California v. Superior Court of Cal., San Bernardino Cty.

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 *413State’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 *414the 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 *415process 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 *416awarded 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 “substan*417tial” 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 inappo-site 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, “[tjhere must be objections which reach deeper into the indictment than 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). *418Neither 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 *419of 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 offence, 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.

*420Similarly, 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 *421was 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).

*422hH I — i I — I

The Court is scrupulously fair in its recital of the facts and frank in its acknowledgment 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 con-clusorily 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.

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).

“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 he 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).

See ante, at 405, n.

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 768, 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.

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).

“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).

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).

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.

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.