Thompson v. Thompson – Oral Argument – October 06, 1987

Media for Thompson v. Thompson

Audio Transcription for Opinion Announcement – January 12, 1988 in Thompson v. Thompson

del

William H. Rehnquist:

We will hear argument now on No. 86-964, David A. Thompson v. Susan A. Thompson.

Mr. Weiss, you may proceed whenever you are ready.

Ronand W. Weiss:

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

What we have here is a question as to whether the Paternal Kidnapping Prevention Act of 1980, which is 28 US 1738A, furnishes a private cause of action in a Federal Court to determine which of two sister states’ conflicting custody decrees has failed to comply with the jurisdiction requirements of what I will call the PKPA.

The primary issue of all the reported cases appears to be the Congressional intent.

Since there is neither an expressed jurisdiction or a prohibition against it, the question is whether there is an implied intent to give a private cause of action.

Before we get to that particular point, I feel that it is appropriate to discuss the background of the PKPA, itself, in order to determine what Congressional intent was.

First, I think we would have to recognize and discuss what the problem was as Congress saw it.

In joint hearing before the Subcommittee on Criminal Justice, Senator Malcom Wallop stated as follows: Every year between 25,000 and 100,000 children of broken marriages are kidnapped by a parent attempting forcibly to obtain custody over a child living with the other one.

The emotional cost of child snatching which must be borne in large measure by young persons who have already watched their parents’ marriage fail and their family split asunder is overwhelming.

What the Congress saw was 25,000 to 100,000 cases of people who were unhappy with custody decrees of one state taking the children from that state and fleeing to other states and obtaining custody decrees.

In that situation, there was either no enforcement or little enforcement due to the cost involved in travelling to the new state.

These are real problems.

In my case, my client hasn’t seen his son in seven years.

This Court had a case similar to this on a different legal issue in front of it last term: the Samolian case.

And that case brought to this Court the issue was a writ of extradition which the California Supreme Court did not honor, the writ being issued by the State of Louisiana.

The rationale given by the Supreme Court of California was that there could not have been a criminal act because Mr. Samolian, who was a public defender… a deputy public defender, excuse me, in San Bernadino, had a valid California custody order.

This Court held that the writ of extradition had to be upheld.

And Mr. Samolian now is free from the Louisiana Court on a $20,000 bond and faces a criminal trial in less than two weeks.

This is the type of issue that Congress wanted to address and wanted to solve.

Sandra Day O’Connor:

Mr. Weiss, in your application here and your presentation of the question to us, you appear to have raised only the issue of whether there is an implied cause of action on behalf of your client under this Federal Act.

Right?

Ronand W. Weiss:

Yes, Your Honor.

I’m sorry.

Yes, Justice O’Connor.

Sandra Day O’Connor:

You did not raise below or raise in your cert petition, I gather, that there is Federal question jurisdiction in any event quite apart from any implied cause of action.

Ronand W. Weiss:

Well, we raised under 28 US 1331 that there is Federal jurisdiction.

Sandra Day O’Connor:

You raised the issue of whether there was Federal question jurisdiction quite apart from an implied cause of action?

Ronand W. Weiss:

Yes, we did, Justice O’Connor.

Sandra Day O’Connor:

You didn’t present that question to us in the cert petition; did you?

Ronand W. Weiss:

I don’t believe we did, no.

Sandra Day O’Connor:

No.

Ronand W. Weiss:

We raised it–

Sandra Day O’Connor:

And, yet, most of the cases below dealing with this question have gone off on the theory of Federal question jurisdiction: its existence or the lack of it.

Ronand W. Weiss:

–Existence or the lack of it, but most of the cases, as I read them, dealt with the implied provision as opposed to the actual because of the fact that it is a state cause of action.

William H. Rehnquist:

Well, isn’t that a form of Federal question jurisdiction and implied cause of action?

Ronand W. Weiss:

That is a form of Federal question… yes, Chief Justice.

Harry A. Blackmun:

Well, I have the same concern Justice O’Connor has.

Did you raise Section 1331 jurisdiction in so many words below anywhere?

Ronand W. Weiss:

Yes, we raised it in our original complaint to the lower court.

Sandra Day O’Connor:

Did the courts below deal with that?

Ronand W. Weiss:

As I recall, the lower court just summarily dismissed it saying that there was no jurisdiction whatsoever because it was within a domestic relation exception.

And the court, the Ninth Circuit Court held that there was no implied intent on Congress to create a Federal cause of action and further held that the domestic relation exception was involved herein.

Those were the two holdings of the Ninth Circuit.

The next thing that I think should be looked at is what did Congress do or what approach did they take once they defined the problem.

Quoting Senator McGovern in the Congressional Record at Senate page 758 on January 23, 1979, he states that the PK will cause all states will be required to enforce with very few modifications allowed the custody decree of the state that jurisdiction according to the provisions of the bill.

And, at present, a parent can take a child, flee to another state and begin court proceedings in that state to regain custody.

For several reasons, custody is usually granted.

States treasure their independence to make such decisions.

The other parent is not present to make the case and the absconding parent may be surrounded by supporters willing to testify on his or on her behalf.

Under this bill, the kidnapping parent could not be granted custody of the children by any other state court.

This provision would serve a possible childnapper from taking the child across state lines as there would be no hope of gaining custody of the child in another state.

William H. Rehnquist:

But that is quite consistent with the Ninth Circuit’s majority’s view that what this is… the PKPA is a rule of decision for state courts, like the AVLA, rather than creating a separate cause of action in Federal Court.

Ronand W. Weiss:

Yes, Mr. Chief Justice, if you read it literally, the problem is the Act, itself, speaks in a positive affirmative manner.

“The state shall”.

They shall do this to obtain jurisdiction.

They shall not modify if this exists.

“It shall”.

If you take the word, “shall”, with the Senator’s belief that the states cannot grant custody under this Act, I think it is reasonable to interpret that he meant that this should be a Federally enforced act.

Byron R. White:

All that means is that… that might make it very clear that… the Louisiana court, is that the one?

Ronand W. Weiss:

Yes.

Byron R. White:

That the Louisiana court made a mistake.

That could be corrected by coming up through the state system.

Ronand W. Weiss:

That’s one of the arguments raised that a person should travel to the other state court and go through the state system.

That does… that creates a couple of problems.

(1) is that you have the practical problem of the total lack of following of the PKPA.

The second is that it is almost an impractical problem for most people involved because of the cost.

The third problem is that the going to the other state, you submit to their jurisdiction.

If you read the UCCJAs in like Louisiana, you submit to their jurisdiction.

And then you have a difficult-time in challenging the UCCJA of Louisiana.

Sandra Day O’Connor:

Well, the legislative history, though, is really pretty clear, isn’t it, that Congress directly considered this and recognized the problem and simply decided to go slowly in this area and not to make it a matter of Federal question jurisdiction.

Ronand W. Weiss:

Well, there was discussion of Federal–

Sandra Day O’Connor:

You seldom see a legislative history this clear, I think.

Ronand W. Weiss:

–There was some discussion by Senator Cranston referring to the attention being directed at the problem in the Federal level.

There was some discussion by Congressman Duncan to that effect.

There was nothing that I read that specifically rejected the concept of Federal jurisdiction.

Some of the cases talk about Congressman Fish’s proposal.

But, if you look at Congressman Fish’s proposal, it is one of five proposals in this area and it is the only proposal that suggests that the Federal courts take jurisdiction to make child custody decisions.

It further suggested that we do away with the $10,000 diversity requirement.

This was the only proposal that directly talked about Federal jurisdiction, but it was rejected because the Congress did not want to burden the Federal court with custody determinations.

But we are not asking for custody determination here.

What we are asking the Federal court to do is to make a determination based on the PKPA as to who properly and correctly applied it.

I believe the minority decision in Merrell Dow Pharmaceutical v. Thompson said that the Federal courts are the best equipped to make a decision or an interpretation of the Federal legislation, since they do it on a regular basis.

And they further stated the state courts are not as well equipped to do that.

Byron R. White:

Wasn’t this Federal suit dismissed for want of personal jurisdiction, also?

Ronand W. Weiss:

No, it was not.

Byron R. White:

Well, how were you going to proceed in California to get jurisdiction over somebody in Louisiana?

Ronand W. Weiss:

Well, the Ninth Circuit addressed that problem and talked about the type of acts that Dr. Clay had committed in the jurisdiction.

And they concluded on the following: (1) that she and the child resided there for most of the child’s life; (2) that she had made use of the California Superior Court by bringing the domestic action in that court; (3) that Dr. Thompson’s request was based on the California decree; and, (4) that Dr. Clay left the State of California and went to Louisiana and allegedly enforced the California decree there in Louisiana.

Based on that analysis, they felt that there was jurisdiction.

Byron R. White:

Again, in California?

Ronand W. Weiss:

The child?

Byron R. White:

Yes.

Ronand W. Weiss:

That is a problem that the PKPA can solve.

If we do not get Federal determination of the construction and who properly applied that, we could travel to Louisiana, as was suggested, and we could go through the whole court and then Dr. Clay could then move to another state–

Thurgood Marshall:

How could we get it to the Federal court in California?

Ronand W. Weiss:

–Hopefully with a Federal court order that will be obeyed.

Thurgood Marshall:

What is the order going to be?

Ronand W. Weiss:

I’m sorry?

Thurgood Marshall:

What kind of order is it?

Ronand W. Weiss:

Well, if it is determined that California was the appropriate jurisdiction and Louisiana is restrained, then California would, in all probability, issue an arrest warrant like was done in Samolian by the Louisiana State.

Thurgood Marshall:

You would have extradition?

Ronand W. Weiss:

For Dr. Clay, probably.

Thurgood Marshall:

You would have extradition?

Ronand W. Weiss:

Yes.

Thurgood Marshall:

To the Federal court?

Ronand W. Weiss:

No.

We can do that through the state court.

Thurgood Marshall:

You don’t have extradition in the Federal court.

You have removal.

Ronand W. Weiss:

Through the state court.

See, if the court… if the Federal court finds–

Thurgood Marshall:

I just want to know how you are going to get a hold in.

Ronand W. Weiss:

–We are going to do it by trying to get the state court to issue a writ of extradition for Dr. Clay and, hopefully, she would bring the child rather than go through that.

I mean we have tried self-help.

Self-help is–

Thurgood Marshall:

The only thing we have here is the jurisdiction of the Federal court.

Ronand W. Weiss:

–That’s correct.

Thurgood Marshall:

And I am asking you how can the Federal court pick him up in Louisiana and bring him to California.

Ronand W. Weiss:

They cannot, but the Federal court can determine that California was the proper court for jurisdiction of the custody case.

Ronand W. Weiss:

And once they determine that, then California can issue the child stealing warrant.

Thurgood Marshall:

Well, this is unbelievable to me.

I guess I went to school too far back.

I mean I thought jurisdiction was on boundary line.

Ronand W. Weiss:

Well, now, as discussed, what the Congress did was they passed the Parental Kidnapping Prevention Act and they passed it in positive terms.

While a state… state courts shall enforce and state courts shall cooperate.

They made those mandatory requirements.

If the Federal court does not take jurisdiction, the Federal Act, the PKPA, has become nothing but an advisory or an optional act that the states can follow or not follow at their choice.

William H. Rehnquist:

I don’t think that is entirely true, Mr. Weiss.

Take the example of the Federal Employer’s Liability Act.

Suits there are brought under that Act in the state courts, but there was a period of time when this Court reviewed a number of state court judgments that came up to through the state court system, laid down some rules as to what the FLEA required.

And the state courts henceforth followed those rules.

I think the same thing could happen here.

Ronand W. Weiss:

The problem is that the PKPA, if as some of the writings have suggested is strictly advisory, are an extension of the UCCJA, then in a lot of states there will be a conflict between the UCCJA and the PKPA.

William H. Rehnquist:

But the PKPA is an act of Congress.

Is the UCCJA also an act of Congress?

Ronand W. Weiss:

No.

William H. Rehnquist:

I would think the PKPA would prevail then.

One is a state act and the other is an act of Congress.

Ronand W. Weiss:

That would be my assumption, but it would be up to the interpretation of the state court.

Antonin Scalia:

Well, not ultimately.

As the Chief Justice said, those interpretations, if they are in conflict’, can be resolved by the Supreme Court.

In other words, there is an intermediate position between saying it is advisory on the one hand.

And, on the other hand, it is mandatory and enforceable in Federal courts.

That is it is mandatory, but enforceable by the state courts with review of erroneous state court decisions by the Supreme Court.

Why doesn’t that work?

Ronand W. Weiss:

I have heard that argument.

Antonin Scalia:

From the Ninth Circuit.

Ronand W. Weiss:

From the Ninth Circuit.

[Laughter]

Ronand W. Weiss:

And from the D.C. or most recent case.

The problem there is you are dealing with child custody and you see if a… if a party steals a child and goes to another state, and we go through your procedure of going to that state and going up through their appellate process and eventually ending up here five… four or five years have passed.

And it becomes almost a worthless act not… I do not mean that in any derogatory sense, but to the person who is pursuing his child, because he has lost all contact with his child.

The child doesn’t know him.

Very few state courts would say after five or six years,

“I’m going to give you custody. “

John Paul Stevens:

Yes, but you cannot presume that every case will be a test case.

You can’t presume that every case will require resolution by this Court.

If you presume that generally state courts will follow the governing law, presumably in this case the Louisiana appellate courts would have corrected the error.

And that would not have taken five or six years.

Maybe there will be an exceptional case where there is ambiguity in the law and this Court has to lay down the rule of law.

But in most cases, why don’t you presume that state judges will obey the law?

Ronand W. Weiss:

Well, in this particular case–

John Paul Stevens:

Maybe they made a mistake in this one case, but does that mean that they always are going to make mistakes and rule in favor of the local parent?

Ronand W. Weiss:

–Well, it is not even a mistake.

It’s if you look at the UCCJA of Louisiana, it says that you are not supposed to take custody… jurisdiction for custody purposes until the child has been there for a period of six months.

Looking at the joint appendix–

Sandra Day O’Connor:

Well, Mr. Weiss, maybe we just need a test case from Louisiana, but I think for you to make the assumption that no state court is going to apply the Parental Kidnapping Act properly is unwarranted.

Ronand W. Weiss:

–I will agree and I am sorry if I made that assumption.

My primary concern is that the PKPA sets a Federal standard for a jurisdiction and modification of custody acts.

And it is a method whereby if it is applied properly, we will get a uniform standard for jurisdiction between the states.

But in order to apply it in a standard manner and an expeditious manner, in order to create what is necessary in the custody, the immediacy of the custody issues, it has to be determined in a standard way by a court that can bind two state courts.

Suppose you get conflicting interpretations of the PKPA in two different states.

You are no different than you are with the UCCJA.

Sandra Day O’Connor:

Well, that’s why this Court sits: To resolve conflicts like that.

Ronand W. Weiss:

I understand that, Justice O’Connor.

Sandra Day O’Connor:

All right.

Ronand W. Weiss:

Well, if you review the minority decision in the Ninth Circuit, Justice Alcorn makes some comments about the failure to recognize a Federal jurisdiction and I think the comments reflect that he found an intent of Congress to create the Federal jurisdiction.

He says, otherwise, it converts an act of Congress into barren rhetoric.

The Third Circuit said basically the same thing.

Ronand W. Weiss:

Why would the Congress from 1973 to 1980 study and attempt to pass legislation on this problem to correct the problem, acknowledge that the problem exists, that the states will not uniformly apply the UCCJA, which is supposed to be a uniform act, and then not give the courts, the Federal courts the ability to enforce it.

Antonin Scalia:

Full faith credits that there in the same way.

Ronand W. Weiss:

Well, full faith, Justice Scalia, the full faith credit statute is a little different in that the PKPA 1738A sets standards.

It says, “The state shall”.

Antonin Scalia:

Is not the full faith and credit statute, indeed the full faith and credit provision of the Constitution which says that each state shall give full faith and credit to the judicial decrees of the other states.

And, yet, we do not allow for enforcement of that in Federal courts.

Ronand W. Weiss:

On the full faith and credit, you also have the problem that this is a child custody determination and full faith and credit only has to be given by one state to the other state to the same enforceability that other states order.

By that, if there is a change of circumstances, it can be modifiable.

So, there is never really a full faith and credit argument.

William H. Rehnquist:

But that is what Congress sought to change in the PKPA; is it not?

Ronand W. Weiss:

That’s… if you take that position, Chief Justice, then what are we going to do with the modifiability aspect of the child custody decision because full faith and credit is given to a final judgment.

And the child custody judgment is never final because it can be modified all the time.

William H. Rehnquist:

But here Congress… as I understand it, Congress has said in the PKPA,

“Even though you don’t give full faith… even though full faith and credit does not permit you to recognize a custody judgment from another state because it is always subject to modification, we now tell you that you should. “

Is that a misstatement of what the PKPA says wherever it is to be enforced in Federal or state court?

Ronand W. Weiss:

No, it is not, Chief Justice.

One last point, since I see the white light is on.

The Merrell Dow Pharmaceutical v. Thompson case talks about implied jurisdiction.

In that case, the majority starts with that there is no implied jurisdiction.

And they run the four-pronged test of cort, C-O-R-T.

Now, the court case has been briefed… the court test has been briefed by myself, starting with page 8.

I believe that the minority and majority decision in that case are very close.

They both say that the Smith v. Kansas City Trust is an applicable valid test and that it should be applied.

The difference is that the majority found that there was no implied jurisdiction here.

I believe if you look at the intent of Congress there is an implied intent here and, as such, the Court should allow the lower Federal courts to hear this matter.

I would have nothing further.

Are there any questions, Chief Justice?

William H. Rehnquist:

Thank you, Mr. Weiss.

We will hear now from you, Mr. Rigby.

Kenneth Rigby:

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

Kenneth Rigby:

The basic question is the intent of Congress in the Court v. Ash, Touce Ross, Northwest Airlines, Merrill Lynch, Merrell Dow cases.

What was the intention of Congress?

Was it to create a private remedy?

Now, that private remedy has been interpreted and diagnosed in different terms in terms of Federal question jurisdiction, Rogers v. Platt, the Court of Appeals Circuit, in terms of a private cause or right of action in Thompson v. Thompson, some cases call it a cause of action.

Some call it a right of action.

But the fundamental threshold question is whether Congress intended to create any private remedy, whether it is called Federal question jurisdiction or whether it is called a private cause of action.

Byron R. White:

Well, do you think that is really the correct way of putting it?

Isn’t it whether Congress intended to create a private cause of action in the Federal courts?

Kenneth Rigby:

That is the way Thompson, the Ninth Circuit interpreted.

The Court of Appeals Circuit in Rogers v. Platt interpreted it in terms of whether Congress intended to create Federal question jurisdiction.

Byron R. White:

Well, I know, but do you agree that this Federal act would be enforceable in a state court?

Kenneth Rigby:

Yes.

And it was intended to be enforceable in the state court.

Byron R. White:

How would a parent who claims the benefit of that Act get into a state court to enforce it without having… without being able to say that: Congress intended me to have the right to enforce this statute in a state court?

Kenneth Rigby:

Because it is a direction to the appropriate authorities of each state: shall enforce and shall not modify.

Byron R. White:

But a parent who claim is a benefit of the Act would have to be able to get into court.

Kenneth Rigby:

Yes, sir.

Byron R. White:

And be able to say the Federal Act intends me to have the right to enforce this in a state court.

Is that right?

Kenneth Rigby:

Yes, sir.

That’s correct, sir.

But it is a question of whether or not Congress intended to create a Federal private right of action, not just a right of action.

Obviously, Congress intended to create a right of action and somebody to enforce its provisions.

John Paul Stevens:

Is that even right?

Isn’t the right of action a suit for custody created by state law and merely the Federal law imposes certain standards to be applied in state causes of action.

Kenneth Rigby:

That may very well be a correct analysis.

When you compare it to full faith and credit, itself, because this is an addendum to the full faith and credit statute.

Byron R. White:

In this case, there has been a Louisiana custody order; hasn’t there?

Kenneth Rigby:

Yes, sir.

Byron R. White:

And if this parent is told you must enforce this Act if you have any right under it at all in the Louisiana court, he’s going to have to go down there and assert some right under this statute to get that custody order overturned.

Kenneth Rigby:

Yes, sir.

Antonin Scalia:

I don’t understand this discussion.

You don’t have a Federal cause of action just because you have a Federal right.

Kenneth Rigby:

No, sir.

Antonin Scalia:

For example, it is a Federal right to have Federal… Federal law supersedes state law.

Federal pre-emption.

Correct?

Kenneth Rigby:

Right.

Antonin Scalia:

But that doesn’t give me a cause of action to sue for Federal pre-emption.

My suit is whatever, whatever the state cause of action or other Federal cause of action might be: for custody of the child, for torque, for contract and so forth.

And in the course of that suit, I am entitled to have Federal pre-emption rules applied.

Right?

Kenneth Rigby:

That’s correct, sir.

Antonin Scalia:

We are talking about here whether there is a cause of action to have the PKPA applied or rather whether that is just a rule of law which will be applied in other suits: custody and torque, contract or whatever.

Kenneth Rigby:

I would agree with that analysis.

I was not espousing these analyses by the courts, but in addressing Justice O’Connor’s original question about whether it is a jurisdictional issue or a cause of action issue, to point out that differing Federal courts have analyzed it differently.

It is our position that Congress did not intend that Federal courts enforce PKPA except through seriary to this Court after the exhaustion of state of remedies.

Antonin Scalia:

So, I suppose then the answer would be to this person that if you wanted to prevent the issuance of this Louisiana custody decree because of this Federal statute, you should have gone to Louisiana and a time and defended on the grounds of the Federal statute.

Kenneth Rigby:

That’s right.

Defended it–

Antonin Scalia:

And now, it is too late.

Kenneth Rigby:

–No, sir.

It’s not too late.

Byron R. White:

Well, how will he enforce it now, the statute?

Kenneth Rigby:

Dr. Thompson can bring an action in the Louisiana court based upon his California decree, contend that the Louisiana court lacked jurisdiction under PKPA to enter its decree, which, incidentally, was the–

Byron R. White:

So, he will be asserting his right in that action.

Kenneth Rigby:

–That’s correct.

Byron R. White:

Under the Federal statute.

Kenneth Rigby:

That’s correct.

And Congress specifically intended, we submit, from the very exhaustive legislative history, that PKPA, that the onus of enforcement of PKPA be placed on the state courts, not the Federal courts.

Kenneth Rigby:

If I may, very briefly: There were seven factors that have been outlined which I believe all Members of this Court agree upon in one way or the other with respect to discerning Congressional intent in this issue.

And that is Congress’ perception of the law it was shaping or reshaping.

Secondly, the problem which Congress perceived that was not being adequately addressed by that law, the language of the statute, itself, the legislative history of the statute, the likelihood that Congress intended to supercede or to supplement existing remedies and whether implication of a Federal cause of action is required to accomplish Congress’ purpose in enacting the statute.

The state of the law was this, as Congress perceived it, as shown exhaustively by the legislative history that this Court had not definitively ruled whether or not custody cases were subject to full faith and credit.

States had commenced adopting UCCJA, Uniform Child Custody Jurisdiction Act, on a voluntary basis.

At the time the Federal legislation was originally suggested, only about 19 of the states had adopted the Uniform Act and the states that had not adopted the Act were still in the language of the legislative history, havens for child snatchers.

As the PKPA progressed through Congressional hearings, more and more states adopted UCCJA so that at the time of the adoption of PKPA, nearly all the states had adopted UCCJA.

Now, all have adopted it.

So, Congress was looking at this legislative history and they were concerned about states that had not adopted UCCJA being admittedly havens for child snatchers.

Secondly, the language of the statute, itself, as the full faith and credit statute, itself, provides is directed not at parties but, in this instance, directed at the appropriate state authorities, not courts, as in full faith and credit.

All of the language of PKPA is directed at state authorities and what they shall and they shall not do.

The statutory scheme was this: Originally, it was proposed to exempt parental kidnapping from the Lindberg Kidnapping statute.

Congress reacted to that.

The Federal courts should not be in Federal parental kidnapping cases.

The Wallop proposal came along originally with three proposals: (1) to impose Federal jurisdictional standards on the state in custody cases; (2) to make the Parent Locator Service, the Federal Parent Locator Service available not to parties, but the language says to the states, make the Federal Locator Service available to the states to locate kidnapping parents and kidnapped children; and (3) was to make it a Federal offense to kidnap your child in violation of a proper court judgment.

The third prong is the one that received most of the attention.

All the courts and the legislative history is full of the letter from Assistant Attorney General Wald in which the Justice Department opposed it, the FBI opposed it.

HEW opposed it.

They did not want the Federal courts involved in, to this extent, in this process.

So, it was as the sponsors time and time again talk about.

A delicate balance between solving a problem which was a legitimate Federal interest and a minimum of Federal intervention in what is traditionally a pure state affair: custody cases.

The Federal judiciary does not want to be involved, nor should it be involved in custody cases.

So, a committee, the final resolution was that instead of the third prong of the three-pronged legislation being a Federal offense that the Federal Fugitive Act would be made applicable to cases in which a child was taken by a parent from one state to another state in violation of a proper custody award ended in accordance with PKPA.

So that under the Federal statute, the party could be brought back and prosecuted under state law.

So, as the sponsors themselves said, not in connection with the rejection of the Fish Amendment, which is a different proposition, in which Senator Cranston, for example, said: By reserving the Federal role to the creation of a Federal Parent Locator Service and FBI investigation after a sufficient lapse of time, we hold Federal interference to a minimum.

And it is very clear from an extensive legislative history that right or wrong, that Congress deliberately, made a deliberate decision to limit the Federal interference in the process to these two things: making the use of the Federal Parent Locator Service, which at that time was available only for child support purposes, not custody purposes, and, secondly, to permit the use of the Federal Fugitive statute in custody cases.

Professor Coombs, who wrote most of this legislation and assisted a great deal in its formulation, said that the legislation in it shows respect for the proper division of roles between the state and the Federal Government and between civil and criminal approaches to the problem.

In the exchange between Mr. Conyers and Representative Fish, who had introduced a bill… there were two bills pending, to confer diversity jurisdiction on Federal District Courts in custody cases so that a Federal District Court could enforce a valid custody award.

And in that exchange, the differing approaches and the deliberate Congressional restraint is very obvious.

Mr. Conyers, actually Mr. Bennett, that’s PKPA.

Kenneth Rigby:

Mr. Bennett would impose the obligation on state courts and you would require Federal courts to give full faith and credit to the decision.

And, again, we would be imposing the responsibility of the enforcement upon the state courts.

Now, what could be clearer with respect to Congressional intent when the… when Congress is presented with the contrary proposal that Federal courts be granted… I grant you it was not Federal question jurisdiction, but diversity jurisdiction, and they expressly rejected it saying at the same time: It is our purpose to impose the enforcement of PKPA on the state courts, not the Federal courts, as you, Mr. Fish, would have it.

And in the statutory scheme to explicitly limit the Federal participation to the use of Federal Parent Locator Service and the use of the Federal Fugitive Act for the purposes of doing what?

To assist the states in their enforcement of PKPA.

To allow them, when they have issued a valid custody decree under the PKPA Federal standards to go to the Federal Parent Locator Service and request that the kidnapping parent and the abducted child be located and when located to then be able to have the FBI to bring the abducting parent back for prosecution in the state court.

And that whole statutory scheme is obvious in the legislative history of PKPA.

Nowhere, I suggest, did… has any commentator or court said that the state courts have not done their… performed their constitutional duty in enforcing the Full Faith and Credit Clause.

And this is a form of full faith and credit.

It is an addendum to full faith and credit.

Congress, many years ago, made a deliberate decision that the implementing statute to the Full Faith and Credit Clause of the Federal Constitution would impose the obligation of enforcing the acts, statutes and so forth of another state on the state judicial systems, not on the Federal judicial system and this Court and the other courts on many occasions have concurred in that deliberate decision.

The decision of Congress in PKPA is the same kind of careful deliberate decision.

That there was a problem that needed to be addressed by the Federal legislative branch.

And it addressed it in a very careful and a very deliberate and a very balancing manner between the Federal intervention and what is traditionally a state… you know, just uniquely a state problem, custody is.

It is… not just traditionally, but by its very nature is a state problem.

And Congress has made that very deliberate decision.

What happens if Federal courts get involved?

It has been suggested by Flood v. Bratton, which is the Third Circuit case that holds there is Federal jurisdiction, that Federal courts need not get involved in the underlying custody issues in order to resolve conflicting jurisdictional assertions by states.

I suggest that that may reflect not a sophisticated understanding of custody cases because as has been pointed out by the District of Columbia Circuit in their very recent Rogers v. Platt, that is the very thing the District Court in the District of Columbia had to do in order to resolve a conflict between the District of Columbia court and a California state court.

It had to determine factual issues that go to the question of custody.

In the present case, Louisiana recognized and enforced the California decree but suspended the visitation rights of Dr. Thompson because of physical cruelty by Dr. Thompson to his son occurring in Louisiana during the exercise of a visitation privilege.

That is permissible both under UCCJA and PKPA.

Professor Coombs, whom I have quoted in my brief on the subject, says there is concurrent jurisdiction.

Whether there is jurisdiction or not jurisdiction in Louisiana in this case is going to depend upon whether Dr. Thompson did what we claimed he did.

And, therefore, whether Louisiana correctly exercised jurisdiction under what has been called the Emergency Provisions of both UCCJA and PKPA.

So, courts aren’t necessarily going to get involved in the underlying, undergirding factual issues with reference to custody in order to determine which court has jurisdiction under PKPA.

Another consideration is… and I have asserted it in brief and assert it, again.

This honorable Court’s decision in Webb v. Webb and its thoughtful analysis of why state remedies ought to be exhausted before this Court is called upon to resolve Federal issues in what are basically state causes of action.

Questions of comity, maintenance of a delicate balance between Federal and state judicial systems.

And, more importantly, the opportunity for state courts to perform their duty and the suggestion that state courts, as a system, will not perform their constitutional duty, I think is reprehensible.

Kenneth Rigby:

There is no suggestion in this case that Louisiana courts will not perform their duty.

In fact, I have cited a case in which I lost under almost the identical facts in which a state court enforced PKPA to my client’s detriment.

Louisiana courts will do their duty.

State courts will do their constitutional duty.

The opportunity for state courts to develop the record, the Court of Appeal in this case footnotes time after time the incomplete nature of the record.

And the state courts ought to have the opportunity to develop the record, to decide, for example, the case on a non-Federal ground.

These cases are quite frequently decided by state courts on non-Federal grounds: not PKPA.

A state court may say: Under our version of UCCJA, we have no jurisdiction to modify a Texas decree or a New Jersey decree and so forth.

And the matter will never get into the Federal courts because it has been decided on a state ground.

All of this, of course, reduces the workload of the Federal judicial system which is a consideration.

It may not be the paramount consideration.

I recognize in this case that Dr. Thompson in brief has argued: It would be useless for me to go to Louisiana.

That it is hostile territory.

I don’t believe it is hostile territory.

Our courts administer justice as do the state systems of other states.

And I think particularly appropriate is the opinion of this Court in Texaco, in which this Court said that it did not… when a litigant hasn’t presented his Federal claims to a state court, the Federal court should assume the state procedures will afford an adequate remedy in the case… in the absence of unambiguous authority to the contrary.

Remember, Dr. Thompson has not made the first attempt to enforce his California decree in Louisiana.

The only thing he did was try to, with an armed accomplice, come to Louisiana and try to kidnap his boy instead of following judicial procedures: bring an action on his California decree in the State of Louisiana.

He doesn’t come with great grace to say: Louisiana won’t give me a fair shake.

Until he has come to Louisiana and seen what kind of a shake that he is going to do.

Secondly, Rogers v. Platt has pointed up an argument which we have advanced as to the peculiar nature of the jurisdiction asserted here.

All of the circuits that hold there is jurisdiction concede that there is no jurisdiction to enforce a state custody decree in the first instance.

They all concede that because Congress specifically rejected that proposal, the Fish Proposal.

They say that Congress intended to confer jurisdiction only when there is two conflicting state custody decrees.

That is quasi-appellate jurisdiction.

State A, State B, a Federal District Court decides which one is correct as a matter of Federal law.

It is appellate jurisdiction of being asserted by a Federal District Court.

And at no time, with the one exception of criminal habeas corpus has Congress ever even expressly granted to Federal District Courts appellate jurisdiction over state court judgments.

That appellate jurisdiction rests in this Court and this Court, alone.

Does the Court have any questions?

William H. Rehnquist:

Thank you, Mr. Rigby.

Mr. Weiss, you have two minutes remaining.

You are not required to expend them, however.

Ronand W. Weiss:

Thank you, Chief Justice.

William H. Rehnquist:

The case is submitted.