Rehnquist Court: California v. Superior Court of California
Extradition
US Supreme Court
CALIFORNIA v. SUPERIOR COURT OF CALIFORNIA, 482 U.S. 400 (1987)
482 U.S. 400
CALIFORNIA v. SUPERIOR COURT OF CALIFORNIA, SAN BERNARDINO COUNTY
(SMOLIN ET AL., REAL PARTIES IN INTEREST)
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 86-381.
Argued April 22, 1987
Decided June 9, 1987
The Extradition Act, which implements the Extradition Clause of Article IV, requires
an asylum State to give up to a demanding State a fugitive against whom a properly
certified indictment has been lodged. After a California custody decree was modified
to give Richard Smolin sole custody of his minor children and he secured a California
warrant to obtain custody, he and his father picked up the children in Louisiana,
where they were living with their mother. The mother then swore out an affidavit charging
the Smolins with kidnaping, on the basis of which an information was filed charging
them with violating a Louisiana statute prohibiting a parent's intentional taking
of his own child from any person to whom custody has been awarded by any state court
of competent jurisdiction. After the Governor of Louisiana formally notified the Governor
of California of the charges and demanded that the Smolins be delivered up for trial,
the California Superior Court granted them a writ of habeas corpus to block the extradition
warrants against them. Taking judicial notice of the California custody orders, the
court concluded that the Smolins were not substantially charged with crime under Louisiana
law. Although the California Court of Appeal then issued a writ of mandate on the
ground that the Superior Court had abused its discretion, the State Supreme Court
reversed, finding that the California custody decrees were properly considered by
the Superior Court, and that, under the full faith and credit provisions of the federal
Parental Kidnaping Prevention Act of 1980, those decrees conclusively established
that Richard Smolin was the childrens' lawful custodian at the time he took them.
The court ruled that the Smolins had not been substantially charged with a crime,
since, under Louisiana law, the lawful custodian of children cannot be guilty of kidnaping
them.
Held:
The Extradition Act prohibits the California Supreme Court from refusing to permit
extradition. The language, history, and subsequent construction of the Act establish
that extradition is meant to be a summary procedure, and that the asylum State's courts
may do no more than ascertain whether (a) the extradition documents on their face
are in order; (b) the petitioner has been charged with a crime in the demanding [482
U.S. 400, 401] State; (c) the petitioner is the person named in the request for extradition;
and (d) the petitioner is a fugitive. Here, the only such inquiry in doubt is whether
the Smolins have been charged with a crime in Louisiana, which question must be answered
in the affirmative since the information charging them is in proper form, and they
do not dispute that the wife's affidavit, and documents incorporated by reference
therein, set forth facts that clearly satisfy each element of the crime defined in
the state parental kidnaping statute. Their contention that the requirement of Roberts
v. Reilly, 116 U.S. 80, 95 , that the person demanded be "substantially charged" permits
an inquiry by the asylum State into whether the charging instrument is sufficient
to withstand a generalized motion to dismiss or common-law demurrer is without merit.
To the contrary, the asylum State may do no more than ascertain whether the requisites
of the Extradition Act have been met, and may not entertain defenses or determine
the guilt or innocence of the charged party. Thus, it is for the Louisiana courts
to determine whether the wife's affidavit is fraudulent, whether the California custody
decrees establish Richard Smolin as the children's lawful custodian under the full
faith and credit provision of the federal Parental Kidnaping Prevention Act, and whether
the Smolins were, accordingly, not guilty of violating the Louisiana statute. Pp.
405-412.
41 Cal. 3d 758, 716 P.2d 991, reversed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
WHITE, MARSHALL, BLACKMUN, POWELL, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting
opinion, in which BRENNAN J., joined, post, p. 412.
J. Robert Jibson, Supervising Deputy Attorney General of California, argued the cause
for petitioner. With him on the brief were John K. Van de Kamp, Attorney General,
and Steve White, Chief Assistant Attorney General.
Dennis P. Riordan argued the cause for respondent. With him on the brief was Karen
L. Snell. *
[ Footnote * ] A brief of amici curiae urging reversal was filed for the State of
Alaska et al. by James E. Tierney, Attorney General of Maine, William R. Stokes, Assistant
Attorney General, and by the Attorneys General for their respective States as follows:
Harold M. Brown of Alaska, Corinne K. A. Watanabe of Hawaii, Jim Jones of Idaho, Linley
E. Pearson of Indiana, Robert T. Stephan of Kansas, David L. Armstrong of Kentucky,
William J. Guste, Jr., of Louisiana, Mike Greely of Montana, Brian McKay of Nevada,
Stephen E. Merrill of New Hampshire, Michael Turpen of Oklahoma, [482 U.S. 400, 402]
LeRoy S. Zimmerman of Pennsylvania, Hector Rivera Cruz of Puerto Rico, Mark V. Meierhenry
of South Dakota, J. Michael Cody of Tennessee, Jim Mattox of Texas, David L. Wilkinson
of Utah, Leroy A. Mercer of The Virgin Islands, and Archie G. McClintock of Wyoming.
Ephraim Margolin filed a brief for California Attorneys for Criminal Justice et al.
as amici curiae urging affirmance. [482 U.S. 400, 402]
JUSTICE O'CONNOR delivered the opinion of the Court.
At issue in this case are the limits imposed by federal law upon state court habeas
corpus proceedings challenging an extradition warrant.
I
Richard and Judith Smolin were divorced in California in 1978. Sole custody of their
two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable
visitation rights for Richard. Until November 1979, all the parties remained in San
Bernardino County, California, and Richard apparently paid his child support and exercised
his visitation rights without serious incident. In August 1979, however, Judith married
James Pope, and in November, Mr. Pope's work required that the family relocate to
Oregon. When the Popes moved without informing Richard, the battle over the custody
of the minor children began in earnest.
It is unnecessary to recite in detail all that ensued. Richard alleged, and the California
courts later found, that the Popes deliberately attempted to defeat Richard's visitation
rights and to preclude him from forming a meaningful relationship with his children
in the course of their succeeding relocations from Oregon to Texas to Louisiana. On
February 13, 1981, the Popes obtained a decree from a Texas court granting full faith
and credit to the original California order awarding sole custody to Judith. Richard
was served but did not appear in the Texas proceeding. Before the Texas decree was
issued, however, Richard sought and obtained in California Superior Court modification
of the underlying California decree, awarding joint custody to Richard and Judith.
Though properly served, the Popes did not appear in these [482 U.S. 400, 403] California
proceedings; and, though served with the modification order, the Popes neither complied
with its terms, nor notified the Texas court of its existence. On January 9, 1981,
Richard instituted an action in California Superior Court to find Judith in contempt
and to again modify the custody decree to give him sole custody. In February 1981,
sole custody was granted to Richard by the California court, subject to reasonable
visitation rights for Judith.
This order also was ignored by the Popes, apparently acting on the advice of counsel
that the California courts no longer had jurisdiction over the matter. Richard did
not in fact obtain physical custody for over two years. When he finally located the
Popes in Louisiana, they began an adoption proceeding, later described by the California
courts as "verging on the fraudulent," to sever Richard's legal tie to Jennifer and
Jamie. App. 51. After securing a California warrant to obtain custody of the children
on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help.
On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their
school bus in Slidell, Louisiana, and brought them back to California. On April 11,
1984, the Popes submitted to the jurisdiction of the California Superior Court and
instituted an action to modify the 1981 order granting Richard sole custody. 41 Cal.
3d 758, 764, n. 4, 716 P.2d 991, 994, n. 4 (1986). Those proceedings are apparently
still pending before the California courts.
Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard
and Gerard Smolin in Louisiana. On April 30, 1984, after the Popes instituted modification
proceedings in California, Judith Pope swore out an affidavit charging Richard and
Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that
they had acted "without authority to remove children from [her] custody." App. B to
Pet. for Cert. 6. On the basis of this affidavit, the Assistant District Attorney
for the 22d Judicial District of Louisiana, William Alford, Jr., filed an information
[482 U.S. 400, 404] charging Richard and Gerard Smolin each with two counts of violating
La. Rev. Stat. Ann. 14:45 (West 1986), the Louisiana kidnaping statute. On June 14,
1984, the Governor of Louisiana formally notified the Governor of California that
Richard and Gerard Smolin were charged with "simple kidnaping" in Louisiana and demanded
that they be delivered up for trial. 41 Cal. 3d, at 763, 716 P.2d, at 993-994.
In early August 1984, the Smolins petitioned in the California Superior Court for
a writ of habeas corpus to block the anticipated extradition warrants. On August 17,
1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally
granted a writ of habeas corpus after taking judicial notice of the various custody
orders that had been issued. The court concluded "that the findings in the family
law case adequately demonstrate that, in fact, the process initiated by Mrs. Pope
in Louisiana and her declarations and affidavits were totally insufficient to establish
any basis for rights of either herself personally or for the State . . . of Louisiana."
App. C to Pet. for Cert. 5. California then sought a writ of mandate in the California
Court of Appeal on the ground that the Superior Court had abused its discretion in
blocking extradition. The Court of Appeal reluctantly issued the writ:
"Although we abhor Judy's apparent willingness to take advantage of our federal system
to further this custody battle, and are sympathetic to [the Smolins'] position, we
must conclude that their arguments are irrelevant to the only issue a court in the
asylum state may properly address: are the documents on their face in order." App.
B to Pet. for Cert. 16.
A divided California Supreme Court reversed. The majority interpreted the Superior
Court's finding to be that the Smolins were not substantially charged with a crime.
It found that the California custody decrees were properly considered [482 U.S. 400,
405] by the Superior Court, and that its conclusion that the Smolins were not substantially
charged was correct. Under the full faith and credit provisions of the federal Parental
Kidnaping Prevention Act of 1980, 28 U.S.C. 1738A, the majority determined that those
decrees conclusively established that Richard Smolin was the lawful custodian of the
children at the time that they were taken from Louisiana to California. * Finally,
the court found that, under Louisiana law, the lawful custodian cannot be guilty of
kidnaping children in his custody. State v. Elliott, 171 La. 306, 311, 131 So. 28,
30 (1930). We granted certiorari, 479 U.S. 982 (1986), to consider whether the Extradition
Clause, Art. IV, 2, cl. 2, and the Extradition Act, 18 U.S.C. 3182, prevent the California
Supreme Court from refusing to permit extradition on these grounds.
II
The Federal Constitution places certain limits on the sovereign powers of the States,
limits that are an essential part of the Framers' conception of national identity
and Union. One such limit is found in Art. IV, 2, cl. 2, the Extradition Clause:
"A person charged in any State with Treason, Felony, or other Crime, who shall flee
from Justice, and be found in another State, shall on Demand of the executive Authority
[482 U.S. 400, 406] of the State from which he fled, be delivered up, to be removed
to the State having Jurisdiction of the Crime."
The obvious objective of the Extradition Clause is that no State should become a
safe haven for the fugitives from a sister State's criminal justice system. As this
Court noted in its first opportunity to construe the Extradition Clause:
"[T]he statesmen who framed the Constitution were fully sensible, that from the complex
character of the Government, it must fail unless the States mutually supported each
other and the General Government; and that nothing would be more likely to disturb
its peace, and end in discord, than permitting an offender against the laws of a State,
by passing over a mathematical line which divides it from another, to defy its process,
and stand ready, under the protection of the State, to repeat the offense as soon
as another opportunity offered." Kentucky v. Dennison, 24 How. 66, 100 (1861).
The Extradition Clause, however, does not specifically establish a procedure by which
interstate extradition is to take place, and, accordingly, has never been considered
to be self-executing. See, e. g., Hyatt v. People ex rel. Corkran, 188 U.S. 691, 708
-709 (1903); Kentucky v. Dennison, supra, at 104. Early in our history, the lack of
an established procedure led to a bitter dispute between the States of Virginia and
Pennsylvania. J. Scott, Law of Interstate Rendition 5-7 (1917). In 1791, Pennsylvania
demanded the extradition of three men charged with kidnaping a free black man and
selling him into slavery. Virginia refused to comply with Pennsylvania's demand. The
controversy was finally submitted to President Washington who, relying upon the advice
of Attorney General Randolph, 9 National State Papers of the United States 1789-1817,
pt. II, pp. 144-145 (E. Carzo ed. 1985), personally appeared before the Congress to
obtain the enactment of a law to regulate the extradition process. Congress [482 U.S.
400, 407] responded by enacting the Extradition Act of 1793, which provides in its
current form:
"Whenever the executive authority of any State or Territory demands any person as
a fugitive from justice, of the executive authority of any State, District or Territory
to which such person has fled, and produces a copy of an indictment found or an affidavit
made before a magistrate of any State or Territory, charging the person demanded with
having committed treason, felony or other crime, certified as authentic by the governor
or chief magistrate of the State or Territory from whence the person so charged has
fled, the executive authority of the State, District or Territory to which such person
has fled shall cause him to be arrested and secured, and notify the executive authority
making such demand, or the agent of such authority appointed to receive the fugitive,
and shall cause the fugitive to be delivered to such agent when he shall appear."
18 U.S.C. 3182.
This Court has held the Extradition Act of 1793 to be a proper exercise of Congress'
powers under the Extradition Clause and Art. IV, 1, to "prescribe the manner in which
acts, records and proceedings shall be proved, and the effect thereof." Kentucky v.
Dennison, supra, at 105; Prigg v. Pennsylvania, 16 Pet. 539, 618-622 (1842). By the
express terms of federal law, therefore, the asylum State is bound to deliver up to
the demanding State's agent a fugitive against whom a properly certified indictment
or affidavit charging a crime is lodged.
The language, history, and subsequent construction of the Extradition Act make clear
that Congress intended extradition to be a summary procedure. As we have repeatedly
held, extradition proceedings are "to be kept within narrow bounds"; they are "emphatically"
not the appropriate time or place for entertaining defenses or determining the guilt
or innocence of the charged party. Biddinger v. Commissioner [482 U.S. 400, 408] of
Police, 245 U.S. 128, 135 (1917); see also, e. g., Michigan v. Doran, 439 U.S. 282,
288 (1978); Drew v. Thaw, 235 U.S. 432, 440 (1914); Pierce v. Creecy, 210 U.S. 387,
405 (1908); In re Strauss, 197 U.S. 324, 332 -333 (1905). Those inquiries are left
to the professorial authorities and courts of the demanding State, whose duty it is
to justly enforce the demanding State's criminal law - subject, of course, to the
limitations imposed by the Constitution and laws of the United States. Biddinger v.
Commissioner of Police, supra, at 135; Drew v. Thaw, supra, at 440. The courts of
asylum States may do no more than ascertain whether the requisites of the Extradition
Act have been met. As the Court held in Michigan v. Doran, supra, the Act leaves only
four issues open for consideration before the fugitive is delivered up:
"(a) whether the extradition documents on their face are in order; (b) whether the
petitioner has been charged with a crime in the demanding state; (c) whether the petitioner
is the person named in the request for extradition; and (d) whether the petitioner
is a fugitive." 439 U.S., at 289 .
The parties argue at length about the propriety of the California courts taking judicial
notice of their prior child custody decrees in this extradition proceeding. But even
if taking judicial notice of the decrees is otherwise proper, the question remains
whether the decrees noticed were relevant to one of these four inquiries. The Smolins
do not dispute that the extradition documents are in order, that they are the persons
named in the documents and that they meet the technical definition of a "fugitive."
Their sole contention is that, in light of the earlier California custody decrees
and the federal Parental Kidnaping Prevention Act of 1980, 28 U.S.C. 1738A, they have
not been properly charged with a violation of Louisiana's kidnaping statute, La. Rev.
Stat. Ann. 14:45 (West 1986). [482 U.S. 400, 409]
Section 14:45A(4) prohibits the
"intentional taking, enticing or decoying away and removing from the state, by any
parent, of his or her child, from the custody of any person to whom custody has been
awarded by any court of competent jurisdiction of any state, without the consent of
the legal custodian, with intent to defeat the jurisdiction of the said court over
the custody of the child."
A properly certified Louisiana information charges the Smolins with violating this
statute by kidnaping Jennifer and Jamie Smolin. The information is based on the sworn
affidavit of Judith Pope which asserts:
"`On March 9, 1984, at approximately 7:20 a. m., Richard Smolin and Gerard Smolin,
kidnapped Jennifer Smolin, aged 10, and James C. Smolin, aged 9, from the affiant's
custody while said children were at a bus stop in St. Tammany Parish, Louisiana.
"The affiant has custody of the said children by virtue of a Texas court order dated
February 5, 1981, a copy of said order attached hereto and made part hereof. The information
regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas
and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler
of 2015 Dridle Street, Slidell, Louisiana. Richard Smolin and Gerard Smolin were without
authority to remove children from affiant's custody.'" App. B to Pet. for Cert. 5-6.
The information is in proper form, and the Smolins do not dispute that the affidavit,
and documents incorporated by reference therein, set forth facts that clearly satisfy
each element of the crime of kidnaping as it is defined in La. Rev. Stat. Ann. 14:45A(4)
(West 1986). If we accept as true every fact alleged, the Smolins are properly charged
with kidnaping under Louisiana law. In our view, this ends the inquiry into the issue
whether or not a crime is charged for purposes of the Extradition Act. [482 U.S. 400,
410]
The Smolins argue, however, that more than a formal charge is required, citing the
following language from Roberts v. Reilly, 116 U.S. 80, 95 (1885):
"It must appear, therefore, to the governor of the State to whom such a demand is
presented, before he can lawfully comply with it, first, that the person demanded
is substantially charged with a crime against the laws of the State from whose justice
he is alleged to have fled, by an indictment or an affidavit, certified as authentic
by the governor of the State making the demand. . . .
"[This] is a question of law, and is always open upon the face of the papers to judicial
inquiry, on an application for a discharge under a writ of habeas corpus."
The Smolins claim that this language in Roberts spawned a widespread practice of
permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State's
courts, to show that the demanding State's charging instrument is so insufficient
that it cannot withstand some generalized version of a motion to dismiss or common-law
demurrer. Tr. of Oral Arg. 29-36. The cases the Smolins principally rely upon as support
for this asserted practice are People ex rel. Lewis v. Commissioner of Correction
of City of New York, 100 Misc. 2d 48, 417 N. Y. S. 2d 377 (1979), aff'd, 75 App. Div.
2d 526, 426 N. Y. S. 2d 969 (1980), and Application of Varona, 38 Wash. 2d 833, 232
P.2d 923 (1951). See Brief for Respondent 15-17. In Lewis, however, the New York trial
court actually granted extradition despite its apparent misgivings about the substantiality
of the criminal charge. Lewis, supra, at 56, 417 N. Y. S. 2d, at 382. And, in Varona,
the Washington Supreme Court relied on the fact that the indictment, on its face,
did not charge a crime under California law. Application of Varona, supra, at 833-834,
232 P.2d, at 923-924. Neither case, in our view, supports the broad proposition that
the asylum State's courts may entertain motions to dismiss or demurrers to the indictment
or information from the demanding State. [482 U.S. 400, 411]
To the contrary, our cases make clear that no such inquiry is permitted. For example,
in Pierce v. Creecy, decided after Roberts, supra, this Court refused to grant relief
from extradition over multiple objections to the sufficiency of the indictment. The
Pierce Court concluded that it was enough that "the indictment, whether good or bad,
as a pleading, unmistakably describes every element of the crime of false swearing,
as it is defined in the Texas Penal Code . . . ." 210 U.S., at 404 . It reasoned:
"If more were required it would impose upon courts, in the trial of writs of habeas
corpus, the duty of a critical examination of the laws of States with whose jurisprudence
and criminal procedure they can have only a general acquaintance. Such a duty would
be an intolerable burden, certain to lead to errors in decision, irritable to the
just pride of the States and fruitful of miscarriages of justice. The duty ought not
be assumed unless it is plainly required by the Constitution, and, in our opinion,
there is nothing in the letter or the spirit of that instrument which requires or
permits its performance." Id., at 405.
Similarly, in Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), the appellant
argued that he had a seemingly valid statute of limitations defense based on the fact
that more than three years, the limitations period, had elapsed since the date of
the crime recited in the indictment and that he had been publicly and openly resident
in the demanding State for that entire period. The Court found that the question of
limitations was properly considered only in the demanding State's courts. Id., at
135; see also Drew v. Thaw, 235 U.S., at 439 -440 (whether the escape of a person
committed to a mental institution is a crime "is a question as to the law of New York
which the New York courts must decide").
This proceeding is neither the time nor place for the Smolins' arguments that Judith
Pope's affidavit is fraudulent [482 U.S. 400, 412] and that the California custody
decrees establish Richard as the lawful custodian under the full faith and credit
provision of the federal Parental Kidnaping Prevention Act of 1980. There is nothing
in the record to suggest that the Smolins are not entirely correct in all of this:
that California had exclusive modification jurisdiction over the custody of Jennifer
and Jamie; that, under the California decrees, Richard Smolin had lawful custody of
the children when he brought them to California; and, that, accordingly, the Smolins
did not violate La. Rev. Stat. Ann. 14:45A(4) (West 1986) as is charged. Of course,
the Parental Kidnaping Prevention Act of 1980 creates a uniform federal rule governing
custody determinations, a rule to which the courts of Louisiana must adhere when they
consider the Smolins' case on the merits. We are not informed by the record why it
is that the States of California and Louisiana are so eager to force the Smolins halfway
across the continent to face criminal charges that, at least to a majority of the
California Supreme Court, appear meritless. If the Smolins are correct, they are not
only innocent of the charges made against them, but also victims of a possible abuse
of the criminal process. But, under the Extradition Act, it is for the Louisiana courts
to do justice in this case, not the California courts: "surrender is not to be interfered
with by the summary process of habeas corpus upon speculations as to what ought to
be the result of a trial in the place where the Constitution provides for its taking
place." Drew v. Thaw, supra, at 440. The judgment of the California Supreme Court
is
Reversed.
[ Footnote * ] The California Supreme Court found that under the Parental Kidnaping
Prevention Act, California had exclusive modification jurisdiction over the original
custody decree. 41 Cal. 3d 758, 770, 716 P.2d 991, 999 (1986). See 28 U.S.C. 1738A(d)
("The jurisdiction of a court of a State which has made a child custody determination
consistently with the provisions of this section continues as long as [such court
has jurisdiction under the law of such State] and such State remains the residence
of the child or any contestant"); 28 U.S.C. 1738A(f) ("A court of a State may modify
a determination of the custody of the same child made by a court of another State,
if - . . . (2) the court of the other State no longer has jurisdiction, or it has
declined to exercise such jurisdiction to modify such determination").
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting.
There is no constitutional or statutory reason why the scope of an asylum State's
judicial inquiry need be so narrow that it precludes the grant of habeas corpus in
this case. It has been settled for over a century that before the Governor of an asylum
State can lawfully comply with a requesting [482 U.S. 400, 413] State's demand for
extradition, it must appear that the person sought is "substantially charged with
a crime" and is also a fugitive from justice. Roberts v. Reilly, 116 U.S. 80, 95 (1885).
1 "The first of these prerequisites is a question of law, and is always open upon
the face of the papers to judicial inquiry, on an application for a discharge under
a writ of habeas corpus." Ibid. Because there is no reasonable possibility that the
charges of simple kidnaping filed against Richard and Gerard Smolin in Louisiana are
valid, I agree with the California Supreme Court's conclusion that they have not been
substantially charged with a crime. In addition, the Parental Kidnaping Prevention
Act of 1980, 28 U.S.C. 1738A, makes clear that Richard had custody of his daughters
and thus there is no reasonable possibility that his travel from Louisiana to California
with them made him a fugitive from justice.
I
The scope of the legal inquiry preceding extradition is extremely restricted because
the courts of the asylum State cannot be expected to make "a critical examination
of the laws of States with whose jurisprudence and criminal procedure they can have
only a general acquaintance." Pierce v. Creecy, 210 U.S. 387, 405 (1908). Nevertheless,
our precedents make clear that if a critical allegation of fact in the indictment
is "impossible in law," see Roberts, 116 U.S., at 96 , the asylum State must refuse
the extradition demand because the person has not been substantially charged with
a crime. Munsey v. Clough, 196 U.S. 364, 373 (1905). In Drew v. Thaw, 235 U.S. 432
(1914), the habeas corpus petitioner was under a New York indictment for conspiracy
to obstruct the due administration of laws; he was charged with plotting to effect
his own escape from an insane asylum to which he had been committed. Justice Holmes'
opinion for [482 U.S. 400, 414] the Court held that the indictment charged a crime
because New York courts could decide that the conspiracy charged "did tend to obstruct
the due administration of the law." Id., at 439. Even though the habeas court could
not inquire "upon the facts or the law of the matter to be tried," Justice Holmes
made it clear that there nevertheless must be a "reasonable possibility" that the
crime charged "may be such." Id., at 439-440. 2
In Pierce v. Creecy, the Court acknowledged that "an objection which, if well founded,
would destroy the sufficiency of the indictment, as a criminal pleading, might conceivably
go far enough to destroy also its sufficiency as a charge of crime." 210 U.S., at
404 . The Court concluded that the objections to the indictment in that case were
not of that nature. Likewise, in In re Strauss, 197 U.S. 324 (1905), Ohio sought a
fugitive who had been charged by affidavit before a justice of the peace for a felony
which was subject to trial only upon an indictment. This Court found no constitutional
barrier to extradition on those facts, but observed that the availability of extradition
must be balanced against the duty of courts to avoid injustice:
"It may be true, as counsel urge, that persons are sometimes wrongfully extradited,
particularly in cases like the present; that a creditor may wantonly swear to an affidavit
charging a debtor with obtaining goods under false pretences. . . . While courts will
always endeavor to see that no such attempted wrong is successful, on the other hand
care must be taken that the [482 U.S. 400, 415] process of extradition be not so burdened
as to make it practically valueless." Id., at 332-333.
The inquiry undertaken by the California courts in this case established the "impossibility
in law" of convicting the Smolins and therefore the injustice of their extradition.
The crime charged was two counts of simple kidnaping in violation of Louisiana law,
which defines the crime, in relevant part, as:
"The intentional taking, enticing or decoying away and removing from the state, by
any parent of his or her child, from the custody of any person to whom custody has
been awarded by any court of competent jurisdiction of any state, without the consent
of the legal custodian, with intent to defeat the jurisdiction of the said court over
the custody of the child." La. Rev. Stat. Ann. 14:45A(4) (West 1986).
In my opinion the limited scope of the inquiry open to the California courts in this
case did not preclude an examination of either federal law or California's own judicial
decrees. This summary examination was permissible because it had a direct bearing
on whether the information "substantially charged" the Smolins with a crime or whether
there was no reasonable possibility that the crime of simple kidnaping charged "may
be such." Drew v. Thaw, 235 U.S., at 440 .
The Smolins' conviction for this crime was an impossibility for three reasons. First,
a California court, the court of competent jurisdiction under the federal Parental
Kidnaping Prevention Act, 3 had awarded sole custody of Jennifer and Jamie to Richard
Smolin more than three years before he took them to California; he plainly could not
be convicted of removing the children from his own custody. Second, regardless of
whether Richard or Judith Smolin had custody of the children, he clearly believed
that custody had been [482 U.S. 400, 416] awarded to him by a California Court which
retained jurisdiction. His act of taking the children to California therefore could
not have been accomplished with the intent to defeat the jurisdiction of that court.
Third, because he did not believe that a Louisiana court had jurisdiction over the
custody determination, he could not logically be convicted under the kidnaping statute
for departing from Louisiana with the intent to defeat the jurisdiction of the courts
of that State. There is, in short, no possibility - and certainly no "reasonable possibility"
- that his conduct violated the Louisiana statute cited in the extradition papers.
4 A sensible application of the requirement that a fugitive must be "substantially
charged" with a crime, informed by the twin necessities of avoiding a trial-like inquiry
into the law of sister States and preventing the injustice of extradition to face
a legally impossible charge, leads me to conclude that the judgment of the California
Supreme Court should be affirmed.
The Court's heavy reliance on the dicta in Michigan v. Doran, 439 U.S. 282, 288 (1978),
and Biddinger v. Commissioner of Police, 245 U.S. 128, 135 (1917), is misplaced. The
issue in Doran was whether a court in the asylum State could review the demanding
State's judicial determination that there was probable cause for the fugitive's arrest
- an issue that is entirely unrelated to the substantiality of the criminal charge.
The fact that the Court omitted the word "substantial" [482 U.S. 400, 417] in its
summary description of the proper inquiry in the asylum State surely was not intended
to modify or eliminate a requirement that this Court had recognized for decades. See,
e. g., McNichols v. Pease, 207 U.S. 100, 108 -109 (1907) (accused must be "substantially
charged with crime against the laws of the demanding State"); Ex parte Reggel, 114
U.S. 642, 651 (1885) (indictment accompanying the requisition was valid because it
substantially charged the crime). In recognition of this longstanding requirement,
the Uniform Criminal Extradition Act, which both Louisiana and California have adopted,
specifies that the "indictment, information, or affidavit made before the magistrate
must substantially charge the person demanded with having committed a crime under
the law of that state." 11 U. L. A. 92 (1974); La. Code Crim. Proc. Ann., Art. 263
(West 1967); Cal. Penal Code Ann. 1548.2 (West 1982).
The Biddinger case relied upon by the Court is also inapposite because the validity
of the fugitive's statute of limitations defense in that case depended on the law
of the demanding State; the fact that the limitations period had expired between the
date of the offense and the charge did not foreclose the possibility that the statute
had been tolled. 245 U.S., at 131 -132, 135. The common thread in Doran and Biddinger,
as in Drew v. Thaw, supra, is that an asylum state court's inquiry may not reach the
merits of issues that could be fully litigated in the charging State; such examinations
entangle the asylum State's judicial system in laws with which it is unfamiliar and
endanger the summary nature of extradition proceedings. To obtain habeas relief, "[t]here
must be objections which reach deeper into the indictment that those which would be
good against it in the court where it is pending." Pierce v. Creecy, 210 U.S., at
401 ; cf. Pacileo v. Walker, 449 U.S. 86, 87 -88 (1980) (per curiam) (California Supreme
Court erred in granting habeas relief to fugitive by directing its Superior Court
to determine whether prison conditions in demanding State violated Eighth Amendment).
[482 U.S. 400, 418] Neither of those dangers is posed by the respondent California
Superior Court's conclusion that the Smolins had legal custody and thus were not "substantially
charged" with kidnaping. 5
II
Prima facie proof that the accused be "a fugitive from the justice of the demanding
State" is a "condition precedent to the surrender of the accused." Ex parte Reggel,
114 U.S., at 652 -653. Deeming Richard Smolin a "fugitive from justice" would not
serve the purpose of the Extradition Clause. The Framers' provision for extradition
was designed to prevent state boundaries from becoming impermeable walls within which
"the fugitives from a sister State's criminal justice system" may find "safe haven."
Ante, at 406 (quoting Kentucky v. Dennison, 24 How. 66, 100 (1861)); cf. Jones v.
Helms, 452 U.S. 412, 419 (1981) (State's right to obtain extradition of criminal necessarily
qualifies that citizen's right to interstate travel). The requirement that fugitivity
be established nevertheless has some teeth to it; 6 otherwise state boundaries would
become mere markings in an atlas, and the demanding State could exercise criminal
jurisdiction over a person anywhere in the Union regardless of the extent [482 U.S.
400, 419] of that person's culpable connection with the State. 7 Thus, to be a fugitive
from justice it is necessary "that having within a State committed that which by its
laws constitutes a crime, when he is sought to be subjected to its criminal process
to answer for his offense, he has left its jurisdiction and is found within the territory
of another." Roberts v. Reilly, 116 U.S., at 97 (emphasis added). "For all that is
necessary to convert a criminal under the laws of a State into a fugitive from justice
is that he should have left the State after having incurred guilt there." Strassheim
v. Daily, 221 U.S. 280, 285 (1911) (citing Roberts v. Reilly, supra). See also Appleyard
v. Massachusetts, 203 U.S. 222, 227 (1906).
Despite this seemingly sweeping language, we have previously rejected the claim that
a person could be considered a fugitive if he could establish that he was outside
of the demanding State at the time of the alleged offense, even if "constructive presence"
would be a sufficient basis for criminal liability. In Munsey v. Clough, we wrote:
"When it is conceded, or when it is so conclusively proved, that no question can
be made that the person was not within the demanding State when the crime is said
to have been committed, and his arrest is sought on the ground only of a constructive
presence at that time, in the demanding State, then the court will discharge the defendant.
Hyatt v. Corkran, 188 U.S. 691 [(1903)], affirming the judgment of the New York Court
of Appeals, 172 N. Y. 176 1902.." 196 U.S., at 374 -375.
See also South Carolina v. Bailey, 289 U.S. 412, 421 -422 (1933); McNichols v. Pease,
207 U.S., at 109 -110 (1907); Ex parte Reggel, 114 U.S., at 651 . [482 U.S. 400, 420]
Similarly, I believe that we should today reject the notion that a parent who holds
custody as determined by the Parental Kidnaping Prevention Act of 1980, 28 U.S.C.
1738A, must be extradited as a charged kidnaper. Three reasons compel this conclusion.
First, when the fleeing parent lacks child custody under federal law, it is proper
to subject him or her to extradition in order to face criminal prosecution. But when
the parent acts consistently with the federal law that governs interstate custody
disputes, he should not be deemed to have fled from the judicial process of the demanding
State. By allowing the custodial parent under federal law to be branded as a fugitive,
the Court implicitly approves non-adherence to the uniform federal rule governing
custody determinations.
Second, requiring the extradition of Richard Smolin is at cross-purposes with Congress'
intent to "discourage continuing interstate controversies over child custody" and
to "deter interstate abductions and other unilateral removals of children undertaken
to obtain custody and visitation awards." See 28 U.S.C. 1738A note. 8 Compelling extradition
to face a criminal charge which cannot lead to a conviction, no less than "child snatching,"
is the coerced transportation of a party to a custodial dispute to another forum in
order to serve a private interest. It is anomalous that the Act, which [482 U.S. 400,
421] was clearly intended to deter the former type of coercion, should not also be
interpreted to discourage the latter. 9
Third, the Extradition Clause should be construed consistently with the Parental
Kidnaping Prevention Act because both are expressions of the constitutional command
of full faith and credit that governs relations among the several States. The Extradition
Clause "articulated, in mandatory language, the concepts of comity and full faith
and credit, found in the immediately preceding clause of Art. IV." Michigan v. Doran,
439 U.S., at 287 -288. The courts of every State best adhere to this principle, when
considering an extradition request for alleged parental kidnaping, by giving full
faith and credit to custody judgments rendered by other States as commanded by the
Act. It is clear to a court performing this task that the Smolins are not fugitives
within the meaning of the extradition request; as the custodial parent under the federal
statute, Richard Smolin did not commit while in Louisiana "an act which by the law
of the State constitutes a crime." Hogan v. O'Neill, 255 U.S. 52, 56 (1921). [482
U.S. 400, 422]
III
The Court is scrupulously fair in its recital of the facts and frank in its acknowledgement
that the criminal process may have been abused in this case. The reasoning the Court
follows nevertheless adopts an overly restrictive view of the questions that the habeas
courts of a rendering State must pose. The law governing interstate rendition for
criminal proceedings does not foreclose a summary inquiry into whether the crime charged
is legally impossible. Moreover, in an area in which Congress has seen fit to enact
nationwide legislation, I cannot agree that respect for the criminal laws of other
States requires the State of California indiscriminately to render as fugitives those
citizens who are conclusorily charged with simple kidnaping for their exercise of
a right conferred upon them by a valid custody decree issued by a California court.
The Court's contrary conclusion will, I fear, produce unnecessary inconvenience and
injustice in this case and provide estranged parents with an inappropriate weapon
to use against each other as they wage custody disputes throughout this land.
I respectfully dissent.
Footnotes
[ Footnote 1 ] See also Hyatt v. Corkran, 188 U.S. 691, 709 -710 (1903); Munsey v.
Clough, 196 U.S. 364, 372 -373 (1905); Pierce v. Creecy, 210 U.S. 387, 401 , 405 (1908).
[ Footnote 2 ] "When, as here, the identity of the person, the fact that he is a
fugitive from justice, the demand in due form, the indictment by a grand jury for
what it and the Governor of New York allege to be a crime in that State and the reasonable
possibility that it may be such, all appear, the constitutionally required surrender
is not to be interfered with by the summary process of habeas corpus upon speculations
as to what ought to be the result of a trial in the place where the Constitution provides
for its taking place." Drew v. Thaw, 235 U.S. 432, 440 (1914) (emphasis supplied).
[ Footnote 3 ] See ante, at 405, n.
[ Footnote 4 ] The Louisiana Assistant District Attorney who filed the information
against the Smolins was aware of the California custody orders at the time he filed
the information. He believed, however, that a crime had been committed because "`he
viewed the California judgment as being void, having been obtained by fraudulent misrepresentations,
and the valid order having been that issued by Texas on February 13, 1981.'" 41 Cal.
3d 758, 763, n. 1, 716 P.2d 991, 993, n. 1 (1986). In my opinion that speculation
on the part of the Assistant District Attorney is inadequate to overcome the fact
that Richard Smolin, as the holder of a custody determination that was valid on its
face, could not be substantially charged with a crime for his exercise of the parental
rights conferred upon him by that custody determination.
[ Footnote 5 ] An asylum State's review of a determination by a magistrate in the
requesting State that probable cause exists to arrest the fugitive may cause "friction
and delay," but nothing indicates that "routine and basic inquiry" into the existence
of a charge "has led to frustration of the extradition process." Michigan v. Doran,
439 U.S. 282, 296 -297, n. 7 (1978) (BLACKMUN, J., concurring in result).
[ Footnote 6 ] "Any other interpretation would lead to the conclusion that the mere
requisition by the executive of the demanding State, accompanied by the copy of an
indictment, or an affidavit before a magistrate, certified by him to be authentic,
charging the accused with crime committed within her limits, imposes upon the executive
of the State or Territory where the accused is found, the duty of surrendering him,
although he may be satisfied, from incontestable proof, that the accused had, in fact,
never been in the demanding State, and, therefore, could not be said to have fled
from its justice." Ex parte Reggel, 114 U.S. 642, 652 (1885).
[ Footnote 7 ] In the context of extradition - a form of recognition of sister-state
indictments - no less than in the context of recognition of judgments or of laws,
"[s]tate boundaries are neither irrelevancies nor licenses to disengage." Brilmayer,
Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and
Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95, 112 (1984).
[ Footnote 8 ] A uniform rule establishing which parent has custody deters "child
snatching." See Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L.
Rev. 881, 959, n. 340 (1986). The Parental Kidnaping Prevention Act achieves a uniform
rule in practice by establishing the circumstances under which a State may render
or modify a child custody determination and requiring that other States give full
faith and credit to judgments that conform to these standards. See 28 U.S.C. 1738A(a),
(c)-(g). If States were free not to give full faith and credit to the custody judgments
of other States, a forum-shopping parent would have an incentive to remove the child
to a State which was more likely to render a custodial decree in favor of that parent.
See Brilmayer, supra, at 103.
[ Footnote 9 ] Of course, persons who remove a child from a State in violation of
the Parental Kidnaping Prevention Act should be brought to justice. Indeed, Congress
has explicitly pointed out that the Fugitive Felon Act, 18 U.S.C. 1073, which makes
it a federal crime for a person to move or travel "in interstate or foreign commerce
with intent . . . to avoid prosecution . . . under the laws of the place from which
he flees, for a crime . . . which is a felony under the laws of the place from which
the fugitive flees" applies to parental kidnaping. 28 U.S.C. 1738A note. The Act also
makes available, in certain limited instances, the assistance of the Federal Bureau
of Investigation in apprehending interstate abductors. See generally Donigan, Child
Custody Jurisdiction: New Legislation Reflects Public Policy Against Parental Abduction,
19 Gonz. L. Rev. 1, 64-66 (1983-1984) (Department of Justice does not interpret Act
to require routine federal involvement in parental abductions). Congress' assertions
of the federal interest in regulating parental abduction require habeas courts to
exercise particular vigilance that a custodial parent not be extradited as a fugitive
from justice. [482 U.S. 400, 423]