# Amicus Curiae Brief — California v. Superior Court of Cal., San Bernardino Cty.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 400

## Text

. Supreme
ne Y EILE D
VY) FEB 99 1967

No. 86-381
aa weirs a CLERK
In the Supreme Court
OF THE
United States

OcToOBER TERM, 1986

PEOPLE OF THE STATE OF CALIFORNIA
Petitioner,

VS.

SUPERIOR COURT OF THE STATE OF CALIFORNIA,
FoR THE COUNTY OF SAN BERNARDINO,
Respondent,

RICHARD SMOLIN AND GERARD SMOLIN,
Real Parties in Interest.

BRIEF FOR AMICI CURIAE
CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE
and
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

EPHRAIM MARGOLIN
240 Stockton Ave.
San Francisco, CA 94108
(415) 521-4347
Attorney for
Amici Curiae

‘
Uy

TABLE OF CONTENTS

Table of Authorities .......6-ee+-e+++ iii
Interest Of AMICi .. cece eseeeecccees 1
Summary of Argument ......eeeeeeeees 3
Argument:

PERMITTING AN ASYLUM COURT TO TAKE
JUDICIAL NOTICE OF ITS OWN RECORDS TO
DETERMINE WHETHER AN ACCUSED PERSON IS
SUBSTANTIALLY CHARGED WITH A CRIME UNDER
THE DEMANDING STATE'S LAWS IS
CONSTITUTIONAL AND THE RESULTING BURDENS
ON THE PROCESS OF INTERSTATE EXTRADITION
ARE VERY LIGHT ...ceecseeccsvvssesees .

A. NO VALID CONSTITUTIONAL AUTHORITY
COMPELS AN ASYLUM COURT TO CONFINE
ITSELF EXCLUSIVELY TO THE FACE OF
THE EXTRADITION DOCUMENTS IN
ASCERTAINING THE SUBSTANTIALITY OF
THE DEMANDING STATE'S CHARGE ... 8

SEVERAL STATES’ TRIBUNALS HAVE
AUTHORIZED ACCEPTING SIMPLE
FACTUAL EVIDENCE ON THE ISSUE OF
WHETHER A PERSON IS SUBSTANTIALLY
CHARGED WITH A CRIME .....-++-- 13

PERMITTING AN ASYLUM COURT ON
HABEAS CORPUS TO JUDICIALLY NOTICE
ITS OWN RECORDS DOES NOT DISTURB
THE SWIFT RENDITION OF FUGITIVES
AND PREVENTS THE HARDSHIP AND
SIGNIFICANT RESTRAINT ON LIBERTY
WHICH RESULTS FROM ERRONEOUS

-ii-

TABLE OF AUTHORITIES

Cases:

Biddinger v. Commissioner

of Police, 245 U.S. 128 (1917) 8, 11
Carpenter v. Jamerson,

432 N.E.2d 177 (Ohio 1982) 17
Drew v. Thaw, 235 U.S. 432 (1914) 5, 11
Hopper v. State ex rel. Schiff,

678 P.2d 699 (N.M. 1984) | 13
Hyatt v. People ex rel. Corkran,

188 U.S. 691 (1903) 6
In re Rowe, 423 N.E.2d 167

(Ohio 1981) 21
Michigan v. Doran,

439 U.S. 278 (1978) passim
Pacileo v. Walker,

449 U.S. 86 (1980) 12
People v. Superior Court (Smolin),

41 Cal.3d 758 (1986) passim
People ex rel. Lewis v. Commissioner

of Correction, 417 N.Y.S.2d 377

(1979) 11
Roberts v. Reilly,

-iii-

116 U.S. 80 (1885) 7, 9 ia
South Carolina v. Bailey,

289 U.S. 412 (1933) 12
State v. Gale,

312 S.W.2d 824 (Fla. App. 1975) 15, 16
State v. Ritter,

246 N.W.2d 552 (Wis. 1976) 13, 14, 15
State ex rel. Gilpin v. Stokes,

483 N.E.2d 179 (Ohio App. 1984) 17
State ex rel. Reddin v. Meekma,

306 N.W.2d 664 (Wis. 1981) 15
State ex rel. Walker v. Ramsey County
District Court, 368 N.W.2d 28

(Minn. App. 1985) 17
Strassheim v. Dailey,

221 U.S. 280 (1911) 12, 25
United States v. Flood,

374 U.S. 554 (2nd Cir. 1967) 13

-iv-

VOL ee me a

i oe ee

hee ete hee Bete be ete ae Bie ee oc avec 8

~ eens

Statutes, Codes and Other Authorities

Title 18 U.S.C. { 3182 4
Fed. R. Evid. 201 19
Uniform Criminal Extradition Act 4, 5
O. Holmes, COLLECTED LEGAL PAPERS

(1920) 26

Murphy, Revising Domestic Extradition
Law, 131 U. Pa. L. Rev. 1063 (1983) 20

INTEREST OF AMICI CURIAE

California Attorneys for Criminal
Justice (hereinafter CACJ) is a
California criminal defense bar
comprised of 1,800 lawyers active in
criminal defense and dedicated to the
preservation and improvement of a fair
criminal justice system within our
country.

The National Association of
Criminal Defense Lawyers (hereinafter
NACDL) is a District of Columbia non-
profit corporation whose membership is
comprised of more than 4,000 lawyers who
are citizens of every state. The NACDL
is dedicated to the preservation and
improvement of our adversary system of
justice.

The Supreme Court of California in
People v. Superior Court (Smolin), 41
Cal.3d .358 (1986), approved of a habeas
corpus court in an asylum state taking

judicial notice of its own court records

ote

to ascertain whether a person sought to
be extradited by a sister state had been
substantially charged with having
committed a crime against her laws. In
the case, the habeas court, by
judicially noticing the existence of a
valid custody decree granting respondent
custody over his two children,
determined that under the laws of the
demanding state he could not properly be
charged with kidnapping the two
children, and granted respondent's
request to halt his extradition.

CACJ and the NACDL, believing this to
be a just result consistent with
judicial precedent and the orderly
prosecution of interstate crime, join
respondents as amici to respectfully
urge this Court to affirm the judgment

of the Supreme Court of Califernia.

ete ee ——————

ee

SUMMARY OF ARGUMENT

This brief will assess the
constitutionality of allowing an asylum
court in extradition habeas corpus to go
beyond the extradition documents by
judicially noticing its own records
in determining whether a person has been
substantially charged with having
committed a crime against the laws of
the demanding state. The brief will

‘Yow that this narrow inquiry has never
been expressly forbidden by this Court
and that the tribunals of several states
have chosen to engage in similar
analyses when confronted by like
Situations. It is the conclusion of
amici that the inquiry is
constitutional; the insignificant
burdens on the swift rendition of
fugitives resulting from engaging in it
are outweighed by the benefits to be
reaped from it.

ARGUMENT

PERMITTING AN ASYLUM COURT TO TAKE
JUDICIAL NOTICE OF ITS OWN RECORDS TO
DETERMINE WHETHER AN ACCUSED PERSON IS
SUBSTANTIALLY CHARGED A CRIME AGAINST
THE DEMANDING STATE'S LAWS IS
CONSTITUTIONAL AND THE RESULTING BURDENS
ON THE PROCESS OF INTERSTATE EXTRADITION
ARE VERY LIGHT

The Extradition Clause in the United
States Constitution, art. IV, { 2, cl.
2, aS implemented by Congress in Title
18 U.S.C. { 3182, and the Uniform
Criminal Extradition Act, 11 U.L.A. 59
(1974), where enacted, have secured the
states the absolute right to oring to
trial within their boundaries persons
charged with having committed a crime
against their laws. A corollary to this
right is the prohibition on an asylum

state to conduct a trial on the merits

ais

of the accused person's case and attempt
to ascertain his or her guilt or
innocence of the underlying offense.
Drew v. Thaw, 235 U.S. 432, 439-40

(1914); Uniform Criminal Extradition Act
{ 20.

This Court in Michigan v. Doran, 439
U.S. 278 (1978), reiterated these
salutary fundamental principles and
delineated the limited scope of inquiry
permissible by an asylum court when an
alleged fugitive challenges her
extradition in a habeas corpus
proceeding:

[A] court considering release
on habeas corpus can do no
more than decii2 (a) whether
the extradition documents on
their face are in order; (b)
whether the petitioner has
been charged with a crime in
the demanding state; (c)

whether the petitioner is the

ofe

person named in the request
for extradition; and (d)
whether the petitioner is a
fugitive.

Id., 439 U.S. at 289.

The prohibition against passing on the
merits of the alleged fugitive's case is
thus qualified by these four issues open
to inquiry. Should a habeas court
ascertain that the accused has
established the absence of at least one
of these four requirements, such as
identity or fugitiviness, the fact that
the court may also collaterally
determine that the person is not guilty
of the underlying charge is not a bar to
preventing extradition. See, e.g.,
Hyatt v. People ex rel. Corkran,

188 U.S. 691 (1903) (approving state
court determination that extradition
should be blocked as petitioner
demonstrated that he was not in

demanding state at time alleged crime

abe

occurred).

Regarding inquiry into the
substantiality of the demanding state's
charge, there will also invariably be
instances when a determination that the
accused person was not charged with a
crime involves passing on issues close
to the merits of his case. Ordinarily
this would not be a valid objection to a
refusal to extradite. Roberts v.
Reilly, 116 U.S. 80, 95 (1885). The
guestion presently before this Court is
whether simple factual evidence may be
admitted through judicial notice of the
asylum court's records in ascertaining
the substantiality of the demanding
state's charge. While no United States
Supreme Court cases have directly
addressed this issue, we urge this Court
to answer the question in the

affirmative.

A. NO VALID CONSTITUTIONAL AUTHORITY
COMPELS AN ASYLUM COURT TO CONFINE
ITSELF EXCLUSIVELY TO THE FACE OF
THE EXTRADITION DOCUMENTS
ASCERTAINING THE
SUBSTANTIALITY OF THE DEMANDING
STATE'S CHARGE

In extradition habeas corpus the issues
of identity and fugitiveness are ones of
fact and thus evidence beyond the four
corners of the extradition documents is
admissible to attempt to prevent
erroneous extraditions. Biddin Vv.
Commissioner of Police, 245 U.S. 128,
135 (1917). Contrary to the position of
the State of California as petitioner in
the present case, no persuasive
authority supports its assertion that an
asylum court must absolutely confine
itself to the face of the extradition
papers in determining the substantiality

of the charge of the demanding state.

The only United States Supreme Court
case which passed on the question as to
what evidence is admissible on this
issue is both ambiguous and of
questionable continuing validity. In
Roberts v. Reilly, 116 U.S. 80 (1885),
the Court stated that the question
whether a person is substantially
charged with a crime is a question of
law which is “always open upon the face
of the [extradition] papers to judicial
inguiry." Roberts, 116 U.S. at 95. In
Giscussing the merits of the case, the
Court rejected petitioner's claim that
the indictment did not substantially
charge larceny because it did not state
that the corporation from whose
possession the property was taken was
capable of ownership under the law of
the demanding state. This issue, the
Court held

is not a matter of law

arising upon the face of the

-9-

indictment, but can arise

only at the trial upon the

evidence, if the question

should then be made. The

averment in the indictment

is the allegation of a fact

which does not seem to be

impossible in law, and is,

therefore, traversable.
Id. at 96.

As the Supreme Court of California
concluded, this holding appears to mean
that the courts of the asylum state are
foreclsed from inquiring whether the law
of the demanding state renders the
actions alleged in the indictment a
crime. People v. Superior Court
(Smolin), 41 Cal.3d 758, 769 n.12
(1986). Even the petitioner recognizes
that this is not the law today. Brief
for Petitioner at 36-38. Without the
ability to engage in an inquiry into the
demanding state's laws, a habeas court

-10-

would have no frame of reference in
ascertaining whether the accused stands
charged with a crime. See People ex
rel. Lewis v. Commissioner of
Correction, 417 N.¥.S.2d 377, 380 (1979)
("It is this court's opinion that it has
the power and obligation to make an
inquiry [as to whether the acts charged
constitute a crime] if properly
raised."). The Roberts case, therefore,
was decided under a principle of law no
longer valid and its appellation
regarding making a determination
confined to the "face of the papers"
must be considered only dictum.

No other case from this Court has
addressed the precise issue before this

court. Biddinger v. Commissioner of

Police, 245 U.S. 432 (1914), for
example, only dealt with evidence which
may be considered on the issue of
fugitiveness, while cases such as Drew

v. Thaw, 235 U.S. 432 (1914), Strassheim

afte

v. Dailey, 221 U.S. 280 (1911) and South
Carolina v. Bailey, 289 U.S. 412 (1933),

merely reaffirmed the truism that the
asylum state is not the locus to conduct
a trial on the merits of the accused
person's case.

This Court's latest cases on
extradition law have also not passed
upon the propriety of the inquiry in
question here. Michigan v. Doran, 439

U.S. 282 (1978), held only that an
asylum court may not re-examine a sister
state's judicial determination of
probable cause in the habeas proceeding;

while in Pacileo v. Walker, 449 U.S. 86

(1980), the Court prohibited inquiring
into the constitutionality of the
demanding state's penal system as a
ground for barring extradition.

Other lower court cases cited by
petitioner for the proposition that an
asylum court is strictly confined to the

extradition papers are inapposite. See,

o12-

e.g., United States v. Flood, 374 U.S.
554 (2nd Cir. 1967) (pursuasiveness of

affidavit accompanying extradition
warrant not proper subject for asylum

court's determination).

B. TRIBUNALS IN SEVERAL STATES HAVE
AUTHORIZED ACCEPTING SIMPLE FACTUAL
EVIDENCE ON THE ISSUE OF WHETHER A
PERSON IS SUBSTANTIALLY CHARGED
WITH A CRIME.

While some states which have considered
whether to go beyond the face of the
extraditon papers have refused to do

so, see, e.g., Hopper v. State ex rel.

Schiff, 678 P.2d 699 (N.M. 1984), others
have permitted such inguries, finding
that doing so neither violated the
Extradition Clause nor disrupted the
summary nature of the rendition process.
The Supreme Court of Wisconsin, for

example, in State v. Ritter, 246 N.W.2d

af%e

552 (Wis. 1976), analyzed the role of an
asylum court when the alleged fugitive
was charged with having committed a
crime which, under the demanding state's
laws, could only be charged if he was
over 18 years old or if a demanding
state juvenile court had first referred
the case for adult prosecution. The
petitioner sought to prove that the
referral which had occurred was invalid
and that he was under 18 years old and
hence had not been properly charged with
a crime. The Ritter court refused to
assess the validity of the referral,
believing it could not confidently
resolve this difficult issue. The court
did, however, expressly approve of going
"beyond the face of the [extradition]
documents and allow[{ing] .. . evidence
on a simple factual issue--age." Id. at
557. The court did not perceive that
this narrow inquiry, which would aid its

determination of the substantiality of

ofthe

the charge, would in any manner disrupt
the extradition process. The analysis
permitted by Ritter was specifically

approved by the Wisconsin Supreme Court

under the strictures of this Court's

opinion Michigan v. Doran in the case of

State ex rel. Reddin v. Meekma, 306
N.W.2d 664 (Wis. 1981).

In State v. Gale, 312 S.W.2d 824 (Fla.
App. 1975), a Florida appellate court
analyzed a situation very similar to the
one at bar and concluded that
considering indisputable evidence beyond
the face of the extradition papers was
constitutional. The petitioner was
sought by the demanding state for
kidnapping children in violation of a
custody order entered after his divorce.
He attempted to show that he had not
been substantially charged with a crime
beause he had remarried his wife
subsequent to the decree and, in so

doing, had invalidated the prior custody

efte

order. The court rejected his argument,
finding that he had not established that
under the demanding state's laws
remarriage vitiates a custody decree.
Nonetheless, the court approved of
petitioner's introduction of evidence
regarding his remarriage. It is clear
under the rubric of Gale that had the
law of the demanding state been clear on
the subject, as the law of Louisiana is
in the present case, neither the
tradicional bar on inquiring into the
merits of a case nor the limitation,
argued by petitioner, of not going
beyond the extradition papers, would
have prevented the court from halting an
erroneous rendition.

Further examples of cases, decided in
modern times, in which courts have
authorized the introduction of extrinsic
evidence on the substantial charge issue
can be found in Ohio and Minnesota.

These states allow a petitioner to

x"

introduce proof to show that he or she
is not substantially charged because the
underlying criminal charge is merely a
subterfuge to enforce a civil liability.
See State ex rel. Gilpin v. Stokes, 483
N.E.2d 179 (Ohio App. 1984), elaborating
on the Ohio Supreme Court's announcement
of the principle in Carpenter v.
Jamerson, 432 N.E.2d 177 (Ohio 1982),
and State ex rel. Walker v.

County District Court, 368 N.W.2d 28

(Minn. App. 1985).

Tribunals in Wisconsin, Florida, Ohio
and Minnesota have all concluded that
accepting simple factual evidence on the
issue of substantiality of a charge does
not offend either the well-known
prohibition against passing on the guilt
or innocence of the accused person's
case or interstate harmony. The Supreme
Court of California thus proceeded upon
ground already charted by several courts

in sanctioning judicial notice of a

-17-

court's own records in extradition

habeas corpus.

C. PERMITTING AN ASYLUM COURT ON HABEAS
CORPUS TO JUDICIALLY NOTICE ITS OWN
RECORDS DOES NOT DISTURB THE SWIFT
RENDITION OF FUGITIVES AND PREVENTS
THE HARDSHIP AND SIGNIFICANT
RESTRAINT ON LIBERTY WHICH RESULTS
FROM ERRONEOUS EXTRADITION

No decision by this Court has directly
prohibited the inguiry in question and
several states have permitted it. The
only question that remains is thus
whether the California Supreme Court's
decision is constitutionally infirm
under the caveats regarding the
potential “balkanization” of the
administration of interstate criminal
justice articulated by this Court's

opinion in Michigan v. Doran, 439 U.S.
530 (1978).

-18-

The Doran court, in forbidding re-
examination of a demanding state's
probable cause determination, was driven
by concerns that the individual states
not become sanctuaries for fugitives
from justice and that they not engage in
inguiries which may unduly delay the
summary rendition process. The
California Supreme Court's opinion in
Smolin avoids both these pitfalls.

Doran's first concern can be succinctly
capsulized as the fear that asylum
states may make errors in assessing a
person's case, thus becoming unwitting
sanctuaries. Smolin's inquiry would not
result in these errors. In order for a
court to judicially notice its own
records, the high standards of certainty
and indisputability contained in the
state's rules for judicial notice must
first be met. See, e.g., Fed. R. Evid.
201, from which many states' rules on

judicial notice are derived (fact to be

-19-

noticed must be “capable of accurate and
ready determination by resort to sources
whose accuracy cannot reasonably be
questioned") While the congruence
between Doran's statement that the four
issues which may be inquired into are
"historic facts readily verifiable,”
Doran, 439 U.S. at 289, and the language
of many statutes on judicial notice may
be coincidental, there can be no doubt
that the result of both is the same:
only facts which will not result in
error can be considered.

Errors in the proceeding are also
minimized by the extremely high burden
of proof imposed on the suspect in
extradition habeas corpus. The burden
is usually set at “clear and convincing”
or “beyond reasonable doubt.” See
Murphy, Revising Domestic Extradition
Law, 131 U. Pa. L. Rev. 1063, 1115-17 &
n.268 (1983), for a comprehensive list
of standards adopted by states.

-20-

The concerns regarding delay of
extradition proceedings are also met by
the Smolin inquiry. The very purpose of
judicial notice is to expedite factual
determinations where the particular fact
to be proved is outside the subject of
reasonable controversy. Accepting
evidence of this simple nature, and only
in the form of readily accessible
records of the habeas court, is far less
susceptible to delay than other
inquiries expressly permitted by Doran.
For example, the inquiry into & person's
fugitiveness carries the potential for
dilatory tactics by the accused. See,
e.g., In re Rowe, 423 N.E.2¢ 167 (Ohio
1981) (petitioner on extradition habeas
corpus allowed to examine fourteen
witnesses and cross-examine two others
to show non-fugitiveness). The Doran
Court was cognizant of the potential for
Gelay inherent in these inguiries but

concluded that "(t]jhere is nothing to

eZie<

indicate that this type of routine and
basic inquiry has led to the frustration
of the extradition process." Doran, 439
U.S. at 297 n.7 (Blackmun, J.,
concurring).

The combination of the strictures of
judicial notice and the high burden of
proof will operate to screen out of the
system only a minute number of cases
where, as in the present case, it is
Clear beyond question that an accused
person has not been substantially
charged with a crime. The only inquiry
permissible is into the judicial act in
the court record noticed, not the
hearsay statements within it or other
legal papers such as motor vehicle
ownership certificates. Furthermore,
the inquiry does not result in any
appreciable delay in the extradition
process as judicial notice by its nature
involves a minimum of time and court
resources. Doran's “balkanization"

-22-

concerns are avoided by the California
Supreme Court's decision and hence, it
is consistent with that opinion.

A comparison of the scanty interference
caused by the judicial notice inquiry
with the benefits to be reaped from it
also compels the conclusion that
permitting it is consistent with public
policy. As delineated before, the swift
rendition of fugitives will not be
hindered and the benefits of the inquiry
are substantial.

As extraditions considerably tax a
state's resources, interstate harmony
will probably be promoted by allowing
the inguiry, since it is probable that
if the demanding state had known of the
insubstantiality of its charge it would
place its resources in prosecuting
meritorious cases. In this regard, the
asylum courts operate as a valuable
adjunct to the screening function of the

executive officials in charge of the

-23-

bulk of the extradition process.
Allowing extraditions in situations
such as Smolin is to condone and
perpetuate the perpetration of fraud on
the judicial system. Persons should not
be allowed to abuse the criminal system
by improperly prosecuting private
grievances as in the present case. To
allow them to do so would be to supply
civil litigants with an unfair weapon in
their disputes to the detriment of the
efficient allocation of scarce
prosecutorial and judicial resources.
While an unlimited fraud exception to
extradition would be neither practical
nor wise, allowing a court to prevent
extradition where its own records
Clearly indicate the underlying fraud is
a salutary outcome.

The greatest benefit of allowing the
judicial notice inguiry is that it
prevents individuals from suffering the

enormous financial and emotional burden

afte

which can result from an erroneous
extradition. It is no answer to this
consideration that persons in the
Smolins' shoes may avoid this detriment
by simply waiving extradition and
presenting their case in the demanding
state; persons should no more have to
waive the procedural protections of
extradition than any other right in our

constitutional system.

CONCLUSION

This Court is here faced with a
situation not previously addressed in
its previous articulation of the
extradition system. The inquiry in
question, rather than allowing "(t]he
case to... be tried on habeas corpus, "
Strassheim v. Daily, 221 U.S. 280, 286
(1911) (Holmes, J.), only permits an
asylum court to screen cases out of the
system where, through the simple
expedient of judicial notice of its own

-2$-

records, it can confidently ascertain
that the accused person has not been
substantially charged with a crime.

The only real argument against this
narrow inquiry is that, in assessing
issues closely related to the merits of
the alleged fugutive's case, it appears
to run afoul of the historical taboo
against an asylum court determining
guilt or innocence. The notion that a
"rule simply persists from blind
imitation of the past,"(0O. Holmes,
Collected Legal Papers 187 (1920)), has
no place in this nation's criminal
jurisprudence, and should not prevent
this Court from permitting an inquiry
salutorious to the control of interstate

crime.

Respectfully Submitted,

alt (.
Ephra Margplin
February 17, 1987

o26-

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