BILL ANALYSIS Ó
SB 406
Page 1
Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 406 (Evans) - As Amended: June 10, 2014
SENATE VOTE : 33-0
SUBJECT : Tribal Court Civil Money Judgment Act
KEY ISSUES :
1)SHOULD THE TRIBAL COURT CIVIL MONEY JUDGMENT ACT, WHICH MAKES
IT EASIER PROCEDURALLY TO ENFORCE TRIBAL COURT MONEY JUDGMENTS
IN A CALIFORNIA COURT, BE ENACTED?
2)Should the Bill be sunsetted to allow for a more thorough
Review of both the tribal court civil money judgment act, as
well AS the existing Uniform Foreign-Country Money Judgment
Recognition Act, to ensure california APPROPRIATELY applies
the principles of comity to foreign and tribal court
judgments?
SYNOPSIS
This bill establishes the Tribal Court Civil Money Judgment Act
to govern the process of enforcing tribal court money judgments
in California state courts. Currently, claims to recognize
money judgments of foreign country tribunals, including tribal
courts, are governed by the Uniform Foreign-Country Money
Judgment Recognition Act (UFCMJRA). That process, however, is,
according to the author, costly and time-consuming. This bill,
based on a proposal by the Judicial Council, provides "a
discrete procedure for recognizing and enforcing tribal court
civil judgments, providing for swifter recognition of such
judgments while continuing to apply the principles of comity
appropriate to judgments of sovereign tribes." (Report to the
Judicial Council: Judicial Council-sponsored Legislation: Tribal
Court Civil Judgment Act (Oct. 2012).) While, this bill
establishes a new procedural framework for seeking recognition
of tribal court money judgments in California courts, it does
not significantly change the legal grounds for recognition or
nonrecognition of these judgments. It is co-sponsored by the
Judicial Council and the Blue Lake Rancheria tribe.
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The bill has raised concerns by both a tribe, on the one hand,
who believes that the bill questions tribal sovereignty and the
legitimacy of tribal courts, and will slow the process down, and
several opponents, who believe that the bill fails to require
sufficient due process of law in the underlying tribal court
proceedings before the resulting judgments can be enforced in
California courts. Given the concerns raised on all sides, the
Committee may want to consider passing the measure, but
requiring that the California Law Revisions Commission (CLRC)
look at the due process requirements of both this bill and the
UFCMJRA, using existing resources, and sunset the bill in three
years, after the study is complete, to allow the Legislature,
with a thoughtful and thorough review by the CLRC, to more
thoroughly and knowledgably consider the concerns that have been
raised on all sides.
SUMMARY : Establishes the Tribal Court Civil Money Judgment Act
(TCCMJA). Specifically, this bill , among other things:
1)Establishes the TCCMJA to govern the procedures for applying
and objecting to an application for the recognition of tribal
court money judgments, as defined, of federally recognized
Indian tribes in California state courts. Specifies that to
the extent not inconsistent with the TCCMJA, the Code of Civil
Procedure applies.
2)Provides that the TCCMJA does not apply to judgments:
a) For taxes, fines, or other penalties;
b) For which federal law requires that states grant full
faith and credit recognition, including child support
orders, as specified;
c) For which state law provides for recognition, as
specified; or
d) For all Probate Code matters, including decedent's
estates, guardianships, conservatorships and powers of
attorney.
3)Requires specific information be included in the application
for recognition of the tribal court money judgment, which must
be signed under penalty of perjury, including the amount of
the award granted by the tribal court that remains unpaid and
any accrued interest. Specifies documents that must be
attached to the application, including a copy of the tribal
court rules of procedure pursuant to which the judgment was
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entered; and a declaration under penalty of perjury by the
tribal court clerk, applicant, or applicant's attorney
stating, based on personal knowledge, that the underlying case
was conducted in compliance with those rules.
4)If no objections are timely filed, requires that the clerk
certify that no objections were timely filed, and requires
that a judgment be entered. Provides that the judgment
entered by the superior court must be based on and contain the
provisions and terms of the tribal court money judgment and
entered in the same manner, have the same effect, and be
enforceable in the same manner as any civil judgment, order,
or decree of a California court.
5)Provides timelines for service and filing of an objection
(within 30 days of service of the notice of filing), replies
to the objection (to be set by the court), and for a hearing
upon the matter (within 45 days from the date the objection is
filed absent good cause for a later hearing).
6)Requires the court to decline recognition and entry of a
tribal court money judgment in any of the following
circumstances:
a) The tribal court did not have personal jurisdiction over
the respondent;
b) The tribal court did not have subject matter
jurisdiction; or
c) The judgment was rendered under a judicial system that
does not provide impartial tribunals or procedures
compatible with the requirements of due process of law.
7)Permits the court, in its discretion, to decline recognition
and entry of a tribal court money judgment on any of the
following grounds:
a) The defendant in the tribal court proceeding did not
receive notice of the proceeding in sufficient time to
enable the defendant to defend himself or herself;
b) The judgment was obtained by fraud that deprived the
losing party of an adequate opportunity to present his or
her case;
c) The judgment or the cause of action on which the
judgment is based is repugnant to the public policy of
California or the United States;
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d) The judgment conflicts with another final and conclusive
judgment;
e) The proceeding in the tribal court was contrary to an
agreement between the parties under which the dispute in
question was to be determined otherwise than by proceedings
in that tribal court;
f) In the case of jurisdiction based on personal service
only, the tribal court was a seriously inconvenient forum
for the trial;
g) The judgment was rendered under circumstances that raise
substantial doubt about the integrity of the rendering
court with respect to the judgment;
h) The specific proceeding in the tribal court leading to
the judgment was not compatible with the due process of
law; or
i) The judgment includes recovery for a claim of
defamation, unless the court determines that the defamation
law applied by the tribal court provided at least as much
protection for freedom of speech and the press as provided
by both the U.S. and California Constitutions.
8)Defines "due process" to include, but not be limited to, the
right to be represented by counsel, to receive reasonable
notice and an opportunity for a hearing, to call and
cross-examine witnesses, and to present evidence and argument
to an impartial decisionmaker.
9)Provides that, if objections have been timely filed, the
applicant has the burden of establishing that the tribal court
money judgment is entitled to recognition. If the applicant
has met the burden, shifts the burden to the party resisting
recognition to establish that a ground for nonrecognition
exists.
10)Requires the court to grant a stay of enforcement if the
respondent demonstrates:
a) An appeal is pending from the tribal court judgment or
may be taken in the tribal court;
b) The tribal court has granted a stay of enforcement of
the tribal court money judgment; or
c) Any other circumstances exists where the interest of
justice require a stay of enforcement.
11)Specifies the time period for commencing an action to
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recognize a tribal court judgment as the earlier of either:
(a) the time during which the tribal court money judgment is
effective within the territorial jurisdiction of the tribal
court; or (b) ten years from the date that the tribal court
money judgment became effective in that tribal jurisdiction.
12)Permits the court, after notice to all parties, to attempt to
resolve any issues raised regarding a tribal court money
judgment by contacting the tribal court judge who issued the
judgment, as specified.
13)Specifies that nothing in this Act shall be deemed or
construed to expand or limit the jurisdiction of either the
state or any Indian tribe.
14)Excludes tribal courts from the Uniform Foreign-Country Money
Judgment Recognition Act.
EXISTING LAW :
1)Requires, under federal law, that each state give full, faith
and credit to the public acts, records and judicial
proceedings of every other state. (U.S. Constitution, Art.
IV, Section 1; 28 U.S.C. Section 1738.)
2)Provides, under federal law, that, as a general rule, the
recognition of a tribal court order within U.S. federal courts
is governed by the principles of comity. Provides that
federal courts must neither recognize nor enforce tribal
judgments if: (1) the tribal court did not have both personal
and subject matter jurisdiction; or (2) the defendant was not
afforded due process of the law. Provides that a federal
court may, in its discretion, decline to recognize and enforce
a tribal judgment on specified grounds. (Wilson v.
Marchington (9th Cir. 1997) 127 F.3d 805.)
3)Governs, through the UFCMJRA, the enforcement of judgments of
foreign countries within California courts. Does not apply to
a judgment for taxes; a fine or other penalty; or a family law
judgment. (Code of Civil Procedure Section 1713 et seq.
Unless stated otherwise, all further statutory references are
to that code.)
4)Defines "foreign-country judgment" to mean a judgment of a
court of a foreign country, as otherwise defined, including a
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judgment by any Indian tribe recognized by the United States.
(Section 1714.)
5)Provides mandatory and discretionary grounds for
nonrecognition of a foreign country money judgment under the
UFCMJRA, which mirror the grounds set forth in this bill.
(Section 1716.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill establishes the Tribal Court Civil Money
Judgment Act, a new procedural framework for enforcement of
tribal court money judgments under procedures that are modeled
on the procedures applicable to judgments from other states,
while still applying the principles of comity consistent with
existing law and the Ninth Circuit decision in Wilson v.
Marchington. In doing so, the author argues that the bill makes
the enforcement of these rights more efficient and economical
for both litigants and the courts. The author states:
Under existing law, a party seeking enforcement of a civil
tribal court money judgment in a state superior court
currently must do so under the Uniform Foreign-Country
Money Judgments Recognition Act (UFCMJRA). The UFCMJRA
process can be costly and time-consuming for both the
parties and the court, in some cases even causing parties
to unnecessarily re-litigate what the tribal court has
already decided.
This bill proposes to establish the Tribal Court Civil
Money Judgment Act, a new legal framework for seeking
enforcement of tribal court money judgments under
procedures that are modeled upon the simpler procedures
applicable to judgments from the courts of other states,
while still applying the principles of comity currently
required for judgments from sovereign nations. The
framework would not alter the legal standards that state
courts apply in recognizing and enforcing tribal court
money judgments, but merely clarify and consolidate the
procedures for doing so into a uniform and streamlined
statutory scheme.
In particular, the procedures set forth in this bill: (1)
provide timelines for both submitting an application for
recognition and timely objecting to recognition; (2) provide
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rules for proper venue; (3) specify notice requirements; (4)
list the requisite contents of an application and supporting
documentation; (5) mandate grounds for declining recognition and
provide discretionary grounds for declining recognition; and (6)
specify grounds for staying enforcement of a judgment.
As a matter of public policy, insofar as California courts
already recognize the judgments of tribal courts under the
UFCMJRA, the author argues that it is reasonable to provide
clear, distinct, streamlined, and uniform procedures throughout
the state as to the process for seeking enforcement of such
judgments. In doing so, the author continues, the bill will
make the process more efficient and economical for both the
parties and the courts - the courts will obtain the information
they need in a timely fashion, the parties will receive notice
of claims and objections in a timely fashion, and all involved
will avoid the added expense of unnecessary delays. It is worth
noting that only 18 states have enacted some version of the
UFCMJRA.
Distinction Between Full, Faith & Credit Given to Other States
and Comity Given to Other Countries and Tribes : The U.S.
Constitution requires that each state give full, faith and
credit to the public acts, records and judicial proceedings of
every other state and territory. Thus a judgment in one state
can be fully enforced in any other state. A tribe, however, is
not another state and is, in fact, a sovereign entity. Thus
tribes are not required, under any standard, to enforce state
court judgments. State courts, with specific exceptions, are
not required to give tribal court judgments full, faith and
credit.
Tribal judgments are generally treated like judgments from other
countries and are governed by comity: "No law has any effect,
of its own force, beyond the limits of the sovereignty from
which its authority is derived. The extent to which the law of
one nation, as put in force within its territory, whether by
executive order, by legislative act, or by judicial decree,
shall be allowed to operate within the dominion of another
nation, depends upon what our greatest jurists have been content
to call 'the comity of nations.'" (Hilton v. Guyot (1895) 159
U.S. 113, 163.) Comity is "neither a matter of absolute
obligation, on the one hand, nor of mere courtesy and good will,
on the other." (Id. at 163-64.)
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Under the rules of comity, the Ninth Circuit has opined that a
federal court should reject a tribal judgment if the tribal
court lacked jurisdiction or if the defendant in the underlying
action was denied due process: "The guarantees of due process
are vital to our system of democracy. We demand that foreign
nations afford United States citizens due process of law before
recognizing foreign judgments; we must ask no less of Native
American tribes." (Wilson v. Marchington, 127 F.3d at 811.)
While comity does not mandate that a tribe use procedures that
are identical to those provided by a California court, the Ninth
Circuit found that due process includes an opportunity for a
full and fair hearing before an impartial tribunal, with proper
service on the defendant and "no showing of prejudice in the
tribal court or in the system of governing laws." (Id.)
The Sponsor Argues that the Bill Streamlines, But Does Not
Change, Legal Standards for Seeking Enforcement of Tribal Court
Judgments in California Courts : The Judicial Council, one of
the bill's co-sponsors, argues that "this bill would not change
the legal standards state courts apply in recognizing and
enforcing specified civil tribal court judgments, but would only
clarify the procedures for doing so and consolidate them into a
single, streamlined statutory scheme."
Any money judgment that is non-enforceable under existing law
would continue to be non-enforceable under this legislation -
the bill just simplifies the procedures for seeking enforcement
of a tribal court judgment. To that end, this bill, as now
amended, exactly tracks the UFCMJRA as to the grounds upon which
a California court either must deny recognition of a tribal
court order or may, in the court's discretion, deny such
recognition. The court must decline recognition if: (1) the
tribal court did not have either personal or subject matter
jurisdiction; or (2) the judgment was rendered under a judicial
system that does not provide impartial tribunals or procedures
compatible with the requirements of due process of law.
Additionally, the courts of this state have discretion to
decline recognition for any of nine reasons, including:
1)The defendant in the proceeding in the tribal court did not
receive notice of the proceeding in sufficient time to enable
the defendant to defend;
2)The judgment was obtained by fraud that deprived the losing
party of an adequate opportunity to present its case;
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3)The judgment or the cause of action or claim for relief on
which the judgment is based is repugnant to the public policy
of California or the U.S.;
4)In the case of jurisdiction based on personal service, the
tribal court was a seriously inconvenient forum;
5)The judgment was rendered under circumstances that raise
substantial doubt about the integrity of the rendering court
with respect to the judgment; or
6)The specific proceeding in the tribal court leading to the
judgment was not compatible with the due process of law.
This bill, unlike the UFCMJRA, defines due process. It is
defined to include, but not be limited to, the right to be
represented by counsel, to receive reasonable notice and an
opportunity for a hearing, to call and cross-examine witnesses,
and to present evidence and argument to an impartial
decisionmaker. It is important to note that the definition does
not specifically include important considerations like
transparency of proceedings and reasonable discovery, all
hallmarks of our legal system.
Do the Mandatory Grounds for Nonrecognition Raise Concerns About
Tribal Sovereignty? : The Habematolel Pomo of Upper Lake ("Upper
Lake"), while not opposed to the bill, is concerned that the
mandatory nonrecognition provisions have "the potential to
negate a tribal judgment simply because a superior court judge
finds the judgment incongruous with the State's idea of due
process or impartiality, without regard for the basic tenants of
Tribal Sovereignty." As discussed above, the mandatory
nonrecognition provisions in this bill are identical to the
nonrecognition provisions under existing law from the UFCMJRA.
This bill just simplifies the procedural rules - thus making it
easier to enforce tribal court orders, but not changing the
rules for mandatory or discretionary nonrecognition of those
orders. Thus, Upper Lake actually raises concerns about both
this bill and the existing UFCMJRA.
Should Some or All of the Discretionary Grounds for Declining
Recognition of a Tribal Court Order be More Appropriately
Treated as Mandatory Grounds for Nonrecognition? : By contrast,
Stand Up For California (SUFC) opposes the bill, arguing that
the discretionary grounds for nonrecognition of tribal court
orders should be mandatory. SUFC believes that the
discretionary grounds "are just as serious (e.g., fraud, doubts
about the integrity of the judgment, etc.)" as the mandatory
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grounds for nonrecognition and thus "should be among those
grounds that can be raised and proved up by the respondent, with
a mandatory duty on the court to not recognize the tribal court
money judgment if any of these grounds are demonstrated." Since
this bill makes it easier to enforce orders from tribal courts
by, according to the author and sponsor, making the process
faster and easier and eliminating the need to re-litigate the
underlying case, it is reasonable to ask whether the recognition
standards copied from existing law are the appropriate standards
in this faster and simpler process environment.
Even a cursory review of the grounds for discretionary
nonrecognition raise legitimate questions as to the fairness and
due process provided in the underlying action and what should
the appropriate standard be for recognition in state court. For
example, the bill (and the UFCMJRA) allows a court, in its
discretion, to recognize and enforce a tribal court money
judgment even when the specific proceedings in the tribal court
leading to the judgment were not compatible with due process of
law. Currently the bill - and the UFCMJRA - require mandatory
nonrecognition of a tribal order if it was rendered under a
judicial system that does not provide procedures compatible with
the requirements of due process. However, if the system
provides procedures that, at least on paper, provide due process
of law, but the actual procedures used in a particular case do
not, the defendant has not been afforded due process of the law
and thus, the proceeding would not, under the Ninth Circuit
decision in Wilson v. Marchington, be entitled to recognition in
federal court. Is it reasonable policy - under both this bill
and the UFCMJRA - to permit such an order to be enforced by a
California court? This is obviously a very important question
calling for further study.
While Requiring California Courts to Recognize and Enforce
Tribal Court Money Judgments, This Bill Does Not Require
Reciprocity From Tribal Courts : While this bill requires
California to recognize tribal court money judgments, it does
not require that tribal courts recognize money judgments from
California courts. One individual who is unable to enforce her
California child support order through a tribe writes that she
opposes the bill unless a requirement for reciprocity is added:
As a mother of three tribal children, I have been tasked
with the full financial responsibility of a custodial
parent. SB 406 presents an opportunity to address a
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serious issue in Indian Country. I ask that SB 406 be
amended to limit state court comity to only those tribal
courts that have reciprocal provisions recognizing
California Court judgments for child support. Current
state law is inadequate to enforce child support orders if
the non-custodial parent is a tribal member shielded by the
sovereign immunity of the Tribe. . . .
Tribal governments because of their lack of political will
to act are forcing mothers and tribal children, onto
California State welfare rolls are an expense to the
non-Indian taxpayers. There is no reason for this, when
casino tribes are paying hefty 5 and 6 figure monthly
stipends to members per month, and non-gaming tribes []
receive 1.1 million annually. Amending SB 406 to include
reciprocity for child support orders provides a measurable
savings to California taxpayers by lifting mothers and
children off of welfare.
This opponent argues that this bill provides an opportunity for
the Legislature to encourage tribes, should they want easier
enforcement of their money judgments in California courts, to
agree to recognize and enforce child support orders.
The Ninth Circuit declined to require reciprocity before
agreeing to recognize a tribal court judgment because it opined
that the "question of whether a reciprocity requirement ought to
be imposed on an Indian tribe before its judgments may be
recognized is essentially a public policy question best left to
the executive and legislative branches." (Wilson v.
Marchington, 127 F.3d at 812.) However the court did note that
other states, including South Dakota, Oklahoma and Wisconsin,
require reciprocity before allowing enforcement of tribal court
orders in state court. The Judicial Council elected not to
include a reciprocity requirement when it proposed this bill to
the author because it is "outside the scope of the judicial
branch proposal," but did not opine on the merits of this
proposal. (Judicial Council, Judicial Council-sponsored
Legislation: Tribal Court Civil Judgment Act 9 (Oct. 2012.)
While reciprocity may be outside the judicial branch's purview,
it is certainly not outside the Legislature's purview, and thus
this Committee may reasonably conclude such momentous issues
should receive a more thorough examination than can occur in the
normal legislative process.
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Given the Substantial Open and Consequential Questions About
Both This Bill and The UFCMJRA, Might It Be Wise and Appropriate
to Study the Best Ways to Recognize Foreign and Tribal Money
Judgments, While Ensuring Due Process of Law, and to Sunset the
Bill So That the Legislature Can More Effectively Evaluate These
Important Issues? Given that there are significant questions on
the appropriate amount of due process to require, both from
those urging an easier recognition of tribal court orders and
those urging that a higher standard be met before enforcing
these orders in California courts, this Committee may wish to
discuss with the author the possibility of enacting the bill,
but directing a more in-depth study of the concerns, about both
the TCCMJA and the UFCMJRA, raised by both supporters and
opponents and sunsetting the bill to allow for a legislative
review after completion of the in-depth study. Given the
subject matter of the bill and the UFCMJRA, it appears that the
California Law Revisions Commission (CLRC) is best suited to
conduct the in-depth evaluation of both the TCCMJA and the
UFCMJRA and the appropriate level of due process that should be
required from foreign and tribal judgments. Given the issues
involved and the CLRC's existing workload, two years appears to
be adequate time to study the issue. The TCCMJA could then be
sunsetted in three years, to allow the Legislature another year
to act, after consideration of the CLRC's study.
ARGUMENTS IN SUPPORT : The Judicial Council, co-sponsor of the
bill, writes: "The establishment of this process and timeline
for considering these applications will make enforcement of
existing rights more efficient and economical for both litigants
and the courts without altering any party's substantive rights
under current law. Thus, SB 406 will ensure appropriate
recognition of tribal court civil money judgments in state
courts in a manner that will benefit both court systems."
ARGUMENTS IN OPPOSITION : In addition to the opposition
arguments discussed above, SUFC raises additional concerns,
including that the bill provides no opportunity for the
respondent to challenge or for the superior court to take into
consideration the underlying merits supporting the money
judgment, and that while the principles of comity do not call
for re-examination of the underlying merits of a claim, "there
are unique factors relating to federal Indian law that require
the declination of comity in on-going federal-state-tribal
disputes."
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The West Bank Homeowners Association writes that "the
replacement of current law with S.B. 406 will have dire
consequences to citizens, both tribal and non-tribal, of this
great state that happen to find themselves in the crosshairs of
an Indian tribal court." The group raises several questions as
to the wisdom of the bill, including concerns about reciprocity,
discussed above, and:
1. Do you believe that tribal court money judgments should
be recognized and enforced by California courts when a
tribal court denies both California and U.S. constitutional
rights?
2. Do you believe that due process is provided by a tribal
court when that tribal court cannot demonstrate
impartiality toward non-tribal members?
3. Do you believe that S.B. 406 is appropriate for a
domestic dependent sovereign that regularly employs
sovereign immunity to avoid answering questions pertinent
to the assertion of tribal jurisdiction, or financial
schemes such as payday loans, or reimbursement of workers
compensation funds? ?
5. Do you believe that impartiality is likely where tribal
judges are hired by tribal councils . . .?
6. Do you believe that impartiality is likely where tribal
courts are controlled by the tribal council?
Stop Graton Casino opposes the bill because of concerns of
tribal corruption. The group states that (1) tribal governments
are "by and large not open and transparent like their non-tribal
counterparts"; (2) "California's numerous, small tribes are too
often dominated by a few powerful families"; and (3) "when
tribal governments behave badly, there is no recourse through
any channels except, sometimes, federal court." As a result,
Stop Grafton Casino argues that until "tribal governments become
open and transparent at least to the extent of other U.S.
elected governments, there cannot exist a fair Native American
trial court system. There will always be the opportunity for
judicial corruption when the tribal governments are corrupt."
Additionally, while not opposed, Upper Lake is also concerned
with the petition process proposed in the bill. Upper Lake
believes that the "very long application list" and the
requirement that tribal rules of court be included will "cause
substantial delay" and "could cause complications and confusion
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for petitioner." Upper Lake also believes that the bill as now
drafted shifts the burden to the petitioner to prove that the
judgment is entitled to recognition, as opposed to current law,
which the group states, first requires the party opposing
recognition to prove the judgment is invalid.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council (co-sponsor)
Blue Lake Rancheria (co-sponsor)
Opposition
Stand Up for California
Stop Graton Casino
West Bank Homeowners Association
Several individuals
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334