Elizabeth Redpath, Between Judgment and Law: Full Faith and Credit, Public Policy, and State Records

• Publication year: 2013

BETWEEN JUDGMENT AND LAW: FULL FAITH AND CREDIT, PUBLIC POLICY, AND STATE RECORDS†

ABSTRACT

Although the Full Faith and Credit Clause was intended to solidify the Union by requiring states to give appropriate respect to the official acts of other states, the application of the Clause has been controversial and analytically challenging. Full faith and credit caselaw has developed along diverging paths: one path requiring “exacting” faith and credit for final judgments and the other path severely limiting the faith and credit given to legislative acts through the creation of a public policy exception.

State records that are not a close fit within the two paradigms of “judgment” and “law” have been largely neglected in the Supreme Court’s treatment of full faith and credit. In 2011, however, the Fifth Circuit’s en banc decision in Adar v. Smith revealed a resurgent, if not novel, debate over whether the public policy exception should apply to just such a hybrid circumstance: non-adversarial judicial records.

This Comment argues that because the Full Faith and Credit Clause is a rule of evidence designed to facilitate interstate comity without infringing on the sovereignty of the states, states are obliged, by virtue of res judicata, to “recognize” most out-of-state records. However, states can refuse, by virtue of the public policy exception, to “enforce” those same records. The public policy exception, traditionally limited to public acts, therefore applies to the full spectrum of state records covered by the Clause.

† This Comment received the 2012 Mary Laura “Chee” Davis Award for Writing Excellence.

INTRODUCTION 641

1. THE LANDSCAPE OF FULL FAITH AND CREDIT 643

   1. History and Purpose of Full Faith and Credit 644

   2. Caselaw Development of Full Faith and Credit 649

      1. Judgments Have Nationwide Res Judicata Effect 650

      2. Public Acts Are Subject to the Law of the Forum State 651

   3. Other State Records and the Lack of Supreme Court Consensus 655

2. EXAMINING ADAR V. SMITH 661

   1. Full Faith and Credit Does Not Confer an Individual Right 663

   2. Full Faith and Credit Does Not Require Enforcement of Judgments 667

3. FULL FAITH AND CREDIT’S PUBLIC POLICY EXCEPTION REACHES

   THE FULL SPECTRUM OF STATE RECORDS 669

   1. The Recognition Requirement and the Values of Res Judicata .. 671

   2. The Enforcement Requirement and the Public Policy Exception 674

   3. Revisiting Adar v. Smith: An Alternative Remedy for the

Plaintiffs 677

CONCLUSION 679

INTRODUCTION

Article IV of the United States Constitution begins with the self-executing command, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”1 From ratification to the present, the application of the Full Faith and Credit Clause has been controversial,2 which is not surprising given the Clause’s perceived antagonism to the right of each state to implement and develop domestic policies that may not always accord with sister-state policies. This Comment

argues that the Clause is little more than a theoretical threat to state sovereignty; instead, it operates as a rule of evidence to facilitate, rather than undermine, horizontal federalism.

The latest skirmish in the federalism struggle involves a single document, but one of profound personal significance to every citizen: a birth certificate. An accurate birth certificate is particularly significant to a child who relies on the state to secure a more stable future. One such child was born in Shreveport,

Louisiana in 2005.3 Infant J—as he would be named in court documents—was

immediately surrendered by his birth mother to the state. In 2006, Mickey Smith and Oren Adar adopted Infant J pursuant to New York state law that permits joint adoptions by unmarried couples.4 Mr. Smith and Mr. Adar forwarded the adoption order to the Louisiana Department of Vital Records and Statistics and requested that the state registrar issue an amended birth certificate reflecting Infant J’s new name and parentage.5 The registrar responded that she would not include the names of both fathers on the birth

certificate because Louisiana does not recognize joint adoptions by unmarried couples.6 Significantly, the registrar did not contest the legal status of Infant J’s adoptive parents; she merely refused to enforce an incidental effect of the adoption decree.7 Mr. Smith and Mr. Adar sued to challenge her denial.8 In Adar v. Smith, the question was whether Louisiana must enforce an out-of-state

1. U.S. CONST. art. IV, § 1.

2. See infra Part I.A; see also David E. Engdahl, The Classic Rule of Faith and Credit, 118 YALE L.J. 1584 (2009); Kurt H. Nadelmann, Full Faith and Credit to Judgments and Public Acts: A Historical-

Analytical Reappraisal, 56 MICH. L. REV. 33 (1957).

3 See Adar v. Smith (Adar I), 597 F.3d 697, 701 (5th Cir. 2010), rev’d, 639 F.3d 146 (5th Cir. 2011) (en

banc), cert. denied, 132 S. Ct. 400 (2011).

1. Id.

2. Id.

3. Id.

4. Adar v. Smith (Adar II), 639 F.3d 146, 149–50 (5th Cir. 2011) (en banc).

5. Id. at 150.

   adoption decree that it opposes as a matter of public policy, and thus whether full faith and credit can be used as a method by which one state’s public policy trumps another state’s public policy.

   
   

   Part I of this Comment introduces the Full Faith and Credit Clause and demonstrates that, despite the more humble intent of the Framers, the Clause has evolved into a normative constitutional provision with corresponding mandates for the interstate effect of a state’s “judicial Proceedings,” or judgments, and a state’s “public Acts,” or statutes. While judgments traditionally receive nationwide res judicata effect, statutes are given effect

   only if they do not contravene the public policy of the forum state.9 The latter

   principle is known as the public policy exception to full faith and credit. But the Supreme Court has largely failed to articulate the applicable norms for state records that do not fit this framework. Part I concludes by exploring this failure—and the resulting chaos—by way of the Supreme Court’s 1998

   opinion in Baker v. General Motors Corp.10

   
   

   Part II returns to the Fifth Circuit’s recent attempt to organize the clutter in Adar v. Smith. The court seized upon Baker’s distinction between recognition and enforcement to hold that Louisiana is not constitutionally obligated to enforce a New York adoption decree in the same way New York would

   enforce it.11 The inexorable conclusion is that non-adversarial judgments,

   unlike their adversarial counterparts, are no longer immune from the public policy exception.

   
   

   Finally, Part III reassesses the adequacy of full faith and credit’s traditional rules for resolving the interstate effect of Infant J’s adoption decree. It begins with the premise that the current confusion over the Full Faith and Credit Clause should be reconciled in a way that propels us to a more coherent understanding of how our federal system deals with the ever-increasing breadth and diversity of state records. To that end, Part III proposes that the overarching question of what faith and credit is owed to a sister-state record can only be resolved by adding substance and clarity to the distinct requirements of recognition and enforcement. More generally, mechanical and uniform application of the Clause to the spectrum of state records is both impracticable and unwise. This is an area of the law that demands flexibility.

   
   

6. See Part I.B.

   10 522 U.S. 222 (1998).

   11 Adar II, 639 F.3d at 160–61.

   Ultimately, this Comment concludes that full faith and credit is a rule of evidence based on values of res judicata, and those values are not undermined by a broad application of the public policy exception to the enforcement requirement. Yet, the public policy exception is indispensable to preserving the equally important value of horizontal federalism. The most obvious downside of this argument is that the Clause is excised from the constitutional shield for individual rights: if Louisiana’s differential treatment of the plaintiffs in Adar is unconstitutional, it is not because full faith and credit requires otherwise. This may seem a discouraging message for litigators and activists struggling to achieve more widespread recognition of civil rights for non-traditional

   families.12 But it is not. It is actually an argument for avoiding distraction.

   
   

   1. THE LANDSCAPE OF FULL FAITH AND CREDIT

      
      

      This Part illustrates the spectrum of government records that might be eligible for full faith and credit. At one end of the spectrum are money judgments, a snug fit for the core objectives of the Clause.13 At the opposite end of the spectrum are statutes, correspondingly a poor fit.14 This Comment’s focus is on the state government records that fall somewhere in between those

      
      

      1. The popular intrigue with full faith and credit reached a fever pitch in the late-twentieth century as politicians and scholars confronted the question of whether states have a constitutional obligation to recognize same-sex marriages celebrated in other states. See Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 CREIGHTON L. REV. 147, 148 (1998) (stating that the interest in full faith and credit “has reached epidemic proportions now . . . . Senators, state legislators, governors, [and] religious groups . . . have suddenly taken an active interest in [the Clause], an obscure constitutional provision usually tended to by academic specialists” (footnotes omitted)). Congress’s response to the states’ consternation over same-sex marriage was the Defense of Marriage Act (DOMA), which only fueled the debate. See, e.g., Heather Hamilton, Comment, The Defense of Marriage Act: A Critical Analysis of Its Constitutionality Under the Full Faith and Credit Clause, 47 DEPAUL L. REV. 943, 944 (1998). Today, those who advocate for marriage equality as a constitutional right rarely invoke the Full Faith and Credit Clause, instead focusing on more robust Fourteenth Amendment protections. See, e.g., Brief for Appellees, Perry v. Brown, 671 F.3d 1052 (9th Cir.)...