# Amicus Curiae Brief — Jaffe v. Snow

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 911

## Text

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

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MICHA S
JOHN P. SCH

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Washington, D.C
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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
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0657%3A07. Public record. Not legal advice.