The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Montana legislature is considering SB97, which would prohibit "the application of foreign law when it violates a fundamental right guaranteed by the Montana or United States Constitution." Sounds good, right—who wants applications of foreign law that violates fundamental rights?
Not so fast. It turns out that this bill, like others enacted in recent years (though too recently to generate a lot of appellate litigation), would have at least two serious problems:
- It would interfere with the enforcement of perfectly legitimate foreign orders, just because the foreign country uses trials before judges rather than jury trials.
- It would require Montana courts to ignore foreign divorces from certain countries, even when the divorces took place decades ago, before any of the affected parties came to Montana.
I doubt that this is what the author of the bill (state senator Keith Regier) intends, but it's what the bill, as written, is likely to do.
First, the relevant text:
A court … decision violates the public policy of Montana and is void and unenforceable if … [based] on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage….
Without prejudice to any legal right, this act does not apply to a person, corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.
Now, consider two scenarios:
1. Say Mike Montanan sues Carl Canadian for some tort. Maybe Mike and Carl had a business dispute, and Mike gets a $1 million verdict against Carl for fraud. Mike gets that verdict in Canadian court, because that's where Carl lives, and where the dispute took place. So far, no problem; these sorts of transnational lawsuits are pretty common.
Now the Canadian court sits without a jury, because Canadian courts, like the courts of many countries, often do that. That's not the way we generally do things, but Mike is suing a Canadian in Canada, so he gets a verdict under Canadian procedures. Again, so far no problem.
But now Carl moves to Montana, together with his assets. Mike thinks that's fine—he can just collect the assets in Montana. Yet if SB97 is enacted, that couldn't be done. After all, the right to civil trial by jury is a fundamental right under the Montana Constitution. The Canadian court decision in Mike Montanan's favor thus "violates the public policy of Montana and is void and unenforceable," because it's based on a "law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution" (the right to trial by civil jury). Mike has to go back into Montana court and sue Carl again.
2. Or say that Connie Canadian sues Mary Montanan in Canadian court; assume that the Canadian court has jurisdiction, because this stems from an incident that happened when Mary was doing business in Canada. But Mary wins, again in a trial before a judge, since a jury was unavailable in this proceeding in Canada. I'm done with all that trouble and expense, Mary thinks.
But Connie now sues Mary again in Montana. "Wait," Mary says to the court, "I have a verdict in my favor from the Canadian court; throw Connie's case out." But remember that Canadian courts don't allow parties a fundamental right provided by the Montana constitution—under SB97, then, the Canadian verdict would be void. Connie gets to relitigate the case against Mary in Montana, and Mary has to pay her lawyers again (and run the risk of losing again), even though before SB97 she'd have been done with the case once she won in Canada.
Now all this might be fine if the foreign system allowed judgments that violate Americans' free speech rights; but a federal statute already largely precludes the enforcement of such judgments. Or it might be fine if the foreign system discriminated against litigants based on race or sex or religion, or if it was fundamentally corrupt. But this is Canada, a civilized country. Much as American law respects the right to trial by jury, does it really make sense to refuse to enforce Canadian judgments (or English or French or German judgments), just because we have a somewhat different system of civil procedure?
3. Let's move from tort law to family law. Say that Wanda married Xavier in Elbonia, then divorced him in Elbonia. Then she married Harry in Elbonia, and 10 years later came to America.
Now she gets involved in a legal dispute that requires the American legal system to decide whether Wanda is indeed properly married to Harry. Maybe this is relevant to deciding whether Wanda can refuse to testify against Harry, or can file a joint tax return with Harry, or inherits property when Harry dies. To figure out whether the marriage is valid, Montana courts would likely need to figure out if Wanda's earlier Elbonian divorce was valid (since, if it was invalid, Wanda's marriage with Harry is bigamous). And that can only be determined using Elbonian law.
But what if the Elbonian legal system doesn't take the same view of various rights, including equality rights, that the United States now takes? What if, for instance, Elbonian law provides husbands more rights than wives in initiating divorces?
Or what if Elbonia—like Israel, Lebanon, India, and other places—provides that family law matters are to be resolved under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the United States? Or what if Elbonian rules of evidence give more weight to men's testimony or to the testimony of people who belong to certain religions, and those rules had been applied in the divorce?
This might be bad, but it's the reality under which Elbonian law operates. Wanda has lived her life in Elbonia based on that reality. She may have remarried based on the effect of the divorce, however unfairly her divorce proceedings may have been conducted. She may have gotten certain property in the divorce, perhaps less than she should have gotten, but something that she now views as hers. That was life on the ground in Elbonia for her.
But if SB97 is enacted, the Elbonian divorce must be ignored, because it was entered under a legal system that denied "the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution," such as equal rights regardless of sex, or the First Amendment right not to be treated differently based on religion. The divorce decree would therefore be "void," and thus couldn't be considered by American courts.
And Wanda would thus be treated as still married to Xavier (whom she had divorced under Elbonian law many years ago), and not to Harry. At best, she would considered Harry's "putative spouse," which means she'd be treated as Harry's wife for this dispute—but would lose that status the moment the court informs her that her Elbonian divorce is invalid. She would have to somehow redivorce Xavier under Montana law, though he's still back in Elbonia, and then remarry Harry.
Does that make sense? To be sure, in some circumstances, it might be proper for courts to ignore the effect of foreign divorces that are based on procedures that U.S. law views as improper. For instance, American courts might reject application of foreign law that they see as unfair when it affects the rights of people who were U.S. residents at the time of the divorce. Likewise, American courts may want to apply American norms to child custody rights when the children are living in the United States. But outside these special circumstances, courts shouldn't categorically ignore the effect of foreign divorces that involve departures from American equality norms.
I agree that American courts should in some situations refuse to enforce foreign judgments that are inconsistent with American norms; the federal SPEECH Act, for instance, rightly bars the enforcement in the United States of foreign libel judgments that are based on libel rules that are inconsistent with U.S. free speech protections. Many courts have already incorporated such principles through their own decisions. And there is plenty of flexibility for courts to refuse to enforce judgments that are seen as against American "public policy."
But, for the reasons I gave above, the current version of SB97 seems much broader than it ought to be. I'm not sure there's that much need for SB97; but I hope that, if the Montana legislature does want to adopt such a law, it will at least narrow it to avoid these and other problems.