A phantom menace: SB 58/HB 351 and the application of foreign law in Florida's family courts.

• Author: Rumbold, Christopher W.

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 Hays (3) 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, [section] 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 [section] 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...