Stroh Brewery Co. v. Director of New Mexico Department of Alcoholic Beverage Control , 112 N.M. 468 ( 1991 )

OPINION

SOSA, Chief Justice.

Stroh Brewery Company (Stroh) appeals summary judgment granted to the Director of the New Mexico Department of Alcoholic Beverage Control (the Director), awarding the Director nearly $18 million in damages plus interest. The damages represent the court’s determination of the difference between the price at which Stroh sold beer in New Mexico between 1979 and 1985 and the price at which Stroh allegedly was supposed to sell its beer under statutes discussed below. Intervenors are various wholesale liquor distributors allegedly harmed by Stroh’s action in selling them beer in violation of the statutes. Intervenors and the Director have agreed among themselves to divide equally any judgment enforced against Stroh. For brevity we will refer to the appellees as the Director; the Director and the Intervenors advance much the same arguments on appeal.

We break down our discussion of this long, complex case into the following segments:

(1) In 1979, Stroh’s predecessor in this action filed a complaint seeking a declaratory judgment and injunctive relief, alleging that the price affirmation requirement of the 1979 “Discrimination in Selling Act”¹ (the 1979 law) violated the Commerce Clause of the United States Constitution.

(2) The trial court entered a preliminary injunction temporarily enjoining the Director from enforcing the law, contingent upon Stroh’s predecessor executing a bond, the pertinent terms of which were as follows:

[Stroh agrees to pay] the amount representing the difference between the prices at which [Stroh] has sold beer to wholesalers and distributors in New Mexico during the pendency of the injunction, and the price at which [Stroh] would have been required to sell the same beer under the requirements of [the 1979 law], with interest ... if and only if, it should be finally decided by the Court that [the 1979 law] is valid and the preliminary injunction should not have been entered.

(3) The trial court then issued a memorandum opinion on January 7, 1980, granting summary judgment to the Director, upholding the constitutionality of the 1979 law in reliance on Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254,16 L.Ed.2d 336 (1966) (Seagram) (upholding New York’s retrospective price affirmation law).

(4) Stroh’s predecessor appealed the January 7, 1980 summary judgment. The court continued the preliminary injunction bond as a supersedeas bond during the pendency of the appeal. While the appeal was pending, the Legislature repealed the 1979 law and enacted a new version of the prior statute — the 1981 law.²

(5) For purposes of this appeal, the pertinent portions of the 1979 and 1981 laws, respectively, are as follows:

Section 60-12-6 [the 1979 law] — Filing of affirmation There shall be filed in connection with * * * the schedule filed for a brand of alcoholic liquor, an affirmation duly verified by the owner of the brand of alcoholic liquor that the bottle and case price * * * to wholesalers * * * is no higher than the lowest price at which such item of liquor was sold by the brand owner * * * to any wholesaler anywhere in any other state * * * at any time during the calendar month immediately preceding the month in which the schedule is filed.

Section 60-8A-15 [the 1981 law] — Filing of affirmation The owner of a brand of alcoholic beverages shall file as part of the schedule a verified affirmation that the price to New Mexico wholesalers is no greater than the lowest price at which the item of alcoholic beverages is sold by the brand owner * * * to any wholesaler anywhere in any other state * * *.

Thus the principle difference between the two statutes was that in the 1979 law the comparison period for affirmed prices was tied to the prior month, while for the 1981 law there was a contemporaneous price affirmation requirement.³

(6) On July 21, 1983, we affirmed the trial court’s January 7, 1980 summary judgment. United States Brewers Ass’n v. Director of N.M. Dep’t of Alcoholic Beverage Control, 100 N.M. 216, 668 P.2d 1093 (1983), appeal dismissed, 465 U.S. 1093, 104 S.Ct. 1581, 80 L.Ed.2d 115 (1984). We reasoned that the trial court had correctly applied the Seagram holding. Id. 100 N.M. at 220-21, 668 P.2d at 1097-98. We held that Seagram was dispositive and remanded the case for further proceedings. Id. The constitutionality of the 1981 law was not before us in United States Brewers Ass’n. Stroh⁴ appealed our decision to the Supreme Court, but the appeal was dismissed for lack of a substantial federal question. United States Brewers Ass’n v. Rodriguez, 465 U.S. 1093, 104 S.Ct. 1581, 80 L.Ed.2d 115 (1984).

(7) On June 14, 1985, the 1981 law was amended to exclude beer from the price affirmation requirement.⁵ Hence Stroh’s liability, if any, under either the 1979 or 1981 laws, ceased when the new statute went into effect. Prior to the effective date of the new statute, on February 21, 1985, the trial court dissolved both the injunction and the stay of enforcement which had been in effect pending appeal and remand. The parties agree that the maximum damage liability period, if any, runs from June 15, 1979, through February 21, 1985. Stroh contends this maximum period is inapplicable.

(8) During the period when United States Brewers Ass’n was on remand to the trial court, the United States Supreme Court issued two opinions decisively changing the law on the subject of pricing affirmation requirements in statutes similar to the 1979 and 1981 laws. First,⁶ in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986), the Court struck down New York’s prospective price affirmation statute.⁷ Second, in Healy v. Beer Institute, 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) (Healy II), the Court overruled Seagram and declared all pricing affirmation statutes unconstitutional. 491 U.S. at 343, 109 S.Ct. at 2502-03.

(9) The parties then moved again for summary judgment, with Stroh arguing that after Healy II the 1979 law had been shown to be “finally invalid” under the terms of the bond, and thus Stroh had no liability under the bond. Although conceding that the 1981 law was unconstitutional because of Healy II, the Director nonetheless argues that the 1979 law entitled it to damages from 1979 to 1985, even though the 1979 law was arguably in effect only until 1981, when the 1981 law purportedly repealed the 1979 law. The Director argued both that the 1979 law revived when the 1981 law became unconstitutional and that our holding in United States Brewers Ass’n, upholding the 1979 law, was the law of the case.

(10) The trial court agreed with the Director and granted summary judgment, which Stroh now appeals. The trial court ruled, inter alia, “The 1979 law was constitutional and valid and provided a continuing basis for Stroh’s liability____ [T]he validity of the 1979 law is a closed question * * *. Because the 1979 law is valid, Stroh is liable upon its bond and all that remains is to determine the exact amount which Stroh owes the State.”

(11) On appeal, Stroh asserts the following:

(a) The 1979 law has been finally decided to be invalid. Thus, Stroh never had and does not have now any liability under the bond;

(b) Even if it should be decided that the 1979 law were valid, that law was repealed by the 1981 law, and, not having revived, imposes no liability on Stroh past the date of its repeal;⁸

The parties advance the following arguments on appeal. Stroh argues that our holding in United States Brewers Ass’n is not the law of the case and should not be applied as such in determining if Stroh is liable under the bond. Stroh argues that, following our holdings in Reese v. State, 106 N.M. 505, 506, 745 P.2d 1153, 1154 (1987), and Moya v. Catholic Archdiocese, 107 N.M. 245, 248, 755 P.2d 583, 586 (1988), the law of the case doctrine in New Mexico cannot be used “where the former appellate decision was clearly, palpably, or manifestly erroneous * * (quoting Reese, 106 N.M. at 507, 745 P.2d at 1155). Under the supremacy clause of the United States Constitution, Stroh argues, we must follow the mandate of Healy II in holding the 1979 law invalid, and thus absolve Stroh from any liability under the bond.

The Director counters by arguing that under the Supreme Court’s recent holding in American Trucking Associations v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), Healy II should not be given “retroactive effect.” Consequently, the Director argues, our prior ruling on the 1979 law in United States Brewers Ass’n is the law of the case and must be given effect now, regardless of any subsequent invalidation of the 1979 law by Healy II.⁹ The Director also urges a different reading of New Mexico law of the case doctrine than that asserted by Stroh. By that doctrine, the Director argues, we correctly decided United States Brewers Ass’n based on Seagram, the applicable governing precedent at the time of our decision. Hence, our decision in the case, establishing the law of the case, was not “clearly, palpably or manifestly erroneous or unjust.”

While the statement of this case has been difficult, our resolution of it is relatively simple. It is clear that Healy II has in effect “finally invalidated” the 1979 law. Yet, there is nothing in the Healy II opinion to indicate that the holding is to have retroactive effect. To the contrary, the court stated that Seagram “is no longer good law,” 491 U.S. at 343, 109 S.Ct. at 2502, which is the language of prospectivity, not retroactivity.

Second, while we agree with Stroh that American Trucking Assn’s v. Smitk is not on all fours with the instant case, nonetheless we can glean valuable instruction from that case to guide us in- resolving the case at bar. For our purposes, the important point about American Trucking is that it did not overrule Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). On the contrary, the Court in American Trucking used the decision in Chevron to reach its conclusion. See American Trucking, 496 U.S. at-, 110 S.Ct. at 2342-43.

Reading Chevron in the light of American Trucking, we make the following conclusions as to the nonretroactive effect of Healy II. Chevron’s first criterion for nonretroactivity is: “[T]he decision to be applied nonretroactively 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.” 404 U.S. at 106, 92 S.Ct. at 355 (citations omitted). In Healy II the court held, “[T]o the extent that Seagram holds that retrospective affirmation statutes do not facially violate the Commerce Clause, it is no longer good law.” 491 U.S. at 343, 109 S.Ct. at 2502.

As noted supra note 7, at 470, 816 P.2d at 1092, the parties disagree over whether the 1981 law was prospective or concurrent. Clearly the 1979 law was retrospective. The United States District Court for the District of New Mexico, in invalidating the 1981 law, considered the 1981 law concurrent, but opined that any price affirmation statute, however characterized, would be unconstitutional. Brown-Forman Corp. v. New Mexico Dep’t of Alcoholic Beverage Control, 672 F.Supp. 1383, 1385-86 (D.N.M.1987).

We do not read the court’s statement in Healy II, “[T]o the extent that Seagram holds that retrospective affirmation statutes do not facially violate the Commerce Clause, it is no longer good law,” 491 U.S. at 343, 109 S.Ct. at 2502, as meaning that some other type of price affirmation statute would be valid. The court’s reasoning in Healy II swept a broad scythe of invalidity under the roots of all pricing affirmation statues. See, e.g., Healy II, 491 U.S. at 343 n. 15, 109 S.Ct. at 2503 n. 15 (quoting with approval the results of scholarship confirming that both prospective and retrospective price affirmation statutes unduly burden interstate commerce).

Merely because Seagram was involved only with a retrospective statute, we do not hesitate to conclude that the 1981 law, however it may be characterized (concurrent versus prospective), was swept away in the flood that washed Seagram from the shores of still valid decisions. Therefore, for purposes of the first criterion of Chevron’s nonretroactivity test, Healy II established a new principle of law.

The second Chevron criterion requires more analysis. By that criterion, the court stated, “ ‘[W]e 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.’ ” 404 U.S. at 106-07, 92 S.Ct. at 355 (quoting Linkletter v. Walker, 381 .U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965)). Linkletter was a criminal case in which the issue was whether the court’s newly announced rule in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (exclusion of evidence seized in violation of Fourth Amendment) was to be applied retrospectively. The court in Linkletter answered in the negative.

The court reasoned that “Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights * * *. We cannot say that this purpose would be advanced by making the rule retrospective.” 381 U.S. at 636-37, 85 S.Ct. at 1741-42. In making this determination, the court looked to the practical effects that a retroactive application of Mapp would have.

The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. Nor would it add harmony to the delicate state-federal relationship of which we have spoken as part and parcel of the purpose of Mapp. Finally, the ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.

Id. at 637, 85 S.Ct. at 1742.

Having read Chevron in the light of Linkletter, we next factor in the court’s explanation of Chevron’s second criterion as expressed in American Trucking. There the court stated, in determining whether the second criterion applied in that case:

[T]he purpose of the Commerce Clause does not dictate retroactive application of [American Trucking Assn’s, v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987)], since such application would not tend to deter future free trade violations by the States. The [highway-use equalization tax at issue in American Trucking Assn’s v. Smith] when enacted was entirely consistent with the [Court’s prior cases allowing the tax], and it is not the Clause’s purpose to prevent legitimate state taxation of interstate commerce.¹⁰

496 U.S. at-, 110 S.Ct. at 2332.

Applying the court’s construction of the second criterion for nonretroactivity as considered and applied in Chevron, Linkletter, and American Trucking Assn’s v. Smith, we conclude that retroactive application of Healy II to the case at bar would serve no purpose advanced by the Commerce Clause. Especially in New Mexico, price affirmation requirements as they apply to beer have been essentially a dead letter since June 14, 1985. See supra note 5, at 470, 816 P.2d at 1092. No purpose of the Commerce Clause would be served by retroactively applying Healy II at this late date, as such application, to paraphrase American Trucking Assn’s v. Smith, "would not tend to deter future [acts of discrimination against interstate sellers of beer], and it is not the Clause’s purpose to prevent legitimate [state regulation of] interstate commerce.” 496 U.S. at-, 110 S.Ct. at 2332.

As the court reasoned in Linkletter, the damage done by Seagram, which upheld New York’s retrospective price affirmation law, cannot now be undone. In overruling Seagram, the court in Healy II addressed itself, for our purposes, to a twofold evil: (1) potential and incidental involvement by one state in another state’s pricing laws, or “price gridlock,” as the court called it, 491 U.S. at 340, 109 S.Ct. at 2501, and (2) “discrimination against brewers and shippers of beer engaged in interstate commerce.” Id. at 340, 109 S.Ct. at 2501. The practical effect of these evils cannot now be alleviated; nor would a retroactive application of Healy II prevent such evils in the future. Consequently, applying Healy II retroactively would advance no purpose served by the Commerce Clause. We thus hold that Chevron’s second criterion has been satisfied.

We turn now to Chevron’s third criterion. In the present case, a number of other brewers have already settled the cases against them and have presumably paid penalties. To permit Stroh to be the only brewer to have evaded the strictures of the 1979 law would likely subject the Director to charges that he has dealt with these brewers inequitably. This could well result in the same potential threat that caused the court in American Trucking Assn’s v. Smith to deny full retroactivity to its Scheiner holding. See American Trucking Assn’s v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987). In American Trucking Assn’s v. Smith, the Court feared that a full, retroactively applied refund “could deplete the state treasury, thus threatening the State’s current operations and future plans * * * [and could lead to] potentially significant administrative costs.” 496 U.S. at-, 110 S.Ct. at 2333.

While the threat to the state’s purse may not be as significant here, the important point is that to single out Stroh for preferred treatment by holding Healy II retroactive only as to Stroh, would undoubtedly produce inequitable results and subject the State of New Mexico to liability. The Court’s decision in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 495 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) suggests that a state in New Mexico’s position here may be liable to all those affected by its erroneous administration of a statute that has been found violative of the Commerce Clause and by its collection of any penalties thereunder, whether through settlement or otherwise. Hence, we are justified, as was the Court in American Trucking Assn’s v. Smith, to regard any retroactive application of Healy II as potentially productive of both inequitable results and harm to the State of New Mexico, thus calling for nonretroactive application, under Chevron, of the Healy II holding.

By the same token, we are justified in rejecting the suggestion that our holding in United States Brewers Ass’n “was clearly, palpably, or manifestly erroneous or unjust.” See Moya, 107 N.M. at 248, 755 P.2d at 586. Thus, even if, as Stroh suggests, Moya and Reese carve exceptions out of established law of the case doctrine, we do not find that such exceptions apply here. The reason is simple. Neither our decision in United States Brewers Ass’n, nor the trial court’s ruling appealed in that case, were “clearly, palpably, or manifestly erroneous,” as the Supreme Court itself has only just held that Seagram is no longer good law. How could a decision based on the right law at that time now be a “manifestly erroneous” decision?

Further, neither our decision in United States Brewers Ass’n, nor the trial court’s ruling appealed in that case, have produced an unjust result, when measured against the treatment accorded to the other brewers whose conduct was censured by the 1979 law. On the contrary, as we have reasoned above in our consideration of American Trucking Assn’s v. Smith, to deny law of the case finality to United States Brewers Ass’n would produce an injustice rather than undo one.

It should be kept in mind that exceptions to law of the case doctrine that are based on the “clearly erroneous” concept are usually relied on to reverse or set aside a previous decision. See, e.g., Note, Successive Appeals and the Law of the Case, 62 Harv.L.Rev. 286, 288 (1948) (“[A]ll courts would probably reverse the prior ruling if convinced that it stated a bad rule of law and should be overruled”). Such is not the question before us. There is no question but that United States Brewers Ass’n is now “bad law.” Yet, the question before us is not whether that decision should be reversed or set aside, but whether the decision’s error has retroactive significance under the facts of this case. We hold that it does not.

Therefore, under the law of this case, Healy II does not invalidate the 1979 law. As the trial court correctly ruled, the law of this case is that dictated by our holding in United States Brewers Ass’n and the underlying trial court decision appealed in that case. The recent case of James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), notwithstanding, which we find inapplicable, we affirm the judgment below on the central issue discussed above.

We have reviewed Stroh’s contentions as to damages and the repeal of the 1979 law and conclude that its contentions on those issues are without merit. Thus we affirm the trial court’s judgment in its entirety.

IT IS SO ORDERED.

BACA, J., concurs. FRANCHINI, J., specially concurs. RANSOM and MONTGOMERY, JJ., dissent.

FRANCHINI, Justice

(specially concurring).

I concur entirely in the rationale and result of Chief Justice Sosa’s opinion. I write specially only to dispel any conjecture that the recent decision of the United States Supreme Court in James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), in any way modifies or nullifies today’s decision. The matter before this court is distinguishable from Beam in several respects.

In Beam, the Court considered the retroactive application of Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), to an action by a manufacturer of Kentucky Bourbon for a refund of taxes paid under a Georgia state law in effect prior to the Bacchus decision. Framing the question before it as “whether it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so[,]” Beam, — U.S. at-, 111 S.Ct. at 2446, the Court read Bacchus to hold that as to choice of law, its rule was to apply retroactively and deemed it inappropriate to deviate from that rule.

Here, we consider whether Healy v. Beer Institute, 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) (Healy II), should be given retroactive effect. Chief Justice Sosa observes that “there is nothing in the Healy II opinion to indicate that the holding is to have retroactive effect.” Supra at 471, 816 P.2d at 1093. Healy II is void of the indications of retroactivity that the Court found in Bacchus, thus inviting an analysis in this case distinct from the constrained analysis imposed in Beam.

Further, the Court concedes that “[t]he grounds for our decision today are narrow. They are confined entirely to an issue of choice of law: when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata.” Beam, — U.S. at -, 111 S.Ct. at 2448. Procedurally, the posture of the case before us is distinct from Beam. The petitioner in Beam brought its action in the wake of the Bacchus decision rendered in 1984, and had been involved in no litigation nor been subject to any decisions rendered regarding the challenged tax. The matter before us today has been in litigation since 1979, and Stroh is subject to our decision in United States Brewers Association v. Director of N.M. Department of Alcoholic Beverage Control, 100 N.M. 216, 668 P.2d 1093 (1983), appeal dismissed sub nom. United States Brewers Association v. Rodriguez, 465 U.S. 1093, 104 S.Ct. 1581, 80 L.Ed.2d 115 (1984), which we find to be controlling here as the law of the case. Application of the law of the case doctrine in this matter places this case squarely in the context of those cases beyond the narrow scope of the Beam decision.

The appropriate analysis here is the three-pronged criteria developed in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The Court declines to apply the Chevron analysis in Beam claiming that “principles of equality and stare decisis here [prevail] over any claim based on a Chevron Oil analysis.” Beam, — U.S. at-, 111 S.Ct. at 2446. Significantly, Beam does not overrule Chevron. Given the prospective nature of Healy II, and the distinct procedural posture of Strohs in this case, Beam’s rejection of the Chevron analysis in no way undermines the validity of the decision we render today. I therefore specially concur.

1 . 1967 N.M. Laws ch. 269 §§ 1-10 (formerly codified at NMSA 1978, §§ 60-12-1 to -10) (Orig.Pamp. & Cum.Supp.1979), repealed by 1981 N.M. Laws ch. 39, 128. See infra note 2 at 2.

2 . 1981 N.M. Laws ch. 39, §§ 1-130, formerly codified at NMSA 1978, §§ 60-8A-12 to 60-8A-19 (Cum.Supp.1981). The 1979 law was repealed in § 128.

3 .The 1981 law also provided: "Nothing contained [in the 1981 law] shall prevent differentials in price which make only due allowance for differences in state taxes and fees and in the actual cost of delivery.” 1981 N.M.Laws ch. 39, § 67. There was also a severability clause in the act: "If any part * * * of this act is invalid, the remainder * * * shall not be affected.” Id., § 129. Stroh contends that this clause has the effect of saving the repealing section from constitutional infirmity and thus argues that if the pricing affirmation section of the 1981 law as written was unconstitutional, the repealing section nonetheless survived and thus effectively repealed the 1979 law. Therefore, Stroh argues, the 1979 law could not have revived during any period in which the 1981 law was unconstitutional. See discussion infra note 8, at-, 816 P.2d at 1100.

4 . By this point in time, Stroh, which by now had acquired the assets of its predecessor in interest, had been substituted by our order as plaintiff-appellant in the appeal before us.

5 . 1985 N.M. Laws ch. 5, §§ 1-5; NMSA 1978, §§ 60-8A-12 to -18 (Cum.Supp.1986).

6 . Pending appeal before us, the Supreme Court decided Healy v. United States Brewers Association, 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 248 (1983) (Healy I). In that decision the Court upheld the Second Circuit’s invalidating Connecticut’s prospective price affirmation statute.

7 . Both Brown-Forman and Healy I, note 6, above, effectively invalidated statutes that obligated a seller to file an affirmation on price at the beginning of each calendar month. For this reason the Court considered the statutes “prospective.” The parties to the case at bar have disagreed over whether the 1981 law was "prospective” (Stroh) or “concurrent" (the Director).

The Court in Brown-Forman all but held that any price affirmation statute, prospective or retrospective, was invalid. In Brown-Forman Corp. v. New Mexico Dep’t of Alcoholic Beverages, 672 F.Supp. 1383 (D.N.M.1987), the court found that the 1981 law was "concurrent,” but on the strength of the Supreme Court’s BrownForman decision opined that any price affirmation statute would fail to pass constitutional muster, and struck down the 1981 law. 672 F.Supp. at 1385-86. The United States District Court’s prediction was vindicated by the Supreme Court’s opinion in Healy v. Beer Institute, 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) (Healy II).

8 . Stroh asserts that the trial court’s ruling to the effect that the 1979 law "provided a continuing basis for Stroh’s liability * * * through February 21, 1985[,]” can only mean that the trial court accepted the Director's argument that the 1979 law revived after the 1981 law was found unconstitutional. The Director's argument can have merit only if the repealing section of the 1981 law did not fall with the price affirmation requirement of that law. See supra note 3, at 469, 816 P.2d at 1091.

9 . The Director reluctantly concedes that "the 1979 law could probably fail under Healy II."

10 . In American Trucking Assn’s, v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1989), the truckers sought a refund of a highway-use equalization tax imposed by the state of Arkansas following the court’s invalidation of unapportioned flat taxes in American Trucking Assn’s, v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987). In American Trucking Assn’s v. Smith, the court, in a four-vote plurality opinion in which Justice Scalia concurred on other grounds, held that Scheiner did not have retroactive application, relying on the three criteria enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Heretofore in our opinion, "American Trucking’’ has meant American Trucking Assn’s, v. Smith. From this point on in our opinion, we will distinguish between the two American trucking cases by including the respective names of the adverse parties, Smith or Scheiner, as appropriate.