California v. Superior Court of California, San Bernardino County

RESPONDENT:Superior Court of California, San Bernardino County
LOCATION:U.S. District Court for the Middle District of Florida

DOCKET NO.: 86-381
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: Supreme Court of California

CITATION: 482 US 400 (1987)
ARGUED: Apr 22, 1987
DECIDED: Jun 09, 1987

Dennis P. Riordan – on behalf of Respondent
J. Robert Jibson – on behalf of Petitioner

Facts of the case


Audio Transcription for Oral Argument – April 22, 1987 in California v. Superior Court of California, San Bernardino County

William H. Rehnquist:

Mr. Jibson, you may proceed whenever–

J. Robert Jibson:

Mr. Chief Justice, and may it please the Court:

The issue before the Court in this case is whether an Asylum State Court may block extradition on the ground that the person is not charged with a crime because that court concludes, based on extrinsic evidence, that the person is innocent.

On March 9th, 1984, real parties in interest, Gerard and Richard Smolin took Richard Smolin’s two minor children from his school bus stop in Slidell, Louisiana, St. Tammany Parish, and removed them to the State of California.

Mr. Jibson are you reciting facts?

Now, from where are you getting those facts?

J. Robert Jibson:

These facts are from the record of the record of the habeas corpus hearing, Your Honor.

The record of the habeas corpus xxx.

J. Robert Jibson:

That’s correct.

At the time of the abduction, the children had been living with their mother, in her custody for three years in the State of Louisiana.

Three days after the abduction, the St. Tammany Parish prosecutor filed simple kidnapping charges against Gerard and Richard Smolin.

And their extradition from the state of California was sought.

Two months later, in June of 1984, the Louisiana Governor sent a requisition to the Governor of California, requesting the extradition of the Smolin’s.

After two more months, in August of 1984, the California Governor granted the extradition request and issued his warrant for the rendition of the Smolin’s.

However, the courts of California have now blocked the extradition on the basis that the Smolin’s are not actually charged with a crime.

They reached this conclusion only after the habeas corpus courts in California took judicial notice of some other California court records containing a decree which gave Richard Smolin custody of the children.

Essentially, the habeas corpus court found that since, in light of that decree giving Mr. Smolin custody, he could not be found guilty in the state of Louisiana; therefore, he and his father Gerard were not actually charged with a crime in Louisiana.

xxx does the state argue at all that the habeas proceeding should not have gone forward at all?

J. Robert Jibson:

No, the state is not taking that position, Your Honor.

So that there maybe some inquiry made by the habeas court into what?

J. Robert Jibson:

the habeas corpus court may inquire into four very narrow areas, Your Honor.

Two of those are factual, and two of those are legal.

Where do these limitations come from.

J. Robert Jibson:

They come from this Court’s case in Michigan v. Doran in 1978, Your Honor.

The factual questions that may be inquired into in habeas corpus are Number 1: Whether the person before the court is, in fact, the person wanted by the demanding state.

Question of identity as the person charged.

Secondly, whether in fact he is a fugitive and by that I mean a legal term of art whether he was in the state at the time the alleged offense took place.

And thereafter, is found in another state.

Fugitivity if you will.

Those two factual questions.

J. Robert Jibson:

Then the legal questions are whether the extradition papers on their face are in order according to the–

Well now, in order in what sense?


J. Robert Jibson:

–Whether they meet–

–Whether they’re properly charged?

J. Robert Jibson:

–That is actually the fourth inquiry, Your Honor.

The facial validity of the papers–

But the habeas Judge could look at the habeas papers, all of the papers–

J. Robert Jibson:

–The extradition–

–I mean, the extradition papers rather.

J. Robert Jibson:

–That’s correct.

And determine whether or not the, what’s his name, was properly charged, may it not?

J. Robert Jibson:

It may look at the extradition papers, yes.

And determine whether properly charged?

J. Robert Jibson:

That’s correct.

And how far does that inquiry go?

J. Robert Jibson:

That inquiry, it is our contention, is limited to what is included in the extradition papers.

Whether they, on their face, state the charge of an offense in the demanding state.


xxx also have to show that it is a crime in that state too?

J. Robert Jibson:

The papers must allege that it is a crime in that state.

That’s true.

In both states.

J. Robert Jibson:

No, that is not true, Your Honor.

As a matter of fact, it only need be shown that the crime for which extradition was sought is a crime in the demanding state.

It doesn’t even matter if it is a crime in the asylum state as a matter of fact.

The criteria is whether the person is charged under the law of the demanding state.

I’m curious to know where that requirement comes from, because one would think that the Louisiana authorities would be the best judge of whether the person is charged with a crime under Louisiana law.

Why should a California Superior Court look into the law of Louisiana?

J. Robert Jibson:

Well actually, Your Honor, that language

J. Robert Jibson:

“under the law of the demanding state. “

is contained in the Uniform Criminal Extradition Act, which has been adopted by both the states involved here as well as all other states with the exception of two.

And the Uniform Extradition Act says that the court of the asylum state may examine into that question.

J. Robert Jibson:

No, it doesn’t say that explicitly, Your Honor.

The courts–

Then why should the court in California go that far?

Why should it examine it where the state’s a claimant of Louisiana law?

I thought your position was that you just looked at the face of the papers and if those papers purported to state a charge under Louisiana Law that was the end of it.

You’re not supposed to go to the statute books and look about anything.

J. Robert Jibson:


California courts don’t know Louisiana law.

J. Robert Jibson:

–That’s true.

That’s true.


Isn’t that your position?

J. Robert Jibson:

–It is our position that you look at the face of the documents to determine whether there is a charge there.

Well, Mr. Jibson, suppose xxx.

I take it that means also looking at the face of the affidavit’s, does it not?

The affidavits that accompany the–

J. Robert Jibson:

The face of the affidavit’s.

That’s right.

–And on the face, they do state a charge.

J. Robert Jibson:

That’s correct.

Let’s assume.

But, let’s suppose the judge knows, personally knows from previous experience with the case, as I gather was the case here, that those affidavits do not state the facts as he recalls them personally.

J. Robert Jibson:

It is our contention that he is not permitted to bring to bring extraneous–

He can’t do that?

J. Robert Jibson:

–That’s correct.

In the context of the extradition hearing he is not to bring in extraneous facts, other than what is contained in the four corners of the extradition papers.

That’s true.

J. Robert Jibson:

And that is our contention.

Including notice, judicial notice of lawful judgments and decrees of the asylum state, is that right?

J. Robert Jibson:

That’s correct insofar as it bears upon these questions of law which are–

Well, do you concede that the California custody decree granted lawful custody of the children to Mr. Smolin.

J. Robert Jibson:

It appeared to.

It purported to, yes.

And the problem that, maybe I can give a little–

–Well, if so, could the Smolin’s be guilty of a crime in Louisiana?

Of this crime, if Mr. Smolin had lawful custody?

J. Robert Jibson:

–If he had lawful custody, it would appear that he has got a defense to the crime.

But the problem with going beyond the face of the documents when you’re inquiring into this question of whether the person is substantially charged is because you just don’t know what else is out there.

We do have these decrees that were found in the California court file, but as I’ve indicated in the brief, there are grounds upon which those can be disputed.

And, in fact, the Louisiana authorities do dispute the validity of those.

They’re aware of those orders.

They dispute their validity.

And it’s my position that the extradition–

xxx federal law though, it seems crystal clear that only California had jurisdiction.

J. Robert Jibson:

–What was crystal clear under federal law and I don’t want to transform this into a custody case, but what’s clear under federal law is that California retained modification jurisdiction over the original order which gave Mrs. Pope custody of the children.

That is not the same, I submit, as to whether that is the only court that can deal with the custody issue regarding these children.

As I said at the outset, these children had been living with their mother for three years in the state of Louisiana.

They had established home state jurisdiction in the state of Louisiana.

And, as a matter of fact, custody proceedings were pending in Louisiana at the time of this abduction.

Now, as I said, there are areas for dispute as to whether or not ultimately, Mr. Smolin had custody of the children.

Well, the Federal Parental Kidnapping Act would not appear to give any state other than California, jurisdiction to modify the decree–

J. Robert Jibson:

If I–

–As long as one of the parents remained in California, as Mr. Smolin did.

J. Robert Jibson:

–to modify the decree, that’s correct.

If I might I could quote just a brief section of that Federal Act, Your Honor, and hopefully this will help to answer that particular question.

This is subdivision G of 1738(a).

A court of a state shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another state.

J. Robert Jibson:

Or such court of that other state is exercising jurisdiction consistent with the provisions of this section to make custody determinations.

Just one ground as a possible means of attacking this particular decree that Mr. Smolin is relying upon would be that there were pending Texas proceedings regarding the custody of these children at the time he went in to the California court to get the custody decree modified in his favor.

He was aware of those Texas proceedings.

Those Texas proceedings were being held in order to receive a full faith and credit recognition of the original California order.

There was no notice to the California court when Mr. Simolin went in to get his modified decree.

The Texas proceedings were already pending; therefore, there would be a violation of this section of the Federal act.

The point is, in these custody disputes and I’d rather get back to the extradition issue, but in these custody disputes the key under both the Federal act and the Uniform Child Custody Jurisdiction Act is communication where there might be problems with concurrent jurisdiction, where more than one court might have jurisdiction over the custody matters involving these particular children.

Communication did not occur in this case; therefore, we have a result of conflicting custody orders.

So, the point of all this is that it was not that cut and dried that he could not be charged.

This actually goes to the merits of the case in Louisiana.

And, of course, this is my base line position that those have to be delved into only where the charges are pending out in the asylum state.

That is not part of the summary executive proceeding that we call extradition.

This Court has on numerous occasions recognized that extradition is intended to be a summary executive proceeding in which the courts of the asylum state play an extremely limited role.

In Michigan v. Doran, this Court clearly stated that a court of an asylum state can do no more than decide those four issues that I enumerated a little bit earlier.

Can do no more than.

It’s a matter of power of the courts.

This Court indicated that asylum state courts are without power to go further than that.

And I submit that what occurred in this case is that the California Supreme Court.

Let me just, maybe you’ve already answered this, but xxx, the Chief Justice’s question, and what is the source of the law that says they have no power to go beyond this?

What do you rely on?

Do you rely on the Uniform Extradition Act, the Federal Statute or the Federal Constitution xxx?

J. Robert Jibson:

When I say, no power to go beyond those four inquiries,–


J. Robert Jibson:

–I’m relying on Michigan v. Doran.

This Court’s decision xxx.

You mean you’re just relying on an opinion of this Court?

J. Robert Jibson:

That’s correct.

Which was based on what?

J. Robert Jibson:

Which was based on the extradition clause in the Constitution and the Federal Extradition Act.

And the Federal Statute.

J. Robert Jibson:

That’s correct.

So, you don’t rely on the Uniform Act for this purpose?

J. Robert Jibson:

Well, the Uniform Act was promulgated and enacted by the various states under the auspices of the extradition clause and it supplements it.

But I’m not just relying on the UCEA.

No, Your Honor.

As this Court made clear in Michigan v. Doran, these are requirements that are dictated under the Constitution provisions as well as the Federal Act.

And it’s your position, I want to be, maybe this is repetitive and I don’t mean to do that but, can the court in the habeas corpus proceeding at least inquire as to whether there is a statute in Louisiana as alleged in the charging papers?

Can it look at the statute books?

In your view?

J. Robert Jibson:

Yes, they can take judicial notice of the statute in the demanding state.

What if there is a court decision in the demanding state construing the statute, can they look at that?

Say there’s a court decision that says the prosecutor in a case like this has the burden of proving that the alleged kidnapper, when he’s a parent, did not have custody?

J. Robert Jibson:

Well, they can look at court decisions that amount to the general law of the state, of the demanding state.

That’s true.

For what purpose?

I don’t understand that.

J. Robert Jibson:

Well, that would again go to–

It seems to me you’re slipping into a trial of the merits once you start looking at court decisions.

J. Robert Jibson:

Well, the extent to which they can look at those is very limited and it has to appear on the face of the documents that the charges as set forth in the charging documents clearly do not fit within the law if, for example, if another state–

–So the asylum state conducts sort of a judgment on the pleadings kind of a call, is that xxx.

J. Robert Jibson:

–Well, I wouldn’t go to that extent.

It has to be so clear that there is no interpretation of the demanding state’s law by the asylum state.

They can’t go that far.


So long as the requesting state’s law is clear, the asylum state can use it, is that it?

J. Robert Jibson:

That’s right.

If it reasonably fits within the law of the demanding state.

If it’s clear on its face that it does.

All you need is a clear defense to the charge and you can’t be extradited?

J. Robert Jibson:

No, no.

I thought that’s what you just said.

J. Robert Jibson:


Because that would–

Well, I don’t understand what you’re saying then.

J. Robert Jibson:

–That goes, no, that goes to the question of an affirmative defense to the charge that can be raised only in the demanding state.

Affirmative defenses are not allowed, even if they’re clear?

J. Robert Jibson:

That’s correct.

Even if they’re in the statute?

Supposing the statute contains a proviso, provided that it shall not constitute the crime of kidnapping if the alleged kidnapper happens to be the father who has a decree awarding him custody of the child?

And it’s all spelled out in the statute?

We still couldn’t look at that?

Is that your view, because it’s an affirmative defense?

J. Robert Jibson:

No, you cannot look at that xxx.

Even though it’s perfectly clear on the face of the statute that the man can not be convicted of a crime?

J. Robert Jibson:

Well, then you’re presupposing the other fact and that is the fact that somehow the papers show that it–

I say we’re relying on Louisiana Code Provision XYZ.

You read it and it says in there if he’s the custodial parent he cannot be charged with this crime.

That it’s an affirmative defense in the statutes and the proviso.

You say you can’t rely on that as I understand your view.

J. Robert Jibson:

–No, what you cannot rely upon is an asylum state court interpretation of the demanding state’s law.

No matter how clear?

J. Robert Jibson:


Even if there’s a cow case right on all fours, you can’t rely on it?

Well, then you’re saying in effect–

J. Robert Jibson:

Not if it’s the demanding state.

–you’re saying in effect that the Louisiana authorities are the judge of whether he’s charged under Louisiana law.

J. Robert Jibson:


That’s what I’m trying to say.

Well, but you’re not really saying that.

You’re saying, unless it’s clear.

I mean that’s what I’m trying, I can understand that.

That a sensible position, leave–

–It’s clear.

Why not just stick with the proposition that the Louisiana authorities are the judge of what Louisiana law says.

J. Robert Jibson:

Well, that’s my premise that they are the judge of what the law says.


J. Robert Jibson:

If their statute is included in the papers let’s say, which often is the case and clearly the allegation simply does not state a crime under the law of that demanding state then there might be an argument to be made that he’s not substantively charged.

–So the asylum state courts can second guess the prosecutor who wrote out the charge.

He made a charge under a certain statute.

J. Robert Jibson:

Well, what actually–

And the, so you can review his, you can in effect grant a motion to dismiss for failure to charge a crime.

J. Robert Jibson:

–No, what actually happens–

Is that your position?

J. Robert Jibson:


No it isn’t, Your Honor.

Well, it sounds like it.

J. Robert Jibson:

What actually happens in those situations and believe me they do not come up in the extradition context because of the communication that goes on between the asylum state authorities and the demanding state authorities.

And, if there would appear to be a question in the mind of the executive people who are reviewing the documents, then the matter is cleared up as a matter of demanding state law.

The demanding state authorities are the ones who are to determine–

But that’s the governor’s inquiry.

We’re talking about a habeas corpus.

J. Robert Jibson:

–That’s right.

A court inquiry after the kind of second guessing the governor.

J. Robert Jibson:

That’s right, they are second guessing the governor.

Well, supposing that there’s an, I don’t know if Louisiana has information or indictments, but supposing the charge simply is that the county attorney of St. Tammany County charges that this defendant violated Section 11256 of Louisiana Code.

Now what sort of an inquiry can be made by the asylum state?

J. Robert Jibson:

Well, there wouldn’t be any inquiry in that particular situation because it is lawful to charge simply in the language of the statute, or even charges–

Well, how do you know what’s lawful in Louisiana?

You’re a California lawyer.

If that comes from Louisiana, don’t you simply presume it’s lawful to charge that way in Louisiana.

J. Robert Jibson:

–Yes, you do and that’s why I say there wouldn’t be an inquiry xxx.

Well then you don’t look at anything but the paper?


J. Robert Jibson:

That’s correct.

I wouldn’t be too sure.

Louisiana’s civil law and the other states are common law.

So how do you know what happens in a civil law state?

J. Robert Jibson:

Well, again I think goes to the point that you don’t presume to know.

That’s what Louisiana authorities–

You wouldn’t even look.

J. Robert Jibson:

–to decide.

You wouldn’t look.

You wouldn’t even if there, even if you went to the Louisiana statute books and you find that there is no Section 11256.

It does not exist, or it’s been repealed.


You would not look at that?

That’s none of your business.

That’s for the executive.


J. Robert Jibson:

I’d have to agree with that.

Yes, Your Honor, because you don’t know how far to go in the extradition context.

It’s supposed to be a summary proceeding.

Well, despite Michigan v. Doran, counsel, there are a few statements in earlier opinions of this Court that indicate that if it’s clear there is no reasonable possibility that the fugitive is guilty that the asylum state court can refuse extradition.

What do you do about that language in the Strauss case and the Drew case?

J. Robert Jibson:

No reasonable possibility–

xxx valid.

J. Robert Jibson:

–I’m not familiar–

That language?

J. Robert Jibson:

–with that particular language in the Drew case.

In fact, I believe in the Drew case it held just the opposite.

J. Robert Jibson:

There appeared to be a very–

Well, Drew said that extradition is proper, given the reasonable possibility that the fugitive may have committed a crime under the other state.

J. Robert Jibson:

–Well, that’s true.

If the reasonable possibility standard would simply mean that on the face of the documents it appears that it’s possible that he is charged with a crime.

If you can determine on the face of those documents that there is no such possibility then that particular factor of those four in Michigan v. Doran is missing.

And therefore, he might be entitled to habeas corpus relief in that particular situation.

As I understand your position now, really the only inquiry that can be made in the asylum state in this proceeding, is whether the extradition papers are facially valid.

Is that right?

J. Robert Jibson:

Whether the extradition papers are facially valid?

Facially valid, and you can’t make any inquiry beyond that?

Now suppose this judge as I understand it had had considerable experience, at least some, with this very case, had he not, previously?

J. Robert Jibson:


The habeas judge had?

And suppose he looks at these papers and on their face they all look very proper, but he knows because he was there that the affidavit is misleading.

Doesn’t really tell what actually occurred, as he remembers how it occurred.

Would that be sufficient basis for him to say that to that extent the papers are facially invalid?

J. Robert Jibson:

No, because then the invalidity does not appear on its face to anyone reading the document.

This particular judge happened to have outside knowledge which was irrelevant to that particular inquiry at the habeas corpus hearing in the asylum state.


And I suppose it appeared that indeed the extradition request itself had been obtained by fraudulent means?

The asylum state still was helpless to refuse to send–

J. Robert Jibson:

–The asylum state would not be helpless, Your Honor, but the court in habeas corpus hearing would not have the authority to go into that particular question.

Again, that’s where you get into the executive branch.

This is an executive proceeding.

I want to emphasize that, that there in these cases there commonly is communication between two states.

If something looks amiss upon the executive branch examination of these papers, whether it be fraud, a false affidavit, any of those areas that you had been discussing, the communication takes place.

The governor, in fact, the governor in this case took two months to issue his Governor’s Warrant of Rendition.

And there was an inquiry made into some of these factors and communication was made with the state of Louisiana.

And that is the source, the check where these types of frauds and inconsistencies ought to be brought up–

–Well, I suppose it’s possible though that the governor has no discretion either–

J. Robert Jibson:


–to refuse extradition.

J. Robert Jibson:

–I’m aware–

I think you’re making an assumption that may not be valid.

J. Robert Jibson:

–I’m aware of the case of Branstead which is before this Court.

Up till now it has at least been presumed that what has grown to be, or become known to be discretion does lie with the governor.

But even if the governor doesn’t have discretion to deny the extradition, this communication still takes place and on many occasions the governor can communicate to the demanding state’s governor and ask that he withdraw his request after giving him all these facts.

And that’s happened.

Mr. Jibson, your new position, or your position, if it isn’t a new one, that you just look within the four corners of the instrument, how do you square that with the language, “substantially charged”?

J. Robert Jibson:

“Substantially charged” I see–

Where is that language by the way?

That’s in the Uniform Act, right?

J. Robert Jibson:

–That’s in the Uniform Act.

It’s not in the federal statute.

J. Robert Jibson:

No, but it’s been used–

And in it’s not in the Constitution?

J. Robert Jibson:


So, who made it up?

J. Robert Jibson:

It’s been used by this Court in several cases and I–

Before the Uniform Act was adopted?

J. Robert Jibson:

–I believe so.

I believe so, Your Honor.

The Uniform Act does use it.

But it doesn’t change the constitutional requirement in this way.

I understand.

Well, just tell me what it means then if it doesn’t mean that you–

J. Robert Jibson:

It simply means that the substance of a charge must appear on the papers and I think what that means is, we don’t go into possible pleading defects, whether it’s charged every element of the offense or any of those things.

If the substance of an offense appears on the papers then that satisfies the requirement.

That’s all substantially xxx.

–Or, what you really mean is the substance of an alleged offense?

J. Robert Jibson:

That’s correct.

That’s right.

Just the substance.

The governor sometimes by telegram, sometimes by telephone, but many times completely informally changed all of that?

J. Robert Jibson:

Well, they don’t change it, they communicate.

They communicate–

They communicate–

J. Robert Jibson:

–to make sure that–

–and said this point here doesn’t appear to be correct because the facts are thus and so.

And the governor changes it.

That happens every day.

J. Robert Jibson:

–It does happen, yes.

Free communication between the two executives.

I would like to reserve whatever time left I have, Your Honor, for rebuttal.

Thank you, Mr. Jibson.

We’ll hear now from you, Mr. Riordan.

Dennis P. Riordan:

Mr. Chief Justice and may it please the Court:

I’d like to begin by trying to clarify what’s been at issue in this case.

I think it’s gotten a little muddled because Mr. Jibson came here today looking to hit a single and he’s been invited to hit a home run.

And I think his position in response to that has changed.

Before we got here the following things were clear.

One the California decree giving Richard Smolin sole custody of his child in 1981 was valid in ’81, it’s valid in ’84.

The issue has been completely litigated by both parties in California, that’s a matter of state law.

He was the legal custodian of his children in 1984.

What was clear before we came here today was that under federal law, that decree has to be respected in Louisiana.

It was clear, one, because that federal law holding by the California Supreme Court was never challenged by California before this Court, which it could have been.

It’s also clear because the plain language of 28 U.S.C. 1738(a) makes it absolutely apparent that Louisiana will and must respect the 1981 California decree.

Furthermore, if you look at the case law in Louisiana interpreting 1738(a), and I can cite the Court to two cases, it’s absolutely plain that they will hold that California was the only state that could modify the decree, that the ’81 decree was valid.

This is Section 1738 of what, the Kidnapping Act?

Dennis P. Riordan:

No, it’s the Federal Parental Kidnapping Prevention Act of 1980 xx.

Dennis P. Riordan:

It’s a Full Faith and Credit Act which is found in 28 U.S.C., which was passed by Congress to make sure that there could only be one valid custody decree at any time.

And under the terms of that act, the only valid custody decree in 1984, when Richard Smolin picked up his children, was the California decree.

I don’t know, I mean, maybe that’s right, but really what we’re talking about here is whether that issue going to be fought about in California or in Louisiana.

Dennis P. Riordan:


Now why should it be fought about in California?

Dennis P. Riordan:

Well, the reason is we go to the last issue, which is, if he was the sole legal custodian can he have committed kidnapping in Louisiana?

And here’s what–

But, if you put it the other way, you say you don’t get to that until you decide what issues you can raise in California.

Dennis P. Riordan:


And here’s where we get to the single rather than the home run.

The single is relying on a hundred years of precedent.

Mr. Jibson says, it is true that for a hundred years you’ve gotten a common law demur in the asylum state.

That’s what it comes down to.

As Justice Scalia said, you get a motion for judgment on the pleadings.

That’s existed since this Court’s decision in Roberts v. Reilly in 1885.

It’s existed because of the use of the word, “substantially” in Roberts and in the Act.

Substantially has never been viewed as surplusage if the act said you determined whether there is a charge in Louisiana and there always is in an extradition case.

There’s always a charge that’s been lodged.

You determine if there’s a charge and that’s the end of it.

“Substantially” has always been interpreted to mean it’s got to be a substantial charge.

That language isn’t in the Act.

It isn’t in the Federal Act and it isn’t in the Constitution.

Dennis P. Riordan:


But it is in 100 years of precedent.

It is in this Court’s decision in Roberts v. Reilly.

It is in the Uniform Extradition Act.

What the justification for it?

Dennis P. Riordan:


What’s the justification for the Court having read–

Dennis P. Riordan:

Well, the–

–Wait till I finish my question.

Dennis P. Riordan:

–I apologize.

What’s the justification for the Court having read the extradition clause that way in the first place?

Dennis P. Riordan:

I think the justification is that recognized by the concurrence in Michigan v. Doran.

Extradition is worse than an ordinary criminal charge because you have to be processed in one state.

You have to be forcibly transported to another.

The justification is, it’s not unfair to a demanding state to file an indictment that passes muster under their own law as a question of law.

And for a hundred years it’s worked well to say, you get a demur.

That’s all you get.

But how does the Superior Court of California, I mean it seems that’s a very wasteful proceeding to have them trying to find about Louisiana law.

Dennis P. Riordan:

Well, I think if you look at Varona, if you look at Lewis, which is cited in our brief in New York case, they say, hey, we are not going to descend into the intricacies of Louisiana law or Alabama law in Lewis.

Is Lewis a case from this Court?

Dennis P. Riordan:

No, Lewis is, almost all of these cases with the exception of Roberts and Michigan v. Doran are, these come up in state courts in extradition proceedings and they are legion.

You make this demur and the courts have said, wait.

If it depends on an interpretation of Louisiana law, go to Louisiana.

We’re not the experts in Louisiana law.

If it’s a facial, if the judicial gloss on the statute is clear, or the statute is clear by its terms then you do have a right to a demur here.

And no one can suggest under the Louisiana Statute, the sole legal custodian of his children can be guilty of kidnapping.


How do you know who the sole legal custodian is the defendant just on the face of the papers?

Dennis P. Riordan:

–You know that–

You have to bring in this decree.

Dennis P. Riordan:



You have to bring, and that would ordinarily not be a demur.

You would demur to the pleading or the charge–

Dennis P. Riordan:


–you don’t bring in evidence aliunde.

Dennis P. Riordan:

Well, that brings us, let’s look at that, as an example let’s look at Louisiana.

Let’s pose the question this way.

Dennis P. Riordan:

If you were to demur to this charge in Louisiana could you judicially notice the California decree on a demur?

The answer is, yes.

So then the Superior Court in San Bernardino County has to not only know the Louisiana Statute Law, but it has to know what grounds could be raised in a demur in Louisiana.

That’s how you go about making this decision?

Dennis P. Riordan:

No, no.

I use that merely as analogy.

What I’m saying is that you’ve traditionally gotten a common law demur in the asylum state.

Now the–

The common law of what state?

Dennis P. Riordan:


The common law of what state?

Dennis P. Riordan:

I use that as a term of art.

What, for 100 years, what you have gotten in every state of the union, if someone seeks extradition, you’ve been allowed to say, that doesn’t make it on the pleadings.

And then you can bring in evidence outside the pleadings is your theory, I guess.

Dennis P. Riordan:


How do you get this California decree in there?

Dennis P. Riordan:

Well, what I am suggesting is the, I should qualify that.

It depends what you’re talking about.

Then you can bring in some evidence outside the pleadings?

Dennis P. Riordan:

Of questions of law.

Matters of law.

In Louisiana as an example, and I use this as an example.

If Richard Smolin went into Louisiana under Section 532 of Louisiana Code of Criminal Procedure, he gets a demur.

A modern equivalent of it.

A motion to dismiss for failure to state a charge.

Louisiana would say and does, don’t bring in any evidence here.

Don’t bring in evidence of justification or so forth and so on.

But if you want to use judicial notice to bring before us a matter of law, i.e. a California decree, you’re free to do that.

What if Louisiana law provided otherwise?

That not only can you not bring in any evidence, but you can’t bring any judicial decrees in.

It’s just a traditional, very narrow demur.

Dennis P. Riordan:


I use–

Would that bind the California Court under your view?

Dennis P. Riordan:

–No, I use Louisiana as an example, because it isn’t a question of Louisiana criminal procedure, it’s a question of what you’ve been allowed under federal law in the asylum state.

Well, what’s the source of federal law?

Dennis P. Riordan:

This Court’s decision in Roberts v. Reilly.

So, you think this Courts decision, Roberts, laid down a whole guideline to pleading, you know, what you could raise in this thing and that sort of thing?

Dennis P. Riordan:

We cite probably a dozen cases in our brief.

We could cite 100 that say for the last 100 years the fourth exception in Michigan v. Doran, was listed second.

That is you check to see whether there is the existence of a charge, has been interpreted to mean you check to see whether there’s a substantial charge?

That is, a charge that would withstand a demur?

Now, this Court could choose, of course, to reverse 100 years of precedent.

Well, yeah, the only case we would be narrowing would be Roberts, wouldn’t it?

Dennis P. Riordan:

Well, no.

You’d be over-ruling the decisions of the supreme courts of probably–

But, we don’t overrule state supreme court decision.

We may disapprove.

Dennis P. Riordan:

–I stand clarified, corrected.

Yes, what you would be doing is saying that the word “substantial” in Roberts and the word “substantial” in the Uniform Extradition Act has always been interpreted to mean that you get a demur.

But we’re now holding that all it means is that you get to check and see whether there’s been an indictment filed.

Well, in Michigan the claim was the Michigan Court said, “substantially charged” means that we look at the facts to see it there was probable cause.

And we said, no that isn’t what “substantially” means at all.

Dennis P. Riordan:


But this Court never dealt with–


Dennis P. Riordan:

–This Court in Michigan never dealt with the exception that we’re talking about here.

Michigan didn’t involve fugitivity and it didn’t involve the right to a demur.

This Court referred to the fact that, the interesting thing about Michigan v. Doran is it didn’t use the word “substantial”.

And since then there are been, an argument has been made that by pulling out the word “substantial”, this Court overruled the right to the equivalent of a common law demur in asylum state.

Dennis P. Riordan:

If it did that would be a very strange case to do it in because it didn’t involve the scope of this.

And I use demur again as a term of art, this judgment on the pleading.

But if you look at Roberts, if you look at all of the state cases since then you get a challenge to the legal sufficiency of the charge even though it’s in the asylum state.

And the reasoning has been–

Mr. Riordan, are you sure that the existence of a custody decree is a matter of law?

Let’s say parentage, is parentage a matter of law, whether I am the father or not?

Dennis P. Riordan:

–Well, it is if two parties have come together, litigated an issue to the highest court in the state and settled it in an opinion of which a court can take judicial notice.

There’s no more argument.

But let’s assume a particular indictment would be absolutely invalid if I was the father, and valid if I wasn’t.

Would my parentage, my natural parentage would obviously be a question of fact not of law, right?

But, what if I had adopted the child and there’s an adoption decree.

Is that converted from a question of fact in to a question of law?

It would take notice of an adoption decree?

Dennis P. Riordan:

If, as in this case, it’s res judicata, it’s been fully litigated and the only court that can litigate the issue–

Oh, I see.

Dennis P. Riordan:

–and is no longer subject to challenge.

No one can challenge the validity of Richard’s ’81 decree.

It’s happened.

It’s a matter of California law–

I see why you’re going–

Dennis P. Riordan:

–initially and it’s been fully litigated.

And all California did in doing that was look at law.

It didn’t look at fact.

Now, I will be the first to concede that if this Court decides to overrule 100 years of tradition and say you don’t get a common law demur, you don’t get the equivalent of a motion on the pleadings, we lose.

Let me make that concession.

If we are not allowed to challenge in the way you have been for 100 years, the Louisiana charge in the sense of getting a demur or judgment on the pleadings, we lose.

Because there is a charge in Louisiana.

–Would you lose if there was any other judge but this judge?

Dennis P. Riordan:

But the–

The judge that had personal knowledge.

If you had a judge that didn’t have personal knowledge would you lose?

Dennis P. Riordan:

–No, we would win.

If we get a judgment on the pleadings conversely, we win.

And we win before any judge–

Would you get the judgment on the pleadings before a judge that didn’t know the facts?

Dennis P. Riordan:


Yes, because–

Well, how would he find the facts?

Dennis P. Riordan:

–He did know the facts, but he didn’t say I know the facts.

The facts.

Dennis P. Riordan:


We would still win because the judge who didn’t know the facts could take judicial notice of the California decrees which were final and binding.

So the happenstance existed that this judge knew the facts of the case.


I have trouble with happenstance, frankly.

Dennis P. Riordan:

–That this particular judge–


Dennis P. Riordan:

–Let me make one thing clear, Your Honor.

This was not the judge who issued the child custody decree.

This was not the judge who originally gave custody to Richard.

There is no question that there was an collusion here between a judge originally giving custody and then dealing with a habeas corpus matter.

He was familiar with the family law matter because he was the judge that later heard the challenge to the ’81 decree.

Mr. Riordan, can you give us any guidance on how clear the law has to be?

I mean, we went around and around on that with Mr. Jibson.

Dennis P. Riordan:


And I guess we eventually ended up, it doesn’t matter how clear it is.

Now you say that we do take law into account.

Dennis P. Riordan:

Well, the–

You know, you can have some very refined questions of law that go to whether a motion for judgment on the pleading should be granted or not.

Dennis P. Riordan:

–I agree, and I think if you look at a decision like Lewis, where it was a New York Court act and they said, caution is called for in this situation.

Dennis P. Riordan:

We are not he authorities on Louisiana, in that case, Alabama law.

You’ve got to make out a very clear case.

So, the test is not simply whether it’s an issue of law?

The test is what?

Dennis P. Riordan:


The courts have demanded that the resolution of the issue of foreign law be crystal clear.

In this case, there might have been quibbling about the validity of the ’81 California decree.

That’s been settled in a California court.

We could have an interesting discussion.

Perhaps someone once has a complex question about PKPA, but that’s a federal law question on which this court, and Louisiana can give this Court no guidance at all.

This is the Court that eventually decides exactly what PKPA means.

But in terms of the Louisiana law question here, if anyone, I will also concede we should lose the case if anyone can come up with an interpretation of the Louisiana statute under which the sole legal custodian of his children could commit kidnapping.

It would be like saying that Charles Lindburgh had he gotten the kid back from Bruno Hauptman could have been prosecuted under this statute.

It’s just not possible.

Mr. Riordan, xxx his father.

Dennis P. Riordan:


That assumes that the sole legal custodian is his father.

Dennis P. Riordan:

No, I don’t want to assume that.

I’m willing to demonstrate it as a proposition xxx the law.

Well, I know, but who decides that?

Dennis P. Riordan:


Who is entitled to decide that?

Dennis P. Riordan:

Well, we can’t make an argument that Louisiana is better able to decide, in fact, California–

I didn’t say it that it would be better, I wondered who was entitled to decide it under the extradition clause?

Dennis P. Riordan:

–Our interpretation of the extradition clause is that if it’s simply a matter of applying federal law then California as the asylum state is entitled to apply it.

And I would suggest, let me point out one thing.

Once this case gets to Louisiana, federal law–

May I interrupt you just one minute?

I tried to interrupt you before.

I’d like to get back to a fairly simple-minded question.

Is it your position that if one in California is found to be the custodian of a particular child, that he then may by self-help, wherever he may find the child, whatever the child’s condition, he may kidnap the child?

Dennis P. Riordan:


Is that your position?

Dennis P. Riordan:


Well, what is it then?

Dennis P. Riordan:

A state could pass a statute that says it you are the sole legal custodian and your child has been taken by an interloper or by a parent who has no legal right, they could say we’ll pass a statute that requires you, that makes it a civil violation or criminal violation to get the children yourself.

Well, let’s focus on this case.

Dennis P. Riordan:



Yes, here you have a California decree that we assume is valid and instead of having it enforced by the customary means of enforcing judicial decrees the father who won in California decides he’s going to enforce it himself.

So, he goes to Louisiana and he picks the child up at a bus stop.

Dennis P. Riordan:


Suppose the child had been home in bed, or in the back yard?

So you don’t get into a Fourth Amendment situation–

Dennis P. Riordan:



Or suppose a child had been in a hospital?

Suppose the child had been in New York?

Dennis P. Riordan:


He could go anywhere he wants and enforce the California judgment himself.

Dennis P. Riordan:


He might commit burglary if he did that.

He might–

He committed a law into Louisiana.

Dennis P. Riordan:

–No, he didn’t, whatever–

He committed a violation under Louisiana law.

Dennis P. Riordan:

–No, no.

My position is just this.

That can be very unwise to do that.

It could even be illegal to do it.

He may lawfully do it.

Dennis P. Riordan:

He can lawfully do it without violating Louisiana kidnapping statute.

Because the Louisiana kidnapping statute says that a legal custodian can’t commit kidnapping.

They could say he committed trespass.

Let’s say he took a buzz saw and sawed his ex-wife’s car in half.

He might have committed four felonies by doing that, but he won’t have committed kidnapping which is the only charge–

Well, the lawyer for California here today conceded when I asked him that question, that it does not violate Louisiana law if Mr. Smolin had lawful custody for him to take him.

That was the first concession he made.

Isn’t that right?

Dennis P. Riordan:

–There simply–


Dennis P. Riordan:

–I don’t think there’s any question about that and I would just refer you to one thing as well which is a case called Snyder v. Snyder, 474 South 2nd, 1374, it’s a Court of Appeals decision of Louisiana in 1985.

It involved a situation where a father in Utah got a valid modification decree, came in and took the children forcibly from the mother.

The Louisiana court in a civil action said, one, the Utah decree was valid under PKPA and we have to follow PKPA.

Two, there’s not a hint in that opinion that there was anything therefore illegal under Louisiana law by him taking the children once he had the valid decree.

I will be the first to say that if Louisiana wanted to make sure that you go into court to execute on these, it could pass a statute.

Perhaps it would make it a misdemeanor to take children even if you are the legal custodian, but it’s clear that under it’s kidnapping statute you can’t violate the kidnapping statute if you’re the sole legal custodian, which Mr. Smolin is.

And that is a question of federal law that is better resolved in California and the reason for that is, once this case goes to Louisiana, Louisiana is barred from PKPA by 1738(a), from questioning the California decree at all.

If there had been any defect in the California decree, and there wasn’t, the only place that it could have been raised collaterally was in California.

Mr. Riordan, let me ask, if you are a law enforcement official who gets somebody from another state, you initiate the process of extradition, on an indictment that is so patently invalid that it would be subject to a demur as you put it, would you be liable for any civil damages for false arrest or imprisonment, or something don’t you think?

Don’t you think it’s pretty risky business?

Dennis P. Riordan:

I’ve got enough trouble with the questions that you’ve thrown at me about that.


No, I understand.

Well, I’m trying to think–

Dennis P. Riordan:

I think it’s clear that any such officer under the decisions of this Court would have a good faith defense that would render him immune from any liability.

–A good faith defense.

Dennis P. Riordan:

I don’t know the answer to that.

It’s in part, a question of federal law.

Certainly under federal law I think there would be immunity from any claim of violation of a person’s right if he acted on a decree in that context.

Is the fact that this particular judge was personally familiar with this case, is that fact at all relevant to our decision of the case.

Dennis P. Riordan:


Why not?

Dennis P. Riordan:

Because he did not say, I’m familiar with the facts and I’m going to rely on my personal knowledge.

He said I’m going to rely on the device of judicial notice, which is the device that would have been available to any judge.

And he did not do other than take judicial notice–

Judicial notice of what?

Dennis P. Riordan:

–Of the decrees in the civil case which established that Richard Smolin was the sole legal–

And these were files, were they, of the Superior Court?

Dennis P. Riordan:

–They were files of the San Bernardino Superior Court.

Might I point out this?

What is now before you is the judgment of the California Supreme Court.

Prior to that decision, the entire matter had been fully litigated up to a published, an unpublished, but a written opinion of the Court of Appeal which had become final which before you in the Joint Appendix.

Well, hadn’t the custody decree been appealed?

And hadn’t the former spouse of Mr. Smolin appeared and litigated it in California?

Dennis P. Riordan:

She had, I mean, one of the things that really put a judge on a tough spot if we were to adopt the rule that there couldn’t be judicial notice.

She had appeared before him and said, I want to contest his ’81 decree.

Let’s have a hearing on it.

She had a hearing.

She got a ruling.

She appealed that ruling and eventually got partial relief on appeal.

The court said the ’81 decree was valid, but you’re now free to obtain joint custody today.

Yet then, that same judge looks at an affidavit that’s sworn out after all of that occurs that says he had no decree.

He had no, I should correct that.

He had no legal authority at the time he took the children.

That’s pretty tough stuff for a judge to say, I’ve litigated this matter–

But, Mr. Riordan, why if it’s so clear is Louisiana insisting on this?

It’s just a little hard to understand, isn’t it?

Dennis P. Riordan:

–Well, Your Honor, I was here on Monday and I saw in attorney get in trouble by making assertions outside the record.

I think I can answer that question, but I can’t do it by staying within the four corners of this particular–

All right then don’t.


Is it your position that we are bound to take the Louisiana judgment and give it full faith and credit and everything.

I mean the California one.

Dennis P. Riordan:


But ignore the Louisiana one.

Both from state courts.

Dennis P. Riordan:

No, there is no Louisiana judgment.

The two judgments were–

What’s this man–

Dennis P. Riordan:


Let me clarify this.

–xxx Excuse me, was it Texas?

Well, why is Texas?

What’s wrong with Texas?

Dennis P. Riordan:

There’s nothing wrong with it at all.

You could get a complicated conflicting decree case but this isn’t it.

What happened is that the original decree went to the wife.

She got sole custody.


Dennis P. Riordan:


It was valid when it was issued.

She went to get Texas and got that recognized, full faith and credit.

The Texas judgment merely recognized the rights in Texas that she had in California.

There is no conflict.

It was consonant with the California decree and recognized only such rights as existed in California.

And under PKPA that’s all it could do.

So, therefore, when the California decree comes down and give him sole custody, modifying the original decree, it modified the rights that he had, she had in California and the rights that she had in Texas, cause it simply modified xxx.

The district attorney who acted in this case in Louisiana thought that the California decree had been obtained by misrepresentation and fraud.

Dennis P. Riordan:


That’s what the record shows, isn’t it?

Dennis P. Riordan:

–I think its–

That’s what he thought, that maybe totally false but–

Dennis P. Riordan:

–There’s a statement somewhere to that effect, but I think it’s not fair of us to demand of our district attorney’s that they understand anything about child custody law.

And frequently, they don’t.

I mean, the fact of the matter is that the California decree, it’s been litigated fully on, if there were any fraud, any misrepresentation, any unconstitutionality in it, it could have been taken to this Court itself.

It’s full and final.

It’s over.

That’s settled.

–Mr. Riordan, did your client take the, did he make an appearance in the Texas court?

Dennis P. Riordan:


He didn’t object to it in any way?

He couldn’t have objected officially if he didn’t make an appearance, could he?

Dennis P. Riordan:


Well, why didn’t the Texas court find him?

Dennis P. Riordan:

Well, the Texas judgment is a full, we don’t, the Texas judgment is fine.

It gives full faith and credit–

What has happened so far as custody was concerned following the Texas judgment?

Dennis P. Riordan:

–The Texas judgment gave full faith and credit to the original judgment.

And all we are saying about that is, you can accept it as valid at the time it’s issued.

It can, it did purport to give no rights other than those in California.

And therefore, when the rights in California were modified, that’s the whole point of PKPA.

Another state can recognize your rights anywhere else.

But, it can’t give you new rights.

It can’t give you independent rights.

The only state that can modify the original rights is the state of the original decree.

So, when California modified to give him custody, it modified the original California decree and the original Texas decree.

The Texas decree has no independent existence.

And this, it may take a little, have taken me a somewhat secuitcus route to explain it, but it’s not a complicated question and it’s a federal law question that is better litigated in California than it is in Louisiana.

I would suggest this to you, that the whole point of PKPA was to make sure that adjudication stay in the original state.

Dennis P. Riordan:

Here we have a situation where extradition is really being used to shift the focus away from a state that under federal law should be the locus of this litigation, and that is California.

Let me, perhaps there by–

Extradition didn’t shift it, the kidnapping did.

Dennis P. Riordan:

–No, no.

The kidnapping in–

You wouldn’t of had the extradition.

Dennis P. Riordan:

–The kidnapping–


Dennis P. Riordan:

–The kidnapping though, Your Honor, Justice Marshall, brought this case back to the locus where it always supposed to be.

The original decree state.

Let me just add this.

And these are sort of mundane considerations for this elevated atmosphere.

One thing we know is that this is not a kidnapping case.

Richard Smolin in can never be committed of kidnapping.

That may be resolved in Louisiana rather than California, depending on this Court’s judgment.

But it’s just the case.

I mean, it’s not a criminal case.

It never should have been a criminal case.

Mr. Riordan, you say that.

Does your opponent agree to that?

Dennis P. Riordan:

My opponent is not going to dispute it.

He’s not going to dispute that this is a valid California decree and he’s not going to dispute, in their brief they say, and they have to, that the California decree here is not one they want to take issue with.

But it’s going to be a civil case.

It’s going to be a civil case.

It should be a civil case.

And these two individuals for whom a lot of blame can be attributed to both of them, this mother and father, are going to have to work out an arrangement so they both can have their children again.

They’re going to have to finally act sensibly and settle this.

And it will be settled, and it can be settled as a civil case.

And the sooner that it stops being a criminal case, an auspicious criminal case, the sooner I think these children are going to for the first time in ten years, enjoy the love that they should have from both of their parents.

And I’d ask this Court to put an end to it.

Dennis P. Riordan:

To declare that the case, the extradition is improper because the charge is–

Well, if the children, if the case had gone back to Louisiana right away, it probably would have been dismissed long ago, as you say.

Dennis P. Riordan:

–I would like to believe that.

I would like to believe that.

Well, you say it’s so clear that nobody could possibly dispute it.

Dennis P. Riordan:


But the human cost for Richard Smolin of going to Louisiana in 1984, after he had his children for the first time in six years, would have been very substantial.

And I submit he did nothing wrong by challenging the action in the Courts of Louisiana.

Thank you, Mr. Riordan.

Dennis P. Riordan:

Thank you.

Mr. Jibson, you have three minutes remaining.

J. Robert Jibson:

I’d just like to make a couple of points.

First of all, we do deem this a criminal case.

It is a criminal case.

The charges are still pending in the state of Louisiana.

What brought this into the criminal justice system was Mr. Smolin’s exercise of self-help, which is in itself, one of the things that the Parental Kidnapping Prevention Act, by its very title is designed to prevent.

And, I don’t want to get into the, to make this a custody case but this Court does not have to decide the question of who’s entitled to custody here.

Suffice it to say as it was stated earlier, the Louisiana prosecutor does dispute this.

And, I’ve got some knowledge about him, but I’m not going to go outside the record either to tell you his reasons for that.

But the point is, what’s being attempted here is simply to come in through the back door with what you cannot come in through the front door with and that is a defense to this charge in Louisiana.

This analogy to a judgment on the pleadings, I think, is inappropriate because that by definition is restricted to the pleadings and here they had to go outside the pleadings which in this case, are the extradition documents to bring in some extraneous evidence to show a defense.

And, we’re not to inquire into the prosecutor’s motives in the state of Louisiana.

Communication has been had with authorities in both states.

They are anxious to go forward with this case and if, in fact, there is an air tight defense for Mr. Smolin, then he is to bring that in the state of Louisiana where these charges are pending.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Jibson.

The case is submitted.