State of Ala. ex rel. Governor and Atty. Gen. v. Engler

• Decision Date: 12 June 1996
• Docket Number: No. 94-2436,94-2436
• Parties: STATE OF ALABAMA, ex rel. its GOVERNOR AND its ATTORNEY GENERAL, Plaintiff-Appellant, v. John M. ENGLER, in his official capacity as Governor of the State of Michigan, Defendant-Appellee, Phillip Chance, Movant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1205

85 F.3d 1205

STATE OF ALABAMA, ex rel. its GOVERNOR AND its ATTORNEY GENERAL, Plaintiff-Appellant, v. John M. ENGLER, in his official capacity as Governor of the State of Michigan, Defendant-Appellee Phillip Chance, Movant-Appellee.

No. 94-2436.

United States Court of Appeals, Sixth Circuit.

Argued March 11, 1996.

Decided June 12, 1996.

Robert S. Harrison (briefed), Harrison & Zacks, Bloomfield Hills, MI, for James E. Folsom, Jr. and James H. Evans.

Paul M. Newcomer (argued), Robert S. Harrison, Harrison & Zacks, Bloomfield Hills, MI, for State of Alabama.

Robert Ianni (argued and briefed), Office of the Attorney General of Michigan, Lansing, MI, for John M. Engler.

James Schuster, Southfield, MI, for Phillip Chance.

Before: JONES, BOGGS, and BATCHELDER, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which BATCHELDER, J., joined. JONES, J. (pp. 1210-11), delivered a separate concurring opinion.

BOGGS, Circuit Judge.

The State of Alabama seeks a writ of mandamus compelling the Governor of Michigan, John M. Engler, to extradite an escaped felon, Phillip Chance, who has been living in Michigan under a gubernatorial grant of "asylum" for the last fourteen years. In the district court, Engler successfully defended the action by arguing that the grant of "asylum," however erroneous, was a final state determination of the merits of Chance's case, and therefore deserves full faith and credit. For the reasons that follow, we disagree and reverse. Article IV, § 2, cl. 2 of the Constitution, as recently interpreted by the Supreme Court in Puerto Rico v. Branstad, 483 U.S. 219, 107 S.Ct. 2802, 97 L.Ed.2d 187 (1987), requires that Governor Engler return Chance to Alabama.

I

The Circuit Court of Choctaw County, Alabama, convicted Phillip Chance of murder on April 30, 1973. After serving over eight years of a life sentence, Chance escaped from prison and fled to Michigan, the state of his birth. One year after the escape, in June 1982, Alabama Governor Forrest H. James, Jr., made a formal request to Michigan under the Uniform Criminal Extradition Act, 18 U.S.C. § 3182, for the extradition of Chance. In response to this request, Michigan Governor William G. Milliken held an "Extradition Hearing" on September 22, 1982. Governor Milliken then granted Chance "asylum" from Alabama because of Chance's "very fine character" and "the support of family and friends." Letter, Governor Milliken to Governor James, October 5, 1982.

Alabama unsuccessfully asked Governor Milliken to reconsider his opinion in November 1982. Letter, Attorney General Charles A. Graddick to Governor Milliken, November 8, 1982. Alabama reminded Governor Milliken of "the language of the Extradition Clause" and the fact that Chance "remains a convicted felon." Ibid. Governor Milliken nevertheless refused. When Governor Milliken's term expired, Alabama tried its luck with his successor, James J. Blanchard, in May 1984. Finding "no new evidence which would convince one that Governor Milliken's decision should be altered," Governor Blanchard denied Alabama's request. Letter, Governor Blanchard to Governor George C. Wallace, January 12, 1984.

Chance has spent the last fourteen years at liberty in Michigan. Alabama, however, has continued to report him as a fugitive on the list of wanted persons kept by the National Criminal Information Center (NCIC). At least ten times since his escape, local police in Michigan have stopped Chance, and then arrested him, at least in part, because of the NCIC listing. After each arrest, the police contacted the Alabama Department of Corrections. The Department of Corrections informed the local police of Chance's status, and Alabama's continuing desire for extradition. On each occasion, however, the local police simply released Chance.

The last such arrest occurred on October 19, 1993. After it learned of the subsequent release, Alabama made its fourth formal request to Michigan for extradition. Governor John M. Engler denied the request. Perhaps encouraged by the Supreme Court's 1987 Branstad decision, discussed below, Alabama filed this action for a declaratory judgment and a writ of mandamus.

In the proceedings below, Governor Engler conceded that, because of Branstad, a federal court has the power to enforce the constitutional duty to extradite a fugitive. Governor Engler also conceded that a Governor has no power to refuse to extradite a fugitive based on the merits of the fugitive's case. See Branstad, 483 U.S. at 225, 107 S.Ct. at 2807 (quoting Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103, 16 L.Ed. 717 (1861) (Governor has duty to extradite "without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled.")). Instead, Governor Engler's defense rested on two contentions. ¹ First, the Full Faith and Credit Clause of the Constitution requires Alabama to respect Governor Milliken's grant of asylum to Chance. Second, the power of federal courts to enforce the Extradition Clause under Branstad is "a new rule" under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and should not apply retroactively to "divest an individual ... of the liberty and freedom he enjoyed based upon his reliance" on earlier precedent. Order, December 6, 1994, at 5.

The district court held that Governor Milliken's decision to grant Chance "asylum" in 1982 was "technically unconstitutional." However, the court agreed with Governor Engler that Alabama must give Governor Milliken's unconstitutional decision Full Faith and Credit. Order at 9-12. The district court also agreed that Branstad announced a new rule under Teague, and that the new rule could not be used to collaterally attack a "final state determination" that Chance deserved asylum. Order at 16-17. As a result, the district court issued a peculiar order--one that mirrors the state of the law of extradition in 1861, as discussed below. It granted Alabama's request for a declaratory judgment that Engler was constitutionally obligated to return Chance, but it "decline[d] to obligate [Engler] to extradite him." Order at 22. Alabama filed a timely notice of appeal.

II

The United States Constitution imposes on the Governor of each state a duty to surrender any fugitive from the justice of another state to that state upon proper request. That duty is embodied in Article IV of the Constitution and in the Extradition Act of 1793, now codified at 18 U.S.C. § 3182. Until 1987, the courts of the United States were without jurisdiction to enforce the Extradition Clause because of the Supreme Court's 1861 opinion in Kentucky v. Dennison, decided on the eve of the Civil War. 65 U.S. (24 How.) 66 (although duty to extradite is mandatory, federal court cannot force state governor to extradite). In 1987, the Supreme Court abandoned this restriction on federal jurisdiction as an anachronism. Branstad, 483 U.S. at 228, 107 S.Ct. at 2808 ("[T]here is no justification for distinguishing the duty to deliver fugitives from the many other species of constitutional duty enforceable in federal courts.").

Alabama argues that the district court erred by focusing on the 1982 decision by Governor Milliken to grant Chance "asylum." We agree. The relevant issue is whether the Constitution allows Governor Engler to refuse extradition now. The answer is clearly no. There are only four possible grounds for refusing to extradite a person: (a) the extradition documents facially are not in order; (b) the person has not been charged with a crime in the requesting state; (c) the person is not the person named in the extradition documents; and (d) the person is not a fugitive. California v. Superior Court, 482 U.S. 400, 407, 107 S.Ct. 2433, 2438, 96 L.Ed.2d 332 (1987). Governor Engler has not raised any of these objections, and the writ must be granted.

Even the question of whether the requesting state is bound by the Full Faith and Credit Clause or barred by Teague v. Lane should be raised in the courts of the requesting state--not decided by the Governor of the state to which the fugitive has fled. Cf. Strachan v. Colon, 941 F.2d 128, 131-32 (2d Cir.1991) (defense of laches, no matter how compelling, was not a defense to extradition, but rather a matter for the courts of the requesting state to consider on their own). In fact, we are at a loss to find any basis for the district court's subject matter jurisdiction to decide the defenses raised by Governor Engler and Chance, who intervened in this action. The defenses are not relevant to the federal question of whether the extradition of Chance is required by the Extradition Clause or the Act, because the claims are not valid defenses to a request for extradition. The Declaratory Judgment Act is no help to Chance because he cannot seek a declaration that he has a constitutional defense to a pending state prosecution or re-prosecution. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Finally, we could not even construe Chance's intervention as some sort of petition for habeas corpus relief against Alabama, because Chance is not yet in Alabama's custody. 28 U.S.C. § 2254(a); Garlotte v. Fordice, --- U.S. ----, ----, 115 S.Ct. 1948, 1951, 132 L.Ed.2d 36 (1995).

III

Moreover, it is not necessary to rest a reversal of the district court's denial of a writ of mandamus solely on the court's lack of subject matter jurisdiction. Governor Engler's defenses are wholly without merit.

First, the district court held that Alabama must defer to Governor Milliken's decision because that decision was a "public act" for the purposes of the Full Faith and Credit Clause. Even assuming that the Governor's decision was a "public act" in the face of Carroll v. Lanza, 349 U.S. 408, 411, 75 S.Ct. 804, 806, 99 L.Ed. 1183 (1955) ("public act" refers to a statute), it was a public act that Michigan was expressly forbidden from performing. Kentucky v....