A Phantom Menace: SB 58/HB 351 and the Application of Foreign Law in Florida’s Family Courts
The state of Florida, its citizenry, constitution, and jurisprudence have grappled again during Florida’s 2013 regular legislative session with draft legislation to prevent the application of foreign law in certain instances in F.S. Ch. 61 (dissolution of marriage; support; timesharing) and Ch. 88 (Uniform Interstate Family Support Act) proceedings. This draft legislation was known as Senate Bill 58 and House Bill 351, Application of Foreign Law in Certain Cases (hereinafter “bill”).1 The bill ultimately did not pass; however, given the historical trend of introducing similar bills,2 this will likely not be the last time Florida and its legislature will consider the proposed measures.
The bill’s sponsors, Senator Alan Hays3 and Representative Larry Metz,4 championed the bill as necessary legislation to protect Floridians and Florida courts from the intrusion by, and application of, potentially dire foreign law, such as Sharia law.5 Nevertheless, Senator Hays admitted in Senate hearings that the bill was a “preemptive measure,” and he neither identified, nor cited, any Florida cases in which Sharia law, the unstated object and intent of this legislation, had been applied in Florida family law proceedings.6
Setting aside the question of the appropriateness of, or necessity for, a law that prevents a problem perceived but not realized, the bill has been widely criticized for myriad reasons.7 For instance, the bill has been criticized for its potential impact on historic comity analyses, its potential constitutional violations, and practical and procedural challenges it could have presented in its implementation. This article briefly explores each area of concern.
Comity Concerns
The bill has been criticized as an unnecessary, illogical, and offensive expansion of Florida courts’ historical comity analyses and application. Critics have argued that Florida courts routinely protect Floridians and Florida law from unwarranted and unwanted intrusion by, and application of, laws odious to or in contravention of Florida’s public policy. Specifically, Florida’s family courts have consistently balanced the comity analysis in favor of, and in deference to, protecting Florida’s families.
• Historical Approach to Comity in Florida — The principal of comity, as set forth in the U.S. Constitution, art. IV, §II, clause I, is defined generally as courtesy or reciprocity among political entities involving mutual recognition of legislative, executive, and judicial acts.8 Judicial and legislative acts that afford litigants due process and which do not violate traditional notions of fairness, will generally be recognized and approved by Florida courts.9 In the early 1940s, the Florida Supreme Court set forth its long-standing tradition of declining to oblige itself of the principles of comity when necessary to protect the citizens of Florida.10 Since then, it has been not only gross violations of process and procedure, which lead Florida courts to refuse comity and nullify foreign orders, but also seemingly benign violations of Florida’s public policy.11 Florida courts, in fact, routinely render void and ineffectual contractual provisions that violate the public policy of this state.12
F.S. Ch. 88 and Ch. 61 were intentionally drafted with internal mechanisms designed to protect against the application of foreign law that violates the spirit and intent of the chapters by denying a litigant due process or trampling traditional notions of fairness.13 For instance, Florida courts have refused to honor a child custody determination from a foreign jurisdiction when said determination is deemed to be in violation of the jurisdictional standards of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).14
• The Bill: A New Approach to Comity — If the bill only restricted the application of foreign law in instances in which the foreign law was offensive to Florida public policy, it would simply have codified existing decisional law. Instead, the bill was cavalier — maverick by design. The bill vastly enlarged and amplified a Florida court’s ability to reject the application of foreign law. At its most granular level, the bill shifted the nexus in the analysis and application of foreign law away from its traditional basis, in which the foreign law was applied so long as it afforded due process and did not offend public policy, to a radical new slant, in which the foreign law would be applied so long as it originated from a foreign jurisdiction that provided the same constitutional safeguards that the Florida Constitution and the U.S. Constitution provide its citizens.15
Section 3(a) of the bill stated it specifically applied to “actual or foreseeable denials of a natural person’s fundamental liberties, rights and privileges guaranteed by the [s]tate [s]onstitution or the United States Constitution from the application of foreign law…,” and §4 of the bill in pertinent part, provided:
Any court…ruling…violate[s] the public policy of this state and is void and unenforceable if the court…bases its ruling…in whole or in part on any foreign…system [of law] that does not grant the parties affected by the ruling…the same fundamental liberties, rights and privileges guaranteed by the [s]tate [c]onstitution or the United States Constitution.16
Rhetorically, one must wonder whether any foreign system of law exists that provides its citizens the identical (“same”) robust protections that citizens of this country and state enjoy.
Constitutional Concerns
The bill, had it been enacted, would likely have been subjected to constitutional challenges.17 Constitutional arguments in opposition of the bill included, but were not limited to, infringing the freedom of contract, inhibiting the freedom of religion, and violating federalism/separation of powers. This article briefly discusses each of these constitutional concerns.18
• Freedom to Contract — The freedom to contract is an elemental, fundamental constitutional right granted under, and protected by, both the United States and Florida constitutions. The U.S. Constitution prevents any state from impairing the obligation of contracts.19 Florida’s Constitution contains a similar provision.20 Part of the freedom to contract includes the ability to choose the law applicable to the contract and the venue/forum in which contract disputes will be litigated.21
Critics argued that the bill would have infringed on the right to contract by limiting the ability of two contracting parties to select the law applicable to their contract and the venue or forum in which disagreements concerning their contract would be litigated. Further, the bill would have overturned the traditional forum non conveniens analysis. Sections 5(a), 6(a), and 6(b) of the bill provided in pertinent part:
A contract or contractual provision, if severable, that provides for the choice of a foreign law…to govern some or all disputes…arising from the contract violates the public policy of this state and is void and unenforceable if the foreign law…as applied to the dispute at issue…would not grant the parties the same fundamental liberties, rights and privileges guaranteed by the [s]tate [c]onstitution or the United States Constitution.
A contract or contractual provision, if severable, that provides for a choice of venue or choice of forum outside a state or territory of the United States violates the public policy of this state and is void and unenforceable if…enforcement…would result in a violation of any fundamental liberties, rights and privileges guaranteed by the [s]tate [c]onstitution or the United States Constitution.
If a natural person who is subject to personal jurisdiction in this state seeks to maintain litigation…in this state and the courts…find that granting a claim of forum non conveniens or a related claim denies or would likely lead to a denial of any fundamental liberties, rights or privileges guaranteed by the [s]tate [c]onstitution or the United States Constitution of the nonclaimant in the foreign forum the claim [shall] be denied.
Additionally, the bill would have directly conflicted with F.S. §61.052(5) (2012), which unequivocally provides that “ the [c]ourt may enforce an ante-nuptial agreement to arbitrate in accordance with the law and tradition chosen by the parties . ”22 While the bill drafters noted that legislation may reasonably and rationally circumscribe the right to freely contract, given the protections already afforded by the courts of this state,23 and the sheer breadth of the bill, it neither rationally nor reasonably did so.
• Freedom of Religion — The freedom to practice religion is an elemental, fundamental constitutional right granted under and protected by both the United States and Florida constitutions. The U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion.”24 Florida’s Constitution further articulates, in pertinent part: “There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.”25 The Florida Legislature has gone so far as to protect religious freedom through passing, in 1998, F.S. Ch. 761, known as Florida’s Religious Freedom Restoration Act, which, in pertinent part, prohibited the government, with limited exceptions, from substantially burdening “a person’s exercise of religion, even if the burden results from a rule of general applicability.”26
Critics of the bill argued that it impermissibly infringed on the free exercise of religion as protected by the United States and Florida constitutions. While §7(a) of the bill provides an ecclesiastical exception, it is circumspect and circumscribed applying only to the inner workings of the church and clergy (in the broadest sense of the terms). Unlike similar legislation specifically citing Sharia law that has been successfully challenged and struck down in other states, the bill did not single out any specific religion or religious tradition with particularity.27 Nevertheless, it had such broad applicability that violation of Florida’s Religious Freedom Restoration Act28 was all but guaranteed.
Religious freedom is of utmost importance in Florida given the state’s demographics. Florida courts are routinely called upon to adjudicate or protect and preserve the rights of Florida’s large Jewish population, comprised of citizens and nationals whose religious divorce proceedings may have been adjudicated by Israeli rabbinical courts or Beth Dins.29 It is axiomatic that Israel, and most other nations governed by a state-sponsored religion, does not provide the same constitutional rights to its citizens as the citizens of this state and, as such, its laws, and the laws of most other nations, would have been inapplicable and unenforceable in any family court proceeding had the bill passed.30 Tangentially, the citizens of this state could neither have contracted to have Israeli law, or the laws of most other nations, apply to their disputes, nor have selected Israel, or most other nations, as the forum in which their disputes could have been litigated.
• Separation of Powers/Federalism — The U.S. Constitution proclaims that the laws and treaties of the United States are the “supreme law of the land”31 Thereby preempting state laws concerning the same or similar subject matter.32 Part of the federal government’s powers, which preempt state laws, include foreign affairs powers.33
Critics of the bill argued that it violated the fundamental tenets of separation of powers and federalism. Because application of the bill would have required Florida courts to review and rule upon foreign law, challenges based upon federalism concerns were likely. Additionally, based upon similar concepts, conflict with various treaties was anticipated.
Practical Concerns
From a pure practicality perspective, the bill would have required bifurcated proceedings in all cases in which foreign law was at issue.34 Florida courts and Florida judges are already overburdened and overwhelmed by saturated dockets. Had the bill passed, Florida courts and Florida judges would have been asked, by competing experts, to pass judgment on foreign jurisdictions and systems of laws and to determine whether, as a condition precedent, said foreign jurisdictions offered the same constitutional protections to their citizenry that the United States and state constitutions offer. This additional inquiry, and the time and resources it would have taken to litigate, would have come at a cost to both the individual litigants and the taxpayers of this state.
Conclusion
While the bill passed the House but died in the Senate in 2013, it had traction and momentum. It is unclear whether a similar iteration of the bill will become law during an upcoming legislative session. If history is our guide, however, we may prognosticate that similar bills will continue to be sponsored during future legislative sessions. The bill and its potentially far-reaching implications should be catalysts for self reflection on how we, the citizens of Florida, individually and collectively perceive and conceive of our legal system. Do we desire a system of law which is myopic, static, rigid, exclusive, and focused primarily on preserving and protecting the sovereignty of Florida courts? Or, conversely, do we desire a system of law which, while fiercely protective of American and Floridian ideals, is also dynamic, fluid, and inclusive — incorporating, when appropriate, the rich tapestry of foreign jurisprudence? The answers to those questions will hopefully serve as a guide for discussions if similar bills are contemplated.
1 Fla. S. 58, 2013 Sess. (Nov. 19, 2012); Fla. H. 351, 2013 Sess. (Jan. 21, 2013). The aforementioned bills will be referenced in the singular because they were identical.
2 For example, bills similar in scope and content were introduced during Florida’s 2012 regular legislative session. Fla. S. 1360, 2012 Sess. (Dec. 22, 2011); Fla. H. 1209, 2012 Sess. (Jan. 4, 2012).
3 Sen. Hays is the senator for District 11 and a registered republican. Fla. Senate, Senator Alan Hays, http://www.flsenate.gov/Senators/s11.
4 Rep. Metz is the representative for District 32 and a registered republican. Fla. H. of Rep., Representative Larry Metz, http://www.myfloridahouse.gov/Sections/Representatives/details.aspx?MemberId=4498.
5 Sabrina Siddiqui, Florida State Senator: Sharia Law Like Disease We Should Vaccinate Against, http://www.huffingtonpost.com/2013/04/01/alan-hays-sharia_n_2992532.html. Sharia law is a fundamental belief of Islam that Islamic law, including a moral and religious code, is an expression of Allah’s command for the Muslim society imposing duties all Muslims must follow. Encyclopaedia Britannica, Shariah, http://www.britannica.com/EBchecked/topic/538793/Shariah (accessed June 13, 2013).
6 Siddiqui, Florida State Senator: Sharia Law Like Disease We Should Vaccinate Against, http://www.huffingtonpost.com/2013/04/01/alan-hays-sharia_n_2992532.html.
7 Numerous individuals and organizations were in vocal opposition to the bill, including, but not limited to, the Anti-Defamation League, the American Civil Liberties Union, the International Law Section, the Family Law Section of The Florida Bar, and various Jewish and Muslim groups.
8 Cochrane v. Nwandu, 855 So. 2d 1276, 1227 (Fla. 3d DCA 2003) (citing Intrinsic Values Corp. v. Superintendencia de Administracion Tributaria, 806 So. 2d 616, 619 (Fla. 3d DCA 2002)) (stating the proposition that “a foreign decree is entitled to comity where (1) the parties have been given notice and an opportunity to be heard, (2) where the foreign court had original jurisdiction, and (3) where the foreign decree does not offend the public policy of the State of Florida”).
9 Dyce v. Christie, 17 So. 3d 892, 893-894 (Fla. 4th DCA 2009) (holding that Jamaican custody decree that resulted from proceedings in substantial conformity with the procedures set forth in
Fla. Stat. §§61.501-61.523 (2012), including notice, opportunity to be heard, representation by counsel, application of the “best interests” standard, and entry of an order mandating a social investigation was entitled to comity).
10 Kellogg-Citizen’s Nat’l Bank v. Felton, 199 So. 50, 54-55 (Fla. 1940).
11 See, e.g., Maraj v. Maraj, 642 So. 2d 1103 (Fla. 4th DCA 1994). In Maraj, the wife, children, and property were located in Florida, and the wife had sought more extensive relief pursuant to Fla. Stat. §61 than she would receive abroad. Id. at 1104. The Fourth District Court of Appeal affirmed the trial court’s refusal to afford comity to proceeding in Trinidad and Tobago, notwithstanding the foreign court’s priority in exercising concurrent jurisdiction and the wife’s acknowledgement that injustice would not occur if the foreign jurisdiction maintained jurisdiction. Id.
12 See, e.g., Belcher v. Belcher, 271 So. 2d 7, 14 (Fla. 1972) (invalidating a provision in a Florida premarital agreement waiving an award of temporary support because the waiver was contrary to Florida public policy); In re Estate of Nicole Santos, 648 So. 2d 277, 281-282 (Fla. 4th DCA 1995) (limiting the application of Puerto Rican law with respect to a Puerto Rican prenuptial agreement, which was litigated in Florida when enforcement consistent with the agreement would have violated and defeated Florida’s homestead laws and protections); McNamara v. McNamara, 988 So. 2d 1255, 1257 (Fla. 5th DCA 2008) (nullifying a provision waiving an award of temporary attorneys’ fees in a Georgia premarital agreement litigated in Florida notwithstanding that the waiver of temporary fees was valid under Georgia law and Georgia law applied).
13 Fla. Stat. §61.506(2) (2012) provides that a child custody determination made in “substantial conformity with the jurisdictional standards” must be
applied; Fla. Stat. §88.1011(19) (2012) defines the term “state” to include “a foreign jurisdiction that has enacted a law substantially similar to the procedures under this act.”
14 Al-Fassi v. Al-Fassi, 433 So. 2d 664, 667-668 (Fla. 3d DCA 1983) (affirming a trial court’s refusal to recognize a Bahamian child custody order in which the Bahamian court failed to materially comply with the standards set forth in the UCCJEA).
15 Fla. S. 58, 2013 Sess. at (1) (stating that, while a person has a right to contract freely, that right “may be reasonably and rationally circumscribed pursuant to [Florida’s] interest to protect and promote rights and privileges granted under the State Constitution or the United States Constitution”). Query what the response of the Florida Legislature would be if, for instance, France, Germany, or other nations adopted a blanket rule prohibiting the application of American law in their courts simply because the law originated in the United States of America.
16 Fla. S. 58, 2013 Sess. at (4). Specifically excepted from the definition of “foreign law, legal code or system” is the common law and statutory law of England or Native American tribal law. Fla. S. 58, 2013 Sess. at (2).
17 C.f. Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2010) (noting that de novo review is the applicable appellate standard of review for determinations regarding the constitutionality of statutes); Fla. Dep’t of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005) (affirming the long-standing rule that statutes, and by implication, legislative acts, are afforded a presumption of constitutionality and should be construed to effect a constitutional outcome whenever possible).
18 A searching, detailed analysis of each of the constitutional issues raised by the bill is outside the scope of this article. The arguments are raised herein simply to provide the reader a basic foundation, analysis, and framework for understanding the potential arguments in opposition to the bill. In the event that a similar bill becomes law it is the author’s intent to expand upon this section in future submissions.
19 U.S. Const. art. I, §10, cl. 1.
20 Fla. Const. art. I, §10.
21 This is known as choice of law. See, e.g., In Re Estate of Nicole Santos v. Nicole-Sauri, 648 So. 2d 277 (Fla. 4th DCA 1995).
22 See, e.g., Akileh v. Elchahal, 666 So. 2d 246 (Fla. 2d DCA 1996) (applying secular contract principles to the parties’ sadaq and holding that the religious antenuptial agreement was valid and enforceable where there was sufficient consideration and a proverbial meeting of the minds).
23 See Pompino v. Claridge of Pompano Condominium, Inc., 378 So. 2d 774 (Fla. 1979) (setting forth the applicable balancing test which weighs infringements/impairments to contract against the state’s purpose). The Pompino court articulated the balancing test as follows: “To determine how much impairment is tolerable, we must weigh the degree to which a party’s contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously, this becomes a balancing process to determine whether the nature and the extent of the impairment is constitutionally tolerable in light of the importance of the state’s objective, or whether it unreasonably intrudes on the parties’ bargain to a degree greater than is necessary to achieve that objective.” Id. at 780.
24 U.S. Const. amend. I.
25 Fla. Const. art. I, §3.
26 Fla. Stat. §761.03 (1) (2012).
27 Rice v. Florida, 754 So. 2d 881 (Fla. 5th DCA 2000) (noting that in addition to the tripartite test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which states that a court may only invalidate a statute under an establishment clause analysis if it is “motivated wholly by an impermissible purpose, if its primary effect is the advancement of religion, or if it requires excessive entanglement between the church and state,” Florida courts add an additional consideration, which prohibits the indirect or direct use of public monies for sectarian institutions).
28 Fla. Stat. §761.03(1) provides that an individual’s free exercise of religion may only be substantially burdened by the state “in furtherance of a compelling governmental interest” and by the “least restrictive means.”
29 Bloch v. Bloch, 688 So. 2d 945 (Fla. 3d DCA 1997) (affirming trial court’s reservation of jurisdiction to alter its alimony, equitable distribution, and child support awards should the husband fail to provide the wife a “get,” a condition precedent to remarriage within the Jewish religion, thereby implicitly approving of the religious divorce procedure).
30 See, e.g., Akileh v. Elchahal, 666 So. 2d at 249 (holding a sadaq, an Islamic antenuptial agreement for a postponed dowry protecting the woman in the event of divorce, was valid and enforceable).
31 U.S. Const. art. VI.
32 Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 963-964 (9th Cir. 2010) (expanding the doctrine of preemption and holding that even in the absence of a direct federal law conflict, a state law that regulates state activities could be preempted by federal law if the state law infringed on the federal government’s general foreign affairs powers).
33 U.S. v. Pink, 315 U.S. 203, 233 (1941) (stating “[n]o [s]tate can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the [s]tates; it is vested in the national government exclusively.”).
34 It is axiomatic that Florida is not only a travel destination but also a home to thousands of foreign nationals, immigrants, and emigrants. The U.S. Census reflects that, for years 2007 to 2011, foreign-born persons comprised 19.2 percent of Florida’s population compared to only 12.8 percent of the United States’ overall population. U.S. Dep’t of Commerce, U.S. Census Bureau, State and County QuickFacts: Florida, http://quickfacts.census.gov/qfd/states/12000.html.
Christopher W. Rumbold , Gladstone & Weissman, P.A., Boca Raton, has practiced matrimonial and family law exclusively since 2005. He is a member of The Florida Bar’s Leadership Academy inaugural class and an active member of The Florida Bar Family Law Section.
This column is submitted on behalf of the Family Law Section, Elisha D. Roy, chair, and Sarah Kay, editor.
