City of Oakland v. Desert Outdoor Advertising, Inc.

Pickering, J., with whom Douglas, C.J., and Hardesty, J., agree,

dissenting:

A Nevada judgment on a gambling debt is entitled to enforcement in a sister state, even though the sister state has statutes that outlaw gambling and prohibit judicial enforcement of gambling debts. MGM Desert Inn, Inc. v. Holz, 411 S.E.2d 399, 401-03 (N.C. Ct. App. 1991) (citing the Full Faith and Credit Clause analysis in Fauntleroy v. Lum, 210 U.S. 230, 237 (1902), and the Uniform Enforcement of Foreign Judgments Act). I would extend the same reciprocal courtesy to the California judgment presented here. True, the California judgment, while civil, embodies a fine imposed to coerce compliance with an Oakland outdoor advertising ordinance, after warnings and lesser remedies failed. But the issue is not whether Nevada must allow Oakland to sue on its ordinance originally in a Nevada court. We have here a California judgment, fully enforceable under its laws for enforcing civil judgments, presented to our Nevada courts for enforcement against a Nevada defendant that departed California for Nevada after suffering judgment there. This California judgment is as enforceable under the Full Faith and Credit Clause of the United States Con*544stitution1 and the Uniform Enforcement of Foreign Judgments Act, NRS 17.330-.400, as the gambling debt judgment in MGM Desert Inn. For these reasons, and as a matter of comity, I respectfully dissent.

The majority takes Huntington v. Attrill, 146 U.S. 657 (1892), as gospel. But Huntington’s holding, as distinct from its dictum, is that a Maryland court violated the Full Faith and Credit Clause and erred in not enforcing a New York judgment based on a New York statute that made a corporation’s directors who violated the state’s corporation laws automatically liable for the entity’s debts. In so ruling, the Supreme Court rejected the defendant’s argument that the underlying claim was based on “a penal law, in the international sense,” id. at 673, and thus did not deserve full faith and credit. The “international sense” of the New York judgment and law figured in Huntington, at least in part, because the record showed a Canadian tribunal had enforced the same New York judgment that Maryland had declined to enforce. Id. at 680-81 (noting that a “Committee of the Privy Council of England, upon an appeal from Canada, in an action brought by the present plaintiff [Huntington] against Attrill in the province of Ontario upon the judgment to enforce which the present suit was brought” had deemed the New York judgment enforceable in Canada). The New York judgment received more full faith and credit in Canada, in other words, than it did in Maryland, an anomaly Huntington rectified.

Huntington does contain language, cited by the majority, suggesting that the Full Faith and Credit Clause permits a state court to refuse to enforce a sister state penal judgment on the same terms as it might deny effect to a foreign-country penal judgment, and, drawing on international law, Huntington deems “penal” a judgment based on a law whose “purpose is to punish an offense against the public justice of the State.” Id. at 673-74. However, unlike the majority, I view this language as dictum, perhaps necessary to frame the arguments presented but not necessary to the actual holding in Huntington. See Note, Enforcement by One State of Penal Statutes of Another, 26 Harv. L. Rev. 172 n.1 (1912) (the penal exception discussion in Huntington is “dictum, since the case only decided that a judgment on such a statute must be given full faith and credit under the constitution”); Kersting v. Hardgrove, 48 A.2d 309, 310 (N.J. Cir. Ct. 1946) (stating that “courts of one sovereignty will not enforce the penal laws of a foreign sovereignty” is “oft repeated dictum” that goes back to Huntington and *545“the maxim of international law that ‘[t]he courts of no country execute the penal laws of another’” (quoting The Antelope, 23 U.S. 66, 123 (1825))). And in a later decision, the Court cited Huntington but reserved (or revived) the question whether a sister state judgment for a monetary penalty is entitled to full faith and credit: ‘ ‘We intimate no opinion whether[, in] a suit upon a judgment for an obligation created by a penal law, in the international sense, . . . full faith and credit must be given to such a judgment even though a suit for the penalty before reduced to judgment could not be maintained outside of the state where imposed.” Milwaukee County v. White Co., 296 U.S. 268, 279 (1935).

Milwaukee County suggests considerable uncertainty as to the scope and/or viability of Huntington's so-called penal exception, as applied to a sister state money judgment, even where, as here, that judgment runs in favor of a local governmental entity. Certainly, Huntington does not compel the holding that a state must, under the Full Faith and Credit Clause, refuse to enforce a sister state’s money judgment because that judgment may be based on a law that is “penal ... in the international sense.” Commentators, too, recognize that Huntington is sketchy authority, at best, on this point. As noted in the Restatement (Second) of Conflict of Laws section 120, comment d (1971): “The Supreme Court of the United States has never squarely decided whether a State may look through the valid money judgment of a sister State and refiise to enforce the judgment on the ground that it was based on a penal cause of action.” It goes on to say that “[t]he privilege of refusing to enforce the sister State judgment, if it exists at all, is a narrow one.” Id. (emphasis added); see also Robert A. Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 193, 202 (1932) (“Essentially civil claims should never be denied extrastate enforcement merely because the epithet penal can be attached to them.”).

The law distinguishes between suits to enforce claims arising under another state’s laws and suits on final judgments rendered by a sister state. States may not be obligated to entertain suits based on sister state tax laws or laws that deeply offend local public policy. Milwaukee County, 296 U.S. at 274-75; Nevada v. Hall, 440 U.S. 410, 421-22 (1979). Once the claim has been reduced to judgment, however, the Full Faith and Credit Clause makes the judgment portable from state to state and requires interstate enforcement of the civil judgment that results. Milwaukee County, 296 U.S. at 275-76; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438 (1943) (while “there may be exceptional cases in which the judgment of one state may not override the laws and policy of another, . . . [w]e are aware of no such exception in the case of a money judgment rendered in a civil suit [or] of any considerations of local policy or law which could rightly be deemed to impair the *546force and effect which the full faith and credit clause and the Act of Congress require to be given to such a judgment outside the state of its rendition”).

The case law the majority cites to show the vitality of the rule it takes from Huntington offers little true support. In one case, Wellman v. Mead, 107 A. 396, 398 (Vt. 1919), the Vermont Supreme Court discussed the penal exception only to decide whether Vermont courts would entertain a suit arising under Massachusetts law. The majority’s reliance on this case confuses the distinction — drawn in Milwaukee County and discussed above — between suits to adjudicate claims arising under another state’s laws and suits to enforce final judgments rendered by a sister state. Milwaukee County, 296 U.S. at 275-76. Another case, Fisher v. Virginia Electric and Power Co., 243 F. Supp. 2d 538, 543-44 (E.D. Va. 2003), is dictum about dictum. Fisher cites Huntington only to inform a discussion on which law — state or federal — determines whether an action is local or transitory in nature (and disparages “the Huntington fallacy” as “broad discourse” involving a “rather obvious misapprehension” of law modernly rejected as “dictum”).

In a third case, Schaefer v. H. B. Green Transportation Line, 232 F.2d 415, 418 (7th Cir. 1956), the Seventh Circuit Court of Appeals discussed the penal exception in the context of whether an Illinois law applied extraterritorially, not whether an Illinois judgment would be enforced extraterritorially. In that case, the plaintiff brought suit in the federal district court of Illinois seeking to enforce an Illinois corporate statute against an Iowa corporation for corporate conduct that occurred in Iowa. Id. at 417. The court held that the statute could not be applied. Id. at 418. But it is one thing to deny extraterritorial application of a state’s statute, and quite another to deny enforcement of a sister state judgment embodying a civil fine imposed for erecting and maintaining billboards in the sister state’s airspace and against its zoning laws. Indeed, the majority’s fourth case, Philadelphia v. Austin, 429 A.2d 568, 572 (N.J. 1981), makes this point — and does so in the context of a local governmental entity’s suit on a sister state money judgment for a fine. Thus, in Austin, the New Jersey Supreme Court enforced a Pennsylvania judgment in favor of the City of Philadelphia for a penalty incurred for not complying with a Philadelphia wage tax ordinance, doing so both as a matter of full faith and credit under Milwaukee County, id. at 571, and as a matter of comity. Id. at 572-73.2

*547Differences between the Uniform Enforcement of Foreign Judgments Act and the Uniform Foreign-Country Money Judgments Act, both of which have been adopted in Nevada, provide statutory support for recognizing the California judgment in this case. In Overmyer v. Eliot Realty, 371 N.Y.S.2d 246, 256 (Sup. Ct. 1975), a New York court observed that the Uniform Enforcement of Foreign Judgments Act, which governs enforcement of sister state judgments, does not have a penal exception, id. at 256, while its Uniform Recognition of Foreign-Country Money Judgments Act, which governs enforcement of international judgments, contains an exception to recognition when the foreign country judgment is for “penalties or taxes.” Id. From this, the Overmyer court concluded that, as a matter of comity, a sister state civil judgment embodying a fine or penalty will be enforced, whereas a comparable foreign country judgment will not.

Our statutes contain the same differences as those in Overmyer. Nevada’s version of the Uniform Recognition of Foreign-Country Money Judgments Act includes a section on applicability, and provides that a foreign-country judgment for a sum of money need not be enforced if it is for a fine or other penalty. NRS 17.740(2)(b); see Unif. Foreign Money-Judgments Recognition Act § 1(2), 13 U.L.A. 44 (2002); Unif. Foreign-Country Money Judgments Recognition Act § 3(b)(2), 13 U.L.A. 12 (Supp. 2010). On the other hand, our Uniform Enforcement of Foreign Judgments Act, which outlines procedures for enforcement of sister state judgments, lacks an applicability provision, much less a penal exception. See NRS 17.330-.400. It requires only that the sister state judgment be filed with the clerk of court. NRS 17.350. “A judgment so filed has the same effect ... as a judgment of a district court of this state and may be enforced or satisfied in a like manner” and is to be treated “in the same manner as a judgment of the district court of this state.” NRS 17.350.

For these reasons, I would enforce the City of Oakland’s judgment, even though it may embody a fine. Such a judgment might not be internationally enforceable, but it should be enforceable when rendered by a sister state.

The Full Faith and Credit Clause of the United States Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, § 1.

Nelson v. George, 399 U.S. 224, 229 (1970), and People v. Laino, 87 P.3d 27, 33-34 (Cal. 2004), cited by the majority, involve instances where the penal exception actually applies, i.e., in assessing a sister state criminal conviction and its consequences under the host state’s criminal laws. See Nelson, 399 *547U.S. at 229 n.6 (discussing the penal exception in connection with a habeas petition challenging a North Carolina criminal conviction/detainer claimed to affect a California parole determination); Laino, 87 P.3d at 37-38 (discussing the effect of an Arizona judgment of conviction on California’s three-strikes law). Of note, even in this context, Nevada can — though it is not constitutionally required to — recognize and attach consequences to a sister state criminal conviction. See Donlan v. State, 127 Nev. 143, 249 P.3d 1231 (2011) (California judgment of conviction required sex offender to register in Nevada, even though the registration requirement had expired in California, where the conviction originated).