This case deals, not elegantly, with the issue of retroactivity.

Lopez sued Continental Tire for personal injury. The accident had happened on the job and  the Fund had paid workers compensation benefits. It moved to intervene in the case. Continental opposed the intervention and the trial court denied it; the Court of Appeals took the Fund’s special action and reversed, of which this is the opinion.

In 2007 a workers’ comp statute was amended to allow the Fund to intervene in a worker’s action. Continental argued that it couldn’t be applied retroactively – the accident happened in 2004 and the case was filed in 2006.

The Court of Appeals first held that this was not a retroactive application. Why not? Because procedural rules do not affect vested rights.

The court next held, in the alternative, that retroactive application is okay here. Why? Because the statute is procedural and procedural statutes can apply retroactively.

So, the court held that procedural statutes do not apply retroactively and that procedural statutes apply retroactively and that therefore this statute did not apply retroactively unless it did, and its all good. Got that?

The problem is that the court thought it was dealing with two different issues when it was dealing with two sides of the same coin. It overlooked the fact that the authorities cited in the first part of the opinion say in essence largely the same thing as those cited in the second part. Retroactivity involves taking away rights already given and vested. Procedural statutes don’t do that. That’s why they are not covered by the anti-retroactivity rule (a substantive statute is not retroactive unless it specifically says it is): their effect is not “retroactive” in the sense that a substantive statute’s is, whether or not applied to earlier facts. If you have substance, you have a retroactivity problem; if you have procedure, you don’t because you don’t have retroactivity.

(link to opinion)