 1985) (quoting Chevron Oil Co. v. Huson, 404
U.S. 97, 106 (1971)). That is an astounding conclusion in view of the ten-year history of a contrary
understanding by the Board of Parole and the practice of the Department of Corrections granting credit
to revoked parolees, which was based on an interpretation by the Corporation Counsel, the chief legal
officer of the District of Columbia. See Noble I, 693 A.2d at 1101 (citing French v. District of
Columbia Bd. of Zoning Adjustment, 658 A.2d 1023, 1031 (D.C. 1995)).
The fact that the
Corporation Counsel had a long-standing opinion on the question decided in Noble is important to the
issue before us in this appeal, whether Noble established “a new principle of law,” and should be applied
retroactively. Its importance in this context is easily distinguishable from the lesser weight to be given to
the substance of the Corporation Counsel’s opinion in the court's interpretation of the applicable statutes.
See Noble I, 693 A.2d at 1099-1102. As we recognized in Noble I, "there can be reliance interests that
justify prospective application of a court decision that rejects a formal opinion of the Corporation Counsel."
693 A.2d at 1104. This is precisely what we determined in French, where we declined to give retroactive
application to a decision that contravened an opinion of the Corporation Counsel that was relied upon by
the litigants, even though we had concluded that the Corporation Counsel's opinion contradicted the
statute's plain meaning which "could not be clearer." 658 A.2d at 1030.
Whether Noble announced a “new rule of law,” requiring retroactivity analysis, depends on
whether its holding “was clearly foreshadowed.” Nimetz v. Cappadona, 596 A.2d 603, 608 (D.C.
1991).6 In deciding whether to eschew retroactivity analysis because a ruling does not announce a "new
6
A "new rule of law" requiring retroactivity analysis is also shown if a ruling "overruled clear past
(continued...)
10
principle of law" on the ground that it was "clearly foreshadowed," it is important to keep in mind that the
purpose of the “clearly foreshadowed” standard is to identify those cases where it is plain that the weighing
of the Mendes factors in the context of an individual case is unnecessary because the interests sought to
be protected by a retroactivity analysis are not implicated. The determination that a court ruling was
"clearly foreshadowed" and thus did not announce a "new principle of law" that would require a retroactivity
analysis, in other words, is nothing more than a summary conclusion that it is evident that there would be
no cognizable unfairness if the ruling were to be applied retroactively. This case presents with a
background of contradictory statements by courts and administrative agencies preceding the Noble
decision and the fact that an interpretation contrary to the one ultimately adopted was held and implemented
by the District, which had the bulk of affected prisoners in its jurisdiction. These facts counsel against
reaching a summary conclusion that no retroactivity analysis is required here. In addition, we must be
mindful that retroactive application of the Noble decision will affect a great many District of Columbia
prisoners who will have their sentences extended beyond the date they had been originally assigned under
official interpretations which they had every reason to believe were authoritative. Thus, I believe that the
majority's truncated consideration of the retroactivity issue is unwarranted in the circumstances of this case.
The proper question to ask in deciding whether a ruling was “clearly foreshadowed,” we have said,
is "whether the rule is a 'clear break' from the past, a 'newly minted principle,' or a rule that an attorney
'should have known' was 'about to be changed, because of either judicial or legislative intimations to that
effect.'" Nimetz, 596 A.2d at 608 (citations omitted). Answering those questions in the context of this
case, I cannot agree with the majority’s conclusion that the Noble ruling was “clearly foreshadowed.”
First, there were no “judicial or legislative intimations” of the result in Noble in this jurisdiction. The plain
language of the Good Time Credits Act of 1986 states that “every person” is to be given credit for time
6
(...continued)
precedent,” referring to judicial decisions, not administrative interpretation and regulations. See id. We
also have declined to apply a decision retroactively where it has overruled a longstanding procedural
practice in the Superior Court. See Brodis v. United States, 468 A.2d 1335, 1337 (D.C. 1983).
11
“spent . . . on parole.” D.C. Law 6-218, 34 D.C. Reg. 484 (1987), D.C. Code § 24-431 (a) (1996).
Moreover, earlier opinions of this court had indicated, albeit in dicta, that revoked parolees are entitled to
credit for their street time prior to revocation. See Franklin v. Ridley, 635 A.2d 356, 358 (D.C.
1993); Luck v. District of Columbia, 617 A.2d 509, 510-11 (D.C. 1992). One would hope that
those indications would not be found in published opinions of the court if the contrary view were “clearly
foreshadowed.” Second, Noble announced a “clear break” from the understanding and practice in the
District of Columbia, where the Corporation Counsel had interpreted the statute consistent with its plain
language, and the Department of Corrections so implemented it for over ten years, until this court’s en banc
decision in 1998. Although the Noble court ultimately disagreed with the Corporation Counsel’s
interpretation of the statute, in considering whether Noble was a "clear break" from past practice, we
cannot blind ourselves to the reality in the District during the preceding ten years. See French, 658 A.2d
at 1031 ("We are mindful nevertheless that, until today, the standard practice in the District of Columbia
has been to accept the view of the Corporation Counsel, wrong as it is . . . .") In this appeal, the court must
credit that the Corporation Counsel’s opinion was a good faith and reasonable effort by the government
official charged with advising District of Columbia agencies. In the face of the Corporation Counsel’s
opinion, the conclusion that the Noble ruling was “clearly foreshadowed” necessarily implies not only that
the Corporation Counsel's opinion was analytically flawed, but also that it was so unreasonable or
incompetent that any reliance on it was unjustified. But see Noble I, 693 A.2d at 1114-15 (Schwelb,
J., dissenting); Luck, 617 A.2d at 515 (adopting administrative interpretation of the Good Times Credit
Act based on the Corporation Counsel's opinion); French, 658 A.2d at 1030. I do not subscribe to any
such implication. Finally, at both levels of consideration of the issue, by the division and by the en banc
court, one member of this court vigorously dissented, indicating that he still believes that the law entitles
revoked parolees to credit for street time prior to revocation. See Noble II, 711 A.2d at 87; Noble I,
693 A.2d at 1106–17 (Schwelb, J., dissenting). These factors are impossible to reconcile with the
majority’s conclusion that Noble was “clearly foreshadowed.” As the Supreme Court stated in refusing
to apply retroactively a ruling that would have required new elections, the issue “involve[d] complex issues
12
of first impression – issues subject to rational disagreement.” Allen v. State Bd. of Elec., 393 U.S. 544,
572 (1968). In determining whether a new rule of law was not “clearly foreshadowed,” the threshold test
is met “if the question answered by the new rule was ‘subject to rational disagreement.’” Truesdell v.
Halliburton Co., 754 P.2d 236, 239 (Alaska 1988). In Noble, the court resolved the “rational
disagreement” among a number of responsible litigants.
The majority points to the fact that a federal court7 and the United States Parole Commission,
contrary to the District, had for some time interpreted the statute in the same manner ultimately adopted
in Noble. This indicates, at best, that the issue was so disputed that it was the subject of diametrically
opposed views at high levels of the District of Columbia and United States governments.8 Rather than
lending support to the conclusion that resolution of the issue was "clearly foreshadowed" by the views of
the United States Parole Commission and the Ninth Circuit, the contrary views of District of Columbia and
federal officials underscore that Noble decided "a matter of first impression in a matter not clearly
foreshadowed," at least in our court. French, 658 A.2d at 1031; cf. Nimetz. 596 A.2d at 603 ("even
if we now decide an issue of first impression, the court has, in effect, forecast its resolution" (emphasis
added). Similarly, the majority may not logically rely on the fifty years preceding the Good Times Credit
Act of 1986, during which District of Columbia law was clear that revoked parolees forfeited street time
credit. See D.C. Code § 24-206 (a) (1996). The majority points to that history as proof that the Noble
ruling was "clearly foreshadowed" because its holding announced nothing more than the "traditional" method
of denying street time credit for revoked parolees. Although the state of the law prior to enactment of the
statute that is at issue in a court ruling may well be relevant to an interpretation of a later-enacted statute,
7
8
See Tyler v. United States, 929 F.2d 451 (9th Cir. 1991).
The Tyler opinion was specifically criticized by this court in Luck, 617 A.2d at 514 n.6. In Noble,
we expressly stated that "we do not rely on Tyler to inform the analysis." See Noble I, 693 A.2d at 1103
n.34. Moreover, even though the USPC had a view of the statute contrary to that expressed in the
regulations of the Department of Corrections, the USPC was bound to follow the D.C. parole regulations.
See Cosgrove v. Thornburgh, 703 F. Supp. 995, 1003-04 (D.C. 1988).
13
prior law necessarily cannot be dispositive of the statutory question because the statute at issue did not
exist. Noble did not simply decide, moreover, that the "traditional" method of § 24-206 (a) prevailed as
it had before enactment of §24-431 (a). Rather, in a long and careful opinion, Noble wrestled with the
apparently plain — and apparently contradictory — language of D.C. Code §§ 24-431 (a) and -206 (a).
The apparent facial inconsistency between the two statutes was resolved by application of the rule against
implied repeal which requires a harmonizing interpretation, if at all possible. See Noble I, 693 A.2d at
1087-94. The court was able to give effect to both sections by construing § 24-431 (a) as being of general
application and § 24-206 (a) as providing for a specific case. See id. at 1092-94. In its analysis the court
had to consider legislative history, the weight to be given to the executive's interpretation, and the rule of
lenity. Although I joined Noble and believe it is correctly decided, it was not a judicial slam-dunk that
flowed from judicial precedent or generally accepted interpretation. Quite to the contrary, the case came
to the court in a highly contentious mode in the context of sharply differing administrative and judicial
interpretations. Considering it to be a case of "exceptional importance," the court heard the case en banc.
It is unlikely that so much judicial attention would have been focused on the matter if the result had been
"clearly foreshadowed."
Having concluded that the Noble decision was not clearly foreshadowed, I turn to a retroactivity
analysis, in the context of this case, of the factors set out in Mendes. We have identified those factors as
justifiable reliance, avoidance of altering vested contract or property rights, desire to reward plaintiffs who
seek to initiate just changes in the law, and fear of burdening the administration of justice by disturbing
decisions reached under overruled precedent. See Mendes, 389 A.2d at 789-91. Of these, reliance has
played a major role in the court's analyses of retroactivity. See Washington v. Guest Servs., 718 A.2d
1071, 1076 (D.C. 1998); Mendes, 389 A.2d at 789. In Noble I and Noble II, the District of Columbia
represented that for a period of more than ten years, the District of Columbia Board of Parole made
decisions to revoke parole based on its understanding that revocation would not result in forfeiture of credit
for street time prior to parole revocation. As appellants correctly note, implicit in that representation is that
14
the Board might not have revoked parole in certain cases, particularly those where the parole violations
were of a lesser order, because of the disproportionate consequence that revocation would impose on the
amount of time remaining to be served. The Board would have considered not only the impact that
extended incarceration would have on the life of the individual revoked parolee and his or her family, but
also the added burden that such extended incarceration would impose on an already strained correctional
system. The District of Columbia's previous representation that there was regular and continued reliance
by the Board of Parole on the interpretation rejected by Noble is, in my view, if not ground for estoppel,
an insurmountable barrier to a conclusion that Noble should be applied retroactively. If the Board of
Parole decided to revoke parole in individual cases based on its understanding that revocation would not
result in a significant extension of incarceration, application of a contrary understanding to the consequence
of revocation undermines the very basis of the executive's actions — actions which are not subject to
judicial review on the merits and which may well be beyond the corrective power of the executive.9
Retroactive application of Noble, in short, would implicate the integrity of decisions made by the Board
of Parole. Although the decision whether and to what extent a judicial ruling is to be applied retroactively
is for the court, see Mendes, 389 A.2d at 788, we must weigh that judicial imposition of a consequence
unintended by the executive decision maker is a serious affront to the authority, vested in the Board of
Parole, to make decisions affecting parole. That individual parolees relied on an interpretation contrary
to that eventually adopted in Noble adds a human dimension to the number of expectations that are
frustrated by the decision to apply Noble retroactively and deny “street time” credit to revoked parolees.
9
The regulatory picture is in a state of flux, as responsibility for parole is in the process of being
transferred from the District of Columbia Board of Parole to the United States Parole Commission. See
National Capital Revitalization and Self-Government Improvement Act, Pub. L. No. 105-33, tit. XI, §
11231 (a)(1), 111 Stat. 712, 745 (1997), D.C. Code § 24-1231 (a) (Supp. 1999). Under the new
scheme, the USPC has authority to make reparole decisions concerning District prisoners as of August
1998. Reparole decisions made subsequent to Noble would of course be subject to the rule in that case.
It is not at all clear whether, even if it knew the underlying rationale for prior Board of Parole revocations,
the USPC could "revoke a prior revocation of parole" made by the Board of Parole in order to avert an
unfair extension of incarceration in a particular case. Even if the parole authorities were able and disposed
to reconsidering revocations, such a case-by-case approach implicates consideration of the fourth Mendes
factor, burdening the administration of justice by disturbing decisions reached under overruled precedent.
See Mendes, 389 A.2d at 791.
15
In this case, as in French, "the Board [of Parole] reasonably relied on the Corporation Counsel's
opinion." 658 A.2d at 1031. Here, as in French, "no decision of this court ha[d] ever squarely [before
Noble] addressed the precise issue at hand". Id. As in French, "[t]he Corporation Counsel's opinion
was issued in [1987] and, until now ha[d] never been challenged in this court." Id. Thus, as in French,
"given the long history of this case and the hardship that would result if we were to ignore [appellant's]
reasonable reliance on the Corporation Counsel's opinion, we conclude that a purely prospective rule is
the fairest under the circumstances presented here." Id. at 1032 (citations omitted).
For these reasons, I dissent and would not give retroactive application to this court's decision in
Noble. Just as in Noble, the issue raised in this appeal is of “exceptional importance” because it affects
a great number of District of Columbia prisoners and their families. In addition, the majority’s conclusion
that Noble was “clearly foreshadowed” is at odds with our decision in French. On both grounds, this
appeal should be reconsidered by the court en banc.
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