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