Opposition Brief — Puerto Rico v. Branstad

Supreme Court, U.S.

FILED

a

> Sane JUL 24 1908

In The JOSEPH F. SPANIOL, JR.

CLERK

Supreme Court of the U

October Term, 1985

COMMONWEALTH OF PUERTO RICO,

V.

Petitioner,

TERRY E. BRANSTAD, and the STATE OF IOWA,

RONALD CALDER, Intervenor,

fy.

Respondents.

On Petition for Certiorari to the United States

Court of Appeals for the Eighth Circuit

JOINT BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

ra’

— a

THomas J. MILLER

Attorney General of Iowa

*Brent R. ApPet

Deputy Attorney General

Hoover Building

State Capitol

Des Moines, Iowa 50309

(515) 281-5166

Attorneys for The Honorable Terry

E. Branstad and the State of Iowa,

Respondents

Wuuum L. Kurmus

620 Fleming Building

Des Moines, Iowa 50309

(515) 288-3339

Attorney for Intervenor

Ronald Calder, Respondent

*Counsel of Record

or call collect (

COCKLE LAW BRIEF PRINTING (800) 228-8845 (tone) 75

2831

Ld

COUNTERSTATEMENT OF QUESTION PRESENTED

Whether the well-established and uncontroversial rule

in Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861),

which precludes a federal court from issuing a writ of

mandamus to compel a governor of a sovereign state to

extradite a citizen to another sovereign state pursuant to

Article IV, section 2 of the Constitution, should be over-

ruled at the request of the Commonwealth of Puerto Rico,

a territory of the United States.

il

TABLE OF CONTENTS

Page

Counterstatement of Question Presented eon i

Table of Authorities 00... ili

Constitutional and Statutory Provisions Involved ........ 1

Statement of the Case - = ae

Reasons Why the Writ Should Not Be Granted _.. 3

I. The holding of Kentucky v. Dennison has

been cemented into our constitutional bed-

rock for 125 years 3

II. The holding of Kentucky v. Dennison em-

braces the sound constitutional policy of re-

spect for sovereign states and their chief ex-

ecutives i ee oe a?

Conclusion .. 8

Th

iil

TABLE OF AUTHORITIES

Page

Cases

Brown v. Board of Education, 347 U.S. 483 (1954) ....... 7

Carpenter v. Lord, 88 Or. 128, 171 P.2d 577 (1918) ....... 6

Commonwealth of Puerto Rico v. Branstad, 787 F.

a 3

Commonwealth of Puerto Rico v. Iowa, — U.S. —

(1984), 52 U.S.L.W. 3509 (Jan. 9, 1984) 0... 3

FERC v. Mississippi, 456 U.S. 742 (1982) 00. 7

Garcia v. San Antonio Metropolitan Transit Au-

thority, — U.S. —, 105 S.Ct. 1005 (1985) oS

In re Wallace, 38 Wash. 67, 227 P.2d 737 (1951) ................ 6

Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861)

pinmacmiaams 3, 4, 5, 6, 8

Kopel v. Bingham, 211 U.S. 468 (1909) ....... 4

May v. Anderson, 345 U.S. 528 (1953) oo 7

People v. Millspaw, 257 A.D. 40, 12 N.Y.S. 2d 435,

rev’d on other grounds, 281 N.Y. 441, 24 N.E.2d

117 (1939) anal ee 6

South Dakota v. Brown, 576 P.2d 473 (1978) on. 6

State v. Coughlin, 90 Wash. 2d 835, 556 P.2d 1145

(1978) 6

Taylor v. Taintor, 83 U.S. (16 Wall.) 366 (1873) 00. 5

iv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Abrahamson, Extradition in America: Of Uni-

form Acts and Governmental Discretion, 33

Baylor L.Rev. 793 (1981)

seeeeeeee

Comment, Interstate Extradition: Should the

Asylum State Have Unbridled Discretion, 1980

Brigham Young Univ. L.Rev. 376

Comment, Interstate Rendition: Executive Prac-

tices and the Effects of Discretion, 66 Yale

L.Rev. 97 (1956)

Page

Note, The Extradition Clause: Asylum From the

Warrant Requirements of the Fourth Amend-

ment, 16 Houston L.Rev. 975 (1980)

Scoles and Hay, Conflict of Laws (1983) .

i Y ~ —_—_—————-— -_—---

No. 85-2116

Ly

Vw

In The

Supreme Court of the United States

October Term, 1985

Ly

COMMONWEALTH OF PUERTO RICO,

Petitioner,

Vv.

TERRY E. BRANSTAD, and the STATE OF IOWA,

RONALD CALDER, Intervenor,

Respondents.

On Petition for Certiorari to the United States

Court of Appeals for the Eighth Circuit

JOINT BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

fy.

“

The Respondents herein offer this joint brief in op-

position to the petition for writ of certiorari in the above

captioned matter.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article IV, Section 2, Cl. 2 of the Constitution of the

United States, the Extradition Clause, provides that:

A Person charged in any State with Treason, Felony,

or other Crime, who shall flee from Justice, and be

found in another State, shall on Demand of the execu-

1

tive Authority of the State from which he fled, be

delivered up, to be removed to the State having juris-

diction ove: the Crime.

The Extradition Clause is implemented by the Extra-

dition Act, 18 U.S.C. Section 3182, which provides that:

Whenever the executive authority of any State or

Territory demands any person as a fugitive from

justice, of the executive authority of any State, Dis-

trict or Territory to which such person has fled, and

produces a copy of an indictment found or an affi-

davit made before a magistrate of any State or Ter-

ritory, charging the person demanded with having

committed treason, felony, or other crime, certified

as authentic by the governor or chief magistrate of

the State or Territory from whence the person so

charged has fled, the executive authority of the State,

district or Territory to which the person has fled shall

cause him to be arrested and secured, and notify the

executive authority making such demand, or the agent

of such authority appointed to receive the fugitive,

and shall cause the fugitive to be delivered to such

agent when he shall appear. If no such agent appears

within thirty days from the time of the arrest, the

prisoner may be discharged.

ofi>

- 4

STATEMENT OF THE CASE

In this unusual proceeding, the Commonwealth of

Puerto Rico seeks to conscript the federal courts in its

political battle with two governors of Iowa over the ex-

tradition of Ronald Calder, a citizen of Iowa who present-

ly resides in Sioux City. Calder has been charged by

Puerto Rican authorities with murder in connection with

o—-,

<<»

an automobile accident which occurred in San Juan on

January 21, 1981. Two consecutive Iowa governors de-

clined to extradite Calder to face murder charges.

In 1983, Puerto Rico sought leave to file an original

complaint with this Court. The State of Iowa resisted,

arguing inter alia that because the Commonwealth of

Puerto Rico was a territory, it could not invoke this Court’s

original jurisdiction as a ‘‘controversy between two or

more states.’’ Article III, section 2. This Court denied

leave to file the complaint. Puerto Rico v. Iowa, — U.S. —

(1984) 52 U.S.L.W. 3509 (Jan. 9, 1984).

Puerto Rico then filed this action in federal district

court seeking a writ of mandamus to compel the Governor

of Iowa, The Honorable Terry E. Branstad, to extradite

Calder. Relying on Kentucky v. Dennison, 65 U.S. (24

How.) 66 (1861), the district court dismissed the action.

The United States Court of Appeals for the Eighth Cir-

cuit affirmed. Commonweaith of Puerto Rico v. Branstad,

787 F.2d 423 (8th Cir. 1986). Puerto Rico then filed the

instant petition with this Court.

4

Vv

REASONS WHY THE WRIT SHOULD

NOT BE GRANTED

I. The holding of Kentucky v. Dennison has been ce-

mented into our constitutional bedrock for 125 years.

The holding of Kentucky v. Dennison, 65 U.S. (24

How.) 66 (1861) has been a part of our constitutional

framework for well over a century. Since the case was

4

decided, demanding states have launched virtually no

litigation in the extradition context in state forums, and

other than this case, lower federal courts have not chafed

under the restraints of Kentucky v. Dennison. The hold-

ing simply has been widely embraced as the law of the land

by the fifty sovereign states who are vitally concerned

with extradition matters. Rarely in the annals of this

Court has a decision distributing powers between the gov-

ernors of sovereign states and the federal judiciary been

so thoroughly and comfortably integrated into the body

of constitutional jurisprudence.

The Commonwealth of Puerto Rico now seeks te dis-

turb this exceptional tranquility.! Puerto Rico claims that

the decision in Kentucky v. Dennison ‘‘cannot be under-

stood apart from the context in which the case was de-

cided: the growing schism between the North and South

over slavery.’’ Petition at 18. Puerto Rico apparently

sees Kentucky v. Dennison as an undigested, unaccepted

precedent of this Court to be discarded as an historical

oddity.

Puerto Rico’s approach is legally and historically inac-

curate. Kentucky v. Dennison can be, and was, understood

apart from the context in which the case was decided.

Indeed, this court affirmed the principle after the Civil

IThere is substantial doubt whether Puerto Rico may invoke

the provisions of Article IV, section 2 of the Constitution, which

applies on its face only to extradition requests from states. Puerto

Rico relies on doubtful dicta in Kopel v. Bingham, 211 U.S. 468,

479 (1909), a habeas corpus case, for the proposition that de-

manding territories are to be treated as states in actions to force

rendition of a fugitive. The parties below apparently recognized,

however, that the issue need not be reached in light of the all

encompassing precedent afforded by Kentucky v. Dennison.

Because Puerto Rico is not a sovereign state, this case may not

be the best vehicle to reconsider Kentucky v. Dennison.

War and after it was clear beyond doubt that there would

never again be persons fleeing prosecution for violation

of fugitive slave acts. Taylor v. Taintor, 83 U.S. (16

Wall.) 366, 370 (1873).

Recent commentary has also accepted the Dennison

rule. One observer has noted that ‘‘the Dennison hold-

ing was proper and is supported by the concept that

federal courts were not empowered to exercise man-

damus to compel the governor of a state to fulfill his

mandatory duties’. Comment, Intersiate Extradition:

Should the Asylum State Have Unbridled Discretion, 1980

Brigham Young Univ. L.Rev. 376, 392. Another commen-

tator has noted with approval that ‘‘the central role which

the governor plays in the rendition process is not only firm-

ly established, but constantly accentuated in recent uniform

legislation.’’ Comment, Interstate Rendition: Executive

Practices and the Effects of Discretion, 66 Yale L. Rev.

97, 112 (1956). The writer further concluded that ‘‘total

abolition of executive discretion’’ would be ‘‘unrealistic

and unwise.*’ Jd. at 115.

There has been no trend to depart from the rule of

Kentucky v. Dennison in cases arising under state consti-

tutional provisions. See Abrahamson, Eztradition in

America: Of Uniform Acts and Governmental Discretion,

33 Baylor L. Rev. 793, 803 (1981); Note, The Extradition

Clause: Asylum From the Warrant Requirements of the

Fourth Amendment, 16 Houston L.Rev. 975, 978 n. 6

(1980). In eases brought under state constitutional pro-

visions, of course, the state supreme courts are free to

depart from federal precedents. It is a striking histori-

cal fact that in the laboratory of federalism, not one of

the fifty states has departed from Kentucky v. Dennison

in twelve decades of experimentation. See e.g. People v.

Millspaw, 257 A.D. 40, 41, 12 N.Y.S. 2d 435, 437, rev’d on

other grounds, 281 N.Y. 441, 24 N.E.2d 117 (1939); State

v. Coughlin, 90 Wash. 2d 835, 838, 556 P.2d 1145, 1147

(1978); In re Wallace, 38 Wash. 67, 69, 227 P.2d 737, 738

(1951); Carpenter v. Lord, 88 Or. 128, 132, 171 P.2d 577,

578 (1918).

In the most recent case, South Dakota v. Brown, 576

P.2d 473 (1978), the California Supreme Court refused to

issue a writ of mandamus pursuant to a state constitu-

tional provision to compel the Governor of California to

extradite a fugitive to South Dakota. The California Su-

preme Court noted that it ‘‘is generally accepted that fed-

eral courts lack authority to compel a Governor to de-

liver a fugitive to the demanding state.’’ 576 P.2d at

476. In interpreting an apparently mandatory provision

of the California constitution, the California Supreme

Court refused to adopt ‘‘a harsh rule’’ contrary to Ken-

tucky v. Dennison. 576 P.2d at 482.

In short, Kentucky v. Dennison has been cemented

into our legal tradition for over a century. Puerto Rico

has not made a persuasive case for using a constitutional

jack-hammer to pry it loose.

II. The holding of Kentu v. Dennison embraces the

sownd ccenstitutional po of respect for sovereign

states and their chief executives.

Puerto Rico cites numerous cases under the inter-

state commerce and due process clauses which outline the

expanding role of federal courts in our society. See, e.g.,

Garcia v. San Antonio Metropolitan Transit Authority, —

U.S. —, 105 S.Ct. 1005 (1985); FERC v. Mississippi, 456

U.S. 742 (1982); Brown v. Board of Education, 347 U.S.

483 (1954). These commerce and due process cases, di-

rected primarily at local officials, do not involve orders to

governors of sovereign states that in effect direct them to

dispatch police officers to arrest citizens for transport

abroad for crimes of a questionable character.

The federal judiciary has always treaded lightly in

criminal law enforcement matters involving decisions made

by governors of sovereign states. Particularly in extra-

dition disputes, the federal judiciary is ill-suited to adopt

an aggressive enforcement role.

Extradition cases in the child custody context present

an example of some of the domestic interstate difficulties

faced by chief executives that are not amenable to federal

judicial resolution. Sometimes the courts of two differ-

ent states come to opposite conclusions on child custody

issues. See Scoles and Hay, Conflict of Laws, § 15.41-46

(1982). Cf., May v. Anderson, 345 U.S. 528 (1953). A

spouse awarded custody under a lawful order in state

A may travel to state B, seize the child, and re-

turn home. State B could then charge the spouse with

kidnapping because the state courts in state B, contrary

to the courts in state A, may have awarded custody to

the other spouse who resides in State B. State B might

then seek to extradite the seizing spouse. Under Puerto

Rico’s approach, the governor of state A, if presented

with appropriate extradition papers, would have no choice

but to extradite the spouse even though he was acting

under a lawful custody order from state A.

This Court should stand clear of the nasty political

thicket presented in child custody and other sensitive ex-

tradition cases. The resolution of these disputes is best

left to the governors of the sovereign states to resolve

through the exercise of their executive power.

°

CONCLUSION

Kentucky v. Dennison has been cemented into our

legal tradition for over a century. Overruling of this es-

tablished precedent would thrust the Court into nasty po-

litical thickets that are best left undisturbed by judicial

intervention. For these reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

THomas J. Mier

Attorney General of Iowa

*Brent R. Apren

Deputy Attorney General

Hoover Building

State Capitol

Des Moines, Iowa 50309

(515) 281-5166

Attorneys for The Honorable Terry

E. Branstad and the State of Iowa,

Respondents

Wuium L. Kurmus

620 Fleming Building

Des Moines, Iowa 50309

(515) 288-3339

Attorney for Intervenor

Ronald Calder, Respondent

*Counsel of Record