Schiller v. Lefkowitz

Oppenheimer, J., delivered the opinion of the Court. The appellant’s appeal from an adverse judgment in a civil jury case was pending when Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965) was decided. The jury which decided against the appellant, Schiller, in the Circuit Court for Montgomery County was composed of persons who were required, as a condition of their service, to swear to a belief in God. The appellant contends that under Schowgurow and subsequent decisions he was deprived of rights guaranteed to him by the Fourteenth Amendment to the federal Constitution and the Maryland Declaration of Rights, and is entitled to a new trial.

The appellant’s suit was for personal injuries sustained as a result of the appellee’s alleged negligence in the operation of his automobile. The appellant asked for a jury trial. His suit was filed on October 28, 1963 and came to trial on November 2, 1964. Immediately before the trial, at a bench conference, on the suggestion of the lower court and with the consent of the then attorneys for both parties, it was decided that the case be tried first as to liability and then as to damages.

The jury, after hearing evidence only on the issue of liability, returned a verdict in favor of the appellee. The appellant’s motion for a new trial was denied and judgment was entered for the appellee. The appellant’s original counsel withdrew his appearance. The appeal was entered on February 24, 1965.

While the appeal was pending, Schowgurow was decided, on October 11, 1965. Thereafter, on motion duly made, this Court ⁴⁶⁴ permitted the appellant to amend his original brief and to raise the additional questions as to the effect of Schowgwrow and our subsequent decisions on his trial. In his amended brief, the appellant states that in Montgomery County (as is generally true in Maryland) jury panels for criminal and civil cases are selected from the same jury list, and that no distinction is made in the method of selection of jurors for civil and criminal cases. These facts are agreed to by the appellee.

Neither in his amended brief nor in oral argument did the appellant claim actual prejudice; he contends that, under our decisions, prejudice is presumed. He does not contend that objection was made before or during the trial to the method under which the jury was selected, but, under Hays and Wainwright v. State, 240 Md. 482 , 214 A. 2d 573 (1965), failure to object, before Schowgurow , does not constitute a bar to the raising of the questions here involved. The appellant’s original ground for his appeal was that the trial court’s separation of the issue of liability from the issue of damage in a civil jury trial was not justified by the Maryland Rules, and, if it was, the court’s action contravenes the Maryland Constitution. In his amended brief, the appellant contends that he was deprived of rights guaranteed to him by the federal Constitution and the Maryland Declaration of Rights by reason of the illegal exclusion from the jury of persons because of the nature of their beliefs about religion.

We shall first consider the questions raised in the appellant’s amended brief. I In Schowgurow , the Court held that because of the decision of the Supreme Court of the United States in Torcaso v. Watkins, 367 U. S. 488 (1961), reversing the decision of this Court, the provision of Article 36 of the Maryland Declaration of Rights requiring demonstration of belief in God as a qualification for service as a grand or petit juror was in violation of the Fourteenth Amendment to the United States Constitution. We held, further, that the decision was not to apply retroactively except for convictions which had not become final before rendition of our opinion. In State v. Madison, 240 Md. 265 , 213 A. 2d 880 (1965), the Court held that the indictment pending ⁴⁶⁵ against the defendant when Schowgurow was decided, was voidable even though the defendant was a member of a faith which believed in the existence of a Supreme Being.

Smith v. State, 240 Md. 464 , 214 A. 2d 563 (1965), held that criminal proceedings pending at the time Schowgurow was decided, in which the grand jury had been improperly selected, were voidable but not void, and that the defect could be knowingly and understanding^ waived. In Hays and Wainwright v. State, supra, it was held that, in a criminal proceeding pending at the time of Schowgurow , when the conviction had not become final, the defendants were not barred, on appeal, from invoking the principle set forth by the change in law, and that, because at the time the grand jury had been selected, the law then in effect had been a part of the Maryland Constitution for over a century, the failure of the defendants to object in the lower court was not a waiver of an existing right. There can be no question but that the method of jury selection which Schowgurow held was invalid in criminal cases because of the Supreme Court’s decision in Torcaso is equally invalid in civil cases. The invalidity stems from the First Amendment to the federal Constitution, made applicable to the states through the Fourteenth, and goes to the exclusion of prospective jurors because of the nature of their beliefs about religion in any trial, criminal or civil.

The requirement is invalid as to the selection of the juries and the invalidity does not depend upon the nature of the litigation in which the juries serve. After Schowgurow , any jury chosen under the exclusionary procedure therein held improper would be illegally constituted and could be successfully challenged in any case, criminal or civil. The question before us is whether the Schowgurow principle is to be held retroactive as to a pending appeal of a civil case when the method of the jury’s selection was not challenged and when no actual prejudice is alleged. II In Schowgurow , the Court considered the legal principles applicable to the prospective or retroactive effect to be given to a new ruling, reversing, because of a Supreme Court decision, what had been regarded as settled law.

The opinion re ⁴⁶⁶ ferred to Linkletter v. Walker, 381 U. S. 618 (1965), Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358 (1932) and other cases, and it was held that the proper administration of justice required that the legal principle enunciated in Schowgurow shall not apply retroactively, “except for convictions which have not become final before rendition of this opinion.” See also Hays and Wainwright v. State, supra, at 486-88. A decision changing pre-existing law can be made wholly prospective without application even to the case in which the change is announced. Sunburst, supra, at 364 , and see Linkletter, 381 U. S. at 622 footnote 3 and 627-29. 1 In Schowgurow , this Court did not adopt the technique of purely prospective overruling. That technique, as has been pointed out in the authorities cited in footnote 1, makes an opinion only a prophecy instead of an adjudication, chills legitimate attacks upon existing law believed erroneous, and is unfair to the litigant whose initiative has brought about the change.

However, the decision was made only prospective except as to the case itself and as to other convictions which had not then become final. The exception set forth, in terms, applies only to pending criminal cases. We shall nevertheless consider whether, in the interest of the proper administration of justice or in general fairness, the exception should be extended to pending civil cases, and whether, in any event, the exception must be so extended because pending criminal and civil cases must be treated alike. ⁴⁶⁷ Ill It was pointed out in Schowgurow, 240 Md. at 134 , that the decision as to the method of selection of the grand and petit juries “does not go to the fairness of the conduct of the trial—‘the very integrity of the fact-finding process.’ Linkletter at 381 U. S. 639 .” That is equally true as to the pending case and as to all other civil jury cases whether finally adjudicated or pending at the time of Schowgurow . The defect goes to the method by which the jury was selected, not to the qualifications and competency of the jurors who served.

Smith v. State, 240 Md. at 468. From the point of view of the administration of justice, we see no reason why Schowgurow should be made retroactive in any respect as to civil cases. As Linkletter recognizes, and as was held in Sunburst, a civil case, retroactive operation of an overruling decision is neither required nor prohibited by any constitutional principle. Whether and to what extent a new rule adopted in an overruling decision will be given retroactive effect is a matter of judicial policy, to be determined 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, 381 U. S. at 629.

As to the prior history of the exclusionary procedure held invalid in Schowgurow because of the Supreme Court’s decision in T or caso, the procedure embodied in our Declaration of Rights was in effect for more than a century and had been upheld by this Court. The purpose of its overruling, under the Supreme Court’s decision, was to effectuate the intent of the First Amendment, made applicable to the states through the Fourteenth; that purpose is achieved through the mandatory requirement that the illegal exclusion in the selection of juries be abandoned in all trials, civil or criminal, after Schowgurow . Retroactive operation of the rule cannot further or retard its future application. In Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 28-29 , 163 N. E. 2d 89 (1959), the plaintiff was injured in a school bus accident, and sued the school district for alleged negligence.

The trial court gave the District a summary judgment on the ground of sovereign immunity, which ⁴⁶⁸ had been the Illinois law for a long period. The intermediate court affirmed, but the Illinois Supreme Court overruled its prior decisions as to sovereign immunity and reversed. In so doing, the court denied retroactive application of its decision except as to the plaintiff in the case before it. 2 The court said that retrospective application of the decision might result in great hardship to school districts which had relied on prior decisions upholding the doctrine of tort immunity of such districts. Here, retroactive application would result in hardship to many parties who had received a verdict from competent and qualified juries and who would be forced to retry the cases (if their witnesses were still available) because of what was subsequently held to be a procedural defect in the method of jury selection.

The Illinois court also said that, “if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in challenging the old rule which we now declare erroneous. Thus there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it.” Here, Schowgurow was not a dictum but a decision as to that case and the original challenge of the old rule was made by Schowgurow, not Schiller. In Chykirda v. Yanush, 131 Conn. 565, 568-69 , 41 A. 2d 449 (1945), the Connecticut Supreme Court of Errors held that evidence must be offered as a basis for an award of punitive damages.

In so holding, the court reversed its prior decisions on the question. However, in the case before it, the court refused to disturb the judgment, although the trial court, in accordance with previous decisions, had charged the jury that they were authorized to award punitive damages even in the absence of evidence to support the award. The appellate court said the case “affords us an opportunity definitely to abolish the practice of claiming such damages in the absence of evidence as to them.” ⁴⁶⁹ The holding, in view of the decision, was purely prospective. 3 As this Court pointed out in Madison, 240 Md. at 271 , Thiel v. Southern Pacific Co., 328 U. S. 217 (1946), like Schowgurow and Madison , involved the effect of an improper exclusion from the jury list. Thiel was a civil case.

In that case, the Court reversed a verdict for the respondent on the ground that the jury commissioners had improperly excluded from the jury lists all persons who worked for a daily wage. In Francis v. Southern Pacific Co., 333 U. S. 445, 450-51 (1948), another civil case pending when Thiel was decided, the petitioners contended that the jury panel in the case was selected contrary to Thiel. Thiel was decided a few weeks after the verdict in Francis , and the objection was made for the first time in the motion for a new trial. The Court held the objection came too late.

In Thiel , the Court acted in the exercise of its power over the administration of justice in the federal courts, and the question of retroactivity as to pending cases was not discussed in Francis , but the refusal to make Thiel applicable to pending cases is nevertheless pertinent. In this case, as in Francis , no question of the fairness of the trial is involved. We find no constitutional or other reason to extend the Schowgurow exception as to non-retroactivity to pending civil cases, unless the fact that Schowgurow made the exception as to pending criminal cases of itself entitles the appellant and other persons in like circumstances to inclusion within it. IV A change in law will generally be given effect while a case is on direct review whether the litigation is criminal or civil. ⁴⁷⁰ See Linkletter, 381 U. S. at 627 and cases therein cited.

That principle does not mean, however, that in deciding whether a change in law is to be given retroactive effect as to cases other than the litigation in which the change is announced, the Court is not free to consider any substantial difference between the case before it and other pending cases. We must “weigh the merits and demerits in each case.” Linkletter at 629 . Specifically, we must determine, when the decision in the particular case rests in part on a presumption of prejudice to the defendant in a criminal case by reason of an improper method of choosing the grand and petit juries, whether it necessarily follows that there is the same presumption in a pending civil case. In deciding whether a change of law is to be made retroactive in criminal cases, the Supreme Court has analyzed the nature of the change on a case to case basis.

In considering retro-activity in Schowgurow , we referred to the discussion in Link-letter of the differences between the right of an indigent defendant, on appeal, to a free transcript of his trial under Griffin v. Illinois, 351 U. S. 12 (1956), and to state-provided counsel at the time of his trial under Gideon v. Wainwright, 372 U. S. 335 (1963), and the right of the defendant, under Mapp v. Ohio, 367 U. S. 643 (1961), in state criminal trials, to have evidence excluded which was seized in violation of the search and seizure provisions of the Fourth Amendment. Linkletter footnote 13, 381 U. S. at 628 ; Schowgurow, 240 Md. at 132-33 . In Tehan v. Shott, 382 U. S. 406, 416-18 (1966), the Supreme Court held that its decision in Griffin v. California, 380 U. S. 609 (1965), that it was unconstitutional for a prosecutor or trial judge to make adverse comment upon a defendant’s failure to testify in a state criminal trial 4 was not to be applied retroactively in cases in which the conviction had become final. In his opinion for the Court in Tehan , Mr. Justice Stewart said: ⁴⁷¹ “As to Mapp , therefore, we deal here with a doctrine which rests on considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively.

The basic purpose of a trial is the