Vasquez, In re

• Decision Date: 09 February 1999
• Citation: 428 Mass. 842,705 N.E.2d 606
• Parties: Porfirio VASQUEZ, Petitioner.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 606

705 N.E.2d 606

428 Mass. 842

Porfirio VASQUEZ, Petitioner.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Dec. 10, 1998.

Decided Feb. 9, 1999.

Christine A. Maglione (Michael G. Bongiorno with her), Boston, for the petitioner.

Gregory I. Massing, Assistant Attorney General, for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

FRIED, J.

The petitioner, Porfirio Vasquez, was arrested pursuant to a warrant issued by our Governor upon a requisition from the Governor of Oregon, requesting that the petitioner be extradited to Oregon to answer a charge of criminal nonsupport of his children, who reside in Oregon with their mother. Vasquez filed a petition for a writ of habeas corpus challenging the constitutionality of the restraint of his liberty pending extradition. The Superior Court denied the petition and Vasquez appeals from that denial. We transferred the case to this court on our own motion. We affirm.

I

The petitioner, a resident of Massachusetts, was divorced in 1985 from Bonnie Stewart, with whom he has two children. He was also ordered at that time to make weekly child support payments, which he has failed to do. In 1987, Stewart and the two children moved to the State of Oregon, without the knowledge of the petitioner. The petitioner has never been to Oregon. Because the petitioner had failed to make any support payments under the 1985 order, Stewart brought a reciprocal support petition in Oregon in 1988 under the Uniform Reciprocal Enforcement Support Act. After authorities in Massachusetts were unable to locate the petitioner to compel payment, officials in Lane County, Oregon, where the petitioner's children reside, obtained an indictment against him for criminal nonsupport. The indictment charges that the petitioner "did knowingly and unlawfully refuse and neglect without lawful excuse to provide support" for his children while they resided in Lane County. In 1996, Oregon requested the petitioner's extradition to that State to be tried on the criminal charge, in response to which the Governor of Massachusetts issued a Governor's warrant for the petitioner's arrest. Upon being arrested on that warrant in July, 1996, the petitioner filed the petition at issue here and the Superior Court issued a temporary restraining order prohibiting the Commonwealth from extraditing him to Oregon pending the disposition of this case.

II

In his petition for a writ of habeas corpus, Vasquez claims that the Commonwealth's restraint of his liberty is unlawful. See G.L. c. 248, § 35 ("No person shall be deprived of his liberty or held in custody ... against his will" by the Commonwealth in violation of "due process of law"). He claims that the courts of Oregon do not have personal jurisdiction over him and, therefore, the Oregon indictment against him for criminal nonsupport is invalid. To succeed in his claim, the petitioner must show that the Commonwealth has unlawfully restrained him; it will not suffice to allege some future violation of his rights by Oregon.

A

The petitioner did not claim that the Governor's warrant or supporting papers are facially defective. On appeal, the petitioner challenges the factual accuracy of the Governor's warrant, which recites that he is a "fugitive from the justice of [Oregon] and has taken refuge in this Commonwealth." It is undisputed that the petitioner has never been in Oregon and, therefore, that the statement that he is a fugitive from that State cannot be accurate. But because he raises this issue for the first time in this appeal, we need not consider it. Moreover, even if he had made the claim below, it would afford him no relief because the technical defect in the warrant is cured by the supporting papers supplied by the Governor of Oregon, which allege that the petitioner, "while outside the boundaries of [Oregon] committed an act intentionally resulting in said crime in [Oregon]." See, e.g., Harris, petitioner, 309 Mass. 180, 183, 34 N.E.2d 504 (1941); Grubbs v. State, 363 So.2d 121, 122 (Ala.Crim.App.1978) (where rendition warrant defective, court may look to supporting papers); Harrison v. State, 38 Ala.App. 60, 64, 77 So.2d 384 (1954); Papas v. Brown, 88 Ill.App.3d 471, 476, 43 Ill.Dec. 568, 410 N.E.2d 568 (1980); Clayton v. Wichael, 258 Iowa 1037, 1042, 141 N.W.2d 538 (1966) (statement in Governor's warrant that defendant was fugitive "must be disregarded as surplusage" and resulted in no prejudice to defendant extradited under statute similar to statute employed in instant case). The allegation in the supporting papers provides a sufficient basis for extradition under G.L. c. 276, § 13, which states: "The governor may also surrender, on demand of the executive authority of any other state, any person in this commonwealth charged in such other state ... with committing an act in this commonwealth, or in a third state, intentionally resulting in a crime in ... the demanding state." The provisions of § 13 are incorporated by reference into G.L. c. 209D, § 8-801(c), under which the petitioner is being extradited. ¹ Thus, the arrest and restraint of the petitioner do not violate G.L. c. 209D, § 8-801. ² Nor do they violate any other statutory provisions pertinent to his extradition. General Laws c. 276, § 14, requires that the request for extradition from the demanding State be in writing and allege one of several circumstances, including that the person sought to be extradited "committed in this commonwealth or in a third state an act intentionally resulting in a crime in the demanding state." The requisition supplied by the Governor of Oregon certifies in writing that "the accused while outside the boundaries of this State committed an act intentionally resulting in said crime in this State." Thus, both requirements of § 14 have been fulfilled. ³

B

The petitioner also claims that his arrest and detention pursuant to the Governor's warrant deprive him of liberty without due process of law because the courts of Oregon lack personal jurisdiction over him. The petitioner urges that we hold that the minimum contacts analysis applicable to personal jurisdiction in civil matters, see, e.g., Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), should also apply in this context and that he may not be extradited unless the courts of Massachusetts determine that, pursuant to that analysis, he had sufficient contact with Oregon to allow its courts properly to exercise personal jurisdiction over him if he were extradited.

The petitioner's claim that Oregon has no personal jurisdiction over him is, at best, questionable. Several courts have specifically noted that the minimum contacts analysis applied in Kulko is inapplicable in the criminal context. See, e.g., State v. Luv Pharmacy, Inc., 118 N.H. 398, 403-404, 388 A.2d 190 (1978) (application of minimum contacts analysis to individuals in criminal cases might "raise serious constitutional questions"); Rios v. State, 733 P.2d 242, 244 (Wyo.), cert denied, 484 U.S. 833, 108 S.Ct. 108, 98 L.Ed.2d 68 (1987) (minimum contacts analysis has no application in criminal cases). One criminal case in which a minimum contacts test was applied dealt with a corporate defendant, and in applying the minimum contacts analysis, the court specifically noted the distinction between individual and corporate defendants. See United States v. Nippon Paper Indus. Co., 944 F.Supp. 55, 60-61 (D.Mass.1996), rev'd on other grounds, 109 F.3d 1 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). We reach the merits of this claim below; at this point, it should be noted that to succeed in a habeas corpus petition, the petitioner must put in question not the personal jurisdiction of the Oregon courts, but rather the validity of his arrest and detention pursuant to a Governor's warrant issued under the laws of Massachusetts. And, of course, Massachusetts does have personal jurisdiction over him. See G.L. c. 276, § 13.

The petitioner argues that, if this court does not address his argument that Oregon lacks personal jurisdiction over him, he effectively will be barred from raising it in light of the Supreme Court's decision in Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952), citing Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), which stated that, once a criminal defendant is present within a State, he has no valid claim that that State may not exercise personal jurisdiction over him. The petitioner's concern may well be valid, but it is beside the point. The cases dealing with personal jurisdiction address issues quite inapposite to the context of a criminal case. The leading cases, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), dealt with the question whether the courts of one jurisdiction could render a judgment that was valid and binding against a defendant everywhere and so could be carried to another State, where enforcement could be had under the full faith and credit clause of the United States Constitution. Art. IV, § 1. See World-Wide Volkswagen, supra at 291, 100 S.Ct. 559 ("A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere"). Kulko, supra (California court may not order child support against defendant who did not reside in California and had only been there on two brief occasions), was such a case. The jurisprudence of personal jurisdiction has no bearing on the question whether a person may be brought to a State and tried there for crimes under that State's laws. Indeed Frisbie itself illustrates how inapposite the personal jurisdiction cases are in this context, for in Frisbie, the Court held that even if a defendant had been kidnapped and brought...