BILL ANALYSIS Ó SB 406 Page 1 SENATE THIRD READING SB 406 (Evans) As Amended June 18, 2014 Majority vote SENATE VOTE :33-0 JUDICIARY 10-0 APPROPRIATIONS 17-0 ----------------------------------------------------------------- |Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, | | |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian | | |Garcia, Gorell, | |Calderon, Campos, | | |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, | | |Stone | |Holden, Jones, Linder, | | | | |Pan, Quirk, | | | | |Ridley-Thomas, Wagner, | | | | |Lowenthal | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- SUMMARY : Establishes, until January 1, 2018, the Tribal Court Civil Money Judgment Act (TCCMJA). Specifically, this bill , among other things: 1)Establishes, until January 1, 2018, 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)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 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. SB 406 Page 2 3)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. 4)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. 5)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 (U.S.); 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 SB 406 Page 3 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. 6)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. 7)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. 8)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. 9)Excludes, until January 1, 2018, tribal courts from the Uniform Foreign-Country Money Judgment Recognition Act (UFCMJRA). 10)Requires, by January 1, 2017, the California Law Revision Commission (CLRC) to conduct a study of the standards for SB 406 Page 4 recognition of a tribal court or a foreign court judgment, under the TCCMJA and the UFCMJRA and report its findings and recommendations to the Legislature and the Governor. 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. 2)Governs, through the UFCMJRA, the enforcement of judgments of foreign countries within California courts. Defines "foreign-country judgment" to mean a judgment of a court of a foreign country, as otherwise defined, including a judgment by any Indian tribe recognized by the United States. 3)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. FISCAL EFFECT : According to the Assembly Appropriations Committee: 1)Likely minor savings in court costs from streamlined procedures for enforcing tribal court judgments. 2)Absorbable one-time cost to the CLRC for the study and report, which will likely require the commission to reprioritize its work on other topics that the Legislature has directed the commission to study. COMMENTS : This bill establishes the TCCMJA, 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 Court of Appeals decision in Wilson v. Marchington, 127 F.3d 805 (1997). In doing so, the author states that the bill makes the enforcement of these rights more efficient and economical for both litigants and the courts. 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, SB 406 Page 5 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. Comity is "neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, on the other." Any money judgment that is non-enforceable under existing law would continue to be non-enforceable under this legislation - this 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; 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 SB 406 Page 6 judgment was not compatible with the due process of law. 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. Thus, this bill appropriately requires the California Law Revision Commission, by January 1, 2017, to conduct an 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. This bill sunsets the TCCMJA one year later, to allow the Legislature to act, after consideration of the Law Revisions Commission's study. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0004320