Analysis: Robinson is not overruled sub silentio

Saberhagen argues that the Robinson retroactivity rule has been overruled sub silentio by two recent cases from the Washington Supreme Court: In re the Det. of Audett, 158 Wn.2d 712, 147 P.3d 982, 986-87 (2006) and State v. Atsbeha, 142 Wn.2d 904, 916-17, 16 P.3d 626 (2001). In these cases, the Supreme Court used the analysis from Chevron Oil to determine whether previously announced "new" rules were appropriately applied to the defendants in Audett and Atsbeha. Saberhagen contends that because the Washington Supreme Court used the Chevron Oil analysis, Robinson’s retroactivity rule has been overruled sub silentio.

We do not agree. The Washington Supreme Court "will not overrule such binding precedent sub silentio." State v. Studd, 137 Wn.2d 533, 548, 973 P.2d 1049 (1999). While use of Chevron Oil is contrary to Robinson, we note no one asked the court to overrule Robinson in either case. In fact, no party cited either Chevron Oil or Robinson to the court. A close look at the cases shows that the interjection of Chevron Oil was erroneous.