        In the Supreme Court of the State of Alaska 


State of Alaska,                             )
                                             )     Supreme Court No. S-14486
                       Appellant,            )
            v.                               )               Order
                                             )        Petition for Rehearing
John Doe A and John Doe B,                   )
                                             )
                       Appellees.            )       Date of Order: 4/10/2013
-------------------- -)

Trial Court Case # 3AN-I0-12131CI

      Before:         Fabe, Chief Justice, Winfree and Maassen, Justices, and Matthews
                      and Eastaugh, Senior Justices: [Carpeneti, Senior Justice, Stowers
                      and Bolger, Justices, not participating.]

             On consideration ofthe Appellant's Petition for Rehearing filed on 3/20/13,
and the Appellees' Response filed on 3/29/ 13,
             IT IS ORDERED:

             The Petition for Rehearing is DENIED IN PART and GRANTED to the
following extent: The text of footnote 32 on page 8 of the court's opinion has been
modified to read:
                      Doe I controls the outcome of this case absent
             compelling reasons to overrule that decision. In its briefmg,
             the State argues that Doe I was wrongly decided. Because
             the State has not convinced us that more good than harm
             would result from a departure from precedent, see May v.
             State, Commercial Fisheries Entry Comm 'n, 168 P.3d 873,
             884 (Alaska 2007), we decline to overrule our decision in
             Doe I.



      •      Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
State v. John Doe A and John Doe B
Supreme Court No. S-14486
Order of 411 0/13
Page Two


                Entered by the direction of the court.


                                                  Clerk ofthe Appellate Courts




cc: 	   Supreme Court Justices
        Judge Pfiffner
        Trial Court Appeals Clerk
        Publishers (Opinion 6758 - March 15, 2013)

Distribution:
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        310 K St Ste 308 

        Anchorage AK 99501 


        Darryl L Thompson 

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        841 I Street 

        Anchorage AK 99501 

      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
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               THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA,                               )
                                               )        Supreme Court No. S-14486
                      Appellant,               )
                                               )        Superior Court No. 3AN-10-12131 CI
                                               )
JOHN DOE A and JOHN DOE B,                     )        OPINION
                                               )
                      Appellees.               )        No. 6758 – March 15, 2013
                                               )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Frank A. Pfiffner, Judge.

              Appearances: Eric A. Ringsmuth, Assistant Attorney
              General, Office of Special Prosecutions & Appeals,
              Anchorage, and Michael C. Geraghty, Attorney General,
              Juneau, for Appellant. Darryl L. Thompson, Darryl L.
              Thompson, P.C., Anchorage, for Appellees.

              Before: Fabe, Chief Justice, Winfree and Maassen, Justices,
              and Matthews and Eastaugh, Senior Justices.* [Carpeneti and
              Stowers, Justices, not participating.]

              PER CURIAM.

I.    INTRODUCTION
              John Doe A and John Doe B were convicted of criminal offenses that
required them to register and comply with Alaska’s Sex Offender Registration Act


      *
             Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
(ASORA). Following their convictions, the legislature amended ASORA, requiring
certain offenders, including both John Does, to comply with additional registration
requirements. The John Does sued, claiming that retroactive application of ASORA’s
amendments to them violated the Ex Post Facto Clause of the Alaska Constitution. The
superior court agreed, and the State appealed.
             In 2008 we held in Doe v. State (Doe I), a two-to-one decision, that
ASORA’s amendments violated the Ex Post Facto Clause and do not apply to persons
who committed their crimes before the amendments became effective.1 Two years later
we promulgated Alaska Appellate Rule 106, which provides that any issue decided by
a two-to-one vote shall not have precedential effect.2 When we promulgated Appellate
Rule 106 we were silent on the question whether that rule might have retroactive effect.
We now hold that our two-to-one decision in Doe I is binding precedent that controls the
outcome of this case because Appellate Rule 106 does not have retroactive application.
II.   FACTS AND PROCEEDINGS
             In 1994 the Alaska Legislature enacted ASORA, which required convicted
sex offenders to register with the Alaska Department of Corrections, the Alaska State
Troopers, or local police.3 ASORA went into effect in August 1994.4
             John Doe A was convicted of a single aggravated sexual offense for an act
committed in 1995. Because of his conviction, Doe A was required to register annually




      1
             Doe v. State, 189 P.3d 999, 1000 (Alaska 2008).

      2

             Alaska Supreme Court Order No. 1742 (Nov. 10, 2010); Alaska R. App.
P. 106(b) (2010).
      3
             Ch. 41, §§ 1-14, SLA 1994.
      4
             Id.

                                          -2-                                     6758

as a sex offender for 15 years.5 John Doe B was convicted of a misdemeanor attempt to
commit a sexual offense for conduct that occurred in 1996. Doe B’s conviction required
him to register annually as a sex offender for 15 years.6 On the dates both men were
convicted, ASORA required them to provide certain information including name,
address, place of employment, date of birth, date and nature of conviction, alias used, and
driver’s license number.7
                 After both men were convicted, the Alaska Legislature amended ASORA.
Amendments passed in 1998 required certain sex offenders to register quarterly, instead
of annually, and increased registration periods for certain sex offenders to lifetime
registration.8     The amendments also required sex offenders to provide additional
information, including information about mental health treatment.9            Subsequent
amendments required sex offenders to provide email addresses, instant messaging
addresses, and other “[i]nternet communication identifier[s]” and expressly authorized
the Department of Public Safety to publish certain information on the internet.10 Because
he was convicted of an aggravated sex offense, John Doe A was subject to the new
quarterly and lifetime registration requirements. Additionally, both John Does were
required to provide additional information under the amended law.




       5
                 Former AS 12.63.010(d) (1995); former AS 12.63.020(a)(2) (1995).

       6
                 Id.

       7

                 Former AS 12.63.010(b)(1) (1995).
       8
                 Ch. 106, §§ 10, 12, SLA 1998.
       9
                 Ch. 106, § 8, SLA 1998.
       10
                 Ch. 14, § 12, SLA 2006; ch. 42, § 3, SLA 2008.

                                            -3-                                      6758

             John Doe A and John Doe B sued, claiming that, because their convictions
occurred before ASORA was amended, applying the amended registration and
information requirements to them violated the Ex Post Facto Clause of the Alaska
Constitution.11   The John Does sought a declaratory judgment and an injunction
prohibiting the new requirements from being applied to them. The parties agreed to treat
the John Does’ motion for a preliminary injunction as a motion for summary judgment.
The State filed a cross-motion for summary judgment, arguing that ASORA was not
punitive and that retroactive application therefore did not violate the Ex Post Facto
Clause.
             The superior court concluded that ASORA was punitive and that
“retroactive application of any amendments that extend [the John Does’] registration
period or increase re-registration frequency violate[d]” the Ex Post Facto Clause. But
the superior court also concluded that amendments requiring disclosure of additional
personal information and directing that information be made available on the internet
were “administrative and nonpunitive” when applied to offenders who were already
subject to ASORA’s reporting requirements. The superior court therefore concluded that
these administrative amendments did not violate the Ex Post Facto Clause.
             The State appeals the superior court’s ruling that retroactive application of
amendments increasing registration frequency and duration violate the Ex Post Facto
Clause. The John Does do not appeal any part of the superior court’s ruling.12

      11
             Alaska Const. art. I, § 15.
      12
             In their brief, the John Does suggest that the superior court erred in
concluding that requiring them to disclose additional information and publishing their
information on the internet did not violate the Ex Post Facto Clause. But we have
“consistently held that failure to file a cross-appeal waives the right to contest rulings
below.” Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004) (citing cases). Consequently,
                                                                            (continued...)

                                           -4-                                      6758

III.   STANDARD OF REVIEW
             We apply our independent judgment to questions of law.13 We will adopt
“the rule of law which is most persuasive in light of precedent, reason, and policy.”14
IV.    DISCUSSION
       A.    Our Decision In Doe I Is Binding Precedent.
             We have decided this issue before. In Doe I,15 we concluded that ASORA
was punitive, and that its retroactive application therefore violated the Ex Post Facto
Clause of the Alaska Constitution.16 This case deals with an amendment extending the
length and increasing the frequency of registration, while Doe I dealt with ASORA itself.
But as the superior court said in this case, “[r]egistration is the fundamental obligation
for convicted sex offenders under ASORA. That obligation triggers all other obligations
under the Act. If ASORA is punitive in effect, any extension of ASORA’s registration
frequency and period increases that punishment and ‘makes more burdensome the
punishment for a crime.’ ” The State, however, argues that Doe I is not binding
precedent because it was decided by a two-to-one majority.
             Although we have not expressly addressed the question whether a two-to­
one majority decision of our court creates binding precedent, our case law illustrates how
two-to-one decisions, though uncommon, have been given de facto recognition as


       12
        (...continued)
we decline to address this argument.
       13
             Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991)
(citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
       14
             Id.
       15
             189 P.3d 999 (Alaska 2008).
       16
             Id. at 1019.

                                           -5-                                      6758

binding precedent. In Worthy v. State, at a time when the full court normally consisted
of five members,17 we decided an evidentiary issue in a criminal case by a two-to-one
majority.18 Subsequently, in Loncar v. Gray, we cited the majority decision in Worthy
to support our statement that “[u]nder our case law, a party may open the door to
evidence on a subject by putting that subject at issue in the case.”19         We then
distinguished the facts in Loncar from those in Worthy.20 At no point in our discussion
did we suggest that Worthy was anything other than binding precedent. Similarly, in
Hess v. State, we analyzed the case based on the rule of law established in Worthy.21 We
repeated language from Worthy in explaining how the two cases were conceptually
identical.22 In other words, we treated Worthy as binding precedent. This reliance
indicates that after the court’s membership increased to five, we have at least tacitly
treated two-to-one decisions as precedential.23


      17
              When Alaska became a state, this court comprised three justices. Alaska
Const. art. IV, § 2. The legislature increased the membership of justices on the court to
five on December 1, 1968. Ch. 83, § 1, SLA 1967.
      18
             999 P.2d 771 (Alaska 2000).
      19
             28 P.3d 928, 932 n.7 (Alaska 2001).
      20
             Id. at 932.
      21
             20 P.3d 1121, 1129-30 (Alaska 2001).
      22
              Compare Worthy, 999 P.2d at 775 (“Because the state made [a witness’s]
testimony . . . an integral part of its case against Worthy, [potentially contradictory]
testimony might have substantially affected the jury’s verdict.”), with Hess, 20 P.3d at
1129 (partially quoting the above and continuing “[l]ikewise, the state made A.R.’s
testimony an ‘integral part’ of its case against Hess in the H.W. case”).
      23
             Similarly, our two-to-one decision in Doe I was subsequently treated as
binding precedent by the Alaska Court of Appeals. See Holden v. State, 190 P.3d 725,
                                                                       (continued...)

                                           -6-                                     6758

              The State correctly points out that we have, on a number of occasions,
concluded that two-to-two decisions have no precedential value.24           But we have
explained that a two-to-two decision does not create binding precedent because it lacks
a majority position. In City of Kenai v. Burnett, we recognized that because we were
“evenly divided,” the “particular issue of law . . . remain[ed] undecided.”25 The ruling
of the trial court was thus affirmed “because ‘that which has been done [by the trial
court] must stand unless reversed by the affirmative action of a majority.’ ”26 More
recently, in In re Adoption of Erin G.,27 we discussed the lack of precedential value of
In re Adoption of T.N.F.,28 an earlier case in which two of the four participating justices
agreed that Alaska’s one-year statute of limitations applied to claims brought under
§ 1914 of the Indian Child Welfare Act. One justice concurred in the result in T.N.F.
without discussing the merits of the statute of limitations question,29 and one justice




       23
        (...continued)
732 (Alaska App. 2008) (“[T]he supreme court’s recent decision in Doe — i.e., the
decision that sex offender registration is a ‘punishment’ for purposes of our state
constitution’s ex post facto clause — means that the superior court’s decision in
Holden’s case was wrong.”).
       24
              See, e.g., Evans ex rel. Kutch v. State, 56 P.3d 1046, 1070 n.140 (Alaska
2002) (citing Ward v. Lutheran Hosps. & Homes Soc’y of Am., Inc., 963 P.2d 1031, 1037
n.11 (Alaska 1998)); City of Kenai v. Burnett, 860 P.2d 1233, 1239 n.11 (Alaska 1993).
       25
              860 P.2d at 1239 & n.11.
       26
              Id. (quoting Hertz v. Woodman, 218 U.S. 205, 212 (1910)).
       27
              140 P.3d 886, 890 (Alaska 2006).
       28
              781 P.2d 973, 981 (Alaska 1989).
       29
              Id. at 982-84 (Compton, J. concurring).

                                           -7-                                       6758

dissented.30 We concluded in Erin G. that “[b]ecause a majority of participating justices
in T.N.F. did not agree on any one ground for affirmance, we [would] not accord T.N.F.
stare decisis effect.”31
               We now take the opportunity to expressly state that holdings by a two-to­
one majority of this court have precedential effect if made before November 10, 2010,
the date that Appellate Rule 106 was promulgated. Our decision in Doe I is thus binding
precedent.32
       B.      Appellate Rule 106
               Appellate Rule 106(b) provides that “[i]n an appeal that is decided with
only three of five supreme court justices participating, any issue or point on appeal that
the court decides by a two-to-one vote is decided only for purposes of that appeal, and
shall not have precedential effect.”33     As noted above, the rule went into effect




       30
               Id. at 984-85 (Rabinowitz, J. dissenting).
       31
              140 P.3d at 890. It is also worth noting that in Erin G. we cited Negri v.
Slotkin, 244 N.W.2d 98, 100 (Mich. 1976) — a prominent Michigan case holding that
decisions of a minority of sitting justices who nevertheless constitute a majority of a
quorum are binding precedent — in support of our decision to deny stare decisis where
a majority of participating justices did not agree on any one ground for affirmance.
       32
              Doe I controls the outcome of this case absent compelling reasons to
overrule that decision. In its briefing, the State argues that Doe I was wrongly decided.
Because the State has not convinced us that more good than harm would result from a
departure from precedent, see May v. State, Commercial Fisheries Entry Comm’n, 168
P.3d 873, 884 (Alaska 2007), we decline to overrule our decision in Doe I.
       33
               Alaska R. App. P. 106(b).

                                            -8-                                     6758

November 10, 2010,34 more than two years after Doe I was decided.35
                 Based on Appellate Rule 106(b), the State argues that Doe I should not be
treated as binding precedent. The John Does respond that Appellate Rule 106(b) was
adopted following Doe I and that the rule should not be retroactively applied to nullify
an opinion’s precedential value. The John Does rely on this country’s “deeply rooted
presumption against retroactive legislation,” AS 01.10.090,36 and Alaska Administrative
Rule 44(j)37 for their argument that “a new [substantive] law may not be applied
retroactively unless specifically intended.” The John Does further argue that Appellate
Rule 106(b) is substantive because it “change[s] the number of judges required to
constitute a quorum needed to enter binding decisions and modify or enforce the rule of
law.”
                 The State responds that “the court rule at issue here is a rule of procedure”
and that a “change in a rule of procedure is ordinarily applied retroactively.” The State
also argues that the post-adoption history of Appellate Rule 106 clearly indicates that we
intended it be retroactive. The State finally argues that, because the John Does’ case was
filed after Appellate Rule 106(b) went into effect, it is not retroactive to apply the rule
to their case.




        34
                 Alaska Supreme Court Order No. 1742 (Nov. 10, 2010).
        35
                 Doe v. State, 189 P.3d 999 (Alaska 2008).
        36
            “No statute is retrospective unless expressly declared therein.”
AS 01.10.090.
        37
             “The effective date for each rule change order shall be stated in the order.
Normally, the effective date shall be the same as the publisher’s distribution date, in
order to provide adequate notice to those affected by the rule change.” Alaska Admin.
R. 44(j).

                                              -9-                                       6758

                 “[T]he presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic.”38 And
AS 01.10.090 provides that “[n]o statute is retrospective unless expressly declared
therein.”39 But “[c]hanges in procedural rules may often be applied in suits arising
before their enactment without raising concerns about retroactivity.”40 Thus, whether
Appellate Rule 106(b) applies retroactively depends on whether the rule is substantive
or procedural and, if substantive, on whether we expressly declared that it would apply
retroactively.




       38
                 Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).
       39
              In Supreme Court of Virginia v. Consumers Union of the United States,
Inc., the United States Supreme Court held that the Virginia Supreme Court was acting
as a legislature when it adopted court rules. 446 U.S. 719, 731 (1980). Following on
this, the John Does maintain that the regular rules for interpreting statutes apply also to
court rules. The State makes no response to this argument. Nothing in the Rules of
Administration suggests otherwise, nor is there anything in the Rules of Appellate
Procedure, nor the Rules of Administration, which suggests a rule of interpretation
contrary to AS 01.10.090. See Alaska Admin. R. 44(j); Alaska R. App. P. 521. We note
further that Black’s Law Dictionary defines “statute” as “[a] law passed by a legislative
body; specif., legislation enacted by any lawmaking body, including legislatures,
administrative boards, and municipal courts.” BLACK ’S LAW D ICTIONARY 1542-43
(9th ed. 2009). Court rules fall comfortably within this definition. Finally, AS 01.10.090
appears to be little more than a codification of principle “deeply rooted in [American]
jurisprudence.” Landgraf, 511 U.S. at 265. Accordingly, we will apply AS 01.10.090
to interpret Appellate Rule 106(b).
       40
              Landgraf, 511 U.S. at 275; see also Matanuska Maid, Inc. v. State, 620
P.2d 182, 187 (Alaska 1980) (holding that “mere procedural changes which do not affect
substantive rights are not immune from retrospective application”).

                                             -10-                                    6758

              1.     Appellate Rule 106(b) is substantive.
              To determine whether Appellate Rule 106(b) is retroactive, we turn first to
whether the rule is substantive or procedural. The John Does argue that Appellate
Rule 106(b) is substantive because it “change[s] the number of judges required to
constitute a quorum needed to enter binding decisions and modify or enforce the rule of
law.” The John Does also assert that applying Appellate Rule 106(b) retroactively would
unsettle established precedent. The State responds that Appellate Rule 106(b) is
procedural for two reasons: first, it is a “Rule of Appellate Procedure,” and second, “the
rule only addresses procedural concerns (the number of justices necessary to establish
the precedential effect of a decision).”
              The State’s arguments as to why Appellate Rule 106(b) is procedural are
unpersuasive. Although the State correctly points out that the rule is styled as a rule of
appellate procedure, this is not dispositive. Just as the State argued in the superior court
that ASORA’s placement in the criminal code does not necessarily make it punitive,
Appellate Rule 106(b)’s placement in the Rules of Appellate Procedure does not
necessarily make it procedural. Our procedural rules contain provisions that are
substantive in nature. For example, in State v. Native Village of Nunapitchuk, we held
that the public interest litigant exception to Alaska Civil Rule 82, which shields losing
public interest litigants from adverse awards of attorney’s fees, is substantive law.41
              In Ware v. City of Anchorage, we stated that “substantive law creates,
defines and regulates rights, while procedural law prescribes the method of enforcing
rights.”42 In Nolan v. Sea Airmotive, Inc., we added to the Ware test, requiring courts to



       41
              156 P.3d 389, 403-04 (Alaska 2007).
       42
              Id. at 396 (quoting Ware v. City of Anchorage, 439 P.2d 793, 794 (Alaska
1968)).

                                           -11-                                       6758
focus on whether the statute or rule is primarily concerned with public policy or an
effective and efficient system for the administration of justice.43 Then, in Pan Alaska
Trucking, Inc. v. Crouch, we concluded that “a change in a procedural rule is substantive
in character where the change makes it appear to one just starting down the road to
vindication of his cause that the road has become more difficult to travel or the goal less
to be desired.”44
              Applying the principles from Ware, Nolan, Pan Alaska Trucking, and
Native Village of Nunapitchuk, we conclude that the change to Appellate Rule 106(b) is
substantive. Attorneys, litigants, and courts have relied on our two-to-one decisions
made prior to the promulgation of Appellate Rule 106(b) as binding precedent. To
retroactively remove the precedential value of these decisions would eliminate the rights
created by these decisions. A change in the number of Supreme Court justices required
to create binding precedent also does not primarily concern the effective and efficient
administration of justice. On the contrary, a change to an Appellate Rule that necessarily
changes the precedential value of rules of law established in our prior decisions primarily
concerns public policy. For example, eliminating the precedential value of our Doe I
decision would leave individuals convicted of sex offenses before the date that the
legislature amended ASORA unsure about whether and for how long they must register
as sex offenders.45 This concerns a matter of policy that is extrinsic to judicial business.


       43
            Id. at 398 (citing Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1042-43
(Alaska 1981)).
       44
              773 P.2d 947, 949 (Alaska 1989).
       45
              See Doe I, 189 P.3d 999, 1019 (Alaska 2008) (concluding in a two-to-one
decision that ASORA’s registration, disclosure, and dissemination provisions violate the
protection against ex post facto laws afforded by the Alaska Constitution as it applies to
                                                                           (continued...)

                                           -12-                                       6758

Finally, removing the precedential value of our prior two-to-one decisions would affect
the legal consequences of events for litigants who could no longer depend on previously
settled law to advance their claims or defenses.
              Thus, although the State argues that the number of justices required to make
binding opinions “only addresses procedural concerns,” the foregoing discussion shows
the contrary. We conclude that Appellate Rule 106(b) is substantive.
              2.	    In promulgating Appellate Rule 106(b), we did not expressly
                     declare that it would apply retroactively.
              Although substantive, Appellate Rule 106(b) may still be applied
retroactively if we “expressly declared therein” that it applies retroactively when we
promulgated the rule.46 As the John Does point out, when we adopt a rule, “the effective
date [is] specifically expressed in the order amending the rule.”47 The effective date on
our order promulgating Appellate Rule 106 was November 10, 2010.48 According to the
John Does, this should end the inquiry as to our intent.
              But the State points out that after Appellate Rule 106(b) was initially
adopted, the question was raised as to whether it applied to decisions issued before
December 1, 1968, when the court had only three justices.49 In response to this concern,


       45
       (...continued)
defendants who committed their crimes before the legislature enacted ASORA).
       46	
              AS 01.10.090.
       47	
              See Alaska Admin. R. 44(j).
       48
              Alaska Supreme Court Order No. 1742 (Nov. 10, 2010).
       49
              The initial version of the rule stated: “In an appeal that is decided by three
justices in the supreme court, any issue or point on appeal that the court decides by a
two-to-one vote is decided only for purposes of that appeal, and shall not have
                                                                              (continued...)

                                           -13-	                                      6758

we considered proposed amendments to the rule to clarify this point. The proposal that
we ultimately adopted changed the rule’s language from “decided by three justices in the
supreme court” to “decided with only three of five supreme court justices
participating.”50 But we declined to answer the question of retroactivity within the
language of the amended rule, choosing instead to wait for a case to come before us to
clarify the issue.51 The inferences drawn by the State as to our intent based on this
decision certainly do not amount to an express declaration of retroactivity, and
accordingly, Appellate Rule 106(b) does not have retroactive effect.
V.    CONCLUSION
             Because we conclude that Appellate Rule 106(b) is not retroactive and that
Doe I is therefore binding precedent, which we decline to overrule, we AFFIRM the
superior court’s grant of summary judgment to the John Does.




      49
       (...continued)
precedential value.” See Alaska Supreme Court Order No. 1742 (Nov. 10, 2010).
      50
             See Alaska Supreme Court Order No. 1759 (July 21, 2011).
      51
              We rejected two alternative proposals that would have resolved the
question. The first proposal read: “This rule applies to decisions issued by the supreme
court after December 1, 1968.” The second read: “This rule applies to decisions issued
by the supreme court after November 10, 2010.”

                                         -14-                                     6758
