The Volokh Conspiracy

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California court: 'The probable use of Islamic law in a civil action … offends California policy'


Contrary to the view of some, this is not what happens when California courts use the law of a foreign country—even when it incorporates Islamic law—under normal choice-of-law principles.

First, a bit of background: Say that I live in Oklahoma, and work at a plant in Oklahoma, where I'm exposed to some injurious chemicals (say, asbestos). Some years later, I move to California and then get sick, allegedly because of this exposure.

I sue in California court—a logical place, since this is where I live, and (let's assume) where the defendants have their principal place of business (they are headquartered in California though they also do lots of business in Oklahoma), so it's not unfair to subject them to California courts' jurisdiction. But California tort law is considerably more plaintiff-friendly than Oklahoma tort law in various ways. Should California courts decide the case applying California law or Oklahoma law?

Generally speaking (though with some potential exceptions), the answer is Oklahoma law, as the California Supreme Court held in McCann v. Foster Wheeler (Cal. 1994). (Most other states take the same view.) Businesses that are dealing with Oklahomans in Oklahoma should be able to rely on their conduct being evaluated under Oklahoma law, regardless of where the Oklahomans might later move. And Oklahoma courts and legislators should be able to assure businesses that, if they locate in Oklahoma, they will be subject to the Oklahoma-specified standards of liability (as modified by federal law, if federal law applies):

Because a commercial entity protected by [a particular Oklahoma statute] has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential plaintiff ultimately may move would significantly undermine Oklahoma's interest in establishing a reliable rule of law governing a business's potential liability for conduct undertaken in Oklahoma.

And the same applies if I'm a Frenchman working in France, or a Dominican Republic citizen working in the Dominican Republic. (McCann favorably cites cases involving conduct in both countries). California courts would have to then apply French law or Dominican Republic law—that may not always be easy, since the laws are unfamiliar and in a foreign language, but courts would be able to consult experts or treatises, and do the best they can. (Note that foreign law will often apply even when a tort is committed against a California citizen in a foreign country, but the matter is more complex there, which is why I'm focusing in this post on a tort committed against a foreign country's citizen in that country.)

Los Angeles Superior Court Judge Emilie Elias, however, has recently concluded that this doesn't apply when the foreign law is the law of Iran—and the rationale potentially applies to other countries that use Islamic law, including Saudi Arabia, the United Arab Emirates, Qatar and others. In Alkhas v. A.W. Chesterton Co., and, most recently, Sarooie v. Foster Wheeler, the judge reasoned that (1) because Iranian law partly incorporates Islamic law, California courts may not apply it, and (2) because "Iran is run by mullahs and lacks an independent judiciary and due process of law," Iranian law should not even be applied in California courts. Rationale 1 would squarely apply to Saudi law; rationale 2 might, too, especially since the judge stresses that the concern behind rationale 2 remains that "Iranian law, through utilization of Islamic law, fails to afford a remedy."

The defendants asked the California Court of Appeal to review the judge's decision in Sarooie; I saw their petition on Westlaw and drafted a friend-of-the-court letter brief that was signed by Profs. Alan Brownstein (UC Davis), Michael Helfand (Pepperdine), Clyde Spillenger (UCLA), Jonathan Varat (UCLA) and me, which I reproduce below. In it, we argue that the trial court erred in categorically rejecting Iranian law: If California choice-of-law rules point to the use of foreign law in a situation like this (a view on which the letter does not take a stand, though I personally think in this case they do point to foreign law), foreign law should be applied regardless of whether it is based on Islamic law, or whether the foreign country has an unreliable judicial system. (For an example of an American court applying Saudi law, which rests on Islamic law, see Chadwick v. Arabian American Oil Co. (D. Del. 1987).)

We acknowledge, of course, that it might be improper to implement certain foreign law rules in California courts, for instance, if the rules restrict speech or call for sex discrimination or religious discrimination—but this shouldn't stop the application of other rules from such a foreign legal system. For instance, American courts may not implement English libel law rules that would violate the First Amendment if they were implemented by an American legislature, but that doesn't stop American courts from applying English law in cases that are unrelated to libel or free speech.

In any case, here is an excerpt from the court's decision in Sarooie:

This is a survival and wrongful death action. Samad Sarooie [and family members] (collectively "Plaintiffs") allege that Galin Keshavarzi ("Decedent") died due to exposures to asbestos at an oil refinery in Iran from 1950 to 1979 Decedent was a resident of Iran during the alleged exposure period. She then emigrated from Iran to California and resided there until her death in March 2013. The complaint alleges that numerous Defendants are liable for the alleged injuries…

This is not the first time Moving Defendants have asked this Court to find Iranian law applicable. In Alkhas v. A.W. Chesterton Co., Moving Defendants, represented by the same defense attorneys who represent them here, filed an almost identical motion. This Court denied that motion in May 2013, in part because Iranian law, in effect, provided "no remedy at all" since Moving Defendants' own expert—the same expert on which Moving Defendants rely in the present motion—admitted that application of Iranian law may have necessitated use of Shi'ite Islamic law to decide the case….

In Alkhas, this Court held: "The Court has no confidence that Plaintiffs will receive a fair trial or an adequate opportunity to obtain a remedy under Iranian law. In the forum non conveniens context [where the question is whether a court should dismiss the case, so plaintiffs could file in a different forum -EV], the rule in California is that Iran is not a suitable alternative forum, the reason being that Iranian law effectively provides 'no remedy at all' since Iran is run by mullahs and lacks an independent judiciary and due process of law. The Court is persuaded that this rationale should be extended to the choice-of-law context. In the Court's view, application of Iranian law does not constitute a permissible option under the governmental interest test where, as here, mullahs administer the law, and, by Moving Defendants' own admission, Shi'ite Islamic law may be used to decide the case."

This continues to be the Court's view. For one thing, [Moving Defendants' expert Mahmoud] Katirai's current declaration does not backtrack from the admission made in Alkhas that religious Islamic law may have to be applied to civil claims to resolve the action…. Moreover, the declaration of Plaintiffs' expert, Boozari, a professor of law at the University of California Los Angeles who teaches Islamic law courses, opines—with extensive detail—that the entire Iranian legal system is based on and must comply with Islamic law, including Shari'ah, which the declaration defines as "Divine Law." Thus, it is likely, if not inevitable, that Islamic law will play a role in the trial. The Court believes this is not a viable result under the governmental interest analysis, and finds that the motion should be denied, as applying Islamic law would prejudice Plaintiffs and contravene California policy.

Moving Defendants' argument—that the Court erred in Alkhas by applying forum non conveniens principles to decide the choice-of-law issue—does not change the outcome. The Court did not apply forum non conveniens principles; the Court merely referenced those principles by analogy to make the point that Iranian law, through utilization of Islamic law, fails to afford a remedy and, therefore, fails to satisfy the second and thud steps of the governmental interest test.

Likewise, it does not make a difference that the trial will be held in California. The probable use of Islamic law in a civil action is what offends California policy, even if it would be applied by a California judge or a California jury. The instant situation is distinguishable from the facts of McCann for this reason. The McCann court was being asked to apply Oklahoma statutory law, which was subject to and trumped by the protections of the Oklahoma and United States Constitutions, both of which embrace due process and equal protection (among other rights), not Iranian law that is constitutionally required to colnply with Islamic religious standards….

And here is our letter, which was submitted to the Court of Appeal yesterday:

We are law professors who specialize in First Amendment law or choice of law, and we write this letter brief to support defendants' petition for a writ of mandate. We have no financial interest in this dispute or in the litigants, and speak only for ourselves. We have not received any contribution intended to fund the preparation or submission of the brief, and no part of the brief has been authored by anyone other than ourselves. We only learned about this case a few days after Oct. 10, 2014, when the petition for man­date was filed and posted on Westlaw. We have different philosophies on many legal and pub­lic policy issues, but we agree that the court below erred in its choice of law analysis.

We therefore ask this court for permission to file this amici curiae letter brief.

* * *

Saudi Arabia, United Arab Emirates, Qatar, and other countries—not just Iran—to some extent incorporate Islamic law into their legal systems. These are important American allies and trading partners. Unsurprisingly, American courts routinely apply the law of these countries when American choice-of-law rules call for it, even when that means considering what Islamic law requires in such a case. E.g., Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Inc., 866 A.2d 1, 29-40 (Del. 2005); McGhee v. Arabian American Oil Co., 871 F.2d 1412, 1424-26 (9th Cir. 1989); Arabian Trading & Chem. Indus. Co. Ltd. v. B.F. Goodrich Co., 823 F.2d 60, 62-63 (4th Cir. 1987); Nat'l Group for Commc'ns & Computers Ltd. v. Lucent Techs. Int'l Inc., 331 F. Supp. 2d 290, 294-301 (D.N.J. 2004); Chadwick v. Arabian Am. Oil Co., 656 F. Supp. 857, 860-62 (D. Del. 1987).

And there is nothing odd about such consideration of Islamic law: It is just a matter of applying foreign law, whatever the source of that foreign law might be. In many situations in which an employee is injured in a foreign country, California conflicts of laws principles may call for the application of that foreign country's law—whether, for instance, Oklahoma law, French law, or Dominican Republic law. See McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 96-102 (2010) (applying Oklahoma law); id. at 100 (favor­ably citing a case applying French law); Tucci v. Club Mediterranee, S.A., 89 Cal. App. 4th 180, 188-94 (2001) (applying Dominican Republic law). In such contexts, the same principles may likewise call for the application of Saudi Law, United Arab Emirates law, or Iranian law.

Indeed, the Ninth Circuit has concluded that California choice-of-law principles may sometimes call for application of Saudi law in such a case. McGhee, 871 F.2d at 1424-26. And this District has cited McGhee as an accurate statement of California law. Tucci, 89 Cal. App. 4th at 188-89.

No published decision has ever found an Establishment Clause violation in applying foreign law in this context. Courts applying Saudi law or Iranian law in such situations are not required to decide theological questions, such as which school of Islamic law is sound, or whether the law is really the word of God. They are just trying to decide, with the help of expert witnesses, what rules a foreign country's legal system prescribes. See Eugene Volokh, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431, 438-41 (2014); Michael Helfand, Litigating Religion, 93 B.U. L. Rev. 493, 549-50, (2013) (text accompanying footnotes 317-319).

To put this in terms of Lemon v. Kurtzman, 403 U.S. 602 (1971), considering expert tes­timony on the content of Saudi law or Iranian law—even when that means con­si­der­ing how Saudi or Iranian courts would interpret Islamic law—has the secular purpose of promoting international comity, predictability of business relations, and application of the law that the parties would have reasonably expected to see applied. It has the predominantly secular effect of adjudicating disputes under standard California choice-of-law principles. And it would not excessively entangle California government with religion, because it requires only a judgment about how foreign legal rules actually operate in those foreign countries' legal systems, and does not require any judgment about whether those rules are indeed theologically sound.

To be sure, in some situations applying foreign law, whether or not religious in origin, may violate American public policy. Courts, for instance, have refused to enforce foreign judgments that would violate Free Speech Clause principles. See, e.g., Telnikoff v. Matusevitch, 702 A.2d 230, 251 (Md. 1997); SPEECH Act, 28 U.S.C. § 4102 (adopting this as a federal rule). Likewise, if a foreign rule is seen as improperly discriminatory based on sex or religion, courts can refuse to apply it, or even to enforce a judgment based on that rule. See, e.g., Aleem v. Aleem, 947 A.2d 489, 502 (Md. 2008).

But there is no reason to think that the Iranian rules that would be applied in this case would violate any such specific California public policies. And even if some such rules would be contrary to public policy, the trial court should reject only those rules, and not the application of Iranian law more broadly. See, e.g., S.B. v. W.A., 959 N.Y.S.2d 802, 818-19 (Sup. Ct. 2012) (holding that, though, "parts of Sharia Law [in force in the United Arab Emirates] governing personal status would indeed violate our domestic policy, such as laws allowing husbands to practice polygyny and use of physical force to discipline their wives, or laws prohibiting Muslim women from marrying non-Muslims," other aspects of Emirates law do not violate New York public policy).

Finally, a forum non conveniens conclusion that the Iranian judicial system is biased and unreliable, and that Iranian courts are not a proper forum for resolving the dispute, should not lead to a choice-of-law conclusion rejecting the application of Iranian law. Defendant is asking that Iranian law be applied in California courts, which are reliable and fair. Whether it is proper to apply Iranian law should turn on whether the particular foreign legal rules are against California public policy, not on whether the foreign court system is inadequate. And the mere fact that the Iranian legal rules are based on Islamic law does not make them contrary to California public policy.

We therefore respectfully request that this Court take one of the following two steps. First, this Court could conduct the choice-of-law inquiry itself, without categorically rejecting the possibility of applying Iranian law should the conventional California choice-of-law analysis (based on "comparative impairment" principles) point to applying Iranian law. This Court could then instruct the court below to apply whatever law this choice-of-law analysis yields. Alternatively, this Court could instead issue a writ of mandate, disapproving the Superior Court's categorical rejection of Iranian law and directing that court to conduct the conventional California choice-of-law inquiry, again without categorically rejecting the possibility of applying Iranian law should the choice-of-law analysis point to applying Iranian law.