Amicus Curiae Brief — Jaffe v. Snow

No. 93-241

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1993

.UTH JAFFE, PETITIONER

v.

HARDY M.SNow, JR. AND ACCREDITED SURETY &

CASUALTY COMPANY. INC

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA, FIFTH DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

FRANK W.H

\ stant A ly

MmODWIN Ss K> mri

De } Ly Solie {

M EL A. ESTR

j fav} t} sS

(; ;

MICHA S

JOHN P. SCH

1+ .

ee | )] eu

Da ?) ravi Svs

Washington, D.C

) } pop FT "7

QUESTION PRESENTED

Whether the refusal of the Florida courts to enforce

petitioner’s Canadian judgment conflicts with federal law or

policy.

TABLE OF CONTENTS

Page

aii ikl dd scat nabdiguatédmumneenesarsiieldéasupiecartnes ]

ak cas abahennddbbanenusedenibensaieesacs 7

aaa os asa ae peak anlauananandbabeguetne 19

TABLE OF AUTHORITIES

Cases:

Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1912) .... :j

Allen v. Georgia, 166 U.S. 138 (1897) ...................se0ce000. 10

Argentine Republic v. Amerada Hess Shipping Corp.,

I cs ak saa dapebenwessousebniesiobbeedennin if)

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71

ESE ES CASS ED BOERS Oe RE DOLE AD Oe a EE PE 12

DeShaney v. Winnebago County Dep't of Social Servs.,

I ce ss ab damuesdacenehadhdenanens 3

Disconto Gesellschaft v. Umbreit, 208 U.S. 570 (1908) .. 8, 14

Estelle v. Dorrough, 420 U.S. 534 (1975) 0.0... e cece 10

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) .... 16, 18

Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal.

1987), modified, 694 F. Supp. 707 (N.D. Cal. 1988) ..... 16

Fristie v. Collins, 342 U.S. 519 (1952) .................ccccceces 11

Frolova vy. Union of Soviet Socialist Republics, 761 F.2d

Ne atid dc combbcungivansetnivasests 14

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ........ 13

Graver Tank & Mfg. Co. vy. Linde Air Products Co., 336

Nee sas a edibalatennincdeiibilavneddeiondsieins 13

Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.

a as dilsapnbbuiiulinthinianareoniasbadssoouens 16

Head Money Cases, 112 U.S. 580 (1884) oe eee i)

Hilton v. Guyot, 159 U.S. 113 (1895) ..................ccccecce0e 5. 7,8

Jaffe v. Boyles, 616 F. Supp. 1371 (W.D.N.Y. 1985) ..... 2

Jaffe v. Miller, No. 85-CQ-6103 (Ont. Ct. Justice Mar. 17,

ES shin ci satin dedleGbaicnnabesenabackehusnnubepiuaacenewres 18

(Tf)

IV

Cases—Continued:

Jaffe v. Sanders, 463 So. 2d 318 (Fla. Dist. Ct. App.

SINAD icticaiccuiiergussssuadeanasansuepliidacnibcnmsclimadiabbauebassiate

Jaffe v. Smith, 825 F.2d 304 (11th Cir. 1987) ...............

Jaffe v. State, 438 So. 2d 72 (Fla. Dist. Ct. App. 1983) ..

Kaisha v. U.S. Philips Corp., 114 8. Ct. 425 (1993) ......

Kear v. Hilton, 699 F.2d 181 (4th Cir. 1983) ................

Ker v. [Ulinois, 119 U.S. 486 (1886) ....cccccocccsccccoscccccoccsce

Lascelles v. Georgia, 148 U.S. 587 (1898) ................ eee

Molinaro v. New Jersey, 396 U.S. 365 (1970) ................

Nevada v. United States, 463 U.S. 110 (19838) ..............

Ortega-Rodriguez v. United States, 113 S. Ct. 1199

ERIPOTIED sisiiseis/siatbcnnia siakcealdaialetacsadeanaaedaummmenaeadcommeminbaenetss

Regina v. Kear and Johnsen, 2 W.C.B.(2d) 392 (Ont.

H.C.J. May 5, 1986), aff’d as modified, 51 C.C.C.(3d)

Pe re Whe SUG SI cadaehcscrsacenscedssidumsdbiesimatcbogeanacs

Siderman de Blake v. Republic of Argentina, 965 F.2d

699 (9th Cir. 1992), cert. denied, 113 S. Ct. 1812 (1993) .

State ex rel. Boyles v. Florida Parole and Probat-

ion Commission, 4386 So. 2d 207 (Fla. Dist. Ct. App.

Street v. New York, 394 U.S. 576 (1969) .......................

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.

Cir. 1984), cert. denied, 470 U.S. 1003 (1985) ..............

United States v. Alvarez-Machain, 112 S. Ct. 2188

LIED ciacatadnctahiehsphncdaionparandacbanlcetensanakansvanuindaiaeboammities

United States v. Belmont, 301 U.S. 324 (1987) .............

United States v. Kakwirakeron, 730 F.Supp. 1200

CECE ECE SPOD cnckudetnddcetidtintenatedcsepebuihiamrcdauisibemutunielsas

United States v. Pink, 315 U.S. 203 (1942) ...................

United States v. Terrazas-Carrasco, 861 F.2d 93 (5th

Roel | MEY nsditiccukciiccksaccednaniiieibeiasoaadeuimadcaamabaticiessniieiinileas

United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974)..

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)..

Webb v. Webb, 451 U.S. 493 (1981) ..................ccccececseeeee

r

age

.

V

Cases—Continued: Page

Zschernig v. Miller, 389 U.S. 429 (1968) ....................... &

Constitution, treaty, statutes and rule:

U.S. Const. :

Art. IV, § 1 (Full Faith and Credit Clause) .............. 7

Art. VI, Cl. 2 (Supremacy Clause) .....................066.... 7

Amend. XIV (Due Process Clause) ....................66-.... 12, 13

Treaty on Extradition Between the United States of

America and Canada, 27 U.S.T. 983 (1976) ................... 4,9

Alien Tort Statute, 28 U.S.C. 1350 ....cccccccccccccccceeeeeeec.. 16, 17, 18

Sa Sead I anid ihe cares tacen peut ete a a 7

1978 Fla. Laws ch. 78-210, § 1 wo... ccceccessseseseccooececeeeceee, 3

1987 Fla. Laws ch. 87-382, § 2 .........ccccccosccccocosoccoocococeeee.., 3

Fla. Stat. Ann. (West Supp. 1993):

DE shabbentedicSinshieniamandindbace steed 2

PIE: Hie hidtecsecikedshiticentdsatyatcebintel acdsee A

R.S.C. 1985, c. C-46, 8. 279(1)(b) .......eeecceecsccessscsesecseeeeeee. 3

SDs PRs ea: UI ose siassaiinnoedindaceaiie acetic 14

Miscellaneous:

American Declaration of the Rights and Duties of Man.

O.A.S. Off. Rec. OEA/Ser.L/V/II.65, Doc. 6, at 17

(ERNNPE scaischinssadatiaaesdcesketscaeananaeaee ee. eee 15

Conference on Security and Cooperation in Europe:

Final Act (Helsinki Accords), 73 Dep’t of State Bull.

ee RIOD dadidéstamasiantigcacecosadmeecac te eee 14

37 Cong. Ree. $12,131-S12,132 (daily ed. Aug. 2, 1991)... 3

138 Cong. Rec. (daily ed. Apr. 2, 1992):

hs MW OtED -cevecccriunincsacssnoseomaaaaet aan 14

Phe TR Wectalasastspitcaiionionenciacdeue ee aero 15

Ps RTI sicsicccncicicamesetincbacae oa oe 15

Draft Articles on State Responsibility, 18 I.L.M. 1557

LED CW | ssagacaseronilecninseeisnpieteueien eee eee 17

WANES“ y cxsasiaanleomecccecnes ae ee 17

Miscellaneous—Continued:

Exchange of Letters Constituting an Understanding

Between the Government of Canada and the Govern-

ment of the United States of America Concerning the

Protocol Amending the Treaty on Extradition Signed

Page

at Ottawa on January 11, 1988, 27 I.L.M. 427 (1988) ..... 4,9

DU, GEREMEIIDD csccxssnsacepcocesenserintencnentuaceonaunibbapasaaabaaaeinied 4,9

I. GENS soinvecsnccusanvsdncdicndisniniddanbaaseiseenaimadedmii 4,9

Sh. GREP cncnvncaconnhecscenécstsunsaauaccondmidaslaibeumealisbbidaantiaeds 4,9

International Covenant on Civil and Political Rights,

Annex to G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16)

Ot GE, Ucee. SOG: GO CERO ccnintcncsiscseicstarsseestinss 14

PARE, GED scnnsnccondcshcksscsctencoeseisduel aceeioedaee nian 5

Protocol Amending the Treaty on Extradition Between

the United States of America and Canada, 27 I.L.M.

Ge RRM ictinncboceccassednssscresdsibcorsieusssnidbnadtaaamaiaetienks 3,9

Restatement (Third) of the Foreign Relations Law of the

CFIIOOEE TRS COED intccctccssvechtnbessssabadhsensmmassmntobanenns 5, 8, 16, 17

Restatement (Second) of Judgments (1982) ...............0600. 13

S. Exec. Rep. No. 23, 102d Cong., 2d Sess. (1992) ............ 14,15

Universal Declaration of Human Rights, G.A. Res. 217,

cee, BGs BETTE CRO ictratconccaiedoiscnieiaetassaeitiasenin 15

HAAG, UF scouscsnduntnlavndadioesnkitahibuasesmnimecianaiadescdialaieaseas 15

5 M. Whiteman, Digest of Internationa] Law (1965) ........ 16

§n the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-24]

RUTH JAFFE, PETITIONER

Vv.

HARDY M.SNow, JR. AND ACCREDITED SURETY &

CASUALTY COMPANY, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA, FIFTH DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is filed in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

Petitioner obtained a judgment against respondents,

Accredited Surety & Casualty Co., Inc. (Accredited) and

its President, Hardy M. Snow, Jr. (Snow), in Canada. That

judgment awarded petitioner damages for the abduction of

Sidney L. Jaffe (Jaffe), petitioner’s husband, in Canada by

agents of Accredited. Petitioner sought to enforce the

Canadian judgment in the Florida courts, but those courts

declined to enforce the judgment on the ground that to do

so would be contrary to a public policy of the State that

denies judicial relief to fugitives from justice.

(1)

2

1. Jaffe was charged in 1980 with 28 violations of the

Florida Uniform Land Sales Practices Law. Fla. Stat.

Ann. §§ 498.033(2), 498.059 (West Supp. 1993). After he was

arrested, Jaffe entered into an agreement with Accredited

pursuant to which Accredited posted a $137,500 bond to

secure Jaffe’s presence at trial. Pet. App. A3. The bond

gave the surety the express right to apprehend, arrest, and

surrender Jaffe to “the proper official at any time provided

by law.” Ibid.

Jaffe subsequently departed with petitioner for Canada,

where he took up residence and obtained Canadian

citizenship. See Kear v. Hilton, 699 F.2d 181, 182 n.1 (4th

Cir. 1983). After Jaffe failed to appear for his trial,

Accredited’s bail bond was forfeited to the State, a warrant

was issued for Jaffe’s arrest, and Jaffe was charged with

failure to appear, a felony under Florida law. Pet. App. A4.

Accredited then secured the services of Daniel J. Kear, a

licensed bondsman, and Timm Johnsen, a bounty hunter, to

seize Jaffe and return him to Florida. In September, 1981,

Kear and Johnsen abducted Jaffe from his apartment

building in Toronto and forcibly transported him to

Orlando, Florida, where he was taken into custody by state

authorities. See generally Jaffe v. Boyles, 616 F. Supp.

1371, 1373-1374 (W.D.N.Y. 1985).

Jaffe was tried on the land sales charges and for his

failure to appear, and he was convicted of all charges. The

land sales conviction was overturned on appeal, however,

because of a technical defect in the charging instrument.

Jaffe v. State, 438 So. 2d 72 (Fla. Dist. Ct. App. 1983); see

also Jaffe v. Sanders, 463 So. 2d 318, 319 (Fla. Dist. Ct.

App. 1984). Based upon that ruling, Jaffe was released in

October, 1983. Pet. App. A4-A5.' In the meantime, Jaffe

| Jaffe’s efforts while in custody to obtain an early parole release

date were opposed by the Florida authorities. See State ex rel. Boyles

v. Florida Purole and Probation Commission, 436 So. 2d 207 (Fla. Dist.

Ct. App. 1983). In June, 1983, then-Secretary of State George Shultz

filed a statement with the Florida Parole and Probation Commission,

i

3

was indicted under Florida’s organized fraud statute. Id.

at A5-A6; 1978 Fla. Laws ch. 78-210, § 1 (repealed by 1987

Fla. Laws ch. 87-382, § 2 (eff. Oct. 1, 1987)). He posted a

second bond of $150,000 to secure his appearance on the

organized fraud charge. Jaffe eventually returned to

Canada; he again failed to appear for trial, and the second

bond was forfeited. Pet. App. A5-A6.

Because Jaffe’s abduction violated Canadian law, see

R.S.C. 1985, ce. C-46, s. 279(1)(b), the Canadian government

made a formal request for the extradition of Kear and

Johnsen to stand trial on kidnapping charges. The United

States honored that request. See Kear v. Hilton, 699 F.2d

at 183-184. Kear and Johnsen were both convicted and, on

appeal, their convictions were upheld. Regina v. Kear and

Johnsen, 2 W.C.B.(2d) 392 (Ont. H.C.J. May 5, 1986), aff’d

as modified, 51 C.C.C.(3d) 574 (Ont. Ct. App. 1989); Resp.

App. 16-19. The Ontario Court of Appeal, however, reduced

their sentences to “time served” on the grounds that the

convictions alone “would go a long way towards the

vindication of Canada’s sovereignty,” and that the “gravity

of the affront is mitigated by the circumstances of the

offence,” because Johnsen and Kear were “men of good

character” while “nothing favourable * * * can be said

about [Jaffe’s] conduct.” 51 C.C.C.(3d) at 576.°

In 1988, the governments of the United States and

Canada agreed to a Protocol to amend the United States-

Canadian Extradition Treaty. 27 I.L.M. 422 (1988) (advice

and consent of Senate given, 137 Cong. Rec. S12,131-

$12,132 (daily ed. Aug. 2, 1991), entered into force Nov. 26,

urging it to grant parole to Jaffe “on the ground that his continued

incarceration will exacerbate the already severe strain placed on the

relations of the United States with Canada arising out of circumstances

under which Mr. Jaffe was returned from Canada to Florida to face the

charges which resulted in his imprisonment.” App. C to Brief of the

Government of Canada as Amicus Curiae in Support of Petitioner.

2 We understand that, as result of the conviction, Kear and Johnsen

each served two days in jail.

4

1991)). That amendment replaced the Treaty’s schedule of

extraditable offenses with a general dual criminality

provision and made other technical changes. Compare

27 I.L.M. 422 (1988) with 27 U.S.T. 983-1021 (1976). At the

same time, the two governments exchanged letters

evidencing certain “understandings.” 27 I.L.M. 427 (1988)

(Pet. App. A48-A51). In that exchange of letters, the

United States agreed: (1) to recognize that transborder

abduction by bounty hunters is an extraditable offense:

(2) to commence extradition proceedings, upon request,

against persons found in the United States who are

charged with or convicted of such an offense in Canada:

(3) to use its best efforts to honor Canadian requests for

testimony and information pertaining to transborder

abductions; (4) to cooperate to deter transborder abduct-

ions, including the use of best efforts to disseminate

information concerning the exchange of letters to those

engaged in business as bail bondsmen or bounty hunters;

and (5) to consult promptly concerning any case of

transborder abduction involving bounty hunters, including

cooperation in return of the abducted person. 27 I.L.M. at

427-428 (Pet. App. A48-A49). The letters expressly

provided, however, that they were “not intended to create

or otherwise alter legal obligations for either Government

nor to create or otherwise alter any rights or privileges

for private parties.” 27 I.L.M. at 428, 429 (Pet. App. A50,

A51),.

2. In 1985, Petitioner and Jaffe filed suit against

Accredited and Snow in the Ontario courts seeking

damages for Jaffe’s abduction. Pet. App. A6; Resp. App. 20.

Respondents sought dismissal based upon lack of personal

jurisdiction and forum non conveniens. After that

request was denied, respondents declined to defend the

action, and a default judgment was entered against them.

Pet. App. A6. In November, 1990, the court awarded

petitioner general and special damages, prejudgment

5

interest, and costs. The judgment bears interest at an

annual rate of 14 percent. Jd. at A20, A27-A29,

3. a. Petitioner filed the instant suit in late 1990 to

recover on the judgment. While expressing “utmost

respect” for the Canadian legal system, the Florida trial

court denied enforcement. Pet. App. A18-A26. Noting that

recognition and enforcement of foreign judgments

“depends upon Florida common law principles of judicial

comity,” the court held that enforcement may be denied if

the “judgment is contrary to the public policy of Florida.”

Id. at A21-A22. The court cited four reasons that militated

against enforcement of petitioner’s Canadian judgment: (1)

in contrast to Canadian law, Florida law would not

consider apprehension of a bail-jumper to be tortious; (2)

Florida public policy approves of the apprehension of a

bond-jumper by the surety or its agent; (3) the

apprehension in this case was directly the result of Jaffe’s

own wrongful act in breaching his agreement with

Accredited, and Jaffe should not be permitted “to take

advantage of his own wrong”; and (4) petitioner’s claim is

“solely derivative” of Jaffe’s and, if petitioner were to

collect, Jaffe “would stand to benefit.” Jd. at A23-A24.

b. The District Court of Appeal of the State of Florida,

Fifth District, affirmed. Pet. App. Al-A15. The court

noted that “Floridal[,] in the overwhelming number of

cases, recognizes and enforces the judgments of other

nations.” Pet. App. A7-A8. Relying on Hilton v. Guyot, 159

U.S. 113, 164-167 (1895), and the Restatement (Third) of

the Foreign Relations Law of the United States § 482

(1987), the court emphasized, however, that enforcement of

foreign judgments is a matter of “comity,” and that “no

jurisdiction will give comity to the judgment of another

nation that offends that jurisdiction’s public policy and

sense of moral justice.” Pet. App. A7, A8.

The court of appeal held that, had Jaffe himself sought

enforcement of a Canadian judgment, “there are many

public policy reasons why a Florida court would refuse to

aii

6

*** enforce” that judgment—reasons that go “far beyond”

the differences between Canadian and Florida law con-

cerning the apprehension of bond-jumpers. Pet. App. A8.

The court first noted that Jaffe remains a fugitive from

Florida justice, and that Florida courts, like their federal

counterparts, follow a “fugitive dismissal” rule. Under

the Florida rule, a fugitive from justice is not permitted to

call upon the State’s courts for resolution of any civil

claims or criminal appeals. Jd. at A9-A11 (citing, inter

alia, Molinaro v. New Jersey, 396 U.S. 365 (1970) (per

curiam)). In addition, the court noted that Florida law does

not permit a contemnor to invoke the protections of the

courts unless he first purges the contempt, and that

accordingly “persons who flaunt [sic] the orders of courts

in this state will suffer their cases to be dismissed.” Pet.

App. All-A13. Finally, the court adverted to Florida’s

“well-established public policy that our courts will not

permit nor tolerate a person to benefit from his own

wrongful act.” Jd. at Al3. While Jaffe’s abduction was

wrongful, the court observed, so was Jaffe’s antecedent

breach of his contract with Accredited. [bid.

Having concluded that Jaffe could not successfully

enforce a foreign judgment in Florida, the court then

concluded that petitioner should be “placed in her

husband’s shoes for purposes of recognition and enforce-

ment of her judgment.” Pet. App. Al3. The court noted

that petitioner’s claim is “derivative” under state law, in

that the damages she claims flow entirely from Jaffe’s

abduction. Jd. at Al4-Al5 & n.13. Thus, petitioner’s

claimed loss of consortium “was in the eyes of the Florida

courts a rightful loss, because [Jaffe] should have

rightfully been separated from her while he stood trial and

served time in prison after his conviction.” Jd. at Alb.

Similarly, “(t]he expenses of retaining counsel to defend

[Jaffe] in Florida” and the expenses of visiting him in

Florida “should rightfully have been spent, because [Jaffe]

should have returned to this jurisdiction to stand trial.”

7

Id. at Al4-A15. In such circumstances, the court con-

cluded, “[t]o allow her to collect on any of these items as

‘damages’ would be to reward the bondjumper.” Jd. at A15.

c. The Supreme Court of Florida denied petitioner’s

request for discretionary review. Pet. App. A17.

DISCUSSION

Petitioner challenges the Florida court of appeal’s

refusal to enforce the default judgment rendered in her

favor by a trial court of Canada. Petitioner contends that

the refusal to enforce that judgment violates the

Supremacy Clause, because international agreements and

“overriding federal interests” mandate enforcement.

Petitioner also contends that the Florida court of appeal

denied her due process by declining to enforce the

judgment in her favor on the ground that her claims are

merely derivative of her husband’s. In our view, the

decision below contravenes neither federal law nor any

preemptive federal policy. Accordingly, review by this

Court is not warranted.

1. a. Enforcement of the judgments of vourts within the

United States is subject to the Full Faith and Credit

Clause of the Constitution, Art. IV, § 1. The Full Faith

and Credit Clause, however, does not apply to foreign

judgments. Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185,

190 (1912). Nor does the full faith and credit statute, 28

U.S.C. 1788. Enforcement of the judgments of foreign

courts is instead subject to the doctrine of “comity.” In

Hilton v. Guyot, 159 U.S. 113 (1895), this Court described

that doctrine as follows:

“Comity,” in the legal sense, is neither a matter of

absolute obligation, on the one hand, nor of mere

courtesy and good will, upon the other. But it is the

recognition which one nation allows within its

territory to the legislative, executive or judicial acts

of another nation, having due regard both to

international duty and convenience, and to the rights

TE ee a ee a

8

of its own citizens or of other persons who are under

the protection of its laws.

Id. at 163-164. In Hilton, this Court eschewed an inflexible

rule and enumerated various factors a court may consider

in evaluating a request for enforcement of a judgment. See

id. at 164-165, 202-203. Those factors include, inter alia,

that there be no “other special reason why the comity of

this nation should not allow [the judgment] full effect.” /d.

at 202. And, in a state proceeding like this one, the

question of comity concerning enforcement of a foreign

judgment initially is one of state, not federal, law. See

Restatement (Third) of the Foreign Relations Law of the

United States § 481, comment a (1987); id. § 482(2)(d);

Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 580 (1908).

This Court has determined that a State may not deny

enforcement of a foreign judgment if to do so would be

inconsistent with the terms of an international agreement

to which the United States is a party. See United States

v. Pink, 315 U.S. 208, 221-234 (1942): see also United States

v. Belmont, 301 U.S. 324, 327, 331-332 (1937). In such

circumstances, the power of the State to refuse en-

forcement “must give way before the superior Federal

policy evidenced by [the] treaty or international compact

or agreement.” United States v. Pink, 315 U.S. at 231. The

Court has also determined that, even in the absence of an

international agreement, a state court may not render a

judgment that infringes on the federal government’s

exclusive right to conduct the foreign relations of the

United States. See Zschernig v. Miller, 389 U.S. 429, 432-

436 (1968) (holding that a state law that regulates rights of

inheritance of foreign nationals on the basis of the State’s

approval of the foreign nation’s form of government is pre-

empted); see also Restatement (Third) of the Foreign

Relations Law of the United States § 481, comment a

(1987).

Petitioner’s principal contention is that the decision

below conflicts with the United States-Canadian Extra-

9

dition Treaty and with the letters exchanged between the

United States and Canada in 1988, at the time of signing of

the Protocol to that Treaty. Pet. 11-16. The Treaty and

the Protocol, however, speak only to the process of

extradition of fugitives between the United States and

Canada; neither says anything about enforcement of civil

judgments in the territory of the other contracting party.

See 27 U.S.T. 983 (1976); 27 I.L.M. 422 (1988); Pet. App.

A40-A51. The United States is not a party to any treaty

with Canada providing for the recognition and enforcement

of judgments.

Contrary to petitioner’s claim (Pet. 11-13, 15), Secretary

of State Shultz’s letter undertaking “to cooperate [with

Canada] to deter * * * transborder abductions,” 27 I.L.M.

427 (1988) (Pet. App. A49), may not fairly be read as

conferring upon petitioner a federal right to have her

foreign judgment enforced in derogation of the public

policy on which the Florida courts relied.’ An individual

ordinarily may invoke an international agreement to

which the United States is a party only to the extent that

it directly establishes an enforceable private right. See, ©

e.g., Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 442 (1989); Head Money Cases, 112

U.S. 580, 598-599 (1884). The governments of Canada and

the United States explicitly agreed, however, that their

exchange of letters was “not intended * * * to create or

otherwise alter any rights or privileges for private

parties.” 27 I.L.M. at 428, 429 (Pet. App. A50, A51).

% The sentence that immediately follows the undertaking “to coop-

erate” with Canada supports this conclusion. That sentence provides

that the United States will use its “best efforts” to warn those engaged

in bail-bonding or bounty-hunting that the United States opposes

transborder abductions, and that U.S. abductors will be subject to

extradition to, and prosecution by, Canada. 27 I.L.M. at 427-428 (Pet.

App. A49). Consistent with that commitment, no similar incidents

involving American bail-bonding companies or bounty hunters have

occurred since Secretary of State Shultz’s letter.

memati

10

Nor did Florida decline to enforce the Canadian

judgment based upon a policy of encouraging or condoning

transborder abductions. The “fugitive dismissal” rule,

upon which the Florida court of appeal principally relied in

denying enforcement, does not depend for its application

either on petitioner’s identity as a foreign national or on

the underlying right (to be free from transborder

abductions) that her suit sought to vindicate.* So far as

the State is concerned, the key point is that Jaffe has

evinced such disregard for the lawful processes of the

State’s courts that he or his representative is not entitled

to call upon those courts for resolution of any claims.

There is nothing in the “fugitive dismissal” rule that

conflicts with the United States-Canadian Extradition

Treaty or with the understanding evidenced by the

exchange of letters. Indeed, the federal courts have

invoked their own supervisory authority to adopt similar

rules in a variety of contexts, see, e.g., Molinaro v. New

Jersey, 396 U.S. 365 (1970) (per curiam); Ortega-Rodriguez

v. United States, 113 S. Ct. 1199, 1203-1205 (1993), and this

Court has repeatedly upheld against constitutional

challenge the exercise of similar powers by state courts,

see, e.g., Estelle v. Dorrough, 420 U.S. 534, 537 (1975) (per

curiam); Allen v. Georgia, 166 U.S. 138, 141 (1897) (noting

that the defendant’s escape is a “contempt of [the court’s]

authority, to which no court is bound to submit”).°

4 For example, the Florida courts would presumably have reached

the same result if petitioner had been a Florida resident seeking to sue

as the assignee of a debt owed by a Floridian to her fugitive 'msband.

5 Petitioner also relies (Pet. 13) upon the statement submitted by

Secretary of State Shultz to the Florida Parole and Probation

Commission, urging it to grant parole to Jaffe on the ground that his

continued incarceration “will exacerbate the already severe strain

placed on the relations of the United States with Canada arising out of

circumstances under which Mr. Jaffe was returned from Canada to

Florida.” See App. C to Brief of the Government of Canada as Amicus

Curiae in Support of Petitioner. Petitioner contends that Secretary

Shultz’s letter evidences a “federal foreign policy interest” that is

1]

b. Petitioner also contends that the decision below

undermines the Ker-Frisbie doctrine. Pet. 14; Reply Br.

7-8. That doctrine holds that, “except in the case of a

fugitive surrendered by a foreign government, there is

nothing in the Constitution, treaties or laws of the United

States which exempts an offender * * * from trial and

punishment, even though brought from another State by

unlawful violence, or by abuse of legal process.” Lascelles

v. Georgia, 148 U.S. 537, 543 (1893), citing, inter alia, Ker

v. Illinois, 119 U.S. 486 (1886); see also United States v.

Alvarez-Machain, 112 S. Ct. 2188 (1992); Frisbie v.

Collins, 342 U.S. 519 (1952). Petitioner relies on a dictum

in Ker to the effect that the Court’s holding that abduction

is not a defense to a criminal prosecution did not leave the

abducted prisoner “without remedy for his unauthorized

seizure.” 119 U.S. at 444. That dictum, however, does not

help petitioner. While Ker suggested that the prisoner

would “probably” not be without redress because he “could

sue” his abductors for damages and the facts alleged in

that case “would without doubt sustain the action,” it

emphasized that recovery “would probably depend upon

moral aspects of the case.” Jbid. The Florida court of

appeal’s decision was consistent with that dictum in its

reliance on Jaffe’s misconduct as the reason for denying

enforcement.

In addition, petitioner errs in suggesting that the

Florida decision would “immunize transborder kidnappers

from any civil accountability.” Reply Br. 7. The Florida

courts denied enforcement on the basis of Jaffe’s mis-

thwarted by Florida’s refusal to enforce petitioner’s judgment. See

generally Pet. 13-14 & n.9; Reply Br. 2, 8-9. We have been informed by

the Department of State that, in contrast to Jaffe’s abduction, the

question of enforcement of petitioner’s civil judgment in this case does

not have significant foreign policy implications. Accordingly, as

applied in this case, Florida’s policy neither frustrates United States

policy on transborder abductions nor infringes on the constitutional

authority of the Executive Branch in the field of foreign affairs.

12

conduct in fleeing and remaining a fugitive from justice.

Similar misconduct may or may not be present in the case

of future transborder abductions; indeed, it does not appear

to have occurred in Ker, Frisbie or Alvarez-Machain.

There is no reason to assume that all persons who may

have a remedy of the sort referred to in Ker’s dictum will,

like Jaffe, be fugitives from justice.

2. Petitioner alternatively contends that the Florida

courts violated the Due Process Clause of the Fourteenth

Amendment by burdening her fundamental right to

marital association and her right of access to the courts.

Specifically, petitioner claims (Pet. 17-18) that Jaffe’s

abduction by agents of Accredited deprived her of marital

privacy, and that application in her suit of the “fugitive

dismissal” rule based on Jaffe’s conduct unfairly denies

her compensation for her own injuries. There is a

threshold question of whether petitioner adequately raised

ihese claims below.® But putting that potential obstacle to

6 The courts below did not address the substantive due process

claims that petitioner seeks to raise in this Court. When the highest

state court in which review could be had fails to pass on a federal

question, this Court will “assume[] that the omission was due to want of

proper presentation * * *, unless the aggrieved party in this Court can

affirmatively show the contrary.” Street v. New York, 394 U.S. 576,

582 (1969). Petitioner has cited nothing to rebut that presumption.

Indeed, she first raised a due process argument in a petition for

rehearing in the Florida court of appeal, and even then she said nothing

of a right to marital privacy. Instead, she relied on “Florida’s constitu-

tional requirement of access to the courts” and on Florida cases, with

only a passing, conclusory mention of federal principles of “due

process.” See Pet. Mot. for Reh’g in No. 91-1918, at 8, 12-13 (emphasis

added). This Court has declined to review asserted federal claims in

similar circumstances. See, e.g., Bankers Life & Casualty Co. v.

Crenshaw, 486 U.S. 71, 77-79 (1988); Webb v. Webb, 451 U.S. 493, 495-499

(1981). In addition, petitioner has not addressed the threshold question

of whether an alien who does not reside in the United States may

invoke the constitutional protections on which she relies. Cf. United

States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

i eaten 2

13

one side, we do not believe that petitioner’s contentions

warrant review.

First, petitioner does not appear seriously to dispute

that there are some circumstances in which a party is so

closely aligned with another that she may be treated as if

she were the other party. The concept of “privity” in the

law of judgments is one manifestation of that principle.

See, e.g., Nevada v. United States, 463 U.S. 110, 129-130

(1983); see generally Restatement (Second) of Judgments

$§ 43-61 (1982). The Florida courts’ conclusion that

petitioner’s claims are derivative of her husband’s may be

understood as an application of that general principle.

Petitioner’s constitutional argument essentially attacks

the factual underpinnings for that conclusion in this case.

See Pet. 17. She has not, however, given this Court any

reason to depart from its usual deference to factual

determinations in which two lower courts have concurred.

Graver Tank & Mfg. Co. v. Linde Air Products Co., 336

U.S. 271, 275 (1949); see also Goodman v. Lukens Steel Co.,

482 U.S. 656, 665 (1987).

In any event, it does not appear that petitioner has been

denied any rights protected by the United States

Constitution. To the extent Jaffe’s abduction deprived

petitioner of “marital association” (Pet. 17), that

deprivation resulted entirely from the conduct of private

actors and, accordingly, it did not implicate the Four-

teenth Amendment. See DeShaney v. Winnebago County

Dep’t of Social Servs., 489 U.S. 189, 195 (1989). Jaffe’s

subsequent prosecution in Florida was lawful under the

Ker-Frisbie doctrine, despite the abduction, and therefore

likewise gave rise to no due process violation. A state

court’s judgment in proceedings to enforce a foreign judg-

ment is subject to Fourteenth Amendment scrutiny, but in

this case that state judgment did not cause the invasion of

marital privacy of which petitioner complains. Nor can

petitioner maintain that she was denied “access to the

courts” because her suit was not successful. This Court

14

has never held that a State’s application of neutral public

policies to bar enforcement of a foreign judgment deprives

the party seeking enforcement of due process of law. See,

e.g., Disconto Gesellschaft v. Umbreit, 208 U.S. at 580 (“We

fail to perceive how this application of a well known rule

can be said to deprive the plaintiff in error of its property

without due process of law”).

3. Petitioner’s amici contend that several international

agreements or declarations mandate enforcement of

petitioner’s judgment. Petitioner does not herself rely on

those agreements or declarations as grounds for con-

tending that the Florida courts were required to enforce

the Canadian judgment (see Pet. i), and it therefore does

not appear that any claims based on those materials are

properly presented for review by this Court. See Sup. Ct.

R. 14.1(a); Kaisha v. U.S. Philips Corp., 114 8. Ct. 425

(1993) (per curiam). In any event, amici’s arguments do not

warrant consideration by this Court.

a. Amicus Canadian Helsinki Watch Group (CHWG)

contends that enforcement is required by the Inter-

national Covenant on Civil and Political Rights, Annex to

G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N.

Doc. A/6316 (1966). The Senate gave its advice and

consent to the Covenant on April 2, 1992, 1388 Cong. Rec.

S4781 (daily ed. Apr. 2, 1992), and it entered into force in

the United States on September 8, 1992. However,

Congress and the Executive Branch agreed at the time of

ratification that the articles of the Covenant on which

CHWG relies would not be self-executing. See S. Exec.

7 CHWG also intimates that the failure of courts in the United

States to enforce petitioner’s judgment might constitute a violation of

the Helsinki Accords (officially entitled Conference on Security and

Cooperation in Europe: Final Act), 73 Dep’t of State Bull. 323 (1975).

See CHWG Br. 3, 4. That argument was not raised before the Florida

courts. In any event, the Helsinki Accords do not provide petitioner

with legally enforceable rights. See Frolova v. Union of Soviet Social-

ist Republics, 761 F.2d 370, 375-376 (7th Cir. 1985); United States v.

Kakwirakeron, 730 F. Supp. 1200, 1202 (N.D.N.Y. 1990).

4

15

Rep. No. 23, 102d Cong., 2d Sess. 9, 19, 23 (1992); 138 Cong.

Rec. at S4783-S4784. Thus, the Covenant does not provide

petitioner with any legally enforceable rights.

In any event, CHWGQ’s reliance on the Covenant is

misplaced. CHWG relies principally (see CHWG Br. 9-10)

on Article 9(5), which states that “[aJnyone who has been

the victim of unlawful arrest or detention shall have an

enforceable right to compensation.” At the time of

ratification of the Covenant, however, Congress and the

Executive Branch agreed that the “right to compensation”

referred to in that article means only “the provision of

effective and enforceable mechanisms by which a victim

* * * may seek and, where justified, obtain compensation,”

since “[e]ntitlement to compensation may be subject to the

reasonable requirements of domestic law.” 138 Cong. Rec.

at S4783; S. Exec. Rep. No. 23, supra, at 8, 15-16, 22. Thus,

even were it individually enforceable, Article 9(5) of the

Covenant does not override otherwise-applicable domestic

rules, such as the “fugitive dismissal” rule, that may

preclude relief in certain circumstances.

b. CHWG also suggests that failure to enforce peti-

tioner’s judgment violates Article 8 of the Universal

Declaration of Human Rights, G.A. Res. 217, U.N. Doc.

1/777 (1948), which provides a “right to an effective remedy

by the competent national tribunals” for violations of

fundamental rights granted by law, as well as Article 18 of

the American Declaration of the Rights and Duties of

Man, O.A.S. Off. Rec. OF A/Ser.L/V/I1.65, Doc. 6, at 17, 22

(1985), which permits every person to resort to the courts

to ensure respect for his legal rights. CHWG Br. 10-11.

Neither of those Declarations requires enforcement of a

foreign judgment based upon a private tort action, and, as

we have already noted, the fact that petitioner’s claim fails,

based on a “fugitive dismissal” rule that is equally

applicable to all similarly situated domestic and foreign

litigants, cannot fairly be said to deny her appropriate

access to American tribunals. More important, those

16

Declarations do not set forth legal obligations that are

individually enforceable. See United States v. Terrazas-

Carrasco, 861 F.2d 93, 96-97 & n.3 (5th Cir. 1988); Haitian

Refugee Center v. Gracey, 809 F.2d 794, 816 n.17 (D.C. Cir.

1987); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d

774, 818 (D.C. Cir. 1984) (Bork, J., concurring), cert. de-

nied, 470 U.S. 1003 (1985); 5 M. Whiteman, Digest of

International Law 243 (1965).°

c. Several of petitioner’s amici also contend that Jaffe’s

abduction violated customary international law and that

the United States is responsible under international law if

it fails to provide petitioner with a remedy. CHWG Br. 9;

International Human Rights Law Group et al. (IHRLG)

Amicus Br. 25-26; see also Reply Br. 4. They point to

comment e to Section 711 of the Restatement (Third) of

the Foreign Relations Law of the United States (1987),

which states (at 188):

A state is * * * responsible if it fails to provide to an

alien remedies for injury to person or property,

whether inflicted by the state or by private persons in

circumstances in which a remedy would be provided by

the major legal systems of the world.

There has been no showing, however, that “the major legal

systems of the world” would enforce the Canadian

judgment at the request of a fugitive from justice. In

addition, the Restatement’s discussion appears to be

addressed to the principle of state responsibility when

agents of the state caused the damage inflicted, either by

* Decisions that have looked to the Universal Declaration of Human

Rights as a statement of customary international law, see Siderman de

Blake v. Republic of Argentina, 965 F.2d 699, 716 n.15 (9th Cir. 1992),

cert. denied, 113 S. Ct. 1812 (1993); Filartiga v. Pena-Irala, 630 F.2d 876

(2d Cir. 1980); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal.

1987), modified, 694 F. Supp. 707 (N.D. Cal. 1988), involved allegations

of torture and are distinguishable. The latter two cases were also

brought directly under the Alien Tort Statute, 28 U.S.C. 1350, discussed

at pages 17-18, infra.

Se

17

affirmative act or, in certain circumstances, by with-

holding police protection. See Restatement (Third) of the

Foreign Relations Law of the United States § 711 (1987) (a

state is “responsible under international law for injury to

a national of another state caused by an official act or

omission”); see also Draft Articles on State Respon-

sibility, Art. 7, 18 I.L.M. 1557, 1569 (1979). Jaffe’s

abduction was carried out by private individuals, acting

under the authority of neither the State of Florida nor the

United States government. See Jaffe v. Smith, 825 F.2d

304, 307-308 (11th Cir. 1987).?

d Finally, amicus CHWG argues (Br. 13 n.2) that

respondents’ conduct may amount to a tort in violation of

the law of nations within the meaning of the Alien Tort

Statute, 28 U.S.C. 1350, and that the failure of the Florida

courts to enforce the judgment “ignores” that federal

statute. See also IHRLG Br. 16-22. Section 1350 states:

The district courts shall have original jurisdiction

of any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty

of the United States.

28 U.S.C. 1350.

We see no conflict between the judgments of the Florida

courts in this case and Section 1350. First, Section 1350

confers jurisdiction of certain tort suits on the federal

courts; it does not speak at all to claims filed in state

court. Second, even if this case had been brought in federal

9 United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), relied

upon by amici, is similarly distinguishable. See id. at 269-271. To the

extent petitioner’s amici contend that Florida’s failure to recognize

petitioner’s judgment amounts to an unlawful “condonation” of the

conduct of Kear and Johnsen (see IHRLG Br. 31-32; CHWG Br. 7), their

argument fails on the same ground as petitioner’s related argument

that the judgment below encourages abductions. The Florida courts

declined enforcement on the ground of Jaffe’s misconduct—his continued

fugitivity—not as part of any policy of approving transborder abduc-

tions.

18

court under Section 1350, there would be nothing

inconsistent between Congress’s determination to “open{]

the federal courts” to civil actions by aliens based on

violations of the law of nations, Filartiga v. Pena-Irala,

§30 F.2d 876, 887 (2d Cir. 1980), and the refusal of the court

to enforce a foreign judgment based upon Jaffe’s fugitive

Status.

4. There is a final consideration weighing against

certiorari in this case. After granting the default

judgment against respondents, the Ontario Court of

Justice (General Division) held a trial respecting claims

that petitioner and Jaffe also asserted against respondents’

co-defendants. On March 17, 1994, after the filing of the

petition for certiorari in this case, that court found for the

co-defendants. In doing so, the court suggested that the

default judgment that petitioner seeks to enforce here may

have been the result of fraud on the court:

I have no doubt that Matlow J. [the judge who granted

the default judgment] granted judgment in favour of

both Jaffe and Mrs. Jaffe on the basis of misstatements

or misrepresentations knowingly made to him for the

purposes of furthering a scheme to promote the best

interest of Jaffe before the courts and Parole

Commission in Florida, and allowing a recovery of

money to which neither of them are entitled. I have a

serious concern about this matter and question

whether the judgments of Matlow J. should now be en-

forced. I think the matter of their validity should be

the subject of further consideration on another

occasion.

Jaffe v. Miller, No. 85-CQ-6103 (Ont. Ct. Justice Mar. 17.

1994), slin op. 60 (Carruthers, J.). In light of this

uncertainty concerning the enforceability of petitioner's

judgment in the courts of Canada, any doubt about whether

the Florida courts erred in declining enforcement of that

judgment should be resolved against review by this Court.

sancti aiiiiiaiiiaaaieiiaaiaiiaiaial

19

ante edn Se

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL BENDER™

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

MIGUEL A. ESTRADA

Assistant to the Solicitor

General

MICHAEL JAY SINGER

JOHN P. SCHNITKER

Attorneys

MAY 1994

The Solicitor General is recused in this case.