full faith and credit to a Canadian guardianship decree when presented with it as a defense to a criminal prosecution.
In his analysis of this issue, the Magistrate Judge held that Illinois would not accord automatic full faith and credit to a Canadian guardianship decree. Accordingly, he concluded that the dual criminality requirement of the Treaty had been met because a Canadian guardianship might not be recognized. The mere possibility that Illinois might not recognize a Canadian guardianship was sufficient, for the Magistrate Judge, to halt his inquiry into whether the dual criminality element was met. It is this premature curtailment of the analysis, however, which causes the Magistrate Judge's reasoning to be in error. Even though there is an element of discretion in the decision whether to grant comity to a foreign judgment, the Magistrate Judge did not complete the analysis. That a hypothetical order might be so deeply flawed that it would pose no barrier to a criminal conviction is obvious. What the Magistrate Judge should have done, but did not, is determine whether a guardianship order like the one in the instant case would be granted full faith and credit, and would thus operate as a shield to conviction.
The Magistrate Judge's error stems from his belief that decisions to defer to foreign judgments are entirely "discretionary determinations." Kulekowskis, et al., 881 F. Supp. at 1140. Such an interpretation of comity is fallacious insofar as it casts the decision of whether to accord recognition to a foreign judgment in an arbitrary and whimsical light. Furthermore, the Magistrate Judge erroneously concluded that: "Unless a foreign guardianship order would be an absolute bar to criminal proceedings, respondents conduct would be punishable under Illinois law...[.]" Kulekowskis, et al., 881 F. Supp. at 1140. This is wrong because foreign guardianship orders do not automatically bar criminal proceedings against their holders for the same reason that the decision whether to accord them deference as a matter of comity is not entirely arbitrary - recognition of their authority is conditioned on the application of a four-part test.
Hilton v Guyot, 159 U.S. 113, 166-68, 40 L. Ed. 95, 16 S. Ct. 139 (1895) (establishing the original four-part federal comity test).
III. The Magistrate Judge mistakenly interpreted old Illinois law to argue that granting full faith and credit to guardianship decrees between sister-states is discretionary.
In an effort to bolster his claim that Illinois would not accord full faith and credit to a Canadian guardianship order, the Magistrate Judge constructed an argument based on old Illinois case law and inaccurate notions of comity. Looking to support his holding, that full faith and credit determinations among different countries are entirely discretionary, the Magistrate Judge argued that such determinations are entirely discretionary even among sister-states of the Union. After extensively quoting the Illinois Supreme Court's decision in Noonan v Wingate, which in turn discusses a Massachusetts court's refusal to accord full faith and credit to an Illinois guardianship decree,
the Magistrate Judge concluded that: "The foregoing... confirms our reading of Noonan as stating an unconditioned rule that comity never requires the recognition of a foreign guardianship over a child found within the state" (emphasis added). Noonan v Wingate, 376 Ill. 244, 33 N.E.2d 467, 470-71 (Ill 1941); Kulekowskis, et al., 881 F. Supp. at 1139. The Magistrate Judge's reasoning is dubious.
The Magistrate Judge's interpretation of Noonan is flawed in that he once more sounds an exaggerated note of discretionary decision making where none belongs. After adopting an overly liberal reading of comity's discretionary aspects, he then imputes such aspects to the practice of full faith and credit among sister-states. This is problematic. Such imputations are unsound because, unlike the granting of comity to foreign judgments, the granting of full faith and credit to judicial proceedings among sister-states is constitutionally mandated. US Const art IV, § 1, cl 1. As such, the extension of full faith and credit among sister-states is entirely devoid of discretionary or arbitrary decision making. The Appellate Court of Illinois made this clear when it stated in Champion v Champion that, "...the constitutional obligation of this State to give full faith and credit to a decree of a sister state... is an entirely different matter [than comity]." Champion v Champion, 20 Ill. App. 2d 271, 156 N.E.2d 16, 19 (Ill App 1959). Additionally, in contrast to the four-part test governing the denial of recognition to foreign judgments, the extension of full faith and credit among sister-states may be withheld for only two reasons: "A judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter." Nevada v Hall, 440 U.S. 410, 99 S. Ct. 1182, 1188, 59 L. Ed. 2d 416 (1979). The Court in Nevada even goes so far as to hold that, "...in certain limited situations, the courts of one State must apply the statutory law of another State." Nevada, 440 U.S. at 421, 99 S. Ct. at 1188. Thus, because the extension of full faith and credit among sister-states is a strictly regulated constitutional obligation, it is distinguishable from comity's international applications. The Magistrate Judge's imputation of the somewhat more flexible legal criteria of international comity to the legal relations among sister-states is therefore misguided.
IV. While recognition of foreign judgments is not as strictly mandated as the practice of full faith and credit between sister-states, Illinois would still grant full faith and credit to a Canadian guardianship decree.
Despite there being no rule of law requiring the recognition of foreign judgments, there is a strong presumption favoring the extension of comity to foreign decrees. Brady v Brown, 51 F.3d 810, 816 (9th Cir 1995); Philadelphia Gear Corporation v Philadelphia Gear De Mexico, 44 F.3d 187, 191 (3rd Cir 1994); Remington Rand Corporation-Delaware v Business Systems Inc., 830 F.2d 1260, 1266 (3rd Cir 1987).
Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation's expression of understanding which demonstrates due regard both to international duty and convenience and the rights of persons protected by its own laws [as opposed to those of other nations].