If the non-person King gets no due process, will International Shoe get the boot?

AuthorCooper-Hill, James

In Price v. Socialist People's Libyan Arab Jamahiriya, (1) a terrorism suit brought against Libya under the Foreign Sovereign Immunities Act (FSIA), the D.C. Circuit Court of Appeals became the first appellate court to unequivocally hold that a foreign sovereign is not a person entitled to due process pursuant to the Fifth Amendment to the U.S. Constitution. (2) In order to weigh the import of the holding, one must indulge in a two-pronged historical analysis, focusing first on the concept of sovereign immunity and second, on the due process entitlement of any entity, sovereign or otherwise. Of further interest is whether Price will affect the benchmark case, International Shoe v. Washington, (3) which established the concept of minimum contacts consistent with the traditional notions of fair play and justice.

BRIEF HISTORY OF SOVEREIGN IMMUNITY

The concept of sovereign immunity is said to stem from the quasi-theological notion of the divine right of kings. (4) It was held from the Middle Ages forward that the King could do no wrong, although modern legal scholars differ on the exact origin of sovereign immunity and whether it is truly based on the divine right of kings. (5) Sovereign immunity was supposedly imported to the United States by way of the often cited Russell v. The Men of Devon. (6) However, at least one court has stressed that the first adoption of the Russell theory of immunity was misplaced. (7)

The United States has witnessed all three branches of its government wrestling with the issue of foreign sovereign immunity. The concept has evolved over three distinct time periods. First, the U.S. Supreme Court accorded absolute immunity to sovereigns in 1812. (8) Second, in 1952, the U.S. Department of State, on behalf of the Executive branch, imposed a system of qualified immunity. (9) In 1976, the Foreign Sovereign Immunities Act (FSIA) laid out broad exceptions to immunity, as did further amendments in 1996. (10) Under the concept of absolute immunity noted by the U.S. Supreme Court in the early 19th century and later during the period of qualified immunity, the U.S. Department of State wielded the power of the Executive branch. (11)

At least in part, commercial activity in the United States conducted by foreign sovereigns in direct competition with American private enterprise eroded absolute immunity. (12) That many foreign states engaged in quasi-private enterprise resulted in the governmental-proprietary dichotomy that prevails at both the state and federal level today. (13) Commencing in 1952, the Tate Letter established a qualified immunity that the Executive branch, acting through the State Department, controlled. (14) During the twenty-four years of qualified immunity, the Executive branch was clearly in charge of and had apparent authority over the Judicial branch. (15) Qualified immunity was codified by the enactment of the FSIA in 1976. (16) However, the FSIA was interpreted in such a way that no plaintiff prevailed during the first four years of its enactment. (17) Even then, the first non-commercial plaintiff's verdict involved a car-bombing assassination in the District of Columbia, eliminating the minimum contacts-due process issue from consideration. (18)

Similar acts of terrorism perpetrated upon U.S. citizens outside the United States were not successfully prosecuted under the 1976 FSIA. (19) The only plaintiff's judgment for what could be considered terrorism under the 1976 FSIA can be attributed to the foreign sovereign's failure to timely seek to set aside a default judgment. (20) It took the enactment of the Anti Terrorism & Effective Death Penalty Act of 1996 (21) for the first plaintiffs to obtain judgments against a foreign sovereign. (22) Even then, the basis for bringing such actions, and the trial court exercising both subject matter and personal jurisdiction, was very limited. The four criteria which established subject matter jurisdiction were: extrajudicial killing, aircraft sabotage, hostage taking, and torture. (23) Even when horrendous acts of violence were inflicted upon U.S. citizens without justification, foreign sovereigns pleaded "police brutality" and relied on a pre-1996 decision, Nelson v. Saudi Arabia. (24)

Finally, in a logical opinion, a trial court held that a foreign sovereign was not a person for purposes of due process, but then went on to consider the minimum contacts analysis, suggesting that the diplomatic relations with the country in question, Iran, were sufficient to find personal jurisdiction. (25) It was not until Daliberti v. Republic of Iraq (26) that a contested case was brought before the court and the issue of due process was raised. In Daliberti, after the denial of Iraq's motion to dismiss, Iraq chose not to participate in the trial. (27) Subsequently, in Price et al v. Socialist People's Libyan Arab Jamahiriya, (28) the due process issue was raised by the defendant sovereign and addressed by the U.S. District Court. The same court which had held that a foreign sovereign was not a person entitled to due process in Flatow 1, (29) denied Libya's Rule 12 motion to dismiss, based in pertinent part, on the due process argument. (30) The U.S. Court of Appeals for the District of Columbia Circuit became the first appellate court to hand down a decision squarely facing the due process issue and ruling that a foreign sovereign was not a person for purposes of due process. (31) This ruling was not appealed. Given the mandatory venue of the U.S. District Courts for the District of Columbia in terrorism suits brought pursuant to the FSIA, this decision should be the last word on this issue. However, disingenuously, Libya has raised this same issue both in the remand to the district court, (32) and in other similarly situated cases now pending in the district court. A more detailed analysis of the Court of Appeals' analysis in the Price case follows.

Russell v. Men of Devon and its Progeny; Both Legitimate and Otherwise

Russell v. Men of Devon (33) was cited by courts in the United States over 150 times before a federal statute adopting any concept of foreign immunity was enacted. The Russell decision is a far better one on which to provide a foundation for municipal government law than for crossing the Atlantic with a theory based on the power of the King. Factually, the Russell decision is simple. A local bridge fell into disrepair resulting in the plaintiff's wagon being damaged. (34) Because Devonshire had no fund with which to compensate the owner of the damaged wagon, it was held immune from judgment. (35) Many of the subsequent citations in American courts have opined that Russell was the foundation for the concept of sovereign immunity in the United States but have erroneously added the maxim that the king can do no wrong, which does not appear in Russell. (36) However, the first case reciting the infallibility of the king in the newly formed United States was handed down without mention of the Russell decision less than a month after George Washington became the first president. The case of Benedict Calvert's Lessee v. Sir Robert Eden (37) resolved a knotty title and possession problem which arose under a grant of the Province of Maryland from King Charles I. (38)

The Court went to great lengths to stress the continued importance of the English king's exercise of appellate jurisdiction as had been done since the earliest days of the colonies. (39) Of course, the exercise of appellate authority over land title disputes by the King of England could hardly have continued longer, notwithstanding the Maryland court's genuflection to the king in this case.

While Benedict Calvert's Lessee is the earliest case in the United States to refer to the king being unable to commit a wrong, the first United States Supreme Court decision regarding sovereign immunity was Chisholm v. Georgia. (40) In Chisholm, it was argued that "until the time of Edward I. the King might have been sued in all actions as a common person.... but now none can have an action against the King...." (41) Justice Wilson finds that it is the people of the United States who are the true sovereign and not the government or the State, thus allowing the suit against Georgia to go forward. (42)

Two decades later the first American citation to the Russell case is found in Riddle v. The Proprietors of the Locks and Canals on Merrimack River, (43) in which no mention of the authority of the king is made. The Supreme Judicial Court of Massachusetts stated that while a county, referred to as a quasi corporation, can be held liable on an indictment for neglect of a public duty, no private action can be maintained, citing Russell as the settling authority. (44) A scant two years later, Massachusetts again found that there was no liability for quasi corporations, in this case the inhabitants of Leicester, absent a statute to that effect, citing Russell but without any mention of the King. (45)

Countless cases for the next century and a half cited to Russell and many others referenced the maxim, "the king can do no wrong." (46) Often both were joined together as if it were the king whose authority prevented the damaged wagon's owner from recovery in Russell. Over time, the authority of the king has been invoked in a democratic republic that, since its inception, has never had a king.

Only a few decades after independence from the king, the Court of Appeals of Kentucky found the theory of sovereign immunity more than simply a good idea. (47) Contrary to the conventional wisdom both before and after, however, that court found that the king can indeed do wrong; it is just that when the king errs, he goes unpunished:

[S]overeignty has a fictitious perfection and purity, which must be taken as real, and which can not be controverted, and of course the abuse of its power can be imputed to a sovereign, in restraint of its legitimate energies. The maxim, that 'the king can do no wrongs'...

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