Peppin v. Lewis

As a relative to the "clean hands doctrine," the fugitive disentitlement doctrine holds that a person is not entitled to seek the court's assistance in the same cause from which he or she is a fugitive. It has been explained that the authority for the doctrine abides in a court's need to protect the fairness of its litigation process, the integrity of its judgments and orders and to remedy affronts to the respect due the judicial branch. This power has also been found to be inherent in a court's right to manage its proceedings in an efficient and equitable manner. However, a court must be very cautious in self-defining its own authority by declaring that some power is inherent.

"Courts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities. The extent of these powers must be delimited with care, for there is a danger of overreaching when one branch of Government, without benefit of cooperation or correction from the others, undertakes to define its own authority. In many instances the inherent powers of the courts may be controlled or overridden by statute or rule. Principles of deference counsel restraint in resorting to inherent power and require its use to be a reasonable response to the problems and needs that provoke it." ( Degen v United States, 517 US 820, 823-824 [1996] [internal citations omitted].)

"[The mother] has repeatedly defied court orders and ignored contempt sanctions and has continued to evade arrest. Her behavior to date leaves little doubt that she would defy an adverse ruling. Moreover, it would be inequitable to allow [the mother] to use the resources of the courts only if the outcome is a benefit to her. We cannot permit [the mother] to reap the benefits of a judicial system the orders of which she has continued to flaunt." ( Pesin at 1253; see also Walsh v Walsh, 221 F3d 204 [1st Cir 2000].)

"Accordingly, the justifications we have advanced for allowing appellate courts to dismiss pending fugitive appeals all assume some connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response. These justifications are necessarily attenuated when applied to a case in which both flight and recapture occur while the case is pending before the district court, so that a defendant's fugitive status at no time coincides with his appeal" ( Ortega at 244). ^[6]

"Without resolving whether Degen is a fugitive in all the senses of the word debated by the parties, we acknowledge disquiet at the spectacle of a criminal defendant reposing in Switzerland, beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored. * * * A court-made rule striking Degen's claims and entering summary judgment against him as a sanction, however, would be an arbitrary response to the conduct it is supposed to redress or discourage." ( Degen at 828.)

In Matsumoto v Matsumoto (171 NJ 110, 792 A2d 1222 [2002]), the Supreme Court of New Jersey considered a complicated family law fact pattern and tied together the several threads running through the fugitive disentitlement doctrine cases. Matsumoto involved a Japanese father and grandmother who wrongfully kept the child in Japan and away from the mother in violation of civil and criminal mandates from the courts of the State of New Jersey. Much like this case, the defendants offered to consent to the personal jurisdiction of New Jersey and return from Japan with the child if the court vacated the arrest warrants and money sanctions and dismissed the indictments. The New Jersey Supreme Court dismissed the father's and grandmother's appeals, holding, as this court does, that it would not be held hostage to the appellants' demands. To do so would actually grant fugitives a benefit and encourage other litigants to become fugitives. To apply the fugitive disentitlement doctrine, the following elements must be present: 1. The petitioner for judicial relief must be a fugitive from justice. It does not matter if he or she is a fugitive in a civil or criminal case. 2. There must be some connection between the petitioner's fugitive status and the legal action which the fugitive wishes to pursue.

3. The petitioner's fugitive status must work some actual prejudice to the other party to the lawsuit. 4. To justify an outright dismissal, the remedies available to the court must be inadequate to ameliorate the prejudice. At this point, the court may also consider any prejudice to the court and the issue of deterrence. This could include the issue of specific deterrence of the party fugitive and general deterrence of potential fugitives. The court may also consider whether the use of remedies short of dismissal would adversely affect the general administration of justice and significantly diminish respect for the judicial process and if dismissal would advance those interests. The mother, in this case, meets all three prongs of this test. There is a warrant for her arrest, which is known to her, making her a fugitive from justice. There is a direct connection between the mother's fugitive status and the father's custody petition because she is a fugitive in that very case. The mother is not only a fugitive from justice, she has also absconded with the child. Finally, the mother's actions are in direct defiance of the court's order of filiation and temporary order of custody, which directly prejudice the father. Accordingly, based on the fugitive disentitlement doctrine, the court declines to sign the order to show cause and her petition will not be calendared for a court appearance. [1] The results reached in this case would be the same if the mother's request for relief reached the court by notice of motion and motion, notice of petition and petition or by summons and petition. The fact that the court is declining to sign the mother's order to show cause is not the legally significant determinative of this proceeding. The signing of an order to show cause is discretionary under CPLR 2214 (d) and can be reviewed by a justice of the Appellate Division under CPLR 5704. The court in this case is holding that, under the circumstances, the mother has no right to seek the relief requested because she is a fugitive from justice. It is irrelevant as to the form by which she made her request. However, it should be noted that Family Court Act § 651 requires that petitions for custody and visitation (and presumably petitions to modify existing orders that address those subjects) must be brought on by order to show cause or by writ of habeas corpus. [2] A LEXIS and Westlaw New York case law search under all variations of the phrase "fugitive disentitlement doctrine" produces no hits. [3] Nearly every New York appellate decision in this area cites to the only two cases that offer any discussion of the issue in question: People v Genet (59 NY 80 [1874]) and People v Del Rio (14 NY2d 165 [1964]). Both cases involved defendants who tried to pursue an appeal from a criminal conviction. In Genet, the defendant escaped from custody after the verdict but before sentencing. In Del Rio, the defendant had accepted a pardon, one condition of which was that he agreed never to return to the United States. Both cases held that a person who is not in actual or constructive custody may not have his conviction reviewed. The principle applied was quite simple. A court should not be expected to render judgment in a matter where there is no expectation that there will be compliance with the court's mandate if it is averse to the fugitive appellant. The Appellate Division is similarly quite laconic in this area, issuing essentially one sentence opinions. For example, see the following: People v Barnes (143 AD2d 837); People v Southerland (136 AD2d 662); People v Flemming (104 AD2d 1048); People v Deutsch (23 AD2d 732). For a somewhat more expansive discussion, see People v Gilestrella (127 Misc 2d 356) and People v Flannigan (139 Misc 2d 461). [4] At this point in the proceedings, it is difficult to credit any of the mother's assertions without corroboration. Aside from raising issues of rape and the wrong baby, after the case has been pending for over a year, the mother has done or said several other things that seriously compromise her credibility. For example, though stating several times that she would take a DNA test, she effectively refused the first one by signing the form "under protest." She then failed to show for two other appointments scheduled at her convenience. Then there is the appeal that was filed on her behalf by her mother as her "personal representative." Her mother, who is not an attorney, was a witness for her daughter at the hearing. Then there is the issue of her residence. The mother initially stated that she lived in Albany. Then she gave the court a New Jersey address. Though she has claimed that this New Jersey address should have been kept confidential (it was listed on the father's order of protection), the court papers sent to her at that address were returned by the United States Postal Service marked "Return to Sender-Attempted Not Known." At one of the court proceedings the mother produced a lease purporting to be verification that she did live at the New Jersey address. However, the father represented that when he went to that address, attempting to find his baby, he was told by the landlord that no one by that name lived there. However, the name on the mailbox did match that of the mother's aunt, Michele Lewis, who is presumably the mother of the "mistaken baby." An examination of the lease reveals that it is not signed by any landlord and no landlord's name appears on the lease. Also, the place where the landlord's name and the tenant's name would be printed appears to have been blanked out and the name "Dimari B N Lewis" looks as if it was typed over a handwritten name. It also seems unusual that a New Jersey landlord would use a 1978, "National Legal Supply, Inc., 128 Sheridan Avenue, Albany, N.Y. 12210" lease agreement form. Finally, the father also stated in court that he recently saw the mother's car in front of the grandmother's house in Albany. He called the police to the residence and, at some point during the events, he saw the mother flee from the rear of the building. [5] This aphorism was first recorded in a book of proverbs by John Heywood in England in 1546 (Random House Dictionary of America's Popular Proverbs [Titleman ed NY 2000]). [6] Ortega was a 5 to 4 decision. Chief Justice Rehnquist, joined by Justices White, O'Connor and Thomas, wrote that among other reasons, the automatic dismissal rule of the Circuit Court was justified because it deterred flight and encouraged surrender. "To a defendant deciding whether to flee before or after filing a notice of appeal, today's decision makes the choice simple. If the defendant flees preappeal and happens to get caught after the time for filing a notice of appeal has expired, he still has the opportunity for appellate review if he can persuade a district judge to resentence him" (Ortega at 256). Surprisingly, Degen, a seemingly more compelling case for application of an automatic dismissal rule was unanimous in the other direction, perhaps reflecting the power of stare decisis. [7] The Supreme Court has not held that a court may not consider the need to redress the indignity visited upon a court by a defendant's seeking to access the courts while he is a fugitive. In fact, in Degen, the Court held that such a consideration, along with that of deterrence, were substantial interests but that they should be sparingly applied. "It remains the case, however, that the sanction of disentitlement is most severe and so could disserve the dignitary purposes for which it is invoked. The dignity of a court derives from the respect accorded its judgments. That respect is eroded, not enhanced, by too free a recourse to rules foreclosing consideration of claims on the merits" (Degen at 828). [8] One can think of some circumstances that would justify invoking the fugitive disentitlement doctrine even though no nexus or prejudice existed. There could be a situation where allowing a person access to our courts would be a gross travesty of justice or would shock the conscience. For example, say the mother of one of Osama bin Laden's children brought the child to the United States. Would our Federal District Court entertain an action brought by Osama bin Laden to enforce the Hague Convention on the Civil Aspects of Child Abduction?