Class 24– 04/09/14
1. Equitable Decrees (578–96)
a. Durfee v. Duke Recap
i. A court has jurisdiction to determine its jurisdiction.
ii. If jurisdictional decision is preclusive in rendering state, then other states must give it
Full Faith and Credit
iii. Exceptions:
1. Federal bankruptcy – obligation is statutory
2. Real property – this was the case in Duke
a. If the non-situs state court makes a determination it has jurisdiction over
property in other state – the situs state court does not have to give it full
faith and credit.
b. Idea is the situs state’s interests are so great they override full faith and
credit.
iv. Real property exception comes into play when there is an attempt to get in rem
jurisdiction over situs state property
1. See Clarke v. Clarke – idea of equitable conversion was in rem.
2. See Fall v. Eastin – Wash. Court defectively asserted in rem jurisdiction.
3. What would be ok – if there was an in personam obligation (like an injunction)
where a ∆ may have to transfer title.
b. Baker v. General Motors (US 1998)
i. Facts:
1. Elwell employed by GM, they fall out, he serves as a witness. GM enters into a
settlement agreement in MI where Elwell agrees not to testify. There is an
exception that is he is ordered to testify the injunction does not apply.
2. Bakers subpoenaed Elwell as a witness for a wrongful death case against GM in
MO. The settlement between Elwell and GM was in MI. Elwell had been
prevented from testifying in MI, but had testified outside of the state.
3. 8th Circuit said he should not have been allowed to testify, so it went to the SCt.
4. Issue: whether the full faith and credit stops the Bakers, who were not parties to
the MI proceeding, from obtaining testimony from Elwell.
5. Assumption there is a full faith and credit obligation with respect to injunctions. If
there had been an injunction to pay money, that is recognized by sister states.
Divorce decrees are also equitable injunctive decrees given full faith and credit.
6. Should be an assumption that any fact finding that arose in the injunction would
also be binding (not so much an issue here).
ii. Decision:
1. SCt says there is no “roving” public policy exception to full faith and credit.
2. Although, this kind of looks like a PPE (Ginsberg’s opinion).
iii. Justice Kennedy’s analysis:
1. Assume that in Michigan state court GM had brought a declaratory judgment
action against the Bakers to determine whether Elwell could testify in any suit
they might bring. What result?
a. Worry that he is subpoenad.
b. Also, Kennedy makes a big deal about this – how does Michigan
injunction bind the Bakers? - Bakers don’t know about it, couldn’t
anticipate it, etc.
c. Analogy: African-American applicants to a fire dept sue the department.
The court enters a decree for an affirmative action program in hiring.
Subsequently white applicants to the fire department sue the department
challenging the program. Are they precluded?
i. If they knew about law suit, they should be precluded.
ii. Problem is injunction has effects on third parties.
iii. Third parties are necessary parties that should be included, but if
they didn’t find out about the law suit.
iv. So if they knew about the law suit, they should be bound.
v. But we can’t say that about the Bakers.
d. The litigation here concerning the injunction has unanticipated effect on
other law suits. But Kennedy’s argument is it would violate due process
for the Bakers to be bound by the injunction.
e. Is it true that whenever there is an effect on third parties, that parties
cannot be bound? What if this were a contractual determination? Would it
be a violation of due process?
i. No, this isn’t a due process violation.
ii. Issue – Elwell is testifying as an expert witness. There are lots of
reasons you cannot get an expert (working for the other side,
contractually barred, etc.) and that is not a travesty of justice.
iii. Perhaps it is a little much that the mere fact the Bakers are
influenced by the injunction is enough to escape from being bound.
f. If injunction is not binding in MI, then we don’t have to worry about full
faith and credit.
g. Heart of Kennedy’s argument – we don’t have to worry about full faith
and credit because the preclusive effect in MI court means Elwell won’t be
prohibited from testifying.
h. Also argument by Kennedy that because it is modifiable under MI law,
that means its modifiable here as well. Has to mean that the sister state
must appeal to the fact its modifiable, then it must go through the same
determination a MI court would go through.
iv. Scalia opinion:
1. Something is missing – need a MO cause of action to give effect to MI injunction:
a. If you had a money judgment, can you simply go to MO and take the
judgment and make it your cause of action? Judgment is just evidence of
a debt, you are not suing under MI law, you are suing under MO law for
debt collection. So in connection with a money judgment, you must use
forum law to collect the debt.
b. Scalia does not see a MO cause of action to enforce MI injunction.
c. GM is asking for direct effect of an injunction without a medium of MO
law. Need to domesticate the judgment in order to make it enforceable.
d. GM should have gone to MI to get enforcement of the injunction (could
have fined Elwell and then gone before MO court).
e. Scalia’s arguing for a MO cause of action – which Green does not see. It
would have to be some kind of equity action. Kramer compares this to a
declaratory judgment action for a MO that would appeal to a MI
injunction. But that doesn’t get to the heart of the problem – unless Scalia
is saying there is no such thing.
f. Seems strange to ask MO to do something MI cannot do. Injunction in MI
can only find Elwell and put him in jail if he testifies. But in MO this
keeps Elwell from testifying – interference with the evidentiary decisions
of a MO court.
2. Despite the fact you have to give full faith and credit, the method of enforcement
is determined by forum law.
a. This is a procedural matter subject to forum law. For example, there are
S/L for the enforcement of judgments and a forum is allowed to use their
own S/L for judgments.
b. How far can you go with that? A court could wiggle out of full faith and
credit by disclaiming jurisdiction.
c. Anglo-Am Provision v. Davis (US 1903)
i. NY ct allowed to refuse suit on foreign judgment between 2
foreign corps when judgment arose from cause of action arising
out of state.
ii. Seems pretty clear we will not allow a court, in connection with an
action on a judgment (there is a difference between this and an
original lawsuit), it is not OK to simply dismiss it on PP grounds.
iii. Came up with Faunterloy – you cannot have a PP on debts.
d. Kenney v. Supreme Lodge (US 1920)
i. Ill ct refused jurisdiction for suit on Alabama wrongful death
judgment against an Illinoisan. Basis was statute forbidding actions
for death outside state
ii. In this case, it was a violation of full faith and credit to refuse
jurisdiction.
iii. This would apply generally, because all you are trying to do is
collect a debt – how can you object on forum non conveniens
grounds.
e. Forums should not be able to appeal to PPE to not take jurisdiction. This
is simply an attempt to enforce a judgment.
f. No appropriate forum non conveniens objection.
g. There may be other situations where a procedure may be unconstitutional,
overly onerous and directed at foreign judgments, etc.
h. When you have an injunction, and the court just has to give effect, then its
up to the rendering state.
v. Ginsberg’s opinion
1. “Full faith and credit, however, does not mean that States must adopt the practices
of other States regarding the time, manner, and mechanisms for enforcing
judgments. Enforcement measures do not travel with the sister state judgment as
preclusive effects do; such measures remain subject to the even-handed control of
forum law.”
a. Language used by Ginsberg
2. Not clear this is sufficient.
3. “Orders commanding action or inaction have been denied enforcement in a sister
State when they purported to accomplish an official act within the exclusive
province of that other State or interfered with litigation over which the ordering
State had no authority.”
4. Green says Ginsberg’s approach may be dangerous to start talking about a forum
interest that is overriding full faith and credit obligations.
5. Language is overly inclusive, and opens up too many possibilities.
6. Although interstate injunctions (court says don’t take a case), always thought to
be problematic, and common for courts to say there is no full faith and credit
there.
7. Ginsberg says this is something that happens in MI, but will not have the same
effect in MO.
vi. This case is the right decision according to Green, but not sure whose analysis is correct.
vii. Right to draw a distinction between the procedure and substance.
viii.
2. Same-Sex Marriage and Full Faith and Credit
a. This isn’t Loving v. Virginia. We are assuming it is permissible for a state to allow/disallow
same-sex marriage within its borders. This is all about whether the other state has to recognize
the marriage.
b. General rule – if a marriage is good under place of celebration, then it is recognized everywhere
(like 1st Restatement).
i. Two exceptions:
1. Even though marriage is valid, its effects can be refused recognition if they are
contrary to the public policy of the forum state.
a. Ex. same-sex couple in Mass, driving through and staying in hotel in Ark,
and if Ark does not allow same-sex habitation, they could deny.
2. Marriage is generally considered invalid everywhere if incestuous, too soon after
divorce, interracial marriages before Loving and contrary to public policy of state
of domicile of one of the participants in the marriage
a. Ex. Same-sex Virginians going to Mass to get married. Under traditional
approach, not a valid marriage anywhere
b. Invalidation is nuanced – expectations of parties - sometimes they will not
be invalidated because they were attempted to be invalidated by a 3d
party, but if one of the married parties attempted to invalidate it; the court
might allow it.
c. Intestate succession – in Southern states it was common for those states to
recognize it in cases of interracial marriage, b/c it wasn’t seriously
contrary to the public policy.
c. Note - Different issue as well with federal law. The choice of law rules are applicable to federal
statutes. Federal law not beholden to forum state’s choice of law rules. Fed. law might have its
own choice of law scheme different from the state.
d. Does full faith and credit make a difference? Are marriages judgments or events?
i. Easy in the sense there is no obligation to recognize same-sex marriage if we put it in the
full faith and credit for laws camp rather than full faith and credit for judgments camp.
ii. Only student notes think marriages are judgments, the tradition is to treat them as events
(to which laws apply) rather than judgments.
iii. Even if we treat them as events, the forum must still have a Pacific Employer’s interest in
mind. So if Mass residents are passing through Virginia and are harmed, they cannot
regulate the marriage. On the other hand, if the Mass parties move to Virginia, VA might
fail to recognize the marriage. All Virginia has to do is show the Pacific Employer’s
interest, and that the parties expected it.
iv. Why isn’t a marriage a judgment?
1. A divorce is a judgment.
2. In marriages, there is no evidence, not adversarial process.
3. Citibank hypo: Assume all credit card contracts with Citibank are entered into
before a justice of the peace in South Dakota, which has no anti-usury law. Must
all states recognize the validity of the contracts, no matter what their usury law is?
a. If you said to treat all marriages as judgments, you have frozen the place
of celebration rule in choice of law. You cannot challenge the choice of
law for a judgment.
b. Then it would be extremely odd if we said it doesn’t matter what interest
the state has.
c. Compare this to a K – the consequences would be terrible. It wouldn’t
matter how much interest any other state has – SD law applies.
d. Wrong to freeze the law over the interests of other states. Could be
abused.
4. Californians hypo: Assume two Californians get into a marriage in Louisiana,
which has covenant marriage – which does not allow a subsequent divorce. They
then return to California. Is a California court prohibited from allowing them to
get divorced?
a. Then the parties could never get divorced in CA. The interest is frozen.
b. Idea is that the place of celebration is not a state with sufficient interest to
trump the interests of another state by calling it a judgment.