Recognition of Judgments

Recognition of Judgments

“It is just as important that there be a place to end as there should be a place to begin litigation.”*. That is the principle underlying the concept of finality for judgments. And yet numerous considerations may militate against the finality of certain judgments. Most jurisdictions have a fairly elaborate system of law designed to give sufficient but not undue respect to judgments. Questions concerning this body of law generally arise in attacks on judgments. An attack may be either direct or collateral. A direct attack is an attempt to reopen or set aside the judgment itself. Rule 59 of the Federal Rules of Civil Procedure, for example, provides for the granting of a new trial for limited reasons and for a limited period of time (motions must be made within ten days after entry of judgment), and Rule 60 provides more limited grounds (such as fraud, newly discovered evidence, and the like) and a somewhat less limited time period for relieving a party of a final judgment. Such attacks on the original judgment are generally entertained only (or at least preferentially) in the court that rendered the original judgment.^†.

A more common concern is the collateral attack on a judgment, or, viewed from the opposite side, the binding effect of a judgment on subsequent litigation. Sometimes the entire question is labeled the problem of res judicata, but usually that term is reserved to describe the effect of a judgment itself on a subsequent case raising the same cause of action, while collateral estoppel refers to the effects of findings of fact actually contested in one lawsuit upon a subsequent piece of litigation which may involve a different cause of action but some of the same facts. Thus, for example, a default judgment may be given res judicata effect in a subsequent suit involving the same cause of action, but can be given no collateral estoppel effect because there is no actual contest over facts in a case terminated by a default judgment.

Res judicata, as narrowly defined, may further be broken down into two categories: bar and merger. “Bar” refers to the effect of the original judgment in preventing relitigation of the cause of action that was actually litigated. “Merger,” on the other hand, refers to the effect of the original judgment in preventing litigation of matters that are considered so closely related to what was actually litigated that they should have been litigated all at once. The entire dispute, in other words, is said to have merged in the original judgment whether or not all parts of the dispute were actually litigated. To the extent that it is justified, bar is based on the idea that there is usually no good reason to litigate a matter twice, and that the chance that a second piece of litigation is likely to produce a better result is outweighed by the costs of relitigation. Merger, on the other hand, cannot be justified by a desire to avoid relitigation of matters, since it deals with matters that should have been but were not litigated originally. Instead it finds its justification in the concept of waiver and in a desire to protect the courts and the parties from needless fractionalization of disputes—from having to become involved in two lawsuits where one would do.

Collateral estoppel is limited to establishing, for purposes of the second piece of litigation, facts determined in previous litigation that were “(1) litigated by the parties; (2) determined by the tribunal; and (3) necessarily so determined.”*. It is somewhat more difficult to defend the role of collateral estoppel than that of res judicata. Although some time may be saved by refusal to reinquire into facts, the very complexity of the rules concerning collateral estoppel tends to consume a great deal of court time, and, since the cause of action is likely to be different if collateral estoppel rather than res judicata is at stake, it is probable that the parties will have to litigate at least some issues whether or not the doctrine is applied. On the other hand, the doctrine does preserve a certain seemliness about the law: It tends to guarantee that courts will not reach inconsistent conclusions, based on inconsistent factual findings, at least between identical parties.

Both res judicata and collateral estoppel require some identity of parties. Res judicata requires either absolute identity or privity—a legal connection with a party to the first action sufficient to make it fair that the nonparty be bound by or be able to take advantage of the former judgment. Collateral estoppel classically had the same requirements, but more recently there has been a relaxation of what is called the mutuality requirement. Mutuality requires that for A to take advantage of a factual finding in previous litigation against B, B must have been able to take advantage of the factual finding if it had gone the other way. A relaxation of the mutuality rule (which is also a relaxation of the identity-of-parties requirement) is seen in those jurisdictions that allow A to take advantage of a finding of fact against B in a previous suit pitting C against B. In other words, relaxation of the mutuality requirement allows a fact to be used against someone who was a party to previous litigation even though it is being so used by a person who was not a party to previous litigation. (A requirement that has not been relaxed is that the person against whom the finding is used must have been a party to the previous suit or in privity with one.)

None of the intricacies of the discussion above requires more than a single jurisdiction. Res judicata and collateral estoppel are common-law rules applicable within an individual court system. For present purposes, however, the chief interest in these two doctrines arises when the effect of a judgment or finding of fact from a court in State X is considered in a court in State Y. The broad outlines of State Y’s obligation to honor State X’s judgment are contained in the full faith and credit clause of the Constitution, and 28 U.S.C. §1738:

[U.S. Const. art. IV, §1:] Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

[28 U.S.C. §1738:] State and Territorial statutes and judicial proceedings; full faith and credit.

The Acts of legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

Commonly, full faith and credit questions arise in the United States when judgments from the courts of one state are presented for enforcement in the courts of another.*. The statutory texts above, however, do little to answer many difficult problems in these cases, such as: What jurisdictional defects in the first judgment, if any, relieve the second court of the obligation to enforce a judgment; need the enforcing state respect a judgment contrary to its own deeply held substantive interests; and which state’s laws apply as to mechanical or procedural issues of judgments enforcement? After examining these questions, this chapter takes a look at a special problem in the area of judgments enforcement, namely, domestic relations law.

A.   Jurisdictional Requirements

Durfee v. Duke

375 U.S. 106 (1963)

Justice STEWART delivered the opinion of the Court.

The United States Constitution requires that “Full Faith and Credit shall be given in each State to the … judicial Proceedings of every other State.” The case before us presents questions arising under this constitutional provision and under the federal statute enacted to implement it.

In 1956 the petitioners brought an action against the respondent in a Nebraska court to quiet title to certain bottom land situated on the Missouri River. The main channel of that river forms the boundary between the States of Nebraska and Missouri. The Nebraska court had jurisdiction over the subject matter of the controversy only if the land in question was in Nebraska. Whether the land was Nebraska land depended entirely upon a factual question—whether a shift in the river’s course had been caused by avulsion or accretion. The respondent appeared in the Nebraska court and through counsel fully litigated the issues, explicitly contesting the court’s jurisdiction over the subject matter of the controversy.^1. After a hearing the court found the issues in favor of the petitioners and ordered that title to the land be quieted in them. The respondent appealed, and the Supreme Court of Nebraska affirmed the judgment after a trial de novo on the record made in the lower court. The State Supreme Court specifically found that the rule of avulsion was applicable, that the land in question was in Nebraska, that the Nebraska courts therefore had jurisdiction of the subject matter of the litigation, and that title to the land was in the petitioners. Durfee v. Keiffer, 168 Neb. 272. The respondent did not petition this Court for a writ of certiorari to review that judgment.

Two months later the respondent filed a suit against the petitioners in a Missouri court to quiet title to the same land. Her complaint alleged that the land was in Missouri. The suit was removed to a Federal District Court by reason of diversity of citizenship. The District Court after hearing evidence expressed the view that the land was in Missouri but held that all the issues had been adjudicated and determined in the Nebraska litigation, and that the judgment of the Nebraska Supreme Court was res judicata and “is now binding upon this court.” The Court of Appeals reversed, holding that the District Court was not required to give full faith and credit to the Nebraska judgment, and that normal res judicata principles were not applicable because the controversy involved land and a court in Missouri was therefore free to retry the question of the Nebraska court’s jurisdiction over the subject matter. We granted certiorari to consider a question important to the administration of justice in our federal system. For the reasons that follow, we reverse the judgment before us.

The constitutional command of full faith and credit, as implemented by Congress, requires that “judicial proceedings … shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of such State … from which they are taken.” Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. “By the Constitutional provision for full faith and credit, the local doctrines of res judicata, speaking generally, become part of national jurisprudence, and therefore federal questions cognizable here.” Riley v. New York Trust Co.

It is not questioned that the Nebraska courts would give full res judicata effect to the Nebraska judgment quieting title in the petitioners. It is the respondent’s position, however, that whatever effect the Nebraska courts might give to the Nebraska judgment, the federal court in Missouri was free independently to determine whether the Nebraska court in fact had jurisdiction over the subject matter, i.e., whether the land in question was actually in Nebraska.

In support of this position the respondent relies upon the many decisions of this Court which have held that a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits—had jurisdiction, that is, to render the judgment. As Mr. Justice Bradley stated the doctrine in the leading case of Thompson v. Whitman, 18 Wall. 457, “we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.” The principle has been restated and applied in a variety of contexts.

However, while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court’s inquiry disclosed that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

With respect to questions of jurisdiction over the person,² this principle was unambiguously established in Baldwin v. Iowa State Traveling Men’s Assn. There it was held that a federal court in Iowa must give binding effect to the judgment of a federal court in Missouri despite the claim that the original court did not have jurisdiction over the defendant’s person, once it was shown to the court in Iowa that the question had been fully litigated in the Missouri forum. “Public policy,” said the Court, “dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.”

Following the Baldwin case, this Court soon made clear in a series of decisions that the general rule is no different when the claim is made that the original forum did not have jurisdiction over the subject matter. In each of these cases the claim was made that a court, when asked to enforce the judgment of another forum, was free to retry the question of that forum’s jurisdiction over the subject matter. In each case this Court held that since the question of subject-matter jurisdiction had been fully litigated in the original forum, the issue could not be retried in a subsequent action between the parties.

The reasons for such a rule are apparent. In the words of the Court’s opinion in Stoll v. Gottlieb, supra,

We see no reason why a court, in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation.… Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first.

To be sure, the general rule of finality of jurisdictional determinations is not without exceptions. Doctrines of federal pre-emption or sovereign immunity may in some contexts be controlling. Kalb v. Feuerstein [page 566 infra]; U.S. v. U.S. Fid. Co., 309 U.S. 506.³. But no such overriding considerations are present here.

It is argued that an exception to this rule of jurisdictional finality should be made with respect to cases involving real property because of this Court’s emphatic expression of the doctrine that courts of one State are completely without jurisdiction directly to affect title to land in other States. This argument is wide of the mark. Courts of one State are equally without jurisdiction to dissolve the marriages of those domiciled in other States. But the location of land, like the domicile of a party to a divorce action, is a matter “to be resolved by judicial determination.” Sherrer v. Sherrer. The question remains whether, once the matter has been fully litigated and judicially determined, it can be retried in another State in litigation between the same parties. Upon the reason and authority of the cases we have discussed, it is clear that the answer must be in the negative.

It is to be emphasized that all that was ultimately determined in the Nebraska litigation was title to the land in question as between the parties to the litigation there. Nothing there decided, and nothing that could be decided in litigation between the same parties or their privies in Missouri, could bind either Missouri or Nebraska with respect to any controversy they might have, now or in the future, as to the location of the boundary between them, or as to their respective sovereignty over the land in question. Either State may at any time protect its interest by initiating independent judicial proceedings here.

For the reasons stated, we hold in this case that the federal court in Missouri had the power and, upon proper averments, the duty to inquire into the jurisdiction of the Nebraska courts to render the decree quieting title to the land in the petitioners. We further hold that when that inquiry disclosed, as it did, that the jurisdictional issues had been fully and fairly litigated by the parties and finally determined in the Nebraska courts, the federal court in Missouri was correct in ruling that further inquiry was precluded. Accordingly the judgment of the Court of Appeals is reversed, and that of the District Court is affirmed.

Justice BLACK, concurring.

Petitioners and respondent dispute the ownership of a tract of land adjacent to the Missouri River, which is the boundary between Nebraska and Missouri. Resolution of this question turns on whether the land is in Nebraska or Missouri. Neither State, of course, has power to make a determination binding on the other as to which State the land is in. U.S. Const., Art. III, §2; 28 U.S.C. §1251(a). However, in a private action brought by these Nebraska petitioners, the Nebraska Supreme Court has held that the disputed tract is in Nebraska. In the present suit, brought by this Missouri respondent in Missouri, the United States Court of Appeals has refused to be bound by the Nebraska court’s judgment. I concur in today’s reversal of the Court of Appeals’ judgment, but with the understanding that we are not deciding the question whether the respondent would continue to be bound by the Nebraska judgment should it later be authoritatively decided, either in an original proceeding between the States in this Court or by a compact between the two States under Art. I, §10, that the disputed tract is in Missouri.

Fall v. Eastin

215 U.S. 1 (1909)

Justice MCKENNA delivered the opinion of the court.

The question in this case is whether a deed to land situated in Nebraska, made by a commissioner under the decree of a court of the State of Washington in an action for divorce, must be recognized in Nebraska under the due faith and credit clause of the Constitution of the United States.

[Plaintiff filed suit in Nebraska state court, seeking to quiet title to Nebraska land and to cancel a deed and mortgage that interfered with her property rights. The land was acquired by plaintiff and her then husband, E.W. Fall, during the marriage. The couple eventually moved to Washington State, and separated in January, 1895. In February, 1895, her husband brought suit against her for divorce in Washington State court. He sought both a decree of divorce and title to the Nebraska property. Plaintiff contested the divorce action, and, in the alternative, sought a decree awarding her the Nebraska property, subject to an existing mortgage of $1000. The Washington State court granted the divorce, and, pursuant to a state statute directing divorce courts to divide the marital property in a just and equitable fashion, ordered E.W. Fall to “convey all his right, title and interest in and to the land within five days from the date of the decree.” Instead, E.W. Fall conveyed his deed to defendant Elizabeth Eastin and executed and recorded the mortgage. The Washington State commissioner executed a separate deed to plaintiff. Plaintiff sought from the Nebraska court a decree that she owns the property and a declaration that the original deed and mortgage are null and void.]

The question is in narrow compass. The full faith and credit clause of the Constitution of the United States is invoked by plaintiff to sustain the deed executed under the decree of the court of the State of Washington. The argument in support of this is that the Washington court, having had jurisdiction of the parties and the subject-matter, in determination of the equities between the parties to the lands in controversy, decreed a conveyance to be made to her. This conveyance, it is contended, was decreed upon equities, and was as effectual as though her “husband and she had been strangers and she had bought the land from him and paid for it and he had then refused to convey it to her.” In other words, that the decree of divorce in the State of Washington, which was made in consummation of equities which arose between the parties under the law of Washington, was “evidence of her right to the legal title of at least as much weight and value as a contract in writing, reciting the payment of the consideration for the land, would be.”

The defendant, on the other hand, contends … that “the Washington court had neither power nor jurisdiction to effect in the least, either legally or equitably,” lands situated in Nebraska.…

In considering these propositions we must start with a concession of jurisdiction in the Washington court over both the parties and the subject-matter. Jurisdiction in that court is the first essential, but the ultimate question is, What is the effect of the decree upon the land and of the deed executed under it? …

The territorial limitation of the jurisdiction of courts of a State over property in another State has a limited exception in the jurisdiction of a court of equity, but it is an exception well defined. A court of equity having authority to act upon the person may indirectly act upon real estate in another State, through the instrumentality of this authority over the person. Whatever it may do through the party it may do to give effect to its decree respecting property, whether it goes to the entire disposition of it or only to affect it with liens or burdens. Story on Conflict of Laws §544.…

But, however plausibly the contrary view may be sustained, we think that the doctrine that the court, not having jurisdiction of the res, cannot affect it by its decree, nor by a deed made by a master in accordance with the decree, is firmly established. [W]hen the subject-matter of a suit in a court of equity is within another State or country, but the parties within the jurisdiction of the court, the suit may be maintained and remedies granted which may directly affect and operate upon the person of the defendant and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from certain acts toward it, and it is thus ultimately but indirectly affected by the relief granted. In such case the decree is not of itself legal title, nor does it transfer the legal title. It must be executed by the party, and obedience is compelled by proceedings in the nature of contempt, attachment or sequestration. On the other hand, where the suit is strictly local, the subject-matter is specific property, and the relief when granted is such that it must act directly upon the subject-matter, and not upon the person of the defendant, the jurisdiction must be exercised in the State where the subject matter is situated. 3 Pomeroy’s Equity, §§1317, 1318, and notes.

This doctrine is entirely consistent with the provision of the Constitution of the United States, which requires a judgment in any State to be given full faith and credit in the courts of every other State. This provision does not extend the jurisdiction of the courts of one State to property situated in another, but only makes the judgment rendered conclusive on the merits of the claim or subject-matter of the suit. “It does not carry with it into another State the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another State it must become a judgment there; and can only be executed in the latter as its laws permit.” M’Elmoyle v. Cohen, 13 Pet. 312.

Plaintiff seems to contend for a greater efficacy for a decree in equity affecting real property than is given to a judgment at law for the recovery of money simply.…

… There is, however, much temptation in the facts of this case to [grant effect to the Washington decree and conveyance]. As we have seen, the husband of the plaintiff brought suit against her in Washington for divorce, and, attempting to avail himself of the laws of Washington, prayed also that the land now in controversy be awarded to him. She appeared in the action, and, submitting to the jurisdiction which he had invoked, made counter-charges and prayers for relief. She established her charges, she was granted a divorce, and the land decreed to her. He, then, to defeat the decree and in fraud of her rights, conveyed the land to the defendant in this suit. This is the finding of the trial court. It is not questioned by the Supreme Court, but as the ruling of the latter court, that the decree in Washington gave no such equities as could be recognized in Nebraska as justifying an action to quiet title does not offend the Constitution of the United States, we are constrained to affirm its judgment.

Justice HARLAN and Justice BREWER dissent.

Justice HOLMES, concurring specially. I am not prepared to dissent from the judgment of the court, but my reasons are different from those that have been stated.

The real question concerns the effect of the Washington decree. As between the parties to it that decree established in Washington a personal obligation of the husband to convey to his former wife. A personal obligation goes with the person. If the husband had made a contract, valid by the law of Washington, to do the same thing, I think there is no doubt that the contract would have been binding in Nebraska. So I conceive that a Washington decree for the specific performance of such a contract would be entitled to full faith and credit as between the parties in Nebraska. But it does not matter to its constitutional effect what the ground of the decree may be, whether a contract or something else. Fauntleroy v. Lum. (In this case it may have been that the wife contributed equally to the accumulation of the property, and so had an equitable claim.) A personal decree is equally within the jurisdiction of a court having the person within its power, whatever its ground and whatever it orders the defendant to do. Therefore I think that this decree was entitled to full faith and credit in Nebraska.

But the Nebraska court carefully avoids saying that the decree would not be binding between the original parties had the husband been before the court. The ground on which it goes is that to allow the judgment to affect the conscience of purchasers would be giving it an effect in rem. It treats the case as standing on the same footing as that of an innocent purchaser. Now if the court saw fit to deny the effect of a judgment upon privies in title, or if it considered the defendant an innocent purchaser, I do not see what we have to do with its decision, however wrong. I do not see why it is not within the power of the State to do away with equity or with the equitable doctrine as to purchasers with notice if it sees fit. Still less do I see how a mistake as to notice could give us jurisdiction. If the judgment binds the defendant it is not by its own operation, even with the Constitution behind it, but by the obligation imposed by equity upon a purchaser with notice. The ground of decision below was that there was no such obligation. The decision, even if wrong, did not deny to the Washington decree its full effect.

Questions and Comments

(1) Is Fall v. Eastin consistent with Durfee v. Duke? Does Durfee overrule Fall? Or is the difference that in Fall it was agreed that the land at issue was outside the forum, whereas in Durfee that was precisely the subject of the dispute?

(2) Several different interpretations of Fall are possible. The most immediately obvious is simply that a judgment rendered without jurisdiction is void and can be collaterally attacked elsewhere. In the alternative, Fall might mean that states have such a strong substantive interest in land within their borders that no other state can interfere. Or, possibly Fall hinges on the special nature of the system for recording interests in land; that although the rendering state might transfer a legal right to the property, this right would not become effective against third parties until properly recorded at the situs.

Which of these rationales best explains Fall? Which makes it the most consistent with Durfee? Note that if the judgment were a judgment for money or personal property, the prevailing party would still have to seek execution in the place where the property was located. Which state’s laws would apply on the issue of the proper method of execution? Does the rendering state exceed its authority if it tries to execute the judgment directly? Does it infringe on the substantive interests of the state where the property was located? Does it infringe on the situs’s interests in controlling the procedures by which judgments are enforced?

(3) Reception of the “land taboo” has not been warm among the commentators. See, e.g., Baxter, Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 15-17 (1963); Hancock, Equitable Conversion and the Land Taboo in the Conflict of Laws, 17 Stan. L. Rev. 1095 (1965), also Full Faith and Credit to Foreign Laws and Judgments in Real Property Litigation, 18 Stan. L. Rev. 1299 (1966), and Conceptual Devices for Avoiding the Land Taboo in Conflict of Laws, 20 Stan. L. Rev. 1 (1967); and Currie, Full Faith and Credit to Foreign Land Decrees, 21 U. Chi. L. Rev. 620 (1954). Currie suggests a number of end runs, including a careful arranging of the relief requested in the original action, with a request in the second court for a decree awarding title, the first decree to act as res judicata or to provide collateral estoppel effect.

(4) What was the nature of the action brought by the Nebraska plaintiff in Durfee? If you were the Nebraska plaintiff, would you be satisfied that you had completely “won” your case in light of Justice Black’s concurring opinion? Is there any justification for suggesting, as Justice Black does, that a subsequent decision that the land was not in Nebraska should undercut the authority of the Nebraska judgment? Doesn’t Durfee stand for the proposition that the land was in Nebraska, for purposes of this litigation, and that that fact can’t be reexamined?

If the two states had previously litigated the question of sovereignty over the land in the Supreme Court, would the Court’s determination of the issue be binding by way of res judicata, or merely by way of stare decisis? Would it matter? What if the states had agreed that one of them owned the land, without litigating the issue, before the private litigation in Durfee (but after the dispute had arisen). Should such an agreement affect the private litigation? Would it make any difference if it appeared that the agreement had been a compromise, with several parcels of land involved?

(5) What would have happened if the Court in Durfee had come out the other way—that is, if it had granted the Missouri federal district court the right to determine, on its own, whether the Nebraska court correctly concluded that the land was in Nebraska? The federal marshal from Missouri and the sheriff from Nebraska could end up with inconsistent marching orders. Didn’t the Supreme Court have to decide Durfee the way it did?

(6) Does Durfee guarantee that there won’t be any shoot-outs between the sheriff and the marshal? What if the Missouri party had not appeared in the Nebraska proceedings, but the Nebraska court had claimed subject matter jurisdiction over the dispute by virtue of the land’s presence within the state, and in rem jurisdiction for the same reason, thus binding all parties? Isn’t that consistent with Shaffer, page 489 supra? Would Durfee make the Nebraska judgment binding under such circumstances? If not, and if the Nebraska party refuses to appear in a Missouri proceeding with jurisdiction based on the presence of the land in Missouri, who will keep the peace when sheriffs from the respective states show up to enforce the orders of their courts?

Kalb v. Feuerstein

308 U.S. 433 (1940)

Justice BLACK delivered the opinion of the Court.

Appellants are farmers. Two of appellees, as mortgagees, began foreclosure on appellants’ farm March 7, 1933, in the Walworth (Wisconsin) County Court: judgment of foreclosure was entered April 21, 1933; July 20, 1935, the sheriff sold the property under the judgment; September 16, 1935, while appellant Ernest Newton Kalb had duly pending in the bankruptcy court a petition for composition and extension of time to pay his debts under §75 of the Bankruptcy Act (Frazier-Lemke Act), the Walworth County Court granted the mortgagees’ motion for confirmation of the sheriff’s sale; no stay of the foreclosure or of the subsequent action to enforce it was ever sought or granted in the state or bankruptcy court; December 16, 1935, the mortgagees, who had purchased at the sheriff’s sale, obtained a writ of assistance from the state court; and March 12, 1936, the sheriff executed the writ by ejecting appellants and their family from the mortgaged farm.

The questions in both No. 120 and No. 121 are whether the Wisconsin County Court had jurisdiction, while the petition under the Frazier-Lemke Act was pending in the bankruptcy court, to confirm the sheriff’s sale and to order appellants dispossessed, and, if it did not, whether its action in the absence of direct appeal is subject to collateral attack.

No. 120. After ejection from their farm, appellants brought an action in equity in the Circuit Court of Walworth County, Wisconsin, against the mortgagees who had purchased at the sheriff’s sale, for restoration of possession, for cancellation of the sheriff’s deed and for removal of the mortgagees from the farm. Demurrer was sustained for failure to state a cause of action and the complaint was dismissed. The Supreme Court of Wisconsin affirmed.

No. 121 is a suit in the state court by appellant Ernest Newton Kalb against the mortgagees, the sheriff and the County Court judge who confirmed the foreclosure sale and issued the writ of assistance. Damages are sought for conspiracy to deprive appellant of possession, for assault and battery, and for false imprisonment. As in No. 120, demurrer was sustained, and the Supreme Court of Wisconsin affirmed.

In its first opinion the Supreme Court of Wisconsin said: “It is the contention of the plaintiff [mortgagor] that this statute is self-executing—that is, that it requires no application to the state or federal court in which foreclosure proceedings are pending for a stay; in other words, that it provides for a statutory and not for a judicial stay. Plaintiff’s claims under the Bankruptcy Act present a question which clearly arises under the laws of the United States and therefore present a federal question upon which determination of the federal courts is controlling.” Addressing itself solely to this federal question of construing the Frazier-Lemke Act, the Wisconsin court decided that the federal Act did not itself as an automatic statutory stay terminate the state court’s jurisdiction when the farmer filed his petition in the bankruptcy court. Since there had been no judicial stay, it held that the confirmation of sale and writ of assistance were not in violation of the Act.…

[I]f appellants are right in their contention that the federal Act of itself, from the moment the petition was filed and so long as it remained pending, operated, in the absence of the bankruptcy court’s consent, to oust the jurisdiction of the state court so as to stay its power to proceed with foreclosure, to confirm a sale, and to issue an order ejecting appellants from their farm, the action of the Walworth County Court was not merely erroneous but was beyond its power, void, and subject to collateral attack.

It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally. Although the Walworth County Court had general jurisdiction over foreclosures under the law of Wisconsin, a peremptory prohibition by Congress in the exercise of its supreme power over bankruptcy that no state court have jurisdiction over a petitioning farmer-debtor or his property, would have rendered the confirmation of sale and its enforcement beyond the County Court’s power and nullities subject to collateral attack. The State cannot, in the exercise of control over local laws and practice, vest state courts with power to violate the supreme law of the land. The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit the jurisdiction which courts, state or federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law. If Congress has vested in the bankruptcy courts exclusive jurisdiction over farmer-debtors and their property, and has by its Act withdrawn from all other courts all power under any circumstances to maintain and enforce foreclosure proceedings against them, its Act is the supreme law of the land which all courts—state and federal—must observe. The wisdom and desirability of an automatic statutory ouster of jurisdiction of all except bankruptcy courts over farmer-debtors and their property were considerations for Congress alone.

We think the language and broad policy of the Frazier-Lemke Act conclusively demonstrate that Congress intended to, and did deprive the Wisconsin County Court of the power and jurisdiction to continue or maintain in any manner the foreclosure proceedings against appellants without the consent after hearing of the bankruptcy court in which the farmer’s petition was then pending.…

Thus Congress repeatedly stated its unequivocal purpose to prohibit—in the absence of consent by the bankruptcy court in which a distressed farmer has a pending petition—a mortgagee or any court from instituting, or maintaining if already instituted, any proceeding against the farmer to sell under mortgage foreclosure, to confirm such a sale, or to dispossess under it.…

The mortgagees who sought to enforce the mortgage after the petition was duly filed in the bankruptcy court, the Walworth County Court that attempted to grant the mortgagees relief, and the sheriff who enforced the court’s judgment, were all acting in violation of the controlling Act of Congress. Because that state court had been deprived of all jurisdiction or power to proceed with the foreclosure, the confirmation of the sale, the execution of the sheriff’s deed, the writ of assistance, and the ejection of appellants from their property—to the extent based upon the court’s actions—were all without authority of law. Individual responsibility for such unlawful acts must be decided according to the law of the State. We therefore express no opinion as to other contentions based upon state law and raised by appellees in support of the judgments of the Supreme Court of Wisconsin.

Congress manifested its intention that the issue of jurisdiction in the foreclosing court need not be contested or even raised by the distressed farmer-debtor. The protection of the farmers was left to the farmers themselves or to the Commissioners who might be laymen, and considerations as to whether the issue of jurisdiction was actually contested in the County Court,¹⁸. or whether it could have been contested,¹⁹. are not applicable where the plenary power of Congress over bankruptcy has been exercised as in this Act.

The judgments in both cases are reversed and the causes are remanded to the Supreme Court of Wisconsin for further proceedings not inconsistent with this opinion.

Questions and Comments

(1) It is clear, isn’t it, that Congress had the right to do what the Court claimed it did in Kalb, since the federal courts are not bound by the full faith and credit clause, and in any event, the full faith and credit clause provides for congressional implementation?

(2) But that leaves the question whether Congress actually had the intent attributed to it by the Court. The legislation in question was the result of the Depression. Congress may have been especially solicitous of farmers. But where is the affirmative indication that it wished to go so far? Isn’t the Court’s verbiage about voidness and nullities a smoke screen to avoid discussion of the central issue; that is, what was the intent of Congress on this particular issue? Why would Congress want to give someone the protection of a statutory defense he didn’t even raise if, as in Chicot, a defense of unconstitutionality cannot be so used even when raising it would have seemed futile (because the statute had not yet been declared unconstitutional)?

(3) More recently, the Supreme Court has been reluctant to infer congressional intent not to abide by res judicata or collateral estoppel. Thus, in Allen v. McCurry, 449 U.S. 90 (1980), the Court held that a civil rights claim brought under 28 U.S.C. §1983, alleging an illegal search and seizure, was barred by an earlier state court ruling in a criminal prosecution that the search and seizure had been legal. And in Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), the Court ruled that full faith and credit was due to findings of nondiscrimination made by a state administrative agency and reviewed by state courts, thus barring a subsequent Title VII action in the federal courts.

(4) How true is it, as a general matter, that a jurisdictional defect renders a judgment subject to collateral attack? In Thompson v. Whitman, 85 U.S. 457 (1873), the Supreme Court held that lack of subject matter jurisdiction in one proceeding could allow a collateral attack in a later proceeding. There a ship had been seized in New Jersey waters under a statute that provided for seizure of ships operated by nonresidents raking clams in New Jersey waters. The statute provided for proceedings in the county of seizure to sell the ship. After Whitman’s ship had been seized and he had been given notice of the pending forfeiture proceedings, his ship was sold. He then sued the sheriff in a New York state court. The action was removed to federal court by the sheriff, who interposed the defense of the previous adjudication. The jury found that the seizure had not occurred in the county in which the New Jersey proceedings took place, and that the ship operators had not been raking clams. The Supreme Court denied the sheriff’s demand that the New Jersey proceedings be taken as conclusive on those two issues because they went to the jurisdiction of the New Jersey tribunal.

(5) Does a lack of Article III “case or controversy” jurisdiction render a judgment subject to attack? United States v. Swift and Co., 276 U.S. 311 (1928). What about lack of diversity of citizenship? McCormick v. Sullivan, 23 U.S. (10 Wheat.) 192 (1825).

(6) What if the party seeking to attack the jurisdiction of the first tribunal appeared in the original proceedings but failed to argue the jurisdictional issue, and the court consequently did not decide it? In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940), the opportunity to raise a jurisdictional issue was held sufficient to foreclose it later, even though the issue was in fact not raised.

(7) If the defendant objects to personal jurisdiction and fails to persuade the court, then this determination is binding even if some later court believes that there was in fact no personal jurisdiction. Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522 (1931). Most jurisdictions offer the device of the special appearance or its equivalent, to raise jurisdictional issues. One who appears generally is said to have acceded to the court’s jurisdiction; one who appears specially raises only the jurisdictional issue as a preliminary matter. If she wins on that issue, the case is dismissed; if she loses, she has the option of arguing the merits or appealing on the basis of the court’s jurisdictional decision. There are dangers, of course, in relying too strongly on the jurisdictional appeal—if it fails, one will have waived the defense on the merits. In the federal courts and states with similar rules, special appearances are unnecessary—the equivalent is provided for by the opportunity to make motions based on jurisdictional questions and provisions that jurisdictional issues are not waived by pleading to the merits if jurisdictional objections are also timely raised. See Federal Rules of Civil Procedure 12 and 13.

Should a state be required to offer the equivalent of the special appearance? In other words, should a state be allowed to give a litigant the choice between appearing and thereby waiving jurisdictional defenses, or staying away, with the danger that a later court will disagree with the jurisdiction defense and give effect to the default judgment rendered by the first court? In York v. Texas, 137 U.S. 15 (1890), the Supreme Court said Texas could pose that hard choice to litigants who believed that the Texas courts had no personal jurisdiction over them. The availability of collateral attack was said to be enough to satisfy due process. Texas amended its court rules in 1962 to allow special appearances. Texas Rule of Civil Procedure 120a.

B.   Substantive Interests of the Enforcing State

Fauntleroy v. Lum

210 U.S. 230 (1908)

Justice HOLMES delivered the opinion of the court.

This is an action upon a Missouri judgment brought in a court of Mississippi.… The defendant pleaded that the original cause of action arose in Mississippi out of a gambling transaction in cotton futures; that he declined to pay the loss; that the controversy was submitted to arbitration, the question as to the illegality of the transaction, however, not being included in the submission; that an award was rendered against the defendant; that thereafter, finding the defendant temporarily in Missouri, the plaintiff brought suit there upon the award; that the trial court refused to allow the defendant to show the nature of the transaction, and that by the laws of Mississippi the same was illegal and void, but directed a verdict if the jury should find that the submission and award were made, and remained unpaid; and that a verdict was rendered and the judgment in suit entered upon the same. (The plaintiff in error is an assignee of the judgment, but nothing turns upon that.) The plea was demurred to on constitutional grounds, and the demurrer was overruled subject to exception. Thereupon replications were filed, again setting up the Constitution of the United States (Art. IV, §1), and were demurred to. The Supreme Court of Mississippi held the plea good and the replications bad, and judgment was entered for the defendant. Thereupon the case was brought here.

The main argument urged by the defendant to sustain the judgment below is addressed to the jurisdiction of the Mississippi courts.

The laws of Mississippi make dealing in futures a misdemeanor, and provide that contracts of that sort, made without intent to deliver the commodity or to pay the price, “shall not be enforced by any court.” The defendant contends that this language deprives the Mississippi courts of jurisdiction, and that the case is like Anglo-American Provision Co. v. Davis Provision Co. No. 1. There the New York statutes refused to provide a court into which a foreign corporation could come, except upon causes of action arising within the State, etc., and it was held that the State of New York was under no constitutional obligation to give jurisdiction to its Supreme Court against its will. One question is whether that decision is in point.

No doubt it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits, but the distinction between the two is plain. One goes to the power, the other only to the duty of the court. Under the common law it is the duty of a court of general jurisdiction not to enter a judgment upon a parol promise made without consideration; but it has power to do it, and, if it does, the judgment is unimpeachable, unless reversed. Yet a statute could be framed that would make the power, that is, the jurisdiction of the court dependent upon whether there was a consideration or not. Whether a given statute is intended simply to establish a rule of substantive law, and thus to define the duty of the court, or is meant to limit its power, is a question of construction and common sense. When it affects a court of general jurisdiction and deals with a matter upon which that court must pass, we naturally are slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than to fix the rule by which the court should decide.

The case quoted concerned a statute plainly dealing with the authority and jurisdiction of the New York court. The statute now before us seems to us only to lay down a rule of decision. The Mississippi court in which this action was brought is a court of general jurisdiction and would have to decide upon the validity of the bar, if the suit upon the award or upon the original cause of action had been brought there. The words “shall not be enforced by any court” are simply another, possibly less emphatic, way of saying that an action shall not be brought to enforce such contracts. As suggested by the counsel for the plaintiff in error, no one would say that the words of the Mississippi statute of frauds, “An action shall not be brought whereby to charge a defendant,” go to the jurisdiction of the court. Of course it could be argued that logically they had that scope, but common sense would revolt.… We regard this question as open under the decisions below, and we have expressed our opinion upon it independent of the effect of the judgment, although it might be that, even if jurisdiction of the original cause of action was withdrawn, it remained with regard to a suit upon a judgment based upon an award, whether the judgment or award was conclusive or not. But it might be held that the law as to jurisdiction in one case followed the law in the other, and therefore we proceed at once to the further question, whether the illegality of the original cause of action in Mississippi can be relied upon there as a ground for denying a recovery upon a judgment of another State.

The doctrine laid down by Chief Justice Marshall was “that the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the State where it was pronounced, and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other court of the United States.” There is no doubt that this quotation was supposed to be an accurate statement of the law as late as Christmas v. Russell, where an attempt of Mississippi, by statute, to go behind judgments recovered in other States was declared void, and it was held that such judgments could not be impeached even for fraud.…

We assume that the statement of Chief Justice Marshall is correct. It is confirmed by the Act of May 26, 1790, c. 11, 1 Stat. 122 (Rev. Stat. §905), providing that the said records and judicial proceedings “shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.” Whether the award would or would not have been conclusive, and whether the ruling of the Missouri court upon that matter was right or wrong, there can be no question that the judgment was conclusive in Missouri on the validity of the cause of action. A judgment is conclusive as to all the media concludendi, and it needs no authority to show that it cannot be impeached either in or out of the State by showing that it was based upon a mistake of law. Of course a want of jurisdiction over either the person or the subject-matter might be shown. But as the jurisdiction of the Missouri court is not open to dispute the judgment cannot be impeached in Mississippi even if it went upon a misapprehension of the Mississippi law.

We feel no apprehensions that painful or humiliating consequences will follow upon our decision. No court would give judgment for a plaintiff unless it believed that the facts were a cause of action by the law determining their effect. Mistakes will be rare. In this case the Missouri court no doubt supposed that the award was binding by the law of Mississippi. If it was mistaken it made a natural mistake. The validity of its judgment, even in Mississippi, is, as we believe, the result of the Constitution as it always has been understood, and is not a matter to arouse the susceptibilities of the States, all of which are equally concerned in the question and equally on both sides.

Judgment reversed.

Justice WHITE, with whom concurred Justice HARLAN, Justice MCKENNA and Justice DAY, dissenting.

… This court now reverses on the ground that the due faith and credit clause obliged the courts of Mississippi, in consequence of the action of the Missouri court, to give efficacy to transactions in Mississippi which were criminal, and which were against the public policy of that State. Although not wishing in the slightest degree to weaken the operation of the due faith and credit clause as interpreted and applied from the beginning, it to me seems that this ruling so enlarges that clause as to cause it to obliterate all state lines, since the effect will be to endow each State with authority to overthrow the public policy and criminal statutes of the others, thereby depriving all of their lawful authority. Moreover, the ruling now made, in my opinion, is contrary to the conceptions which caused the due faith and credit clause to be placed in the Constitution, and substantially overrules the previous decisions of this court interpreting that clause. My purpose is to briefly state the reasons which lead me to these conclusions.…

When the Constitution was adopted the principles of comity by which the decrees of the courts of one State were entitled to be enforced in another were generally known, but the enforcement of those principles by the several States had no absolute sanction, since they rested but in comity. Now it cannot be denied that under the rules of comity recognized at the time of the adoption of the Constitution, and which at this time universally prevail, no sovereignty was or is under the slightest moral obligation to give effect to a judgment of a court of another sovereignty, when to do so would compel the State in which the judgment was sought to be executed to enforce an illegal and prohibited contract, when both the contract and all the acts done in connection with its performance had taken place in the latter State. This seems to me conclusive of this case, since both in treatises of authoritative writers (Story, Conflict of Law §609), and by repeated adjudications of this court it has been settled that the purpose of the due faith and credit clause was not to confer any new power, but simply to make obligatory that duty which, when the Constitution was adopted rested, as has been said, in comity alone.…

No special reference has been made by me to the arbitration, because that is assumed by me to be negligible. If the cause of action was open for inquiry for the purpose of deciding whether the Missouri court had jurisdiction to render a judgment entitled to be enforced in another State, the arbitration is of no consequence. The violation of law in Mississippi could not be cured by seeking to arbitrate in that State in order to fix the sum of the fruits of the illegal acts. The ancient maxims that something cannot be made out of nothing, and that which is void for reasons of public policy cannot be made valid by confirmation or acquiescence, seem to my mind decisive.

I therefore dissent.

Questions and Comments

(1) Would there be any harm in limiting full faith and credit to judgments that themselves were not based on unconstitutional denial of full faith and credit to the laws of another state? That is what Missouri did, isn’t it, when it failed to apply Mississippi law on the illegality of these contracts, with no apparent connection between the case and Missouri? How about refusing full faith and credit whenever both of two factors are present: (a) denial of full faith and credit in arriving at the first judgment; and (b) violation of the criminal laws of the interested jurisdiction? Would that disrupt any rational scheme of federalism?

(2) Section 103 of the Restatement Second says:

A judgment rendered in one State of the United States need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State.

The comment warns that the section has “an extremely narrow scope of application.” It concedes, almost as an afterthought, that “[t]he Supreme Court of the United States has the final voice in determining what exceptions there are to full faith and credit, and the nature of these exceptions.” The only case cited in the comment that failed to recognize a sister-state judgment is Williams v. North Carolina, 325 U.S. 226 (1945). Williams came to the conclusion that a state could reexamine the supposed domicile of one party to ex parte divorce proceedings to see if the rendering court actually had jurisdiction (which is based upon domicile in divorce proceedings). Does that sound like an application of the principle set out above? The Reporter’s Note cites a few other cases offering borderline support, including several concurring or dissenting opinions. Professor Ehrenzweig, in The Second Conflicts Restatement: A Last Appeal for Its Withdrawal, 113 U. Pa. L. Rev. 1230, 1240 (1965), stated that there was “no authority whatsoever” for §103.

(3) The penal exception: In Huntington v. Attrill, 146 U.S. 657 (1892), the Supreme Court stated that one state need not enforce the “penal” claims of another, even if they were embodied in a judgment. Recall the discussion of that case in Paper Products Co. v. Doggrell, page 160 supra. Whether a law is penal “depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by a wrongful act.” 146 U.S. at 657. Compare Heath v. Alabama, 474 U.S. 82 (1985), holding that the double jeopardy clause does not preclude a second prosecution in a second state. Does Heath suggest that the second state need not respect the criminal judgments of the first?

(4) Can a court order be penal? In Settle v. Settle, 550 P.2d 445 (Or. Ct. App. 1976), the court, in dictum, indicated that a foreign decree would be considered punitive “only if it is clear that the court awarded or changed [child] custody because it was insulted by one parent disregarding its authority.” 550 P.2d at 447. The mother had argued that an Indiana court had taken custody from her because she had left the state with the children, contrary to court order. The Oregon court found, however, that the basis for the Indiana action was her lack of fitness.

In Holbein v. Rigot, 245 So. 2d 57 (Fla. 1971), the Florida Supreme Court ruled that the punitive-damages portion of a Texas judgment was not exempt from full faith and credit enforcement in Florida on the grounds that it was a penal claim. “[O]ur holding is that plaintiff’s Texas suit insofar as it sought to recover punitive damages was based on common law liability arising from fraud to redress a private wrong inflicted on plaintiffs and did not purport to redress a public wrong predicated on a statute that is penal in the international sense which may not be enforced in the courts of other states.” Id. at 61. “[M]ay not be enforced”? Is it more important that a private wrong is being redressed, or that no statute is involved? And isn’t one purpose of punitive damages to discourage future activity of the same kind directed against others? Isn’t that an offense against the public justice?

(5) Milwaukee County v. M.E. White Co., 296 U.S. 268 (1935), laid to rest the old rule that one state does not have to enforce the tax judgments of another state. In light of that case, and International Shoe, might it make sense to deny enforcement to another state’s tax law, but honor its judgment, so that the dirty work of correctly interpreting state tax laws would fall on local courts?

Thomas v. Washington Gas Light Co.

448 U.S. 261 (1980)

Justice STEVENS announced the judgment of the Court and delivered an opinion in which Justice BRENNAN, Justice STEWART, and Justice BLACKMUN join.

Petitioner received an award of disability benefits under the Virginia Workmen’s Compensation Act. The question presented is whether the obligation of the District of Columbia to give full faith and credit to that award bars a supplemental award under the District’s Workmen’s Compensation Act.

[Petitioner, a District of Columbia resident, was hired by respondent in the District to perform work primarily in the District but also in Virginia and Maryland. In January 1971, he sustained a back injury while at work in Arlington, Va. Several weeks later the Virginia Industrial Commission approved the parties’ “Industrial Commission of Virginia Memorandum of Agreement as to Payment of Compensation” providing for benefits of $62 per week. The Commission issued an award directing that payments continue “during incapacity,” subject to various contingencies and changes set forth in the Virginia statute.]

In 1974, petitioner notified the Department of Labor of his intention to seek compensation under the District of Columbia Act. Respondent opposed the claim primarily on the ground that since, as a matter of Virginia law, the Virginia award excluded any other recovery “at common law or otherwise” on account of the injury in Virginia, the District of Columbia’s obligation to give that award full faith and credit precluded a second, supplemental award in the District.

The administrative law judge agreed with respondent that the Virginia award must be given res judicata effect in the District to the extent that it was res judicata in Virginia. He held, however, that the Virginia award, by its terms, did not preclude a further award of compensation in Virginia. Moreover, he construed the statutory prohibition against additional recovery “at common law or otherwise” as merely covering “common law and other remedies under Virginia law.” After the taking of medical evidence, petitioner was awarded permanent total disability benefits payable from the date of his injury with a credit for the amounts previously paid under the Virginia award.

The Benefits Review Board upheld the award. Its order, however, was reversed by the United States Court of Appeals for the Fourth Circuit, which squarely held that a “second and separate proceeding in another jurisdiction upon the same injury after a prior recovery in another State [is] precluded by the Full Faith and Credit Clause.” We granted certiorari and now reverse.

I

Respondent contends that the District of Columbia was without power to award petitioner additional compensation because of the Full Faith and Credit Clause of the Constitution or, more precisely, because of the federal statute implementing that Clause. An analysis of this contention must begin with two decisions from the 1940’s that are almost directly on point: Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, and Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622.

In Magnolia, a case relied on heavily both by respondent and the Court of Appeals, the employee hired a Louisiana worker in Louisiana. The employee was later injured during the course of his employment in Texas. A tenuous majority held that Louisiana was not permitted to award the injured worker supplementary compensation under the Louisiana Act after he had already obtained a recovery from the Texas Industrial Accident Board: “Respondent was free to pursue his remedy in either state but, having chosen to seek it in Texas, where the award was res judicata, the full faith and credit clause precludes him from again seeking a remedy in Louisiana upon the same grounds.”

Little more than three years later, the Court severely curtailed the impact of Magnolia. In McCartin, the employer and the worker both resided in Illinois and entered into an employment contract there for work to be performed in Wisconsin. The employee was injured in the course of that employment. He initially filed a claim with the Industrial Commission of Wisconsin. Prior to this Court’s decision in Magnolia, the Wisconsin Commission informed him that under Wisconsin law, he could proceed under the Illinois Workmen’s Compensation Act, and then claim compensation under the Wisconsin Act, with credit to be given for any payments made under the Illinois Act. Thereafter, the employer and the employee executed a contract for payment of a specific sum in full settlement of the employee’s right under Illinois law. The contract expressly provided, however, that it would “not affect any rights that applicant may have under the Workmen’s Compensation Act of the State of Wisconsin.” The employee then obtained a supplemental award from the Wisconsin Industrial Commission; but the Wisconsin state courts vacated it under felt compulsion of the intervening decision in Magnolia.

This Court reversed, holding without dissent that Magnolia was not controlling. Although the Court could have relied exclusively on the contract provision reserving the employee’s rights under Wisconsin law to distinguish the case from Magnolia, Justice Murphy’s opinion provided a significantly different ground for the Court’s holding when it said

the reservation spells out what we believe to be implicit in [the Illinois Workmen’s Compensation] Act—namely, that an award of the type here involved does not foreclose an additional award under the laws of another state. And in the setting of this case, that fact is of decisive significance.

Earlier in the opinion, the Court had stated that “[o]nly some unmistakable language by a state legislature or judiciary would warrant our accepting … a construction” that a workmen’s compensation statute “is designed to preclude any recovery by proceedings brought in another state.” The Illinois statute, which the Court held not to contain the “unmistakable language” required to preclude a supplemental award in Wisconsin, broadly provided:

No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this act.…

The Virginia Workmen’s Compensation Act’s exclusive remedy provision is not exactly the same as Illinois’[s]; but it contains no “unmistakable language” directed at precluding a supplemental compensation award in another State that was not also in the Illinois Act. Consequently, McCartin by its terms, rather than the earlier Magnolia decision, is controlling as between the two precedents. Nevertheless, the fact that we find ourselves comparing the language of two state statutes, neither of which has been construed by the highest court of either State, in an attempt to resolve an issue arising under the Full Faith and Credit Clause makes us pause to inquire whether there is a fundamental flaw in our analysis of this federal question.

II

We cannot fail to observe that, in the Court’s haste to retreat from Magnolia, it fashioned a rule that clashes with normally accepted full faith and credit principles. It has long been the law that “the judgment of a state court should have the same credit, validity, and effect, in every other court in the United States, which it had in the state where it was pronounced.” Hampton v. McConnel, 3 Wheat. 234, 235 (Marshall, C.J.). This rule, if not compelled by the Full Faith and Credit Clause itself, is surely required by 28 U.S.C. §1738, which provides that the

Acts, records and judicial proceedings … [of any State] shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of [the] State … from which they are taken.

Thus, in effect, by virtue of the full faith and credit obligations of the several States, a State is permitted to determine the extraterritorial effect of its judgment; but it may only do so indirectly, by prescribing the effect of its judgments within the State.

The McCartin rule, however, focusing as it does on the extraterritorial intent of the rendering State, is fundamentally different. It authorizes a State, by drafting or construing its legislation in “unmistakable language,” directly to determine the extraterritorial effect of its workmen’s compensation awards. An authorization to a state legislature of this character is inconsistent with the rule established in Pacific Employers Ins. Co. v. Industrial Accident Commission [discussed at page 302 supra]: “This Court must determine for itself how far the full faith and credit clause compels the qualification or denial of rights asserted under the laws of one state, that of the forum, by the statute of another state.” It follows inescapably that the McCartin “unmistakable language” rule represents an unwarranted delegation to the States of this Court’s responsibility for the final arbitration of full faith and credit questions. The Full Faith and Credit Clause “is one of the provisions incorporated into the Constitution by its framers from the purpose of transforming an aggregation of independent, sovereign States into a nation.” Sherrer v. Sherrer, 334 U.S. 343, 355. To vest the power of determining the extraterritorial effect of a State’s own laws and judgments in the State itself risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of the Full Faith and Credit Clause and other provisions of Art. IV of the Constitution to prevent. See Nevada v. Hall [supra page 351].

Thus, a re-examination of McCartin’s unmistakable language test reinforces our tentative conclusion that it does not provide an acceptable basis on which to distinguish Magnolia. But if we reject that test, we must decide whether to overrule either Magnolia or McCartin. In making this kind of decision, we must take into account both the practical values served by the doctrine of stare decisis and the principles that inform the Full Faith and Credit Clause.

III

The doctrine of stare decisis imposes a severe burden on the litigant who asks us to disavow one of our precedents. For that doctrine not only plays an important role in orderly adjudication; it also serves the broader societal interests in evenhanded, consistent, and predictable application of legal rules. When rights have been created or modified in reliance on established rules of law, the arguments against their change have special force.¹⁸

It is therefore appropriate to begin the inquiry by considering whether a rule that permits, or a rule that forecloses, successive workmen’s compensation awards is more consistent with settled practice. The answer to this question is pellucidly clear.

It should first be noted that Magnolia, by only the slimmest majority, effected a dramatic change in the law that had previously prevailed throughout the United States. Of greater importance is the fact that as a practical matter the “unmistakable language” rule of construction announced in McCartin left only the narrowest area in which Magnolia could have any further precedential value. For the exclusivity language in the Illinois Act construed in McCartin was typical of most state workmen’s compensation laws. Consequently, it was immediately recognized that Magnolia no longer had any significant practical impact. Moreover, since a state legislature seldom focuses on the extraterritorial effect of its enactments, and since a state court has even less occasion to consider whether an award under its State’s law is intended to preclude a supplemental award under another State’s workmen’s compensation act, the probability that any State would thereafter announce a new rule against supplemental awards in other States was extremely remote. As a matter of fact, subsequent cases in the state courts have overwhelmingly followed McCartin and permitted successive state workmen’s compensation awards. Thus, all that really remained of Magnolia after McCartin was a largely theoretical difference between what the Court described as “unmistakable language” and the broad language of the exclusive remedy provision in the Illinois Workmen’s Compensation Act involved in McCartin.

This history indicates that the principal values underlying the doctrine of stare decisis would not be served either by attempting to revive Magnolia or by attempting to preserve the uneasy coexistence of Magnolia and McCartin. The latter attempt could only breed uncertainty and unpredictability, since the application of the “unmistakable language” rule of McCartin necessarily depends on a determination by one state tribunal of the effect to be given to statutory language enacted by the legislature of a different State. And the former would represent a rather dramatic change that surely would not promote stability in the law. Moreover, since Magnolia has been so rarely followed, there appears to be little danger that there has been any significant reliance on its rule. We conclude that a fresh examination of the full faith and credit issue is therefore entirely appropriate.

IV

Three different state interests are affected by the potential conflict between Virginia and the District of Columbia. Virginia has a valid interest in placing a limit on the potential liability of companies that transact business within its borders. Both jurisdictions have a valid interest in the welfare of the injured employee—Virginia because the injury occurred within that State, and the District because the injured party was employed and resided there. And finally, Virginia has an interest in having the integrity of its formal determinations of contested issues respected by other sovereigns.

The conflict between the first two interests was resolved in Alaska Packers Association v. Industrial Accident Commission [discussed at page 302 supra], and a series of later cases. [The Court then discussed Alaska Packers, Pacific Employers, supra page 302, and Nevada v. Hall, supra, which establish the principle that states need not subordinate their interests to those of other states when choosing governing laws.]

It is thus perfectly clear that petitioner could have sought a compensation award in the first instance either in Virginia, the State in which the injury occurred, Pacific Employers, supra, or in the District of Columbia, where petitioner resided, his employer was principally located and the employment relation was formed, Alaska Packers, supra. And as those cases underscore, compensation could have been sought under either compensation scheme even if one statute or the other purported to confer an exclusive remedy on petitioner. Thus, for all practical purposes, respondent and its insurer would have had to measure their potential liability exposure by the more generous of the two workmen’s compensation schemes in any event. It follows that a State’s interest in limiting the potential liability of businesses within the State is not of controlling importance.

It is also manifest that the interest in providing adequate compensation to the injured worker would be fully served by the allowance of successive awards. In this respect the two jurisdictions share a common interest and there is no danger of significant conflict.

The ultimate issue, therefore, is whether Virginia’s interest in the integrity of its tribunal’s determinations forecloses a second proceeding to obtain a supplemental award in the District of Columbia. We return to the Court’s prior resolution of this question in Magnolia.

The majority opinion in Magnolia took the position that the case called for a straightforward application of full faith and credit law: the worker’s injury gave rise to a cause of action; relief was granted by the Texas Industrial Accident Board; that award precluded any further relief in Texas; and further relief was therefore precluded elsewhere as well. The majority relied heavily on Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, for the propositions that a workmen’s compensation award stands on the same footing as a court judgment, and that a compensation award under one State’s law is a bar to a second award under another State’s law.

But Schendel did not compel the result in Magnolia. In Schendel, the Court held that an Iowa state compensation award, which was grounded in a contested factual finding that the deceased railroad employee was engaged in intrastate commerce, precluded a subsequent claim under the Federal Employers’ Liability Act brought in the Minnesota state courts, which would have required a finding that the employee was engaged in interstate commerce. Schendel therefore involved the unexceptionable full faith and credit principle that resolutions of factual matters underlying a judgment must be given the same res judicata effect in the forum State as they have in the rendering State. See Durfee v. Duke. The Minnesota courts could not have granted relief under the FELA and also respected the factual finding made in Iowa.

In contrast, neither Magnolia nor this case concerns a second State’s contrary resolution of a factual matter determined in the first State’s proceedings. Unlike the situation in Schendel, which involved two mutually exclusive remedies, compensation could be obtained under either Virginia’s or the District’s workmen’s compensation statutes on the basis of the same set of facts. A supplemental award gives full effect to the facts determined by the first award and also allows full credit for payments pursuant to the earlier award. There is neither inconsistency nor double recovery.

We are also persuaded that Magnolia’s reliance on Schendel for the proposition that workmen’s compensation awards stand on the same footing as court judgments was unwarranted. To be sure, as we held in Schendel, the factfindings of state administrative tribunals are entitled to the same res judicata effect in the second State as findings by a court. But the critical differences between a court of general jurisdiction and an administrative agency with limited statutory authority forecloses the conclusion that constitutional rules applicable to court judgments are necessarily applicable to workmen’s compensation awards.

A final judgment entered by a court of general jurisdiction normally establishes not only the measure of the plaintiff’s rights but also limits of the defendant’s liability. A traditional application of res judicata principles enables either party to claim the benefit of the judgment insofar as it resolved issues the court has jurisdiction to decide. Although a Virginia court is free to recognize the perhaps paramount interests of another State by choosing to apply that State’s law in a particular case, the Industrial Commission of Virginia does not have that power. Its jurisdiction is limited to questions arising under the Virginia Workmen’s Compensation Act. Typically, a workmen’s compensation tribunal may only apply its own State’s law. In this case, the Virginia Commission could and did establish the full measure of petitioner’s rights under Virginia law, but it neither could nor purported to determine his rights under the law of the District of Columbia. Full faith and credit must be given to the determination that the Virginia Commission had the authority to make; but by a parity of reasoning, full faith and credit need not be given to determinations that it had no power to make. Since it was not requested, and had no authority, to pass on petitioner’s rights under District of Columbia law, there can be no constitutional objection to a fresh adjudication of those rights.

It is true, of course, that after Virginia entered its award, that State had an interest in preserving the integrity of what it had done. And it is squarely within the purpose of the Full Faith and Credit Clause, as explained in Pacific Employers, “to preserve rights acquired or confirmed under the public acts” of Virginia by requiring other States to recognize their validity. Thus, Virginia had an interest in having respondent pay petitioner the amounts specified in its award. Allowing a supplementary recovery in the District does not conflict with that interest.

As we have already noted, Virginia also has a separate interest in placing a ceiling on the potential liability of companies that transact business within the State. But past cases have established that that interest is not strong enough to prevent other States with overlapping jurisdiction over particular injuries from giving effect to their more generous compensation policies when the employee selects the most favorable forum in the first instance. Thus, the only situations in which the Magnolia rule would tend to serve that interest are those in which an injured workman has either been constrained by circumstances to seek relief in the less generous forum or has simply made an ill-advised choice of his first forum.

But in neither of those cases is there any reason to give extra weight to the first State’s interest in placing a ceiling on the employer’s liability than it otherwise would have had. For neither the first nor the second State has any overriding interest in requiring an injured employee to proceed with special caution when first asserting his claim. Compensation proceedings are often initiated informally, without the advice of counsel, and without special attention to the choice of the most appropriate forum. Often the worker is still hospitalized when benefits are sought as was true in this case. And indeed, it is not always the injured worker who institutes the claim. This informality is consistent with the interests of both States. A rule forbidding supplemental recoveries under more favorable workmen’s compensation schemes would require a far more formal and careful choice on the part of the injured worker than may be possible or desirable when immediate commencement of benefits may be essential.

Thus, whether or not the worker has sought an award from the less generous jurisdiction in the first instance, the vindication of that State’s interest in placing a ceiling on employers’ liability would inevitably impinge upon the substantial interests of the second jurisdiction in the welfare and subsistence of disabled workers—interests that a court of general jurisdiction might consider, but which must be ignored by the Virginia Industrial Commission. The reasons why the statutory policy of exclusivity of the other jurisdictions involved in Alaska Packers and Pacific Employers, supra, could not defeat California’s implementation of its own compensation policies therefore continue to apply even after the entry of a workmen’s compensation award.

Of course, it is for each State to formulate its own policy whether to grant supplemental awards according to its perception of its own interests. We simply conclude that the substantial interests of the second State in these circumstances should not be overridden by another State through an unnecessarily aggressive application of the Full Faith and Credit Clause, as was implicitly recognized at the time of McCartin.

We therefore would hold that a State has no legitimate interest within the context of our federal system in preventing another State from granting a supplemental compensation award when that second State would have had the power to apply its workmen’s compensation law in the first instance. The Full Faith and Credit Clause should not be construed to preclude successive workmen’s compensation awards. Accordingly, Magnolia Petroleum Co. v. Hunt should be overruled.

The judgment of the Court of Appeals is reversed.

Justice WHITE, with whom THE CHIEF JUSTICE and Justice POWELL join, concurring in the judgment.

I agree that the judgment of the Court of Appeals should be reversed, but I am unable to join in the reasoning by which the plurality reaches that result. Although the plurality argues strenuously that the rule of today’s decision is limited to awards by state workmen’s compensation boards, it seems to me that the underlying rationale goes much further. If the employer had exercised its statutory right of appeal to the Supreme Court of Virginia and that Court upheld the award, I presume that the plurality’s rationale would nevertheless permit a subsequent award in the District of Columbia. Otherwise, employers interested in cutting off the possibility of a subsequent award in another jurisdiction need only seek judicial review of the award in the first forum. But if such a judicial decision is not preclusive in the second forum, then it appears that the plurality’s rationale is not limited in its effect to judgments of administrative tribunals.

The plurality contends that unlike courts of general jurisdiction, workmen’s compensation tribunals generally have no power to apply the law of another State and thus cannot determine the rights of the parties thereunder. Yet I see no reason why a judgment should not be entitled to full res judicata effect under the Full Faith and Credit Clause merely because the rendering tribunal was obligated to apply the law of the forum—provided, of course, as was certainly the case here, that the forum could constitutionally apply its law. The plurality’s analysis seems to grant state legislatures the power to delimit the scope of a cause of action for federal full faith and credit purposes merely by enacting choice of law rules binding on the State’s workmen’s compensation tribunals. The plurality criticizes the McCartin case for vesting in the State the power to determine the extraterritorial effect of its own laws and judgments; yet it seems that its opinion is subject to the same objection. In any event, I am not convinced that Virginia, by instructing its industrial commission to apply Virginia law, could be said to have intended that the cause of action which merges in the Virginia judgment would not include claims under the laws of other States which arise out of precisely the same operative facts.

As a matter of logic, the plurality’s analysis would seemingly apply to many everyday tort actions. I see no difference for full faith and credit purposes between a statute which lays down a forum-favoring choice of law rule and a common-law doctrine stating the same principle. Hence when a court, having power in the abstract to apply the law of another State, determines by application of the forum’s choice of law rules to apply the substantive law of the forum, I would think that under the plurality’s analysis the judgment would not determine rights arising under the law of some other State. Suppose, for example, that in a wrongful death action the court enters judgment on liability against the defendant, and determines to apply the law of the forum which sets a limit on the recovery allowed. The plurality’s analysis would seem to permit the plaintiff to obtain a subsequent judgment in a second forum for damages exceeding the first forum’s liability limit.

The plurality does say that factual determinations by a workmen’s compensation board will be entitled to collateral estoppel effect in a second forum. While this rule does, to an extent, circumscribe the broadest possible implications of the plurality’s reasoning, there would remain many cases, such as the wrongful death example discussed above, in which the second forum could provide additional recovery as a matter of substantive law while remaining true to the first forum’s factual determinations. Moreover, the dispositive issues in tort actions are frequently mixed questions of law and fact as to which the second forum might apply its own rule of decision without obvious violation of the principles articulated by four Members of the Court. Actions by the defendant which satisfy the relevant standard of care in the first forum might nevertheless be considered “negligent” under the law of the second forum.

Hence the plurality’s rationale would portend a wide-ranging reassessment of the principles of full faith and credit in many areas. Such a reassessment is not necessarily undesirable if the results are likely to be healthy for the judicial system and consistent with the underlying purposes of the Full Faith and Credit Clause. But at least without the benefit of briefs and arguments directed to the issue, I cannot conclude that the rule advocated by the plurality would have had such a beneficial impact.

One purpose of the Full Faith and Credit Clause is to bring an end to litigation. As the Court noted in Riley v. New York Trust Co., 315 U.S. 343, 348-349 (1941): “Were it not for this full faith and credit provision, so far as the Constitution controls the matter, adversaries could wage again their legal battles whenever they meet in other jurisdictions. Each state could control its own courts but itself could not project the effect of its decisions beyond its own boundaries.” The plurality’s opinion is at odds with this principle of finality. Plaintiffs dissatisfied with a judgment would have every incentive to seek additional recovery elsewhere, so long as the first forum applied its own law and there was a colorable argument that as a matter of law the second forum would permit a greater recovery. It seems to me grossly unfair that the plaintiff, having the initial choice of the forum, should be given the additional advantage of a second adjudication should his choice prove disappointing. Defendants, on the other hand, would no longer be assured that the judgment of the first forum is conclusive as to their obligations, and would face the prospect of burdensome and multiple litigation based on the same operative facts. Such litigation would also impose added strain on an already overworked judicial system.

Perhaps the major purpose of the Full Faith and Credit Clause is to act as a nationally unifying force. Sherrer v. Sherrer, 334 U.S. 343, 355 (1948). The plurality’s rationale would substantially undercut that function. When a former judgment is set up as a defense under the Full Faith and Credit Clause, the court would be obliged to balance the various state interests involved. But the State of the second forum is not a neutral party to this balance. There seems to be a substantial danger—not presented by the firmer rule of res judicata—that the court in evaluating a full faith and credit defense would give controlling weight to its own parochial interests in concluding that the judgment of the first forum is not res judicata in the subsequent suit.

I would not overrule either Magnolia or McCartin. To my mind, Chief Justice Stone’s opinion in Magnolia states the sounder doctrine; as noted. I do not see any overriding differences between workmen’s compensation awards and court judgments that justify different treatment for the two. However, McCartin has been on the books for over 30 years and has been widely interpreted by state and federal courts as substantially limiting Magnolia. Unlike the plurality’s opinion, McCartin is not subject to the objection that its principles are applicable outside the workmen’s compensation area. Although I find McCartin to rest on questionable foundations, I am not now prepared to overrule it. And I agree with the plurality that McCartin, rather than Magnolia, is controlling as between the two precedents since the Virginia Workmen’s Compensation Act lacks the “unmistakable language” which McCartin requires if a workmen’s compensation award is to preclude a subsequent award in another State. I therefore concur in the judgment.

Justice REHNQUIST, with whom Justice MARSHALL joins, dissenting. This is clearly a case where the whole is less than the sum of its parts. In choosing between two admittedly inconsistent precedents, [Magnolia and McCartin], six of us agree that … McCartin, is analytically indefensible. The remaining three Members of the Court concede that it “rest[s] on questionable foundations.” Nevertheless, when the smoke clears, it is Magnolia rather than McCartin that the plurality suggests should be overruled. Because I believe that Magnolia was correctly decided, and because I fear that the rule proposed by the plurality is both ill-considered and ill-defined, I dissent.…

One might support that, having destroyed McCartin’s ratio decidendi, the plurality would return to the eminently defensible position adopted in Magnolia. But such is not the case. The plurality instead raises the banner of “stare decisis” and sets out in search of a new rationale to support the result reached in McCartin, significantly failing to even attempt to do the same thing for Magnolia.

If such post hoc rationalization seems a bit odd, the theory ultimately chosen by the plurality is even odder. It would seem that, contrary to the assumption of this Court for at least the past 40 years, a judgment awarding workmen’s compensation benefits is no longer entitled to full faith and credit unless, and only to the extent that, such a judgment resolves a disputed issue of fact. I believe that the plurality’s justification for such a theory, which apparently first surfaced in a cluster of articles written in the wake of Magnolia, does not withstand close scrutiny.

The plurality identified three different “state interests” at stake in the present case: Virginia’s interest in placing a limit on the potential liability of companies doing business in that State, Virginia’s interest in the “integrity of its formal determinations of contested issues,” and a shared interest of Virginia and the District of Columbia in the welfare of the injured employee. The plurality then undertakes to balance these interests and concludes that none of Virginia’s concerns outweighs the concern of the District of Columbia for the welfare of petitioner.

Whenever this Court, or any court, attempts to balance competing interests it risks undervaluing or even overlooking important concerns. I believe that the plurality’s analysis incorporates both errors. First, it asserts that Virginia’s interest in limiting the liability of businesses operating within its borders can never outweigh the District of Columbia’s interest in protecting its residents. In support of this proposition it cites [Alaska Packers and Pacific Employers]. Both of those cases, however, involved the degree of faith and credit to be afforded statutes of one State by the courts of another State. The present case involves an enforceable judgment entered by Virginia after adjudicatory proceedings. In Magnolia Mr. Chief Justice Stone, who authored both Alaska Packers and Pacific Employers, distinguished those two decisions for precisely this reason, chastising the lower court in that case for overlooking “the distinction, long recognized and applied by this Court … between the full faith and credit required to be given to judgments and that to which local common and statutory law is entitled under the Constitution and laws of the United States.” This distinction, which has also been overlooked by the plurality here, makes perfect sense, since Virginia surely has a stronger interest in limiting an employer’s liability to a fixed amount when that employer has already been haled before a Virginia tribunal and adjudged liable than when the employer simply claims the benefit of a Virginia statute in a proceeding brought in another State.

In a similar vein, the plurality completely ignores any interest that Virginia might assert in the finality of its adjudications. While workmen’s compensation awards may be “nonfinal” in the sense that they are subject to continuing supervision and modification, Virginia nevertheless has a cognizable interest in requiring persons who avail themselves of its statutory remedy to eschew other alternative remedies that might be available to them. Otherwise, as apparently is the result here, Virginia’s efforts and expense on an application’s behalf are wasted when that applicant obtains a duplicative remedy in another State.

At base, the plurality’s balancing analysis is incorrect because it recognizes no significant difference between the events that transpired in this case and those that would have transpired had petitioner initially sought his remedy in the District of Columbia. But there are differences. The Commonwealth of Virginia has expended its resources, at petitioner’s behest, to provide petitioner with a remedy for his injury and a resolution of his “dispute” with his employer. That employer similarly has expended its resources, again at petitioner’s behest, in complying with the judgment entered by Virginia. These efforts, and the corresponding interests in seeing that those efforts are not wasted, lie at the very heart of the divergent constitutional treatment of judgments and statutes. In this case, of course, Virginia and respondent expended very few resources in the administrative process. But that observation lends no assistance to the plurality, which would flatly hold that Virginia has absolutely no power to guarantee that a workmen’s compensation award will be treated as a final judgment by other States.

In further support of its novel rule, the plurality attempts to distinguish the judgment entered in this case from one entered by a “court of general jurisdiction.” Specifically, the plurality points out that the Industrial Commission of Virginia, unlike a state court of general jurisdiction, was limited by statute to consideration of Virginia law. According to the plurality, because the Commission “was not requested, and had no authority, to pass on petitioner’s rights under District of Columbia law, there can be no constitutional objection to a fresh adjudication of those rights.”

This argument might have some force if petitioner had somehow had Virginia law thrust upon him against his will. In this case, however, petitioner was free to choose the applicable law simply by choosing the forum in which he filed his initial claim. Unless the District of Columbia has an interest in forcing its residents to accept its law regardless of their wishes, I fail to see how the Virginia Commission’s inability to look to District of Columbia law impinged upon that latter jurisdiction’s interests. I thus fail to see why petitioner’s election, as consummated in his Virginia ward, should not be given the same full faith and credit as would be afforded a judgment entered by a court of general jurisdiction.

I suspect that my Brethren’s insistence on ratifying McCartin’s result despite condemnation of its rationale is grounded in no small part upon their concern that injured workers are often coerced or maneuvered into filing their claims in jurisdictions amenable to their employers. There is, however, absolutely no evidence of such overreaching in the present case. Indeed, had there been “fraud, imposition, [or] mistake” in the filing of petitioner’s claim, he would have been permitted, upon timely motion, to vacate the award. See Harris v. Diamond Construction Co., 184 Va. 711, 720 (1946). In this regard, the award received by petitioner is treated no differently than any other judicial award, nor should it be.…

I fear that the plurality, in its zeal to remedy a perceived imbalance in bargaining power, would badly distort an important constitutional tenet. Its “interest analysis,” once removed from the statutory choice-of-law context considered by the Court in Alaska Packers and Pacific Employers, knows no metes or bounds. Given the modern proliferation of quasi-judicial methods for resolving disputes and of various tribunals of limited jurisdiction, such a rule could only lead to confusion. I find such uncertainty unacceptable, and prefer the rule originally announced in [Magnolia], a rule whose analytical validity is, even yet, unchallenged.

The Full Faith and Credit Clause did not allot to this Court the task of “balancing” interests where the “public Acts, Records, and judicial Proceedings” of a State were involved. It simply directed that they be given the “Full Faith and Credit” that the Court today denies to those of Virginia. I would affirm the judgment of the court below.

Questions and Comments

(1) Does the plurality answer satisfactorily any of the objections expressed in the concurring and dissenting opinions? In particular, isn’t Justice Rehnquist right that the majority’s rationale would operate at any time, in any kind of case, when a second forum would offer more (or different) damages on the same facts?

(2) What if State A offers a lump sum for the loss of a limb, with no compensation for pain and suffering and no punitive damages; State B gives no lump-sum compensation, instead requires proof of lost potential income, but does grant compensation for pain and suffering (but no punitive damages); and State C offers compensation for actual losses plus punitive damages? Is the injured worker with appropriate contacts with the three states entitled to the lump sum in State A, compensation for pain and suffering in State B, and punitive damages in State C? In other words, isn’t it likely that the decision to grant one kind of damages is made at least in part because of the decision not to grant another? Wouldn’t the total award collected above violate the policy of each state?

(3) What is the connection between Thomas and Fauntleroy? Doesn’t the Thomas plurality allow the enforcing state to override the rendering state’s finality interests with its own substantive interests? Isn’t that contrary to Fauntleroy—or was there more “inconsistency” between the first and second resolutions in Fauntleroy than in Thomas?

(4) Why was the plurality so concerned that the Magnolia/McCartin rule rested interpretation of the federal statute upon state law—isn’t that what the wording of the statute requires? Compare Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373 (1984), in which the Court instructed the federal district courts to conduct a close reading of the preclusion rules of the rendering state to determine how much preclusive effect was due. An excellent discussion of Washington Gaslight is Sterk, Full Faith and Credit, More or Less, to Judgments: Doubts About Thomas v. Washington Gas Light Co., 69 Geo. L.J. 1329 (1981).

(5) In University of Tennessee v. Elliot, 478 U.S. 788 (1986), the Supreme Court held that 28 U.S.C. §1738 is not applicable to unreviewed state administrative factfinding because section 1738 antedates the development of administrative agencies. It further held that application of a common-law preclusion rule would not be appropriate. Would it have been better in Thomas to rest the decision on the administrative nature of workers’ compensation boards?

Baker v. General Motors Corp.

522 U.S. 222 (1998)

Justice GINSBURG delivered the opinion of the Court.

[Ronald Elwell worked for the Engineering Analysis Group of General Motors Corporation from 1959 until 1989. During this time he often aided GM lawyers defending GM against product liability actions. Between 1987 and 1991, the Elwell-GM employment relationship soured, resulting in failed negotiations over the terms of Elwell’s retirement. In May 1991, Elwell appeared as a witness for the plaintiffs in a product liability action against GM in Georgia and testified that the GM pickup truck fuel system was inferior to competing products. The next month Elwell sued GM in a Michigan state court, alleging wrongful discharge and other tort and contract claims. GM counterclaimed, contending that Elwell had breached his fiduciary duty to GM by disclosing privileged and confidential information and misappropriating documents. In August 1992, the parties entered into a settlement. Elwell received an undisclosed sum of money and agreed to the Michigan court’s entry of a permanent injunction preventing him from disclosing GM’s trade secrets and other confidential information, or from “testifying, without the prior written consent of General Motors Corporation, either upon deposition or at trial, as an expert witness, or as a witness of any kind, and from consulting with attorneys or their agents in any litigation already filed, or to be filed in the future, involving General Motors Corporation as an owner, seller, manufacturer and/or designer of the product(s) in issue.” The injunction contained this exception that stated: “[This provision] shall not operate to interfere with the jurisdiction of the Court in … Georgia [where the litigation involving the fuel tank was still pending].” The injunction contained no other limitation, but a separate settlement agreement between the parties stated: “It is agreed that [Elwell’s] appearance and testimony, if any, at hearings on Motions to quash subpoena or at deposition or trial or other official proceeding, if the Court or other tribunal so orders, will in no way form a basis for an action in violation of the Permanent Injunction or this Agreement.” In the six years since the Elwell-GM settlement, Elwell testified against GM both in Georgia and in several other jurisdictions in which Elwell has been subpoenaed to testify.]

[Meanwhile, in September 1991, Kenneth and Steven Baker sued GM in Missouri state court to recover for the death of their mother in a highway accident in Missouri in a Chevrolet S-10 Blazer. After GM removed the case to federal court, the Bakers subpoenaed Elwell. GM objected to Elwell’s appearance as a deponent or trial witness on the ground that the Michigan injunction barred his testimony. The district court allowed the Bakers to depose Elwell and to call him as a witness at trial on the grounds that (1) blocking Elwell’s testimony pursuant to the Michigan injunction would violate Missouri’s “public policy”; and (2) because a Michigan court could modify the Michigan injunction, so too could a Missouri federal court. Following GM’s appeal from an $11.3 million jury award, the Eighth Circuit Court of Appeals reversed on the ground that Elwell’s testimony should not have been admitted. The court reasoned that the trial court erroneously relied on Missouri’s policy favoring disclosure of relevant, nonprivileged information because of Missouri’s “equally strong public policy in favor of full faith and credit.” The Eighth Circuit also noted that the Michigan court “has been asked on several occasions to modify the injunction, [but] has yet to do so,” and noted that, if the Michigan court did not intend to block Elwell’s testimony in cases like the Bakers’, “the injunction would … have been unnecessary.” The Supreme Court granted certiorari “to decide whether the full faith and credit requirement stops the Bakers, who were not parties to the Michigan proceeding, from obtaining Elwell’s testimony in their Missouri wrongful death action.”]

II

A

Our [Full Faith and Credit Clause] precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. “In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded.” Milwaukee County v. M. E. White Co., 296 U.S. 268, 277 (1935). The Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Pacific Employers Ins. Co. v. Industrial Accident Commn. [supra page 302] at 501; see Phillips Petroleum Co. v. Shutts [supra page 326] at 818–819. Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. For claim and issue preclusion (res judicata) purposes, in other words, the judgment of the rendering State gains nationwide force.

A court may be guided by the forum State’s “public policy” in determining the law applicable to a controversy. See Nevada v. Hall [supra page 351]. But our decisions support no roving “public policy exception” to the full faith and credit due judgments. See Fauntleroy v. Lum [supra page 570] (judgment of Missouri court entitled to full faith and credit in Mississippi even if Missouri judgment rested on a misapprehension of Mississippi law). In assuming the existence of a ubiquitous “public policy exception” permitting one State to resist recognition of another State’s judgment, the District Court in the Bakers’ wrongful-death action misread our precedent. “The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation.” Sherrer v. Sherrer, 334 U.S. 343, 355 (1948). We are “aware of [no] considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause and the Act of Congress require to be given to [a money] judgment outside the state of its rendition.” Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438 (1943).

The Court has never placed equity decrees outside the full faith and credit domain. Equity decrees for the payment of money have long been considered equivalent to judgments at law entitled to nationwide recognition. See, e.g., Barber v. Barber, 323 U.S. 77 (1944) (unconditional adjudication of petitioner’s right to recover a sum of money is entitled to full faith and credit); see also A. Ehrenzweig, Conflict of Laws §51, p.182 (rev. ed. 1962) (describing as “indefensible” the old doctrine that an equity decree, because it does not “merge” the claim into the judgment, does not qualify for recognition). We see no reason why the preclusive effects of an adjudication on parties and those “in privity” with them, i.e., claim preclusion and issue preclusion (res judicata and collateral estoppel), should differ depending solely upon the type of relief sought in a civil action. Cf. Barber, 323 U.S. at 87 (Jackson, J., concurring) (Full Faith and Credit Clause and its implementing statute speak not of “judgments” but of “‘judicial proceedings’ without limitation”); Fed. Rule Civ. Proc. 2 (providing for “one form of action to be known as ‘civil action,’” in lieu of discretely labeled actions at law and suits in equity).

Full faith and credit, however, does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the evenhanded control of forum law. See McElmoyle ex rel. Bailey v. Cohen, 13 Peters 312, 325 (1839) (judgment may be enforced only as “laws [of enforcing forum] may permit”); see also Restatement (Second) of Conflict of Laws §99 (1969) (“The local law of the forum determines the methods by which a judgment of another state is enforced.”).

Orders commanding action or inaction have been denied enforcement in a sister State when they purported to accomplish an official act within the exclusive province of that other State or interfered with litigation over which the ordering State had no authority. Thus, a sister State’s decree concerning land ownership in another State has been held ineffective to transfer title, see Fall v. Eastin, 215 U.S. 1, although such a decree may indeed preclusively adjudicate the rights and obligations running between the parties to the foreign litigation, see, e.g., Robertson v. Howard, 229 U.S. 254, 261 (1913) (“It may not be doubted that a court of equity in one State in a proper case could compel a defendant before it to convey property situated in another State.”). And antisuit injunctions regarding litigation elsewhere, even if compatible with due process as a direction constraining parties to the decree, see Cole v. Cunningham, 133 U.S. 107 (1890), in fact have not controlled the second court’s actions regarding litigation in that court. See, e.g., James v. Grand Trunk Western R. Co., 14 Ill. 2d 356, 372, 152 N.E.2d 858, 867 (1958); see also E. Scoles & P. Hay, Conflict of Laws §24.21, p.981 (2d ed. 1992) (observing that antisuit injunction “does not address, and thus has no preclusive effect on, the merits of the litigation [in the second forum]”).⁹ Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction. See, e.g., Stiller v. Hardman, 324 F.2d 626, 628 (CA2 1963) (nonrendition forum enforces monetary relief portion of a judgment but leaves enforcement of injunctive portion to rendition forum).

B

With these background principles in view, we turn to the dimensions of the order GM relies upon to stop Elwell’s testimony. Specifically, we take up the question: What matters did the Michigan injunction legitimately conclude?

As earlier recounted, the parties before the Michigan County Court, Elwell and GM, submitted an agreed-upon injunction, which the presiding judge signed. While no issue was joined, expressly litigated, and determined in the Michigan proceeding,¹¹ that order is claim preclusive between Elwell and GM. Elwell’s claim for wrongful discharge and his related contract and tort claims have “merged in the judgment,” and he cannot sue again to recover more. Similarly, GM cannot sue Elwell elsewhere on the counterclaim GM asserted in Michigan.

Michigan’s judgment, however, cannot reach beyond the Elwell-GM controversy to control proceedings against GM brought in other States, by other parties, asserting claims the merits of which Michigan has not considered. Michigan has no power over those parties, and no basis for commanding them to become intervenors in the Elwell-GM dispute. See Martin v. Wilks, 490 U.S. 755, 761-763 (1989). Most essentially, Michigan lacks authority to control courts elsewhere by precluding them, in actions brought by strangers to the Michigan litigation, from determining for themselves what witnesses are competent to testify and what evidence is relevant and admissible in their search for the truth. See Restatement (Second) of Conflict of Laws §§137-139 (1969 and rev. 1988) (forum’s own law governs witness competence and grounds for excluding evidence).

As the District Court recognized, Michigan’s decree could operate against Elwell to preclude him from volunteering his testimony. But a Michigan court cannot, by entering the injunction to which Elwell and GM stipulated, dictate to a court in another jurisdiction that evidence relevant in the Bakers’ case—a controversy to which Michigan is foreign—shall be inadmissible. This conclusion creates no general exception to the full faith and credit command, and surely does not permit a State to refuse to honor a sister state judgment based on the forum’s choice of law or policy preferences. Rather, we simply recognize that, just as the mechanisms for enforcing a judgment do not travel with the judgment itself for purposes of Full Faith and Credit, [McElmoyle, supra], and just as one State’s judgment cannot automatically transfer title to land in another State, [Fall, supra], similarly the Michigan decree cannot determine evidentiary issues in a lawsuit brought by parties who were not subject to the jurisdiction of the Michigan court.¹²

The language of the consent decree is informative in this regard. Excluding the then-pending Georgia action from the ban on testimony by Elwell without GM’s permission, the decree provides that it “shall not operate to interfere with the jurisdiction of the Court in … Georgia.” But if the Michigan order, extended to the Georgia case, would have “interfered with the jurisdiction” of the Georgia court, Michigan’s ban would, in the same way, “interfere with the jurisdiction” of courts in other States in cases similar to the one pending in Georgia.

In line with its recognition of the interference potential of the consent decree, GM provided in the settlement agreement that, if another court ordered Elwell to testify, his testimony would “in no way” render him vulnerable to suit in Michigan for violation of the injunction or agreement. The Eighth Circuit regarded this settlement agreement provision as merely a concession by GM that “some courts might fail to extend full faith and credit to the [Michigan] injunction.” As we have explained, however, Michigan’s power does not reach into a Missouri courtroom to displace the forum’s own determination whether to admit or exclude evidence relevant in the Bakers’ wrongful-death case before it. In that light, we see no altruism in GM’s agreement not to institute contempt or breach-of-contract proceedings against Elwell in Michigan for giving subpoenaed testimony elsewhere. Rather, we find it telling that GM ruled out resort to the court that entered the injunction, for injunctions are ordinarily enforced by the enjoining court, not by a surrogate tribunal.

In sum, Michigan has no authority to shield a witness from another jurisdiction’s subpoena power in a case involving persons and causes outside Michigan’s governance. Recognition, under full faith and credit, is owed to dispositions Michigan has authority to order. But a Michigan decree cannot command obedience elsewhere on a matter the Michigan court lacks authority to resolve. See [Thomas, supra page 574] at 282–283 (plurality opinion) (“Full faith and credit must be given to [a] determination that [a State’s tribunal] had the authority to make; but by a parity of reasoning, full faith and credit need not be given to determinations that it had no power to make.”).

Justice SCALIA, concurring in the judgment.

I agree with the Court that enforcement measures do not travel with sister-state judgments as preclusive effects do. It has long been established that “the judgment of a state Court cannot be enforced out of the state by an execution issued within it.” McElmoyle supra at 325. To recite that principle is to decide this case.

General Motors asked a District Court in Missouri to enforce a Michigan injunction. The Missouri court was no more obliged to enforce the Michigan injunction by preventing Elwell from presenting his testimony than it was obliged to enforce it by holding Elwell in contempt. The Full Faith and Credit Clause “did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them, as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other States.” Thompson v. Whitman, 85 U.S. 457 (1874) (emphasis added) (quoting J. Story, Conflict of Laws §609). A judgment or decree of one State, to be sure, may be grounds for an action (or a defense to one) in another. But the Clause and its implementing statute

“establish a rule of evidence, rather than of jurisdiction. While they make the record of a judgment, rendered after due notice in one State, conclusive evidence in the courts of another State, or of the United States, of the matter adjudged, they do not affect the jurisdiction, either of the court in which the judgment is rendered, or of the court in which it is offered in evidence. Judgments recovered in one State of the Union, when proved in the courts of another government, whether state or national, within the United States, differ from judgments recovered in a foreign country in no other respect than in not being reexaminable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties.” Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291-292 (1888) (citation omitted).

The judgment that General Motors obtained in Michigan “does not carry with it, into another State, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another State, it must be made a judgment there; and can only be executed in the latter as its laws may permit.” Lynde v. Lynde, 181 U.S. 183, 187 (1901) (quoting McElmoyle, supra, at 325). See, e.g., Watts v. Waddle, 6 Peters 389, 392 (1832), a case involving a suit to obtain an equity decree ordering the conveyance of land, duplicating such a decree already issued in another State.

Because neither the Full Faith and Credit Clause nor its implementing statute requires Missouri to execute the injunction issued by the courts of Michigan, I concur in the judgment.

Justice KENNEDY, with whom Justices O’CONNOR and THOMAS join, concurring in the judgment.

I concur in the judgment. In my view the case is controlled by well-settled full faith and credit principles which render the majority’s extended analysis unnecessary and, with all due respect, problematic in some degree. This separate opinion explains my approach.

I

The majority, of course, is correct to hold that when a judgment is presented to the courts of a second State it may not be denied enforcement based upon some disagreement with the laws of the State of rendition. Full faith and credit forbids the second State from questioning a judgment on these grounds. There can be little doubt of this proposition. We have often recognized the second State’s obligation to give effect to another State’s judgments even when the law underlying those judgments contravenes the public policy of the second State.

My concern is that the majority, having stated the principle, proceeds to disregard it by announcing two broad exceptions. First, the majority would allow courts outside the issuing State to decline to enforce those judgments “purporting to accomplish an official act within the exclusive province of [a sister] State.” Second, the basic rule of full faith and credit is said not to cover injunctions “interfering with litigation over which the ordering State had no authority.” The exceptions the majority recognizes are neither consistent with its rejection of a public policy exception to full faith and credit nor in accord with established rules implementing the Full Faith and Credit Clause. As employed to resolve this case, furthermore, the exceptions to full faith and credit have a potential for disrupting judgments, and this ought to give us considerable pause. Our decisions have been careful not to foreclose all effect for the types of injunctions the majority would place outside the ambit of full faith and credit. These authorities seem to be disregarded by today’s holding. For example, the majority chooses to discuss the extent to which courts may compel the conveyance of property in other jurisdictions. That subject has proven to be quite difficult. Some of our cases uphold actions by state courts affecting land outside their territorial reach. E.g., Robertson v. Howard, 229 U.S. 254, 261 (1913) (“It may not be doubted that a court of equity in one State in a proper case could compel a defendant before it to convey property situated in another State”). Nor have we undertaken before today to announce an exception which denies full faith and credit based on the principle that the prior judgment interferes with litigation pending in another jurisdiction. As a general matter, there is disagreement among the state courts as to their duty to recognize decrees enjoining proceedings in other courts.

Subjects which are at once so fundamental and so delicate as these ought to be addressed only in a case necessarily requiring their discussion, and even then with caution lest we announce rules which will not be sound in later application. We might be required to hold, if some future case raises the issue, that an otherwise valid judgment cannot intrude upon essential processes of courts outside the issuing State in certain narrow circumstances, but we need not announce or define that principle here. Even if some qualification of full faith and credit were required where the judicial processes of a second State are sought to be controlled in their procedural and institutional aspects, the Court’s discussion does not provide sufficient guidance on how this exception should be construed in light of our precedents. The majority’s broad review of these matters does not articulate the rationale underlying its conclusions. In the absence of more elaboration, it is unclear what it is about the particular injunction here that renders it undeserving of full faith and credit. The Court’s reliance upon unidentified principles to justify omitting certain types of injunctions from the doctrine’s application leaves its decision in uneasy tension with its own rejection of a broad public policy exception to full faith and credit.

The following example illustrates the uncertainty surrounding the majority’s approach. Suppose the Bakers had anticipated the need for Elwell’s testimony in Missouri and had appeared in a Michigan court to litigate the privileged character of the testimony it sought to elicit. Assume further the law on privilege were the same in both jurisdictions. If Elwell, GM, and the Bakers were before the Michigan court and Michigan law gave its own injunction preclusive effect, the Bakers could not relitigate the point, if general principles of issue preclusion control. Perhaps the argument can be made, as the majority appears to say, that the integrity of Missouri’s judicial processes demands a rule allowing relitigation of the issue; but, for the reasons given below, we need not confront this interesting question.

In any event, the rule would be an exception. Full faith and credit requires courts to do more than provide for direct enforcement of the judgments issued by other States. It also “requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982). Through full faith and credit, “the local doctrines of res judicata, speaking generally, become a part of national jurisprudence.… ” Riley v. New York Trust Co., 315 U.S. 343, 349 (1942). And whether or not an injunction is enforceable in another State on its own terms, the courts of a second State are required to honor its issue preclusive effects.

II

In the case before us, of course, the Bakers were neither parties to the earlier litigation nor subject to the jurisdiction of the Michigan courts. The majority pays scant attention to this circumstance, which becomes critical. The beginning point of full faith and credit analysis requires a determination of the effect the judgment has in the courts of the issuing State. In our most recent full faith and credit cases, we have said that determining the force and effect of a judgment should be the first step in our analysis. “If the state courts would not give preclusive effect to the prior judgment, ‘the courts of the United States can accord it no greater efficacy’ under §1738.” Haring v. Prosise, 462 U.S. 306, 313, n.6 (1983) (quoting Union & Planters’ Bank v. Memphis, 189 U.S. 71, 75 (1903)). A conclusion that the issuing State would not give the prior judgment preclusive effect ends the inquiry, making it unnecessary to determine the existence of any exceptions to full faith and credit. We cannot decline to inquire into these state-law questions when the inquiry will obviate new extensions or exceptions to full faith and credit.

If we honor the undoubted principle that courts need give a prior judgment no more force or effect that the issuing State gives it, the case before us is resolved. Here the Court of Appeals and both parties in their arguments before our Court seemed to embrace the assumption that Michigan would apply the full force of its judgment to the Bakers. Michigan law does not appear to support the assumption.

The simple fact is that the Bakers were not parties to the Michigan proceedings, and nothing indicates Michigan would make the novel assertion that its earlier injunction binds the Bakers or any other party not then before it or subject to its jurisdiction. For collateral estoppel to apply under Michigan law, “the same parties must have had a full opportunity to litigate the issue, and there must be mutuality of estoppel.” Nummer v. Treasury Dept., 448 Mich. 534, 542. Since the Bakers were not parties to the Michigan proceedings and had no opportunity to litigate any of the issues presented, it appears that Michigan law would not treat them as bound by the judgment. The majority cites no authority to the contrary.

It makes no difference that the judgment in question is an injunction. The Michigan Supreme Court has twice rejected arguments that injunctions have preclusive effect in later litigation, relying in no small part on the fact that the persons against whom preclusion is asserted were not parties to the earlier litigation.

… [D]etermining as a threshold matter the extent to which Michigan law gives preclusive effect to the injunction eliminates the need to decide whether full faith and credit applies to equitable decrees as a general matter or the extent to which the general rules of full faith and credit are subject to exceptions. Michigan law would not seek to bind the Bakers to the injunction and that suffices to resolve the case. For these reasons, I concur in the judgment.

Questions and Comments

(1) The thrust of Baker is that a judgment from one state that purports to require an official act within the exclusive province of another state need not be given full faith and credit. Does the Court provide guidance about where the legitimate effect of the rendering court’s judgment ends and the exclusive province of the other state begins? Is Justice Kennedy correct to claim that the majority in Baker creates a new exception to the bar on invoking local public policy to resist a foreign judgment?

(2) The Baker court says that the Michigan judgment “cannot reach beyond the Elwell-GM controversy,” but it also confirms that the judgment is preclusive as between Elwell and GM. What if GM had brought a separate suit against Elwell in Missouri to enforce the injunction against him? Would the injunction be entitled to full faith and credit in this context? If so, what would happen if Elwell were nonetheless called to testify in the Bakers’ case in federal court?

(3) The Restatement stated in 1971 that “the Supreme Court has not had occasion to determine whether full faith and credit requires a State of the United States to enforce a valid judgment of a sister State that orders the doing of an act other than the payment of money or that enjoins the doing of an act.” Restatement (Second) of Conflict of Laws §102 cmt. C (1971) (emphasis added). Does Baker resolve this issue? On the one hand, it holds that the Michigan injunction need not be enforced in Missouri. On the other hand, the Court makes clear that, as a general matter, the full faith and credit clause applies to equity decrees. For an excellent analysis of Baker and its implications for how the full faith and credit clause applies to equity decrees, see Price, Full Faith and Credit and the Equity Conflict, 84 Va. L. Rev. 747 (1998).

(4) What about antisuit injunctions that order parties not to litigate a case elsewhere? In Cole v. Cunningham, 133 U.S. 107, 134 (1890), the Court held that antisuit injunctions did not violate the full faith and credit clause. But the Supreme Court has never resolved whether antisuit injunctions must be given full faith and credit. Prior to Baker, most lower courts held that the full faith and credit clause does not compel recognition of an antisuit injunction. See, e.g., Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909, 934 (D.C. Cir. 1984) (dicta); James v. Grand Trunk W. R.R. Co., 152 N.E.2d 858 (Ill. 1958); but see Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791 (Tex. 1992) (liquidation order issued by Vermont receivership court, prohibiting prosecution of any action against company in receivership which would interfere with receiver’s conduct of company’s affairs, given full faith and credit by Texas court). James reasoned that the antisuit injunction need not be respected because it operated upon the parties and not the court. What are Baker’s implications for antisuit injunctions?

(5) Baker may have opened the door for courts to avoid recognizing sister-state judgments in the context of simultaneous litigation occurring in multiple states. In Wamsley v. Nodak Mutual Insurance Co., 178 P.3d 102 (Mont. 2008), insureds, residents of North Dakota, were killed in Montana, and their surviving children, as representatives of the estate, sued the insurer, a North Dakota company, to recover stacked uninsured motorist benefits. The estate demanded stacked benefits from Nodak and threatened to file suit in Montana, where a state statute prohibiting stacking had just been struck down as unconstitutional. Nodak repeatedly asked the estate for more time to investigate the matter before responding, and, after nearly six weeks of stalling, Nodak filed a declaratory judgment action in North Dakota seeking a determination that stacking was not permitted under the policy. The estate filed suit against Nodak in Montana state court a few days later, and the Montana court denied Nodak’s request to stay the Montana proceedings in deference to the North Dakota court proceedings. The North Dakota court first determined that North Dakota law would apply to the action. Shortly thereafter, the Montana court ruled that stacking would be permitted but had not yet issued a judgment when the North Dakota court granted summary judgment to Nodak on grounds that stacking was not permitted. The Montana court refused to recognize the North Dakota court judgment, and that determination was upheld by the Montana Supreme Court. Citing Baker, the state supreme court concluded that the North Dakota rulings were not due full faith and credit because they impermissibly interfered with the Montana litigation. That court also cited section 103 of the Second Restatement, supra page 573, which states that it is permissible to refuse recognition of a sister-state judgment if “it would involve an improper interference with important interests of the sister State.” According to the Montana court, Nodak filed the North Dakota declaratory judgment action in an attempt to obtain North Dakota law through the back door in Montana and thereby avoid an adverse judgment. Furthermore, Nodak misled the estate to buy time in order to file suit first in an attempt to thwart Montana’s judicial process. Citing Baker again, the Montana court stated that the declaratory judgment mechanism in one state should not be used to assert control over litigation occurring in another state. The court concluded:

We also recognize that this case presents a unique set of circumstances for which no clear rule in the full faith and credit jurisprudence has been established. See Baker, 522 U.S. at 245 (Kennedy, J., concurring) (noting that the United States Supreme Court has never exactly determined at what point “an otherwise valid judgment cannot intrude upon essential process of courts outside of the issuing State.… ”). Nonetheless, we conclude it would defeat the purpose of forging national unity to use full faith and credit to needlessly expand a single cause of action into multi-state litigation. If anything, such a use of the full faith and credit clause simply balkanizes the legal process, brings state courts into greater conflict, and diminishes respect for the type of state sovereignty the first Congress envisioned. For these reasons, we conclude the District Court did not err in declining to accord full faith and credit to the competing rulings issued by the North Dakota courts. Id. at 115.

Judge Warner authored a separate opinion concurring in part and dissenting in part. Judge Warner agreed that the full faith and credit clause did not require the Montana court to recognize the North Dakota judgment but believed that North Dakota law should have applied to resolve the dispute in any event:

The insurance contract at issue here was between residents of North Dakota who conduct their business there. It was entered in North Dakota and the vehicles were principally garaged in North Dakota. Nodak set its rates and the insured’s paid their premiums in North Dakota. The parties and the insurance contract have virtually no connection to Montana other than the “fortuity that the accident occurred [h]ere.” Considering that the tort claims the Estate makes against Stanton only peripherally involve the contract claims against Nodak, the place where the insurance contract was negotiated, the place where it was made, the place of performance, the principal location of the insured autos, and considering the domicile, residence, and place of business of the parties, it becomes obvious that North Dakota law should apply to the Estate’s claims against Nodak. See Restatement (Second) of Conflict of Laws §188(2).

Further, in my view, this Court should grant comity to North Dakota in this instance for a reason which the Court does not mention. The Montana Supreme Court has the right and the duty to correctly interpret Montana law for the benefit of Montana citizens. Still, Montana is a part of the United States and the judgments of our sister states are important—especially to the citizens of those other states. The only Montanans affected by the Court’s decision today are the local lawyers. The refusal to grant comity in this case, where only North Dakota policy is directly affected, impinges unnecessarily upon the harmonious interstate relations which are part and parcel of the spirit of cooperative federalism.

There are now two diametrically opposed judgments, one in North Dakota and the other in Montana. It remains to be seen if Montana’s decision today aids the Estate’s pursuit of an insurance payment the Wamsleys did not bargain for, or only necessitates further litigation between North Dakota citizens. I would defer to the North Dakota judgment and dissent from the Court’s decision not to do so. Id. at 120.

Does Wamsley seem like an appropriate application of the Baker principles? Is it correctly decided?

(6) Later in the same year as the Wamsley decision, the Supreme Court of Nevada determined that it was permissible for a Nevada court to refuse to recognize a Montana court judgment also involving the stacking of uninsured motorist benefits. Tenas v. Progressive Preferred Ins. Co., 238 P.3d 860 (Nev. 2008). The insured, a resident of Nevada, sought to stack the benefits of her two automobile insurance policies after her daughter was injured in an accident in Montana. Progressive’s policy included a choice-of-law clause stating that it was governed by Nevada law. In these cases, Progressive filed its declaratory judgment action in Nevada first, and Tenas filed her suit in Montana state court a few days later. The Montana court resolved its action first. It granted summary judgment to Tenas and applied Montana law because Nevada’s anti-stacking rule violated Montana public policy. The Nevada state court thereafter granted summary judgment in favor of Progressive, finding that Nevada law applied and that Tenas was not entitled to stacked benefits. The Nevada Supreme Court concluded that the Montana court should have honored the first-to-file rule:

As recognized by the Supreme Court of Montana, the “first to file” rule is “a generally recognized doctrine of … comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Wamsley at 109-110. We conclude that despite Montana’s interests in resolving the issue as to stacking of the uninsured motorist coverage in Barnes’s insurance policy, the Montana district court should have declined jurisdiction because Progressive already had an identical pending action in Nevada that had been commenced before the Montana action. See id. While the “first to file” rule “is not a rigid or inflexible rule to be mechanically applied,” we agree with Progressive that Montana should not have adjudicated this matter because Nevada was the best forum to dispute the underlying issue; the insurance policy had been issued in Nevada to Tenas and Barnes, who were Nevada residents. See id. Even though “Montana has a well-established practice of applying Montana law to automobile accidents occurring within its borders,” the insurance policy in this case was governed by Nevada law, as provided in the insurance policy’s choice of law provision. See id. Therefore, we conclude that the Nevada district court did not err in adjudicating this matter, as Montana law had compelled the Montana district court to abate or stay Tenas’s subsequently filed action in Montana. See id.

It seems pretty clear with its repeated citation to Wamsley that the Nevada Supreme Court is announcing a rule of reciprocity here, is it not? Wamsley simply does not lend support to the court’s statements except for the fact that it too justified ignoring a sister-state’s judgment. Is the Nevada court’s determination here more or less justified than the Montana court’s determination in Wamsley? Does Tenas logically follow from Baker?

Note: The Defense of Marriage Act

Article IV, §1 does more than obligate states to give “Full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other State.” It also provides: “Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Congress exercised this power in 1996 in enacting the Defense of Marriage Act (“DOMA”), 28 U.S.C. §1738C. DOMA was a response to the possibility (now reality) that some states might legalize same-sex marriage. As of July 2014, nineteen states plus the District of Columbia issue marriage licenses to same-sex couples, two states do not recognize same-sex marriage but provide the equivalent of state-level spousal rights to same-sex couples within the state, through domestic partnership or civil union, and one state provides some statewide spousal rights to same-sex couples within the state. http://www.hrc.org/resources/entry/maps-of-state-laws-policies (last visited July 8, 2014).

It is very possible that the issue of choice of law for the recognition of same-sex marriage within the U.S. will soon be mooted, because as of the printing of this textbook two federal circuits have concluded that state laws banning the recognition of same-sex marriage impermissibly infringes on the state citizens’ fundamental right to marriage in violation of the Fourteenth Amendment of the U.S. Constitution. Bostic v. Schaefer, 2014 BL 207107 (4th Cir. 7/28/14); Kitchen v. Herbert, 2014 WL 2868044 (10th Cir. 6/25/14). For now, however, states that do not recognize same-sex marriages performed within their states must decide whether to recognize the marriages, as well as judgments issued based on the recognition of a marriage, rendered in another jurisdiction. Congress addressed the matter in DOMA.

DOMA provides in pertinent part:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

DOMA raises several interesting and novel questions. One is: Is DOMA necessary? We learned in Chapter 2, page 65 supra, that states sometimes deny recognition to marriages that violate local public policy. And Baker reaffirmed that the public policy exception is consistent with the full faith and credit clause. See supra page 588 (noting that it is consistent with the full faith and credit clause for “a court [to] be guided by the forum State’s ‘public policy’ in determining the law applicable to a controversy”). Since (as Chapter 2 also showed) marriage recognition is generally viewed as a choice-of-law issue, DOMA at first glance seems unnecessary.

But although DOMA probably has no implications for choice-of-law questions involving same-sex marriages, it might well have bite with respect to judgments issues involving same-sex marriage. Consider, for example, a situation where one member of a same-sex couple, married and residing in California, where same-sex marriage is legal, is injured by a tourist visiting from Kentucky, where same-sex marriage is not recognized. The uninjured spouse sues the Kentucky tourist in California courts for loss of consortium and wins a judgment. Plaintiff takes the California judgment to Kentucky courts in order to enforce it. See Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition on Nontraditional Marriages, 32 Creighton L. Rev. 147, 180-181 (1998) (presenting very similar hypothetical). In the absence of DOMA, would Kentucky have an obligation under the full faith and credit clause to enforce this judgment? If so, does DOMA relieve Kentucky of this obligation? The question is of current import because several states have passed statutes and constitutional amendments that disallow the recognition of foreign same-sex marriages and foreign-court judgments based on same-sex marriages.

If DOMA does relieve the states of a duty to enforce judgments related to same-sex marriages, is it constitutional? In other words, can Congress relieve the states of a full faith and credit obligation they would otherwise have? The answer depends on the meaning of the “effects” clause in Article IV, §1, reproduced above. There is remarkably little information about the original understanding of the clause, and there has been no definitive judicial interpretation of it. Scholars have reached a variety of conclusions. For the view that DOMA would in this circumstance be unconstitutional, see Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 2003 (1997) (“Effects” clause cannot be read to “undermine or abolish” the full faith and credit obligation); Currie, Full Faith and Credit to Marriages, 1 Green Bag 2d 7, 8 (1997) (“If Article IV itself requires respect for Hawaii marriages, Congress cannot provide otherwise; like §5 of the fourteenth amendment, the ‘effects’ clause gives authority only to implement the constitutional provision, not to amend it.”); Strasser, DOMA and the Two Faces of Federalism, 32 Creighton L. Rev. 457 (1998) (arguing that DOMA does not satisfy Article IV’s requirement that Congress make “general Laws”). For views supporting a broad congressional power, see Rensberger, Same-Sex Marriages and the Defense of Marriage Act: A Deviant View of an Experiment in Full Faith and Credit, 32 Creighton L. Rev. 409, 450 (1998) (full faith and credit obligation under Article IV merely a default rule subject to congressional change under “effects” clause); Borchers, supra, at 183-184 (broad reading of DOMA consistent with Congress’s power under Article IV); Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 Creighton L. Rev. 255 (1998) (originalist defense of Congress’s power to enact DOMA).

Could DOMA possibly be unconstitutional on other grounds? See Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1536 n.281 (2007) (if DOMA permits nonrecognition of out-of-state custody decree, it could violate substantive due process protections of parental and family rights); Koppelman, Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional, 83 Iowa L. Rev. 1 (1997) (DOMA violates Equal Protection principles). In United States v. Windsor, 133 S. Ct. 2675 (2013), the U.S. Supreme Court struck down a different provision of DOMA on Equal Protection Clause grounds. The DOMA section at issue defined “marriage” and “spouse” for federal law purposes as excluding same-sex partners. As a result, same-sex couples validly married in their state of domicile would be deprived of federal law rights generally provided to married couples. According to the Court, singling out same-sex couples for negative treatment provided to other validly married couples from a state violated equal protection principles. Given Windsor, is it possible that Congress is forbidden to use its authority under the full faith and credit clause in ways that violate the equal protection clause? And, if so, would Congress’ authorizing the states to deny rights to same-sex couples constitute such a violation?

Note: Foreign Judgments

The full faith and credit clause applies to the “public acts, records, and judicial proceedings” of states and thus does not apply to judgments by courts of foreign states. Nor does any federal statute or treaty govern the recognition and enforcement of foreign judgments. In 1895, the Supreme Court held that foreign judgments are generally enforceable as a matter of common law “comity,” as long as the foreign government from which the judgment issued, as a matter of “reciprocity,” would enforce a similar U.S. judgment. See Hilton v. Guyot, 159 U.S. 113 (1895).

Today, the recognition and enforcement of foreign judgments are primarily governed by state law. Most states—32 in all—have adopted some version of the Uniform Foreign Money Judgments Recognition Act, 13 U.L.A. 261 (1986 & Supp.) (“UFMJRA”). The UFMJRA provides that a foreign judgment that is “final and conclusive and enforceable where rendered” is “conclusive between the parties to the extent that it grants or denies recovery of a sum of money,” and is “enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.” Id. at §§2-3. It further provides that a “foreign judgment is not conclusive” if it was “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law,” or if it was rendered by a court that lacked personal and subject matter jurisdiction. Id. at §4(a) (emphasis added). It also provides that a foreign judgment “need not be recognized “if (a) the defendant did not receive notice in the original proceeding; (b) the judgment was obtained by fraud; (c) the cause of action “on which the judgment is based is repugnant to the public policy of this state”; (d) there is a conflict with another final and conclusive judgment; (e) there is inconsistency between the initial proceeding and a forum selection clause; or (f) in cases based on personal service, “the foreign court was a seriously inconvenient forum for the trial of the action.” Id. at §4(b) (emphasis added). A recently updated version of the UFMJRA, the 2005 Uniform Foreign-Country Money Judgments Recognition Act (“UFCMJRA”), has been adopted by 19 states plus the District of Columbia.

The result of these state laws is that foreign judgments are often recognized and enforced in the United States, but they receive much more scrutiny in U.S. courts than the judgments of sister states, especially on public policy and procedural adequacy grounds. See, e.g., Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995) (declining to enforce libel judgment from England because doing so would, in light of the lower speech protections in England, violate public policy); Maxwell Schuman & Co. v. Edwards, 663 S.E.2d 329 (N.C. Ct. App. 2008) (declining to enforce, on public policy grounds, Canadian court’s award of contingency legal fees in child custody case); Aguerre v. Schering-Plough Corp., 924 A.2d 571 (N.J. Super. Ct. App. Div. 2007) (declining to enforce, on public policy grounds, Argentine court’s judgment memorializing whistleblower settlement agreement); Osorio v. Dole Food Co., 665 F. Supp. 2d 1307 (S.D. Fla. 2009) (declining to enforce Nicaraguan court’s $97 million judgment for workers exposed to pesticides because Nicaraguan judicial system failed to comport with requirements of due process); Najas Cortés v. Orion Sec., Inc., 842 N.E.2d 162 (Ill. App. Ct. 2005) (declining to enforce default judgment from Ecuador because service of process was insufficient to put defendant on notice of lawsuit); Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276 (S.D.N.Y. 1999), aff’d, Bridgeway Corp. v. Citibank, 201 F.3d 134 (2d Cir. 2000) (declining to enforce banking dispute judgment from Liberia because Liberian judicial system was not impartial and failed to comport with requirements of due process).

Is there a good reason to give foreign judgments less respect than the judgments of sister states? Professors von Mehren and Trautman argue that there is, since (a) in the case of sister-state judgments there are federal policies present that are absent in the international context, (b) the legal systems of the states are more similar and founded on like principles, and (c) the judgments of sister states are subject to Supreme Court review if they show some serious excess. Von Mehren & Trautman, Recognition of Foreign Adjudications: A Survey and Suggested Approach, 81 Harv. L. Rev. 1601, 1607 (1968). Do you agree? Do these same reasons suggest that non-forum law should be given less respect in an international choice-of-law case than in a domestic one?

The non-uniform treatment of foreign judgments across U.S. states has led to a movement to federalize foreign judgment recognition law in order to promote international trade. See, e.g., Silberman and Lowenfeld, A Different Challenge for the ALI; Herein of Foreign Country Judgments, an International Treaty, and an American Statute, 75 Ind. L. Rev. 635 (2000). The non-uniform treatment also creates a strategic incentive for judgment creditors to bring their foreign judgments to more lenient state courts for recognition and then use the domesticated judgment to obtain enforcement in the stricter state courts. One scholar has argued that rather than federalize foreign judgment recognition law, Congress should remove state obligations to recognize sister-state judgments that do no more than domesticate foreign judgments. Then states would be left free to experiment with the best rules for foreign judgment recognition. Shill, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, 54 Harv. Int’l L. Rev. 459 (2013).

For years nations have tried and failed to develop a treaty to regulate the recognition and enforcement of foreign judgments under the auspices of the Hague Conference on Private International Law (“the Conference”). The Conference’s first attempt, in 1971, produced a treaty that has only been ratified or acceded to by five states. See Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Feb. 1, 1971, 1144 U.N.T.S. 249. In 1992, the United States proposed that the Conference draft a new convention on the topic, but this too failed on the ground, among others, that it would require one state to enforce judgments made in another state under potentially widely divergent judicial rules and processes. See Woodward, Jr., Saving the Hague Choice of Court Convention, 29 U. Pa. J. Intl. L. 657, 660-661 (2008); Murphy, Negotiation of Convention on Jurisdiction and Enforcement of Judgments, 95 Am. J. Intl. L. 418 (2001). The Conference instead pursued the more modest goal of developing a treaty that imposed obligations to recognize and enforce both choice-of-court (forum-selection) agreements and the judgments rendered in cases adjudicated pursuant to such agreements. See Convention on Choice of Court Agreements, June 30, 2005, 44 I.L.M. 1294. This treaty, however, has been slow to gather support. The United States and the European Union have signed but not ratified it; only Mexico has ratified the treaty. Why do you think nations are unable to agree on a treaty for recognizing and enforcing foreign judgments?

C.   The Enforcing State’s Law of Judgments

Union National Bank v. Lamb

337 U.S. 38 (1949)

Justice DOUGLAS delivered the opinion of the Court.

Missouri has a statute which limits the life of a judgment to ten years after its original rendition or ten years after its revival. Missouri also provides that no judgment can be revived after ten years from its rendition. These provisions are applicable to all judgments whether rendered by a Missouri court or by any other court.

Petitioner has a Colorado judgment against respondent. It was obtained in 1927 and revived in Colorado in 1945 on personal service upon respondent in Missouri. Suit was then brought in Missouri on the revived Colorado judgment. The Supreme Court of Missouri, though assuming that the judgment was valid in Colorado, refused to enforce it because the original judgment under Missouri’s law could not have been revived in 1945. It held that the lex fori governs the limitations of actions and that the Full Faith and Credit Clause of the Constitution, Art. IV, §1, did not require Missouri to recognize Colorado’s more lenient policy as respects revival of judgments.…

Roche v. McDonald is dispositive of the merits. Roche had a Washington judgment against McDonald. He brought suit on that judgment in Oregon. He obtained a judgment in Oregon at a time when the original judgment had by Washington law expired and could not be revived. Roche then sued in Washington on the Oregon judgment. The Court reversed the Supreme Court of Washington which had held that full faith and credit need not be given the Oregon judgment since it would have been void and of no effect if rendered in Washington. The Court held that once the court of the sister State had jurisdiction over the parties and of the subject matter its judgment was valid and could not be impeached in the State of the forum, even though it could not have been obtained there.… For in those cases the Court had held that the State of the forum could not defeat the foreign judgment because it was obtained by a procedure hostile to or inconsistent with that of the forum or because it was based on a cause of action which the forum itself would not have recognized.

Any other result would defeat the aim of the Full Faith and Credit Clause and the statute enacted pursuant to it. It is when a clash of policies between two states emerges that the need of the Clause is the greatest. It and the statute which implements it are indeed designed to resolve such controversies. There is no room for an exception, as Roche v. McDonald makes plain, where the clash of policies relates to revived judgments rather than to the nature of the underlying claims as in Fauntleroy v. Lum, supra. It is the judgment that must be given full faith and credit. In neither case can its integrity be impaired, save for attacks on the jurisdiction of the court that rendered it.

Cases of statute of limitations against a cause of action on a judgment (M’Elmoyle v. Cohen) involve different considerations.… They do not undermine the integrity of the judgment on which suit is brought. In this case it is the 1945 Colorado judgment that claims full faith and credit in Missouri. No Missouri statute of limitations is tendered to cut off a cause of action based on judgments of that vintage.

It is argued, however, that under Colorado law the 1945 Colorado judgment is not a new judgment and that the revivor did no more than extend the statutory period in which to enforce the old judgment. It is said that those were the assumptions on which the Missouri court proceeded. But we would have to add to and subtract from its opinion to give it that meaning. For when it placed revived judgments on the same basis as original judgments, it did so because of Missouri not Colorado law.

This is not a situation where Colorado law also makes that conclusion plain. The Colorado authorities which have been cited to us indeed seem to hold just the opposite. Thus La Fitte v. Salisbury holds that a revived judgment has the effect of a new one. We are referred to no Colorado authorities to the contrary.

But since the status of the 1945 judgment under Colorado law was not passed upon by the Missouri court, we do not determine the question. For the same reason we do not consider whether the service on which the Colorado judgment was revived satisfied due process. Both of those questions will be open on remand of the cause.

The suggestion that we follow the course taken in Minnesota v. National Tea Co. and vacate the judgment and remand the cause to the Missouri court so that it may first pass on these questions would be appropriate only if it were uncertain whether that court adjudicated a federal question. That course is singularly inappropriate here since it is plain that the Missouri court held that, whatever the effect of revivor under Colorado law, the Colorado judgment was not entitled to full faith and credit in Missouri. That holding is a ruling on a federal question and it cannot stand if, as assumed, the Colorado judgment had the force and effect of a new one.

Reversed. [Dissenting opinion is omitted.]

Watkins v. Conway

385 U.S. 188 (1966)

PER CURIAM.

This litigation began when appellant Watkins brought a tort action against Conway in a circuit court of Florida. On October 5, 1955, that court rendered a $25,000 judgment for appellant. Five years and one day later, appellant sued upon this judgment in a superior court of Georgia. Appellee raised §3-701 of the Georgia Code as a bar to the proceeding: “Suits upon foreign judgments.—All suits upon judgments obtained out of this State shall be brought within five years after such judgments shall have been obtained.” The Georgia trial court gave summary judgment for appellee. In so doing, it rejected appellant’s contention that §3-701 when read against the longer limitation period of domestic judgments set forth in Ga. Code §§110-1001, 110-1002 (1935), was inconsistent with the Full Faith and Credit and Equal Protection Clauses of the Federal Constitution. The Georgia Supreme Court affirmed, also rejecting appellant’s constitutional challenge to §3-701.…

Although appellant lays his claim under two constitutional provisions, in reality his complaint is simply that Georgia has drawn an impermissible distinction between foreign and domestic judgments. He argues that the statute is understandable solely as a reflection of Georgia’s desire to handicap out-of-state judgment creditors. If appellant’s analysis of the purpose and effect of the statute were correct, we might well agree that it violates the Federal Constitution. For the decisions of this Court which appellee relies upon do not justify the discriminatory application of a statute of limitations to foreign actions.¹

But the interpretation which the Georgia courts have given §3-701 convinces us that appellant has misconstrued it. The statute bars suits on foreign judgments only if the plaintiff cannot revive his judgment in the State where it was originally obtained. For the relevant date in applying §3-701 is not the date of the original judgment, but rather it is the date of the latest revival of the judgment. In the case at bar, for example, all appellant need do is return to Florida and revive his judgment. He can then come back to Georgia within five years and file suit free of the limitations of §3-701.

It can be seen, therefore, that the Georgia statute has not discriminated against the judgment from Florida. Instead, it has focused on the law of that State. If Florida had a statute of limitations of five years or less on its own judgments, the appellant would not be able to recover here. But this disability would flow from the conclusion of the Florida Legislature that suits on Florida judgments should be barred after that period. Georgia’s construction of §3-701 would merely honor and give effect to that conclusion. Thus, full faith and credit is insured, rather than denied, the law of the judgment State. Similarly, there is no denial of equal protection in a scheme that relies upon the judgment State’s view of the validity of its own judgments. Such a scheme hardly reflects invidious discrimination.

Affirmed. Justice DOUGLAS dissents.

Questions and Comments

(1) Does the rule of M’Elmoyle v. Cohen, cited by the majority in Union National Bank, make sense? It allowed the forum state to apply its own statute of limitations to foreign judgments, viewing such an application as other than an attack on the merits of the foreign judgment. Is this because statutes of limitations are “procedural” and the enforcing state is the forum? Compare the discussion of M’Elmoyle in Sun Oil Co. v. Wortman, page 333 supra. But if the purpose of the statute of limitations is to protect either the parties or the courts (or both), isn’t the domestic statute inappropriate on a foreign judgment because (a) the foreign judgment is supposed to be conclusive on the rights of the parties, including how much delay will be allowed, and (b) there is no intelligible forum procedural interest in limiting an action brought on a foreign judgment—an action that may be one of the simplest of all actions, since virtually no evidence need be taken?

(2) What other “procedural” rule might the enforcing state apply? What about its rules of jurisdiction? In Kenney v. Supreme Lodge of the World, 252 U.S. 411 (1920), the Court stated that phrasing a failure to enforce another state’s judgments in terms of a lack of jurisdiction in the enforcing court is not an adequate explanation. The Illinois Supreme Court had held that since the original action could not have been brought in Illinois, there was no jurisdiction to enforce a judgment, either. Justice Holmes responded:

It is plain that a State cannot escape its constitutional obligations by the simple device of denying jurisdiction in such cases to courts otherwise competent. Whether the Illinois statute should be construed [to deny jurisdiction, rather than to forbid the claim on substantive grounds] was for the Supreme Court of the State to decide, but read as that court read it, it attempted to achieve a result that the Constitution of the United States forbade.

Might there not be other, more traditionally “jurisdictional” rules as to which the enforcing state might apply its own law?

(3) The majority (and the omitted dissent) seem to assume in Union National Bank that it is critical whether the 1945 Colorado proceedings merely extended the statute of limitations on the original Colorado judgment or actually created a new judgment. The disagreement is in what to do about the uncertainty concerning that question. The distinction is significant because one may ignore a foreign statute of limitations, but not a foreign judgment. But is the dichotomy helpful? Why would Colorado ever find itself in a position to distinguish between the two views? Since Colorado will either enforce the new judgment if it is one, or enforce its own statute of limitations, if that is what the 1945 proceedings affected, there is no need to answer the question. If it makes little difference to Colorado, why should such great emphasis be placed on it in Missouri? Moreover, is it clear that there should be such a clear line between the effect given to the statute of limitation on the judgment (it may be ignored) and the effect given to a finding that there is a new judgment (it must be implemented)? What is a rule concerning mandatory counterclaims—a law that can be ignored, or an effect of a judgment that must be honored? (See note 5 infra.) What is the proper category for a Virginia statute saying that once a worker compensation award has been made, no other action may be brought—a statute, that can be ignored, or a rule prescribing the effect of a judgment, that must be obeyed?

(4) Is the Court’s reasoning in Watkins credible? The Court purports to find, in the Georgia statute considered there, a kind of super full faith and credit because it makes the ability to enforce one’s judgment in Georgia turn on whether it is still good where it was rendered. But why make the party with the judgment go back home to Florida? Why not simply refer to Florida law? And what if Florida requires new service of process, the defendant is absent, and the Florida courts don’t have a continuing-jurisdiction theory that would allow them to consider that the jurisdiction from the first action continued for the second? What if the judgment is still good in Florida but it cannot be revived? Is it likely that Georgia really intended such extreme deference to the limitations of other states with statutes longer than five years (but shorter than the plaintiff waited) and not to those states with statutes of less than five years (which would get ignored by Georgia, applying its own five-year statute)?

(5) May an enforcing court apply its own compulsory counterclaim rules? If a counterclaim that was not raised in the original proceedings would have been compulsory in the rendering court but is not treated as compulsory in the enforcing court (or vice versa), which court’s counterclaim rules apply?

In Chapman v. Aetna Finance, 615 F.2d 361 (5th Cir. 1980), it was held that section 1738 did not require the federal court to apply the rendering court’s compulsory counterclaim rules (although the rules were ultimately applied, anyway, under a comity theory).

The “intended function” of the full faith and credit clause, as applied to judicial proceedings, is to avoid “relitigation in other states of adjudicated issues.” Fulfillment of that function plainly does not depend on extraterritorial application of essentially procedural res judicata rules. The Georgia compulsory counterclaim rule tracks Fed. R. Civ. P. 13(a), whose purpose is “to prevent multiplicity of actions.” … Operating as it does to forfeit an unlitigated claim, Georgia’s compulsory counterclaim rule is not unlike a statute of limitations, which … would not ordinarily be entitled to full faith and credit in foreign jurisdictions.

Chapman is commonly thought to have been overruled by Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75 (1984), holding federal courts to a more literal interpretation of section 1738, which states that the enforcing state must give the judgment “the same” effect as it would have in the rendering state. See, e.g., Dubroff v. Dubroff, 833 F.2d 557 (5th Cir. 1987); McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986). Does Migra dispense with the argument that the enforcing state may apply its own judgments law on “procedural” issues?

Because Migra dealt with federal deference to a state court judgment in the same state, and because it dealt with a civil rights action (the plaintiff raised constitutional challenges to official actions), it might be thought that it is limited to that context, with its special federalism concerns. The argument would be that the Supreme Court was particularly interested in restricting relitigation in federal courts of politically sensitive issues that the local state courts had already addressed. However, the more literal interpretation of section 1738, requiring reference to the rendering state’s compulsory counterclaim rules, has also been followed by state courts; see, e.g., Nottingham v. Weld, 377 S.E.2d 621 (Va. 1989) (involving a garden-variety automobile accident). The increasing attention to the literal language of section 1738 (the “same effect” as in the rendering state) has also been manifested in the context of a subsequent antitrust action brought in federal court. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985).

(6) What happens when the enforcement court wants to give a judgment greater effect than the rendering court? Consider Hart v. American Airlines, 304 N.Y.S. 2d 810 (N.Y. Sup. Ct. 1969). Of various actions instituted following a plane crash in Kentucky, the first to be tried to conclusion was the one brought in Texas federal court that resulted in a jury verdict for plaintiffs based on a finding of defendant American Airlines’ negligence. Hart was a later action against American Airlines arising from the same accident but brought by different plaintiffs. The plaintiffs in Hart argued that the Texas judgment collaterally estopped the defendant from contesting liability. The defendant argued that the full faith and credit clause precluded the application of collateral estoppel in the New York action because Texas law required mutuality. The New York court disagreed:

The State of Texas has no legitimate interest in imposing its rules on collateral estoppel upon these New York residents.… The fact that the plaintiffs herein involved are New York domiciliaries, as were their decedents, sufficiently establishes this State’s superior interest in the issue of collateral estoppel. It may be observed that these plaintiffs occupy much the same relationship to the State of Texas as the nonresident Hart plaintiffs do to New York, and the unavailability of the New York rule on collateral estoppel to the Hart plaintiffs is equally relevant in holding the instant resident plaintiffs outside the scope of the Texas rule on that issue.

Defendant’s reliance on “full faith and credit” to defeat the application of collateral estoppel herein is misplaced. This is not a situation where the judgment, as such, of the Texas court is sought to be enforced. What is here involved is a policy determination by our courts that “One who has had his day in court should not be permitted to litigate the question anew,” and, further, refusal “to tolerate a condition where, on relatively the same set of facts, one fact-finder, be it court or jury” may find a party liable while another exonerates him leading to the “inconsistent results which are always a blemish on a judicial system.” It is in order to carry out these policy determinations in the disposition of cases in this jurisdiction that an evidentiary use is being made of a particular issue determination made in the Texas action.

Id. at 813-814. Is there any full faith and credit issue in this case at all; that is, is there anything in the principle of full faith and credit that would suggest that a state may not give more effect to a judgment than the rendering state would? Is it being too literal to reach a result under the full faith and credit clause’s requirement that the second state give the “same” effect that the first state would give? Compare Columbia Casualty Co. v. Playtex FP Inc., 584 A. 2d 1214 (Del. 1991) (application of local collateral estoppel law in circumstance similar to Hart “is clearly at variance with the purpose and spirit of the full faith and credit clause”). On the general issue of which state’s preclusion law to apply, see Shreve, Judgments from a Choice-of-Law Perspective, 40 Am J. Comp. L. 985 (1992).

(7) The Supreme Court has specifically held that a federal court may not give a judgment greater effect than would the state where it was rendered. Migra v. Warren City Sch. Dist. B. of Educ., 465 U.S. 75 (1984); Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 384 (1984). Would this result in forum-shopping or Erie problems if a state court, in contrast, were allowed to give another state’s judgment greater effect than would the rendering state?

Treinies v. Sunshine Mining Co.

308 U.S. 66 (1939)

Justice REED delivered the opinion of the Court.

[In this action, the Sunshine Mining Company, a Washington corporation, filed a bill of interpleader against (1) Evelyn H. Treinies and other citizens of the State of Washington; and (2) Katherine Mason and other citizens of the State of Idaho, who are adverse claimants to certain stock and dividends of the corporation. The bill was filed after two courts rendered inconsistent judgments as to ownership of the stock.] The Superior Court of Spokane County, Washington, in administering the estate of Amelia Pelkes, adjudged that it was the property of John Pelkes, assignor of petitioner, Evelyn H. Treinies; and the District Court of Shoshone County, Idaho, adjudged that the same property belonged to respondent, Katherine Mason.…

The alleged rights of the respective claimants arose as follows: Amelia Pelkes, the wife of John Pelkes, died testate in Spokane, Washington, in 1922, leaving her husband and one child, Katherine Mason, the offspring of a former marriage, as the beneficiaries of her will. As a part of her community estate, there were 30,598 shares of Sunshine Mining stock. It was considered valueless and was not inventoried or appraised. The order of distribution assigned a three-fourths undivided interest in these shares to Pelkes and a one-fourth to Mrs. Mason, an omnibus clause covering unknown property. The estate of Mrs. Pelkes was not distributed according to the order of distribution. Instead Pelkes and his stepdaughter, Mrs. Mason, divided the inventoried property between themselves in accordance with their wishes.

It is the contention of Pelkes and his assignee that this partition of the property was in consideration of the release by Mrs. Mason to Pelkes of all of her interest in the shares of the stock of the Sunshine Mining Company. On the other hand, Mrs. Mason asserts that Pelkes was to hold one-half of the amount owned, 15,299 shares, in trust for her.

In August, 1934, Mrs. Mason instituted a suit in the District Court of Idaho for Shoshone County against Pelkes, Evelyn H. Treinies, the Sunshine Mining Company, and others not important here, alleging that she was the owner of 15,299 shares of the stock, that these had been acquired by Miss Treinies from Pelkes with knowledge of Mrs. Mason’s rights, and praying that the trust be established and the stock and dividends be awarded to her, Mrs. Mason. It was finally decreed by the District Court on August 18, 1936, after an appeal to the Supreme Court of Idaho, that the stock and dividends belonged to Mrs. Mason. Certiorari to the Supreme Court of Idaho was refused by this Court.

Before the entry of the first decree of the District Court of Idaho, Katherine Mason filed a petition in the Superior Court of Spokane County, Washington, in the probate proceedings involving Amelia Pelkes’ will, to remove the executor, John Pelkes, for failure to file his report of distribution and for dissipation of the Sunshine stock. Pelkes by cross-petition claimed the stock. Thereupon Mrs. Mason applied to the Supreme Court of Washington for a writ of prohibition against further proceedings in the Superior Court on the ground of lack of jurisdiction in that court to determine the controversy over the stock. The writ was refused. On May 31, 1935, a judgment was entered in the Superior Court upholding in full the ownership of Pelkes.

After the Supreme Court of Idaho had decided the Idaho suit against Pelkes and Miss Treinies, they filed in August, 1936, a suit in the Superior Court of Washington against Katherine Mason and others alleging that they were the owners of the stock, further alleging that the Idaho decree was invalid for lack of jurisdiction, and asking that their title to the stock be quieted and the Sunshine Mining Company, a party to this and the Idaho suit, be compelled to recognize their ownership. It was at this point in the litigation that the Sunshine Mining Co. filed the bill of interpleader now under consideration. Further proceedings in the suit to quiet title were enjoined by the District Court in this action. [The Court first considered, sua sponte, its own jurisdiction in the case since there was no diversity between the interpleader plaintiff, Sunshine Mining Company, and the Washington defendants. The Court noted that the Interpleader Statute, 28 U.S.C. §1335, requires only minimal diversity—that at least one claimant be diverse in citizenship from at least one adverse claimant. The Court determined that the minimal diversity satisfied the requirement of §2, Article III of the Constitution granting jurisdiction to the federal courts over “Controversies … between Citizens of different States.”]

Res Judicata of the Idaho Decree.—On the merits, petitioner’s objection to the decree below is that it fails to consider and give effect to the Washington judgment of May 31, 1935, awarding the property in question to Pelkes, petitioner’s assignor. It is petitioner’s claim that the Washington judgment must be considered as effective in this litigation because the question of the jurisdiction of the Washington court was actually litigated before the Supreme Court of Washington and determined favorably to petitioner by the refusal to grant a writ of prohibition against the exercise of jurisdiction by the Washington Superior Court in probate. This failure to give effect to the judgment is said to infringe the full faith and credit clause of the Constitution.… ¹

The Court of Appeals correctly determined that the issue of jurisdiction vel non of the Washington court could not be relitigated in this interpleader. As the Idaho District Court was a court of general jurisdiction, its conclusions are unassailable collaterally except for fraud or lack of jurisdiction. The holding by the Idaho court of no jurisdiction in Washington necessarily determined the question raised here as to the Idaho jurisdiction against Miss Treinies’ contention. She is bound by that judgment.

The power of the Idaho court to examine into the jurisdiction of the Washington court is beyond question. Even where the decision against the validity of the original judgment is erroneous, it is a valid exercise of judicial power by the second court.

One trial of an issue is enough. “The principles of res judicata apply to questions of jurisdiction as well as to other issues,” as well to jurisdiction of the subject matter as of the parties.

Decree affirmed.

Questions and Comments

(1) Presumably the enforcing state must address any arguments raised against the validity of a judgment it is called on to enforce, including whether there was personal jurisdiction in a default judgment, whether under prevailing law of collateral estoppel the first judgment involved sufficiently similar issues to be entitled to preclusive effect, whether there was adequate notice in the first suit, and the like. On occasion, the enforcing court will decide that the prior judgment is unenforceable. What if it decides wrongly? Doesn’t the very authority to address such issues include the authority to make an occasional mistake? Why should such a mistake be entitled to less preclusive effect than a substantive error? If litigating a jurisdictional issue can foreclose later collateral attack (as we saw in Section A of this chapter), then why shouldn’t we give the same effect to full and fair litigation of an issue of judgments law? Is anything more than this involved in Treinies? On the other hand, won’t the Court’s decision encourage parties to attempt to have valid judgments undercut by the courts of other states because the last-in-time rule will make binding the ruling of the second state? Which concern seems more significant?

(2) If review had been sought from the final order of the Idaho district court, and it had been upheld by the Idaho Supreme Court with certiorari denied by the U.S. Supreme Court, would the result of this case have been any different? Should the Supreme Court be required to take cases that allege that the courts of one state have denied full faith and credit to the judgments of another?

(3) In Parsons Steel v. First Alabama Bank, 474 U.S. 518 (1986), a state court had (arguably, erroneously) refused to give sufficient res judicata effect to an earlier federal court judgment. After losing the res judicata argument in state court, the bank waited until the entire case was resolved and, on entry of judgment, returned to the federal court to request an injunction. The Supreme Court held that this avenue was foreclosed by the Anti-Injunction Act, 28 U.S.C. §2283, even though that Act allowed a federal court to issue injunctions “to protect or effectuate its judgments.” The Court of Appeals had upheld the District Court’s right to issue the injunction, but the Supreme Court disagreed:

In reaching this holding, the majority explicitly declined to consider the possible preclusive effect, pursuant to the Full Faith and Credit Act, 28 U.S.C. §1738, of the state court’s determination after full litigation by the parties that the earlier federal-court judgment did not bar the state action. According to the majority, “while a federal court is generally bound by other state court determinations, the relitigation exception empowers a federal court to be the final adjudicator as to the res judicata effects of its prior judgments on a subsequent state action.” …

In our view, the majority of the Court of Appeals gave unwarrantedly short shrift to the important values of federalism and comity embodied in the Full Faith and Credit Act. As recently as last March, in Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985), we reaffirmed our holding in Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75 (1984), that under the Full Faith and Credit Act a federal court must give the same preclusive effect to a state-court judgment as another court of that State would give.… The Full Faith and Credit Act thus “[allows] the States to determine, subject to the requirements of the statute and the Due Process Clause, the preclusive effect of judgments in their own courts.”

In the instant case, however, the Court of Appeals did not consider the possible preclusive effect under Alabama law of the state-court judgment, and particularly of the state court’s resolution of the res judicata issue, concluding instead that the relitigation exception to the Anti-Injunction Act limits the Full Faith and Credit Act. We do not agree.…

We believe that the Anti-Injunction Act and the Full Faith and Credit Act can be construed consistently, simply by limiting the relitigation exception of the Anti-Injunction Act to those situations in which the state court has not yet ruled on the merits of the res judicata issue. Once the state court has finally rejected a claim of res judicata, then the Full Faith and Credit Act becomes applicable and federal courts must turn to state law to determine the preclusive effect of the state court’s decision.…

We hold, therefore, that the Court of Appeals erred by refusing to consider the possible preclusive effect, under Alabama law, of the state-court judgment. Even if the state court mistakenly rejected respondents’ claim of res judicata, this does not justify the highly intrusive remedy of a federal-court injunction against the enforcement of the state-court judgment. Rather, the Full Faith and Credit Act requires that federal courts give the state-court judgment, and particularly the state court’s resolution of the res judicata issue, the same preclusive effect it would have had in another court of the same State. Challenges to the correctness of a state court’s determination as to the conclusive effect of a federal judgment must be pursued by way of appeal through the state-court system and certiorari from this Court.

We think the District Court is best situated to determine and apply Alabama preclusion law in the first instance. Should the District Court conclude that the state-court judgment is not entitled to preclusive effect under Alabama law and the Full Faith and Credit Act, it would then be in the best position to decide the propriety of a federal-court injunction under the general principles of equity, comity, and federalism discussed in Mitchum v. Foster, 407 U.S. 225, 243 (1972).

(4) The Treinies last-in-time rule addresses courts’ obligations under the full faith and credit clause. Consequently, a U.S. court faced with inconsistent foreign judgments need not recognize and enforce the more recent judgment. A case on point is Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 885 N.E.2d 191 (N.Y. 2008). Byblos, a Belgian bank, had lent $2.5 million dollars to Sekerbank, a Turkish bank, but one of Sekerbank’s employees embezzled the loan proceeds and Sekerbank chose not to pay back the loan. Byblos filed lawsuits for breach of the loan agreement seeking to attach Sekerbank’s assets in Belgium, Turkey, and Germany. The Turkish court dismissed the action on the merits, and Sekerbank attempted to get the other two courts to recognize the Turkish judgment. The German court recognized the Turkish judgment, but the Belgian courts ultimately refused to recognize it, relying on a now-repealed Belgian statute that requires merits review of foreign judgments as a prerequisite to enforcement. The Belgian court found that the Turkish court judgment was affected by substantial error and entered a contrary judgment in favor of Byblos for five million dollars. Byblos then brought the judgment to a New York state court seeking enforcement of it, and the Court of Appeals of New York decided that the Belgian court judgment should not be recognized. In New York, recognition of judgments rendered outside of the United States is governed by the Uniform Foreign Country Money-Judgments Recognition Act rather than by the full faith and credit clause, and the Act is silent regarding how a court should treat inconsistent judgments. The court may, at its discretion, choose to enforce the earlier, the later, or neither judgment. In this case, the court concluded that enforcement of the Belgian judgment was not appropriate because the Belgian court, as the last-in-time court, departed from normal res judicata principles in rendering its decision. Does this resolution seem sensible?

D. Domestic Relations: A Special Problem of Judgments

Domestic relations law presents some unique legal problems because of the interplay between the rules of full faith and credit to judgments and the peculiar theoretical basis for jurisdiction in a divorce action. The theory says that a divorce action is an action in rem, the marriage relationship being the res. As with Harris v. Balk (discussed at pages pages 488–489 supra), the problem lies in part in locating the res. Here, the theory indicates that the res is located where either party is domiciled. Thus, there are two states that can grant a divorce to a separated couple domiciled separately. But no more than two states should be available, since domicile, and not mere in personam jurisdiction, is a requisite for full faith and credit to the divorce decree.

This peculiar set of jurisdictional rules raises problems in the context of collateral attacks on judgments of divorce. In Williams v. North Carolina I, 317 U.S. 287 (1942), the State of North Carolina had prosecuted for bigamous cohabitation two North Carolinians who had run off to Nevada to get divorced from their stay-at-home spouses in ex parte Nevada proceedings, and had returned “married” to each other to live in the same small town. The Supreme Court reversed the conviction because it had not been established conclusively that the parties were not domiciled in Nevada. On retrial and conviction, the Supreme Court affirmed in Williams v. North Carolina II, 325 U.S. 226 (1945), because in the second trial the jury had been properly instructed that the Nevada divorce judgments could be found to be void only if the parties did not obtain bona fide domicile in Nevada. Justice Frankfurter’s opinion stressed that North Carolina could not be bound by the ex parte conclusions of the Nevada court concerning the parties’ domicile.

       1.   Ex Parte “Divisible Divorce”

Estin v. Estin

334 U.S. 541 (1948)

Opinion of the Court by Justice DOUGLAS, announced by Justice REED.

This case, here on certiorari to the Court of Appeals of New York, presents an important question under the Full Faith and Credit Clause of the Constitution. Article IV, §1. It is whether a New York decree awarding respondent $180 per month for her maintenance and support in a separation proceeding survived a Nevada divorce decree which subsequently was granted petitioner.

The parties were married in 1937 and lived together in New York until 1942 when the husband left the wife. There was no issue of the marriage. In 1943 she brought an action against him for a separation. He entered a general appearance. The court, finding that he had abandoned her, granted her a decree of separation and awarded her $180 per month as permanent alimony. In January 1944 he went to Nevada where in 1945 he instituted an action for divorce. She was notified of the action by constructive service but entered no appearance in it. In May, 1945, the Nevada court, finding that petitioner had been a bona fide resident of Nevada since January 30, 1944, granted him an absolute divorce “on the ground of three years continual separation, without cohabitation.” The Nevada decree made no provision for alimony, though the Nevada court had been advised of the New York decree.

Prior to that time petitioner had made payments of alimony under the New York decree. After entry of the Nevada decree he ceased paying. Thereupon respondent sued in New York for a supplementary judgment for the amount of the arrears. Petitioner appeared in the action and moved to eliminate the alimony provisions of the separation decree by reason of the Nevada decree. The Supreme Court denied the motion and granted respondent judgment for the arrears. The judgment was affirmed by the Appellate Division, and then by the Court of Appeals.

We held in Williams v. North Carolina, supra, (1) that a divorce decree granted by a State to one of its domiciliaries is entitled to full faith and credit in a bigamy prosecution brought in another State, even though the other spouse was given notice of the divorce proceeding only through constructive service; and (2) that while the finding of domicile by the court that granted the decree is entitled to prima facie weight, it is not conclusive in a sister State but might be relitigated there. The latter course was followed in this case, as a consequence of which the Supreme Court of New York found, in accord with the Nevada court, that petitioner “is now and since January, 1944, has been a bona fide resident of the State of Nevada.”

Petitioner’s argument therefore is that the tail must go with the hide—that since by the Nevada decree, recognized in New York, he and respondent are no longer husband and wife, no legal incidence of the marriage remains. We are given a detailed analysis of New York law to show that the New York courts have no power either by statute or by common law to compel a man to support his ex-wife, that alimony is payable only so long as the relation of husband and wife exists, and that in New York, as in some other states, a support order does not survive divorce.

The difficulty with that argument is that the highest court in New York has held in this case that a support order can survive divorce and that this one has survived petitioner’s divorce. That conclusion is binding on us, except as it conflicts with the Full Faith and Credit Clause. It is not for us to say whether that ruling squares with what the New York courts said on earlier occasions. It is enough that New York today says that such is her policy. The only question for us is whether New York is powerless to make such a ruling in view of the Nevada decree.

We can put to one side the case where the wife was personally served or where she appeared in the divorce proceedings. The only service on her in this case was by publication and she made no appearance in the Nevada proceeding. The requirements of procedural due process were satisfied and the domicile of the husband in Nevada was foundation for a decree effecting a change in the marital capacity of both parties in all the other States of the Union, as well as in Nevada. But the fact that marital capacity was changed does not mean that every other legal incidence of the marriage was necessarily affected.

Although the point was not adjudicated in Barber v. Barber, the Court in that case recognized that while a divorce decree obtained in Wisconsin by a husband from his absent wife might dissolve the vinculum of the marriage, it did not mean that he was freed from payment of alimony under an earlier separation decree granted by New York. An absolutist might quarrel with the result and demand a rule that once a divorce is granted, the whole of the marriage relation is dissolved, leaving no roots or tendrils of any kind. But there are few areas of the law in black and white. The greys are dominant and even among them the shades are innumerable. For the eternal problem of the law is one of making accommodations between conflicting interests. This is why most legal problems end as questions of degree. That is true of the present problem under the Full Faith and Credit Clause. The question involves important considerations both of law and policy which it is essential to state.

The situations where a judgment of one State has been denied full faith and credit in another State, because its enforcement would contravene the latter’s policy, have been few and far between. The Full Faith and Credit Clause is not to be applied, accordion-like, to accommodate our personal predilections. It substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns. Williams v. North Carolina. It ordered submission by one State even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it. The fact that the requirements of full faith and credit, so far as judgments are concerned, are exacting, if not inexorable, does not mean, however, that the State of the domicile of one spouse may, through the use of constructive service, enter a decree that changes every legal incidence of the marriage relationship.

Marital status involves the regularity and integrity of the marriage relation. It affects the legitimacy of the offspring of marriage. It is the basis of criminal laws, as the bigamy prosecution in Williams v. North Carolina dramatically illustrates. The State has a considerable interest in preventing bigamous marriages and in protecting the offspring of marriages from being bastardized. The interest of the State extends to its domiciliaries. The State should have the power to guard its interest in them by changing or altering their marital status and by protecting them in that changed status throughout the farthest reaches of the nation. For a person domiciled in one State should not be allowed to suffer the penalties of bigamy for living outside the State with the only one which the State of his domicile recognizes as his lawful wife. And children born of the only marriage which is lawful in the State of his domicile should not carry the stigma of bastardy when they move elsewhere. These are matters of legitimate concern to the State of the domicile. They entitle the State of the domicile to bring in the absent spouse through constructive service. In no other way could the State of the domicile have and maintain effective control of the marital status of its domiciliaries.

Those are the considerations that have long permitted the State of the matrimonial domicile to change the marital status of the parties by an ex parte divorce proceeding, Thompson v. Thompson, considerations which in the Williams cases we thought were equally applicable to any State in which one spouse had established a bona fide domicile. But those considerations have little relevancy here. In this case New York evinced a concern with this broken marriage when both parties were domiciled in New York and before Nevada had any concern with it. New York was rightly concerned lest the abandoned spouse be left impoverished and perhaps become a public charge. The problem of her livelihood and support is plainly a matter in which her community had a legitimate interest. The New York court, having jurisdiction over both parties, undertook to protect her by granting her a judgment of permanent alimony. Nevada, however, apparently follows the rule that dissolution of the marriage puts an end to a support order. But the question is whether Nevada could under any circumstances adjudicate rights of respondent under the New York judgment when she was not personally served or did not appear in the proceeding.

Bassett v. Bassett, 141 F.2d 954, held that Nevada could not. We agree with that view.

The New York judgment is a property interest of respondent, created by New York in a proceeding in which both parties were present. It imposed obligations on petitioner and granted rights to respondent. The property interest which it created was an intangible, jurisdiction over which cannot be exerted through control over a physical thing. Jurisdiction over an intangible can indeed only arise from control or power over the persons whose relationships are the source of the rights and obligations.

Jurisdiction over a debtor is sufficient to give the State of his domicile some control over the debt which he owes. It can, for example, levy a tax on its transfer by will, appropriate it through garnishment or attachment (see Harris v. Balk, 198 U.S. 215), collect it and administer it for the benefit of creditors. But we are aware of no power which the State of domicile of the debtor has to determine the personal rights of the creditor in the intangible unless the creditor has been personally served or appears in the proceeding. The existence of any such power has been repeatedly denied. Pennoyer v. Neff, New York Life Ins. Co. v. Dunlevy.

We know of no source of power which would take the present case out of that category. The Nevada decree that is said to wipe out respondent’s claim for alimony under the New York judgment is nothing less than an attempt by Nevada to restrain respondent from asserting her claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a person not before the court. That may not be done. Since Nevada had no power to adjudicate respondent’s rights in the New York judgment, New York need not give full faith and credit to that phase of Nevada’s judgment. A judgment of a court having no jurisdiction to render it is not entitled to the full faith and credit which the Constitution and statute of the United States demand. Williams v. North Carolina.

The result in this situation is to make the divorce divisible—to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.

Since Nevada had no jurisdiction to alter respondent’s rights in the New York judgment, we do not reach the further question whether in any event that judgment would be entitled to full faith and credit in Nevada. And it will be time enough to consider the effect of any discrimination shown to out-of-state ex parte divorces when a State makes that its policy.

Affirmed.…

Justice JACKSON, dissenting.

If there is one thing that the people are entitled to expect from their law-makers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom. Today many people who have simply lived in more than one state do not know, and the most learned lawyer cannot advise them with any confidence. The uncertainties that result are not merely technical, nor are they trivial; they affect fundamental rights and relations such as the lawfulness of their cohabitation, their children’s legitimacy, their title to property, and even whether they are law-abiding persons or criminals. In a society as mobile and nomadic as ours, such uncertainties affect large numbers of people and create a social problem of some magnitude. It is therefore important that, whatever we do, we shall not add to the confusion. I think that this decision does just that.…

The Court reaches the Solomon-like conclusion that the Nevada decree is half good and half bad under the full faith and credit clause. It is good to free the husband from the marriage; it is not good to free him from its incidental obligations. Assuming the judgment to be one which the Constitution requires to be recognized at all, I do not see how we can square this decision with the command that it be given full faith and credit. For reasons which I stated in dissenting in Williams v. North Carolina, I would not give standing under the clause to constructive service divorces obtained on short residence. But if we are to hold this divorce good, I do not see how it can be less good than a divorce would be if rendered by the courts of New York.…

May v. Anderson

345 U.S. 528 (1953)

Justice BURTON delivered the opinion of the Court.

The question presented is whether, in a habeas corpus proceeding attacking the right of a mother to retain possession of her minor children, an Ohio court must give full faith and credit to a Wisconsin decree awarding custody of the children to their father when that decree is obtained by the father in an ex parte divorce action in a Wisconsin court which had no personal jurisdiction over the mother. For the reasons hereafter stated, our answer is no.

[The parties, Leona Anderson May and Owen Anderson, were formerly married in Wisconsin, where they resided together until December 1946. At that time, the couple agreed that Leona should take their three children to Ohio so that she could “think over her future course.” In January 1947, Leona decided to stay in Ohio, and, when she informed Owen of her decision, he filed suit in Wisconsin, seeking a decree of divorce and an award of custody of the children. Leona received a copy of the summons and petition but she did not participate in the proceedings. In February 1947, the Wisconsin court granted the divorce and awarded custody of the children to Owen subject to a right by Leona to reasonable visitation. Owen then took the decree to Ohio where he demanded and obtained the children, with the assistance of a local police officer.

In July 1951 the children visited their mother in Ohio and she refused to surrender them. Owen filed a petition for a writ of habeas corpus in a probate court in Ohio. Under Ohio procedure, that writ tests only the immediate right to possession of the children and does not permit either the modification of a past custody award or a settling of rights to future custody. The probate court decided that it was obliged by the Full Faith and Credit Clause to accept the Wisconsin decree as binding upon the mother. Accordingly, it ordered the children discharged from further restraint by her, but the order has been held in abeyance pending appeal.] …

Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody. “[I]t is now too well settled to be open to further dispute that the ‘full faith and credit’ clause and the act of Congress passed pursuant to it, do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.”

In Estin v. Estin and Kreiger v. Kreiger this Court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse’s right to financial support under the prior decree of another state. In the instant case, we recognize that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.

In the instant case, the Ohio courts gave weight to appellee’s contention that the Wisconsin award of custody binds appellant because, at the time it was issued, her children had a technical domicile in Wisconsin, although they were neither resident nor present there. We find it unnecessary to determine the children’s legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.⁸

The judgment of the Supreme Court of Ohio, accordingly, is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion.…

Justice JACKSON, whom Justice REED joins, dissenting.

The Court apparently is holding that the Federal Constitution prohibits Ohio from recognizing the validity of this Wisconsin divorce decree insofar as it settles custody of the couple’s children. In the light of settled and unchallenged precedents of this Court, such a decision can only rest upon the proposition that Wisconsin’s courts had no jurisdiction to make such a decree binding upon appellant.

A conclusion that a state must not recognize a judgment of a sister commonwealth involves very different considerations than a conclusion that it must do so. If Wisconsin has rendered a valid judgment, the Constitution not only requires every state to give it full faith and credit, but 28 U.S.C. §1738, referring to such judicial proceedings, commands that they “shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” The only escape from obedience lies in a holding that the judgment rendered in Wisconsin, at least as to custody, is void and entitled to no standing even in Wisconsin. It is void only if it denies due process of law.

The Ohio courts reasoned that although personal jurisdiction over the wife was lacking, domicile of the children in Wisconsin was a sufficient jurisdictional basis to enable Wisconsin to bind all parties interested in their custody. This determination that the children were domiciled in Wisconsin has not been contested either at our bar or below. Therefore, under our precedents, it is conclusive. The husband, plaintiff in the case, was at all times domiciled in Wisconsin; the defendant-wife was a Wisconsin native, was married there and both were domiciled in that State until her move in December 1946, when the parties stipulate that she acquired an Ohio domicile. The children were born in Wisconsin, were always domiciled there, and were physically resident in Wisconsin at all times until December 1946, when their mother took them to Ohio with her. But the Ohio court specifically found that she brought the children to Ohio with the understanding that if she decided not to go back to Wisconsin the children were to be returned to that State. In spite of the fact that she did decide not to return, she kept the children in Ohio. It was under these circumstances that the Wisconsin decree was rendered in February 1947, less than two months after the wife had given up her physical residence in Wisconsin and held the children out of the State in breach of her agreement.…

The difference between a proceeding involving the status, custody and support of children and one involving adjudication of property rights is too apparent to require elaboration. In the former, courts are no longer concerned primarily with the proprietary claims of the contestants for the “res” before the court, but with the welfare of the “res” itself. Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court’s “cutting off” a mother’s right to custody of her children, as if it raised problems similar to those involved in “cutting off” her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. But the assumption that it overrides all other considerations and in its absence a state is constitutionally impotent to resolve questions of custody flies in the face of our own cases.…

Questions and Comments

(1) It is clear, isn’t it, that domicile should provide enough of an interest for the state to grant the divorce? Think of the situation of the defendant spouse who cannot be found—should the other remain perpetually married? And if the state of domicile may grant a divorce, wouldn’t it be intolerable for it not to be given full faith and credit, so that a person might be married in one place and not another? If this reasoning holds, is there any sensible alternative to the holding in Estin v. Estin that Nevada could terminate the marriage of the parties but not the husband’s obligation to support his former wife?

(2) The conceptual framework for the doctrine of divisible divorce—that the basic divorce action is in rem, with the marriage relationship the res, located where either spouse lives, while other aspects of the action are in personam—received an interesting test in Carr v. Carr, 46 N.Y.2d 270 (1978). There, decedent Paul Carr had obtained an ex parte Honduran divorce from his wife Ann in 1967. At the time, Ann was living in New York. Later, Paul married Barbara, who at all relevant times lived in California. When Paul died and Ann learned that Barbara had applied for survivor benefits under the Foreign Service Retirement and Disability System (Paul had been with the Foreign Service), Ann brought an action in New York to invalidate the Honduran divorce and declare herself Paul’s lawful surviving spouse. The New York court decided that it had no jurisdiction, despite the possibility of saying that the marital “res” was in New York. It pointed out that the real defendant was Barbara, and that she had never had any contacts with New York.

Along similar lines, California refused jurisdiction in a case brought by a Californian to have defendant declared his father. Hartford v. Superior Court, 47 Cal. 2d 447 (1956). Defendant was not domiciled in California, but plaintiff sought to analogize the father-son relationship to the marriage relationship and thus avoid the need for in personam jurisdiction. Justice Traynor said that the difference between divorce and establishing paternity was the difference “between the state’s power to insulate its domiciliary from a relationship with one not within its jurisdiction and its lack of power to reach out and fasten a relationship upon a person over whom it has no jurisdiction.” Is the distinction significant?

(3) Wasn’t the result in May v. Anderson clearly wrong for the reasons stated by Justice Jackson? If the presence of real property within the state gives the state enough interest to determine the rights in it of those over whom it has no in personam jurisdiction, why can’t the same be said when the “property” is a child—in whom the state presumably has a stronger interest? Wouldn’t such reasoning work under Shaffer, page 489 supra? And even if it is considered necessary to obtain in personam jurisdiction over the wife in May, didn’t Wisconsin have “minimal contacts” with her under the International Shoe standard? Isn’t it strange that after May there is no state where either of the spouses can stay at home and sue? (Of course either can go to the domicile of the other, but at the risk of less favorable law.)

Is there anything in Kulko, supra page 453, that suggests a different result?

(4) Is the rule that a state can grant a divorce if one of its spouses is a domiciliary a constitutional rule? If so, does this mean that a non-domicile state has no constitutional authority to grant a divorce? If a non-domicile state issues a judgment of divorce, may other states recognize it?

These questions are currently germane to individuals seeking to terminate their same-sex marriages. What happens, for example, if a same-sex couple is married in California, where same-sex marriage is legal, and they subsequently move to Texas, where same-sex marriage is not legally recognized? As indicated by In re J.B. and H.B. at page 72 supra, Texas courts will not grant divorces to same-sex couples. So far, thousands of same-sex couples residing outside of California have travelled to California to enter into same-sex marriages. To assist these couples when they seek divorce, the California legislature passed Senate Bill 651, effective January 1, 2012. The statute amends California’s Family Code to provide:

2320. (b) (1) A judgment for dissolution, nullity, or legal separation of a marriage between persons of the same sex may be entered, even if neither spouse is a resident of, or maintains a domicile in, this state at the time the proceedings are filed, if the following apply:

                           (A) The marriage was entered in California.

                           (B) Neither party to the marriage resides in a jurisdiction that will dissolve the marriage. If the jurisdiction does not recognize the marriage, there shall be a rebuttable presumption that the jurisdiction will not dissolve the marriage.

(2) For the purposes of this subsection, the superior court in the county where the marriage was entered shall be the proper court for the proceeding. The dissolution, nullity, or legal separation shall be adjudicated in accordance with California law.

Is the California statute constitutional? May other states honor divorces granted by California courts?

Note: Full Faith and Credit and Bilateral Divorce

Under Williams II, supra page 613, a sister-state is entitled to ignore a divorce decree issued in an ex parte proceeding if the recognizing court determines that the spouse seeking the divorce was not a bona fide domiciliary of the state issuing the judgment. Can a decree be similarly challenged when the divorce proceedings were bilateral?

In Johnson v. Muelberger, 340 U.S. 581 (1951), a daughter seeking to defeat her step-mother’s spousal claim to a statutory one-third right to her father’s estate, argued that the step-mother was not validly married to her father. Specifically, the daughter argued that her father’s divorce from his second wife was invalid, thereby defeating his subsequent attempt to marry her step-mother. Although decedent and his second wife resided in New York, in 1942, she filed for divorce in Florida without satisfying Florida’s 90-day residency jurisdictional requirement. Decedent appeared in the Florida proceedings and contested the merits. In 1944 decedent married the step-mother, and in 1945 he died, leaving his entire estate to his daughter by will. New York’s Surrogate’s Court determined that the daughter could not attack the validity of the Florida decree because the divorce was contested and was not subject to collateral attack in Florida, but the New York Court of Appeals reversed. The U.S. Supreme Court concluded that the Florida court decree was entitled to full faith and credit. Under full faith and credit principles, a party who is personally served or who appears personally in divorce proceedings would not be permitted to challenge the decree, and third parties would be permitted to challenge the decree only if the challenge was permitted under the laws of the rendering state. According to Florida law, if the divorcing parties are unable to collaterally attack the decree, third parties are similarly barred. As a result, the third-party challenge is impermissible throughout the U.S.

Presumably ex parte proceedings are special for full faith and credit purposes because domicile determinations lack the reliability produced by adversarial proceedings. But are bilateral divorces any more adversarial regarding jurisdictional questions, at least when couples have a joint interest in thwarting domicile divorce constraints? Could these incentives be dampened with a choice-of-law rule requiring divorce courts to apply the law of the marital domicile? If both spouses were willing to lie about a change of domicile of one spouse in order to obtain the divorce, should third parties be permitted to contest its validity?

Should third parties ever be permitted to contest the validity of others’ divorces? If not, can you comfortably distinguish the situation in Matter of Ranftle, page 66 supra, where third parties are entitled to challenge the validity of a marriage? Should the state be permitted to prosecute colluding spouses for bigamy if they remarry?

Should the IRS be permitted to mount a collateral attack on a bilateral divorce? The principle of Muelberger presumably does not apply in the case of a bilateral divorce granted by another country, since the full faith and credit clause applies only to state judgments. In Boyter v. Commissioner of Internal Revenue, 668 F.2d 1382 (4th Cir. 1982), the Boyters had twice obtained year-end divorces, once in Haiti and once in the Dominican Republic. After filing separate tax returns (to avoid the “marital penalty”), they remarried. The Fourth Circuit ruled that under the Internal Revenue Code the IRS was bound by state law on the question of whether the Boyters were married. Without answering that question, the court remanded the case for a determination of whether the divorce was a “sham transaction” not deserving recognition under the Internal Revenue Code. Is it consistent to say that state law will be followed to determine whether the Boyters were validly divorced but that, even if they were, their divorce may be considered a “sham transaction”? Foreign country divorces will routinely be given comity if they appear regular and if the parties were actually domiciled in the foreign country at the time.

One of the stranger cases of American jurisprudence is Alton v. Alton, 207 F.2d 667 (3d Cir. 1953). Mrs. Alton had gone to the Virgin Islands from the couple’s home in Connecticut. After six weeks and one day she filed for divorce, which her husband did not contest. Under Virgin Islands law, only the minimum residence period—not domicile—was required. The divorce was denied and the wife appealed. The husband did not respond. The Court of Appeals affirmed denial of the divorce on “due process” grounds, despite the fact that it is hard to find someone who is denied due process when both parties want the divorce. Would full faith and credit have made a more solid basis for the court’s decision? The Supreme Court originally granted certiorari in the Alton case but dismissed the matter as moot and vacated the decision upon learning that the parties had obtained a divorce elsewhere. 347 U.S. 610 (1954).

       2.   Modifications: Child Custody and Support

Yarborough v. Yarborough

290 U.S. 202 (1933)

Justice BRANDEIS delivered the opinion of the Court.

On August 10, 1930, Sadie Yarborough, then sixteen years of age, was living with her maternal grandfather, R. D. Blowers, at Spartanburg, South Carolina. Suing by him as guardian ad litem, she brought this action in a court of that State to require her father, W. A. Yarborough, a resident of Atlanta, Georgia, to make provision for her education and maintenance. She alleged “that she is now ready for college and is without funds and, unless the defendant makes provision for her, will be denied the necessities of life and an education, and will be dependent upon the charity of others.”¹ Jurisdiction was obtained by attachment of defendant’s property. Later he was served personally within South Carolina.

In bar of the action, W. A. Yarborough set up, among other defenses, a judgment entered in 1929 by the Superior Court of Fulton County, Georgia, in a suit for divorce brought by him against Sadie’s mother. He alleged that by the judgment the amount thereafter to be paid by him for Sadie’s education and maintenance had been determined; that the sum so fixed had been paid; and that the judgment had been fully satisfied by him. He claimed that in Georgia the judgment was conclusive of the matter here in controversy; that having been satisfied, it relieved him, under the Georgia law, of all obligation to provide for the education and maintenance of their minor child; and that the full faith and credit clause of the Federal Constitution (Art. IV, §1) required the South Carolina court to give to that judgment the same effect in this proceeding which it has, and would have, in Georgia. The trial court denied the claim; ordered W. A. Yarborough to pay to the grandfather, as trustee, fifty dollars monthly for Sadie’s education and support; and to pay $300 as fees of her counsel.…

For sometime prior to June, 1927, W. A. Yarborough, his wife and their daughter Sadie had lived together at Atlanta, Georgia, where he then was, and ever since has been, domiciled. In that month, Sadie’s mother left Atlanta for Hendersonville, N.C., where she remained during the summer. Sadie joined her there, after a short stay at a camp. In September, 1927, while they were at Hendersonville, W. A. Yarborough brought, in the Superior Court for Fulton County, at Atlanta, suit against his wife for a total divorce on the ground of mental and physical cruelty. Mrs. Yarborough filed an answer and also a cross-suit in which she prayed a total divorce, the custody of the child and “that provision for permanent alimony be made for the support of the respondent and the minor child above mentioned [Sadie], and for the education of said minor child.” An order, several times modified, awarded to the wife the custody of Sadie and, as temporary alimony, sums “for the support and maintenance of herself and her minor daughter Sadie.” Hearings were held from time to time at Atlanta. At some of these, Sadie (and also her grandfather) was personally present. But she was not formally made a party to the litigation; she was not served with process; and no guardian ad litem was appointed for her therein.

[A] decree of total divorce, with the right in each to remarry, was entered on June 7, 1929; the wife was ordered to pay the costs; and jurisdiction of the case “was retained for the purpose of further enforcement of the orders of the court theretofore passed.”³ Among such orders, was the provision for the maintenance and education of Sadie here relied upon as res judicata. It was entered on January 17, 1929 (after the rendition of the first verdict).… It was contended below in the trial court, and there held, that the provision of the decree of the Georgia court directing the payment to R. D. Blowers, trustee, of $1,750 to be “expended by him in his discretion for the benefit of the minor child, including her education, support, maintenance, medical attention and other necessary items of expenditure” was not intended to relieve the father from all further liability to support Sadie. This contention appears to have been abandoned. It is clear that Mrs. Yarborough, her husband and the court intended that this provision should absolve Sadie’s father from further obligation to support her. That the term “permanent alimony” as used in the decree of the Georgia court, means a final provision for the minor child is shown by both the legislation of the State and the decisions of its highest court. The refusal of the South Carolina court to give the judgment effect as against Sadie is now sought to be justified on other grounds.

… The fact that Sadie has become a resident of South Carolina does not impair the finality of the judgment. South Carolina thereby acquired the jurisdiction to determine her status and the incidents of that status. Upon residents of that State it could impose duties for her benefit. Doubtless, it might have imposed upon her grandfather who was resident there a duty to support Sadie. But the mere fact of Sadie’s residence in South Carolina does not give that State the power to impose such a duty upon the father who is not a resident and who long has been domiciled in Georgia. He has fulfilled the duty which he owes her by the law of his domicile and the judgment of its court. Upon that judgment he is entitled to rely. It was settled by Sistare v. Sistare, 218 U.S. 1, that the full faith and credit clause applies to an unalterable decree of alimony for a divorced wife. The clause applies, likewise, to an unalterable decree of alimony for a minor child. We need not consider whether South Carolina would have power to require the father, if he were domiciled there, to make further provision for the support, maintenance, or education of his daughter.

Reversed.

Justice STONE, dissenting.

I think the judgment should be affirmed.

The divorce decree of the Georgia court purported to adjudicate finally, both for the present and for the future, the right of a minor child of the marriage to support and maintenance, by directing her father to make a lump sum payment for that purpose. More than two years later, after the minor had become a domiciled resident of South Carolina, and after the sum paid had been exhausted, a court of that State, on the basis of her need as then shown, has rendered a judgment directing further payments for her support out the property of the father in South Carolina, in addition to that already commanded by the Georgia judgment.

For present purposes we may take it that the Georgia decree, as the statutes and decisions of the State declare, is unalterable and, as pronounced, is effective to govern the rights of the parties in Georgia. But there is nothing in the decree itself, or in the history of the proceedings which led to it, to suggest that it was rendered with any purpose or intent to regulate or control the relationship of parent and child, or the duties which flow from it, in places outside the State of Georgia where they might later come to reside. It would hardly be thought that Georgia, by judgment of its courts more than by its statutes, would attempt to regulate the relationship of parents and child domiciled outside of the State at the very time the decree was rendered; and, in the face of constitutional doubts that arise here, it is far from clear that its decree is to be interpreted as attempting to do more than to regulate that relationship while the infant continued to be domiciled within the State. But if we are to read the decree as though it contained a clause, in terms, restricting the power of any other state, in which the minor might come to reside, to make provision for her support, then, in the absence of some law of Congress requiring it, I am not persuaded that the full faith and credit clause gives sanction to such control by one state of the internal affairs of another.

Congress has said that the public records and the judicial proceedings of each state are to be given such faith and credit in other states as is accorded to them in the state “from which they are taken.” But this broad language has never been applied without limitations. See McElmoyle v. Cohen, 13 Pet. 312. Between the prohibition of the due process clause, acting upon the courts of the state from which such proceedings may be taken, and the mandate of the full faith and credit clause, acting upon the state to which they may be taken, there is an area which federal authority has not occupied. As this Court has often recognized, there are many judgments which need not be given the same force and effect abroad which they have at home, and there are some, though valid in the state where rendered, to which the full faith and credit clause gives no force elsewhere. In the assertion of rights, defined by a judgment of one state, within the territory of another, there is often an inescapable conflict of interest of the two states, and there comes a point beyond which the imposition of the will of one state beyond its own borders involves a forbidden infringement of some legitimate domestic interest of the other. That point may vary with the circumstances of the case; and in the absence of provisions more specific than the general terms of the congressional enactment this Court must determine for itself the extent to which one state may qualify or deny rights claimed under proceedings or records of other states.

… The question presented here is whether the support and maintenance of a minor child, domiciled in South Carolina, is so peculiarly a subject of domestic concern that Georgia law can not impair South Carolina’s authority. The subject matter of the judgment in each state is the duty which government may impose on a parent to support a minor child. The maintenance and support of children domiciled within a state, like their education and custody, is a subject in which government itself is deemed to have a peculiar interest and concern. Their tender years, their inability to provide for themselves, the importance to the state that its future citizens should be clothed, nourished and suitably educated, are considerations which lead all civilized countries to assume some control over the maintenance of minors.¹² The states very generally make some provision from their own resources for the maintenance and support of orphans or destitute children, but in order that children may not become public charges the duty of maintenance is one imposed primarily upon the parents, according to the needs of the child and their ability to meet those needs. This is usually accomplished by suit brought directly by some public officer, by the child by guardian or next friend, or by the mother, against the father for maintenance and support. The measure of the duty is the needs of the child and the ability of the parent to meet those needs at the very time when performance of the duty is invoked. Hence, it is no answer in such a suit that at some earlier time provision was made for the child, which is no longer available or suitable because of his greater needs, or because of the increased financial ability of the parent to provide for them, or that the child may be maintained from other sources.

In view of the universality of these principles it comes as a surprise that any state, merely because it has made some provision for the support of a child, should, either by statute or judicial decree, so tie its own hands as to foreclose all future inquiry into the duty of maintenance however affected by changed conditions.

Even though the Constitution does not deny to Georgia the power to indulge in such a policy for itself, it by no means follows that it gives to Georgia the privilege of prescribing that policy for other states in which the child comes to live. South Carolina has adopted a different policy. It imposes on the father or his property located within the state the duty to support his minor child domiciled there.…

The decision in Sistare v. Sistare lends no support to the contention that South Carolina can be precluded by a judgment of another state from providing for the future maintenance and support of a destitute child domiciled within its own borders, out of the property of her father, also located there. Here the Georgia decree did not end the relationship of parent and child, as a decree of divorce may end the marriage relationship. Had the infant continued to reside in Georgia, and had she sought in the courts of South Carolina to compel the application of property of her father, found there, to her further maintenance and support, full faith and credit to the Georgia decree applied to its own domiciled resident might have required the denial of any relief. Cf. Bates v. Bodie, 245 U.S. 520; Thompson v. Thompson, 226 U.S. 551. But when she became a domiciled resident of South Carolina, a new interest came into being,—the interest of the State of South Carolina as a measure of self-preservation to secure the adequate protection and maintenance of helpless members of its own community and its prospective citizens. That interest was distinct from any which Georgia could conclusively regulate or control by its judgment, even though rendered while the child was domiciled in Georgia. The present decision extends the operation of the full faith and credit clause beyond its proper function of affording protection to the domestic interests of Georgia and makes it an instrument for encroachment by Georgia upon the domestic concerns of South Carolina.

Justice CARDOZO concurs in this opinion.

Questions and Comments

(1) Isn’t there a striking resemblance between the dissenting opinion in Yarborough and the plurality opinion in Thomas v. Washington Gas Light, page 574 supra? Both suggest that the rendering state is overreaching if it attempts to define the continuing effect of its judgments in another state. Does that suggest that the Thomas plurality is inconsistent with the majority holding in Yarborough?

(2) Yarborough dealt with an unusual state law, which made awards of child support unmodifiable. If one takes seriously the text of the full faith and credit statute, then it seems clear that other states must treat the award as unmodifiable also. But conversely, the language of the statute offers enormous freedom to modify judgments from states with res judicata rules making such awards modifiable as a domestic matter.

(3) One related area in which this reasoning caused great problems was the modification of child custody awards. A disgruntled parent might simply take the child to another state and attempt to get a modification before some more sympathetic judicial forum. The problem of interstate child kidnapping grew to such serious proportions that 28 U.S.C. §1738 was amended, adding a new section in the effort to limit a state’s power to modify awards rendered in other states. The current version of the statute provides:

1738A. Full Faith and Credit Given to Child Custody Determinations

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.

(b) As used in this section, the term—

                     (1) “child” means a person under the age of eighteen;

                     (2) “contestant” means a person, including a parent or grandparent, who claims a right to custody or visitation of a child;

                     (3) “custody determination” means a judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications;

                     (4) “home State” means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;

                     (5) “modification” and “modify” refer to a custody or visitation determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody or visitation determination concerning the same child, whether made by the same court or not;

                     (6) “person acting as a parent” means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;

                     (7) “physical custody” means actual possession and control of a child;

                     (8) “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States; and

                     (9) “visitation determination” means a judgment, decree, or other order of a court providing for the visitation of a child and includes permanent and temporary orders and initial orders and modifications.

(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—

                     (1) such court has jurisdiction under the law of such State; and

                     (2) one of the following conditions is met:

                           (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

                           (B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

                           (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

                           (D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

                           (E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

(e) Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—

                     (1) it has jurisdiction to make such a child custody determination; and

                     (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

(h) A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.

(4) The Parental Kidnapping Prevention Act (or “PKPA,” as 28 U.S.C. §1738A is known) was in part a response to the perceived inadequacies in the Uniform Child Custody Jurisdiction Act (“UCCJA”), 9 U.L.A. §116, which has been adopted in every state. For a valuable discussion of the history of the two laws, the way they fit together, and the many difficulties in their application, see Goldstein, The Tragedy of the Interstate Child: A Critical Reexamination of the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, 25 U.C. Davis L. Rev. 845 (1992). In 1997, the Commissioners on Uniform State Laws promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), a revision of the UCCJA designed to bring it into conformity with the PKPA and to further clarify the jurisdictional and substantive law of interstate child custody. For analysis of the UCCJEA, see Spector, Uniform Child-Custody Jurisdiction and Enforcement Act, 32 Fam. L.Q. 301, 305 (1998); Hoff, The ABC’s of the UCCJEA: Interstate Child-Custody Practice Under the New Act, 32 Fam. L.Q. 267, 278 (1998). For cases applying both the PKPA and UCCJEA, see Jorgensen v. Vargas, 627 N.W.2d 550 (Iowa 2001); Seamans v. Seamans, 73 Ark. App. 27 (2001); In re Marriage of Newsome, 68 Cal. App. 4th 949 (1998).

(5) The Supreme Court has held that the P.K.P.A. does not create a federal cause of action. Thompson v. Thompson, 484 U.S. 174 (1988). Primary responsibility for enforcement of the act therefore rests with state courts, with appellate review to the United States Supreme Court.

(6) Is an Indian tribe a “State” within the meaning of the P.K.P.A.? See In re Larch, 872 F.2d 66 (1988), holding that tribal courts are bound by the act.

(7) Does DOMA narrow states’ obligations under the P.K.P.A. in the context of child custody judgments rendered in connection with the dissolution of same-sex marriages or their equivalents? See Harvey, Note, The Rights of Divorced Lesbians: Interstate Recognition of Child Custody Judgments in the Context of Same-Sex Divorce, 78 Fordham L. Rev. 1379 (2009).

(8) International child custody cases are subject to a web of overlapping conventions, the primary one of which is the Hague Convention on the Civil Aspects of International Child Abduction (1980). For commentary, see Symposium, Symposium Issue Celebrating Twenty Years: The Past and Promise of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, 33 N.Y.U. J. Intl. L. & Pol. 1 (2000); Harper, The Limitations of the Hague Convention and Alternative Remedies for a Parent Including Re-Abduction, 9 Emory Intl. L. Rev. 257 (1995); Finan, Convention on the Rights of the Child: A Potentially Effective Remedy in Cases of International Child Abduction, 34 Santa Clara L. Rev. 1007 (1994). A federal statute does provide a cause of action for wrongful removal or retention under the Convention, and the Supreme Court has stated that U.S. courts should act in accordance with a broad interpretation of Convention obligations. See Abbott v. Abbott, 130 S. Ct. 1983 (2010).

*Stoll v. Gottlieb, 305 U.S. 165, 172 (1938).

†See, e.g., Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir. 1964).

*James, Hazard & Leubsdorf, Civil Procedure 704 (5th ed. 2001).

*Is there any basis in the full faith and credit clause or the implementing statute for requiring the states to give full faith and credit to the judgments of federal courts? If the full faith and credit clause does not authorize such a rule, is there any other basis in the Constitution for requiring such recognition by the states? In fact, the Supreme Court has always required recognition of federal court judgments. See, e.g., Metcalf v. Watertown, 153 U.S. 671 (1894). Would any other result be acceptable? See generally Burbank, Federal Judgments Law: Sources of Authority and Sources of Rules, 70 Tex. L. Rev. 1551 (1992).

1.This is, therefore, not a case in which a party, although afforded an opportunity to contest subject-matter jurisdiction, did not litigate the issue. Cf. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371.

2.It is not disputed in the present case that the Nebraska courts had jurisdiction over the respondent’s person. She entered a general appearance in the trial court, and initiated the appeal to the Nebraska Supreme Court.

3.It is to be noted, however, that in neither of these cases had the jurisdictional issues actually been litigated in the first forum.

The Restatement of Conflict of Laws recognizes the possibility of such exceptions:

Where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed by the policy against permitting the court to act beyond its jurisdiction. Among the factors appropriate to be considered in determining that collateral attack should be permitted are that

(a) the lack of jurisdiction over the subject matter was clear;

(b) the determination as to jurisdiction depended upon a question of law rather than of fact;

(c) the court was one of limited and not of general jurisdiction;

(d) the question of jurisdiction was not actually litigated;

(e) the policy against the court’s acting beyond its jurisdiction is strong.

Restatement, Conflict of Laws §451(2) (Supp. 1948). See Restatement, Judgments §10 (1942).

18. Stoll v. Gottlieb [305 U.S. 165 (1938)].

19. Chicot County, supra.

18. The doctrine of stare decisis has a more limited application when the precedent rests on constitutional grounds.…

The full faith and credit area presents special problems because the Constitution expressly delegates to Congress the authority “by general Laws [to] prescribe the Manner in which [the States’] Acts, Records and Proceedings shall be proved, and the effect thereof. “ (Emphasis added.) Yet it is quite clear that Congress’ power in this area is not exclusive, for this Court has given effect to the Clause beyond that required by implementing legislation. See Bradford Electric Co. v. Clapper. [T]he Clapper case rested on the constitutional Clause alone. Carroll, which for all intents and purposes buried whatever was left of Clapper after Pacific Employers… cast no doubt on Clapper’s reliance on the Full Faith and Credit Clause itself.

9. This Court has held it impermissible for a state court to enjoin a party from proceeding in a federal court, see Donovan v. Dallas, 377 U.S. 408 (1964), but has not yet ruled on the credit due to a state court injunction barring a party from maintaining litigation in another State, see Ginsburg, Judgments in Search of Full Faith and Credit: The Last-in-Time Rule for Conflicting Judgments, 82 Harv. L. Rev. 798, 823 (1969); see also Reese, Full Faith and Credit to Foreign Equity Decrees, 42 Iowa L. Rev. 183, 198 (1957) (urging that, although this Court “has not yet had occasion to determine [the issue], … full faith and credit does not require dismissal of an action whose prosecution has been enjoined,” for to hold otherwise “would mean in effect that the courts of one state can control what goes on in the courts of another”). State courts that have dealt with the question have, in the main, regarded antisuit injunctions as outside the full faith and credit ambit.

11. In no event, we have observed, can issue preclusion be invoked against one who did not participate in the prior adjudication. Thus, Justice Kennedy emphasizes the obvious in noting that the Michigan judgment has no preclusive effect on the Bakers, for they were not parties to the Michigan litigation. Such an observation misses the thrust of GM’s argument. GM readily acknowledges “the commonplace rule that a person may not be bound by a judgment in personam in a case to which he was not made a party.” But, GM adds, the Michigan decree does not bind the Bakers; it binds Elwell only. Most forcibly, GM insists that the Bakers cannot object to the binding effect GM seeks for the Michigan judgment because the Bakers have no constitutionally protected interest in obtaining the testimony of a particular witness. Given this argument, it is clear that issue preclusion principles, standing alone, cannot resolve the controversy GM presents.

12. Justice Kennedy inexplicably reads into our decision a sweeping exception to full faith and credit based solely on “the integrity of Missouri’s judicial processes.” The Michigan judgment is not entitled to full faith and credit, we have endeavored to make plain, because it impermissibly interferes with Missouri’s control of litigation brought by parties who were not before the Michigan court. Thus, Justice Kennedy’s hypothetical misses the mark. If the Bakers had been parties to the Michigan proceedings and had actually litigated the privileged character of Elwell’s testimony, the Bakers would of course be precluded from relitigating that issue in Missouri.

1. The case most directly in point, M’Elmoyle v. Cohen, 13 Pet. 312, upheld the Georgia statute with which we deal today. But the parties in that case did not argue the statute’s shorter limitation for foreign judgments as the ground of its invalidity. Instead, the issue presented to this Court concerned the power of the States to impose any statute of limitations upon foreign judgments. The language of Mr. Justice Wayne’s opinion—“may not the law of a state fix different times for barring the remedy in a suit upon a judgment of another state, and for those of its own tribunals,” 13 Pet., at 328—must be read against this argument. And, of course, that opinion cannot stand against an equal-protection claim, since it was written nearly 30 years before the Fourteenth Amendment was adopted.…

1. It is unnecessary to consider whether the Idaho determination as to the jurisdiction of the Washington court was properly made. As the procedure by which a state court examines into the question of the jurisdiction of the court of a sister state is a matter within the control of the respective states (Adam v. Saenger, 303 U.S. 59, 63), it need only be added that such procedure is subject to question only on direct appeal.

It was stipulated by all parties to the Idaho cause that the Idaho courts might take judicial notice of the statutes and decisions of Washington. Some constitutional and statutory provisions relating to the jurisdiction of the Superior Court were pleaded and admitted. It has long been the rule in Idaho that its courts do not take judicial notice of the laws of another state and that without allegation and evidence it will be assumed the laws are the same as those of Idaho. While none of these cases involved a stipulation, the decision of the Supreme Court of Idaho declares the law of that jurisdiction. It follows from the Idaho court’s refusal to look into the statutes of Washington that the jurisdiction of the Washington court was presumed to be governed by Idaho law. Under proper proof, the Idaho court would have been compelled to examine the jurisdiction of the Washington court under Washington law.

8. … The instant case does not present the special considerations that arise where a parent, with or without minor children, leaves a jurisdiction for the purpose of escaping process or otherwise evading jurisdiction, and we do not have here the considerations that arise when children are unlawfully or surreptitiously taken by one parent from the other.

1. There was no suggestion that plaintiff would be destitute or become a public charge. Indeed, her grandfather testified that he was able and willing to provide $125 a month for her education and maintenance (the amount sought by plaintiff), if her father was unable to do so.

3. Custody of Sadie had been awarded to the mother; and it had been ordered that the father be allowed the privilege of visiting his said minor daughter [at regular intervals].…

12. This control is particularly important in the case of the children of divorced couples. They are usually young; in Maryland over 60% are under ten years of age when divorce occurs. Divorces are often not contested and the intervention of a disinterested judge is frequently nominal. Allowances for children in the divorce court are typically small. Marshall & May, The Divorce Court, 31, 79-80, 82, 226-321, 323.