[Eugene Volokh] Montana bill aims to prevent enforcement of some foreign judgments — but goes too far

The Montana legislature is considering SB97, which would prohibit “the application of foreign law when it violates a fundamental right guaranteed by the Montana or United States Constitution.” Sounds good, right — who wants applications of foreign law that violates fundamental rights?

Not so fast. It turns out that this bill, like others enacted in recent years (though too recently to generate a lot of appellate litigation), would have at least two serious problems:

1. It would interfere with the enforcement of perfectly legitimate foreign orders, just because the foreign country uses trials before judges rather than jury trials.
2. It would require Montana courts to ignore foreign divorces from certain countries, even when the divorces took place decades ago, before any of the affected parties came to Montana.

I doubt that this is what the author of the bill (state senator Keith Regier) intends, but it’s what the bill, as written, is likely to do.

First, the relevant text:

A court … decision violates the public policy of Montana and is void and unenforceable if … [based] on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage….

Without prejudice to any legal right, this act does not apply to a person, corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.

Now, consider two scenarios:

1. Say Mike Montanan sues Carl Canadian for some tort. Maybe Mike and Carl had a business dispute, and Mike gets a $1 million verdict against Carl for fraud. Mike gets that verdict in Canadian court, because that’s where Carl lives, and where the dispute took place. So far, no problem; these sorts of transnational lawsuits are pretty common.

Now the Canadian court sits without a jury, because Canadian courts, like the courts of many countries, often do that. That’s not the way we generally do things, but Mike is suing a Canadian in Canada, so he gets a verdict under Canadian procedures. Again, so far no problem.

But now Carl moves to Montana, together with his assets. Mike thinks that’s fine — he can just collect the assets in Montana. Yet if SB97 is enacted, that couldn’t be done. After all, the right to civil trial by jury is a fundamental right under the Montana Constitution. The Canadian court decision in Mike Montanan’s favor thus “violates the public policy of Montana and is void and unenforceable,” because it’s based on a “law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution” (the right to trial by civil jury). Mike has to go back into Montana court and sue Carl again.

2. Or say that Connie Canadian sues Mary Montanan in Canadian court; assume that the Canadian court has jurisdiction, because this stems from an incident that happened when Mary was doing business in Canada. But Mary wins, again in a trial before a judge, since a jury was unavailable in this proceeding in Canada. I’m done with all that trouble and expense, Mary thinks.

But Connie now sues Mary again in Montana. “Wait,” Connie says to the court, “I have a verdict in my favor from the Canadian court; throw Mary’s case out.” But remember that Canadian courts don’t allow parties a fundamental right provided by the Montana constitution — under SB97, then, the Canadian verdict would be void. Connie gets to relitigate the case against Mary in Montana, and Mary has to pay her lawyers again (and run the risk of losing again), even though before SB97 she’d have been done with the case once she won in Canada.

Now all this might be fine if the foreign system was corrupt, or allowed judgments that violate Americans’ free speech rights, or discriminated against litigants based on race or sex or religion. But this is Canada, a civilized country. Much as American law respects the right to trial by jury, does it really make sense to refuse to enforce Canadian judgments (or English or French or German judgments), just because we have a somewhat different system of civil procedure?

3. Let’s move from tort law to family law. Say that Wanda married Xavier in Elbonia, then divorced him in Elbonia. Then she married Harry in Elbonia, and 10 years later came to America.

Now she gets involved in a legal dispute that requires the American legal system to decide whether Wanda is