BERZON, Circuit Judge:
Our case involves novel issues concerning the enforcement of foreign-country money judgments that assertedly implicate the defendant's freedom of religion. Naoko Ohno sued Yuko Yasuma and the Saints of Glory Church (collectively, "the Church") in Japan, alleging that they had tortiously induced her to transfer nearly all of her assets to the Church. The Japanese courts awarded Ohno a $1.2 million tort judgment.
The Church contends that the judgment imposes liability for its religious teachings,
We hold, first, that the district court's recognition and enforcement of the Japanese money judgment does not constitute "state action" triggering direct constitutional scrutiny and, second, that neither the Japanese judgment nor the cause of action on which it was based rises to the level of repugnance to the public policy of California or of the United States that would justify a refusal to enforce the judgment under the Uniform Act. Accordingly, we affirm the district court's judgment in Ohno's favor.
Ohno, a citizen of Japan, sued the Church in Tokyo District Court. She received a favorable judgment, upheld on appeal to Tokyo's High Court. Ohno then initiated an action for recognition and enforcement of the judgment in the United States District Court for the Central District of California, as Yasuma is a resident of Los Angeles and the Saints of Glory Church ("Saints of Glory") is a registered California religious corporation.
The following facts are summarized from the findings of the Tokyo trial court, as set forth in its judgment of August 28, 2009:
Ohno joined Saints of Glory in 1994 while working in London. Three years
Ohno was obedient to Yasuma's advice and teachings in various areas of her life. For example, when Ohno learned that her father was terminally ill, Yasuma "stated something negative about [Ohno] going to see her father," so Ohno did not return home to see him before he died and did not attend his funeral. Later, after Ohno informed Yasuma that she had lost her job, the Church convinced Ohno to live with another "church member in the same situation," in what we infer from the record was a Church-owned or Church-affiliated residence in Tokyo. Also, after Yasuma repeatedly made negative statements about medications, Ohno ceased taking the anti-depressants and tranquilizers she had been prescribed when she was diagnosed with depression years earlier. At Yasuma's instruction, Ohno purchased Saints of Glory videos and books, which she began watching and reading repeatedly. Finally, the Church told Ohno not to purchase her own apartment when she tried to do so, and admonished her for negotiating a reduction in her rent.
Following all these events, and while suffering from both depression and general ataxia (a lack of muscle coordination due to damage to the nervous system), Ohno "became obsessed with a sense of guilt that she had not obeyed Jesus Christ." After Yasuma encouraged Ohno to make "givings" in late 2001, Ohno gave Yasuma and another church minister each 800,000 Yen.
A year after these transfers ("the Transfers"), Ohno was told she would be "driven out" of Saints of Glory because she "had not been obedient to Jesus Christ." The following May, the Church ordered her to leave the apartment where she was living. On the advice of her psychiatrist, Ohno then resumed taking medications for her depression. She also began participating in religious services at a different church.
Ohno eventually came to believe that she had been defrauded by the Church. She filed a complaint in 2007 in Tokyo District Court, asserting tort and unjust enrichment claims against Yasuma, Saints of Glory, and two other individual defendants not parties to the present enforcement action. The dispute centered on the circumstances in which Ohno had transferred the approximately $500,000 to Saints of Glory between January and March 2002, leaving her essentially destitute. Ohno contended that the Transfers took place as a result of the Church's "fraudulent and threatening
The litigation in Japan lasted over two years and involved several hearings, various filings, and a full merits trial, in which Yasuma and Saints of Glory appeared through counsel. The Tokyo District Court's judgment held Yasuma and Saints of Glory liable under Japanese Civil Code articles 709, 719, and 715, for illegally inducing Ohno to tithe "in such a way as to incite anxiety and cause terror to the Plaintiff who was already in [a] state of depression and was suffering from general ataxia." The Tokyo trial court concluded that Ohno's decision to give the Transfers "under such psychological condition" could not be said to have been made of her own free will, and awarded damages, including restitution of the 68,678,424 Yen Ohno had given to Saints of Glory in the disputed Transfers; 3,000,000 Yen for pain and suffering; and 7,200,000 Yen for attorney's fees. The total award was 78,878,424 Yen ($843,235.66).
As to the grounds for the judgment, article 709 of the Japanese Civil Code, entitled "Damages in Torts," provides: "A person who has intentionally or negligently infringe[d] any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence." Minp;o [Civ. C.] art. 709. Article 719 provides for joint and several liability of joint tortfeasors, Minp;o [Civ. C.] art. 719, and article 715 provides for an employer's liability for the tortious actions of its employees, Minp;o [Civ. C.] art. 715. The Japanese trial court did not specify precisely which right or legally protected interest the Church infringed; it stated only that the solicitation of donations from Ohno was illegal because it exceeded "the scope of what is socially appropriate."
Defendants appealed the judgment to the Tokyo High Court, which affirmed the lower court decision on all counts and dismissed the appeal.
Ohno next brought an international diversity action in the United States District Court for the Central District of California, seeking enforcement of the Japanese judgment against Yasuma and Saints of Glory under California's Uniform Act, Cal. Civ.Proc.Code §§ 1713-1724. In opposition to Ohno's motion for summary judgment, the Church argued that the Religion Clauses bar recovery in tort for the consequences of protected religious speech, including threats of divine retribution, and prohibit a court from judging the validity of the Church's religious teachings. The Japanese judgment, the Church argued, was inconsistent with these principles. The Church further asserted that the Japanese judgment is not entitled to recognition, both because it is "repugnant" to public policy embodied in the Religion Clauses and because it "was obtained through procedures not compatible with the requirements of due process of law." In the alternative, the Church requested that the motion for summary judgment be continued to permit additional discovery relating to the Japanese proceedings.
The district court granted summary judgment in favor of Ohno and entered judgment jointly and severally against Yasuma and Saints of Glory, holding the Japanese judgment not repugnant to the Religion Clauses.
On appeal, the Church contends that the district court was both constitutionally and statutorily required to refuse recognition of the Japanese judgment because the judgment burdens free exercise of religion in violation of the Religion Clauses. As to the constitutional issue, the Church maintains that enforcement in the United States of a foreign-country judgment that would be violative of the Religion Clauses if issued by a domestic court is itself an exercise of state power, directly subject to constitutional constraints. Statutorily, the Church argues that a foreign-country judgment that impinges on American constitutional rights is necessarily repugnant to public policy, making its recognition under California's Uniform Act an abuse of discretion.
In international diversity cases such as this one, "enforceability of judgments of courts of other countries is generally governed by the law of the state in which enforcement is sought." Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 433 F.3d 1199, 1212 (9th Cir.2006) (en banc) (per curiam) ("Yahoo! II") (plurality opinion) (citing Bank of Montreal v. Kough, 612 F.2d 467, 469-70 (9th Cir.1980)); see also id. at 1239-41 (Fisher, J., concurring in part and dissenting in part). In California, the Uniform Act regulates enforcement of the Japanese damages award at issue here. See Cal. Civ.Proc.Code §§ 1713-1724.
The present California foreign judgment enforcement statute was enacted in 2007 to replace the Uniform Foreign Money Judgments Recognition Act, formerly codified at California Civil Procedure Code sections 1713-1713.8, and applies to all recognition and enforcement actions commenced on or after January 1, 2008. See § 1724(a); see also Manco Contracting Co. (W.W.L.) v. Bezdikian, 45 Cal.4th 192, 204, 85 Cal.Rptr.3d 233, 195 P.3d 604 (2008). California's Act was modeled on the 2005 Uniform Foreign-Country Money Judgments Recognition Act, 13 U.L.A. pt. II, at 18-38 (Supp.2011), drafted by the National Conference of Commissioners on Uniform State Laws.
California's Uniform Act provides that the courts of California "shall recognize a foreign-country judgment" for money damages that is final, conclusive, and enforceable where rendered, except if one or more of the mandatory grounds for non-recognition enumerated in § 1716(b), or discretionary grounds for non-recognition enumerated in § 1716(c), applies.
Under the Uniform Act, the party seeking enforcement of a foreign judgment bears the initial burden of establishing that the judgment falls within the scope of the Act. § 1715(c). The parties here do not dispute that the Japanese judgment conforms to the threshold requirements for recognition: it grants recovery of a sum of money, as required by § 1715(a)(1); it is final, conclusive and enforceable in Japan, under § 1715(a)(2); and it is not a judgment for taxes, a fine or other penalty, or a judgment in connection with domestic relations, barred from recognition under § 1715(b).
Once coverage under the Uniform Act is established, the presumption in favor of enforcement applies, and the party resisting recognition of a foreign-country judgment "has the burden of establishing that a ground for nonrecognition stated in subdivision [§ 1716](b) or (c) exists." § 1716(d); see also Uniform Foreign-Country Money Judgments Recognition Act, 13 U.L.A. pt. II, at 19 (Supp.2011) (Prefatory Note). The repugnancy ground for non-recognition of foreign judgments is therefore an affirmative defense. See § 1716(d). This statutorily specified burden applies equally where, as here, the ground of repugnancy is an asserted violation of federal constitutional norms. See, e.g., Sari Louis Feraud Int'l v. Viewfinder, Inc., 489 F.3d 474, 477-78 (2d Cir.2007). Thus, the Church has the burden of establishing the grounds it has raised for non-recognition of the judgment.
This case presents questions of first impression in this circuit, relating to the enforcement
As we explain below, we do not reach the question of whether a domestic tort judgment parallel to the Japanese judgment would have been unconstitutional under the Religion Clauses had Ohno's suit been brought here. Instead, we conclude: first, that enforcement of this foreign-country money judgment by a domestic court does not constitute domestic state action triggering constitutional scrutiny; and, second, that neither the judgment at issue in this particular case nor the cause of action on which it is based is so repugnant to public policy as to qualify for non-enforcement under the Uniform Act.
The Church's direct constitutional challenge turns on whether the district court's enforcement of the damages award issued by a foreign sovereign amounted to domestic governmental action subject to the constraints of the Religion Clauses.
"[M]ost rights secured by the Constitution are protected only against infringement by governments," so that "the conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-37, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (internal quotation marks omitted). If the action challenged here is not so attributable, then there is no "state action" and no violation of the Religion Clauses.
Foreign governments, like the government of Japan, are not bound by the U.S. or California Constitutions. "[O]ur notions of due process," for example, do not apply "to foreign court proceedings against American citizens who have committed foreign crimes outside the United States." United States v. Gecas, 120 F.3d 1419, 1430 (11th Cir.1997) (en banc) (citing Neely v. Henkel, 180 U.S. 109, 123, 21 S.Ct. 302, 45 L.Ed. 448 (1901)); see also United States v. Ant, 882 F.2d 1389, 1395 n. 8 (9th Cir.1989) ("`Neither the Fourth nor the Fourteenth Amendments are directed at Mexican officials....'") (quoting Brulay v. United States, 383 F.2d 345, 348 (9th Cir.1967)); United States v. Peterson, 812 F.2d 486, 490 (9th Cir.1987); United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.1978); Flynn v. Shultz, 748 F.2d 1186, 1197 (7th Cir.1984) ("Obviously, the Mexican government is not bound by the requirements of our Constitution even when prosecuting a United States citizen...."). In particular, "[i]t is, of course, a commonplace that the [First Amendment] is a guarantee only against abridgment by government, federal or state." Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (emphasis added).
As foreign-country court orders, like domestic contracts between private parties, are not, without more, subject to the constraints of our constitutional law, neither the laws of Japan nor the decisions of its courts constitute domestic "state action" for the purposes of a constitutional claim in this country. The success of the Church's direct constitutional arguments therefore depends upon showing that, through its enforcement by a domestic court, the judgment issued in Japan becomes action of the government, and so subject to constitutional scrutiny.
Decisions of a domestic court in the United States do constitute governmental action. State action "refers to exertions of state power in all forms," Shelley v. Kraemer, 334 U.S. 1, 20, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (emphasis added), so that "[s]tate action, for purposes of the [Constitution], may emanate from rulings of administrative and regulatory agencies as well as from legislative or judicial action," Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (emphasis added). Thus, "the action of state courts and of judicial officers in their official capacities [has long been] regarded as action of the State within the meaning of the Fourteenth Amendment," Shelley, 334 U.S. at 14, 68 S.Ct. 836,
So there is no doubt that the district court's decision in this case applying California's Uniform Act — legislation that is itself the result of governmental action — constitutes state action for purposes of constitutional scrutiny. But that truism does not resolve our question, which is: Should the substance of the underlying Japanese monetary damages judgment, resulting from a lawsuit in Japan between two private parties, be ascribed to the district court's enforcement of the judgment under the Uniform Act and so subjected to constitutional scrutiny? "Precisely when ... judicial involvement in private litigation assumes constitutional dimensions is a problem that has perplexed courts and scholars for decades." Dahl v. Akin, 630 F.2d 277, 280 (5th Cir.1980). Given the parallelism, for constitutional state action purposes, between private domestic action and the actions of foreign governments, essentially the same perplexities arise with regard to the enforcement of foreign judgments resulting from litigation abroad. We therefore rely on both contexts in our analysis.
We begin our analysis with general state action precepts: At bottom, the state action requirement serves to "avoid[] imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar, 457 U.S. at 936, 102 S.Ct. 2744. Consistent with this approach, "constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).
Lugar, a case concerning a private creditor's use of state courts to effectuate a prejudgment attachment, set forth a broadly applicable two-prong framework for analyzing when governmental involvement in private action is itself sufficient in character and impact that the government fairly can be viewed as responsible for the harm of which the plaintiff complains. 457 U.S. at 937-42, 102 S.Ct. 2744. The first prong asks whether the claimed constitutional deprivation resulted from "the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible." Id. at 937, 102 S.Ct. 2744. The second prong determines whether the party charged with the deprivation could be described in all fairness as a state actor. Id. Domestic judicial enforcement of the Japanese judgment in this case satisfies neither prong of the Lugar framework.
As to the first prong, the Church does not challenge the constitutionality of the Uniform Act, facially or as applied. Instead, it challenges the constitutionality of the Japanese tort judgment Ohno seeks to enforce under the Uniform Act. As the source of the alleged constitutional harm is thus Japanese tort law, created by and enforced through Japanese governmental entities, the claimed constitutional deprivation cannot be traced to a right, privilege, or rule of conduct imposed by a domestic governmental entity or individual. See id.
The Church disagrees, relying on Paul v. Watchtower Bible & Tract Society of New York, Inc., 819 F.2d 875 (9th Cir. 1987). Paul held that the application of Washington tort law to establish damages liability for actions taken in furtherance of religious beliefs constitutes an exercise of state power, subject to constitutional scrutiny. Id. at 880-81. The Church's reliance on Paul is misplaced.
Paul applied an analysis similar to that in New York Times, explaining that it was because tort liability stemmed from state substantive law that its imposition constituted state action triggering constitutional scrutiny. Paul, 819 F.2d at 880. Expounding in Paul, we clarified that regardless of the form an American state's tort law takes — "whether statutory or common law" — it relies on the power of state government to regulate conduct. Id. (citing New York Times, 376 U.S. at 265, 84 S.Ct. 710). It is for that reason — and not simply because of judicial involvement — that "the application of [domestic] tort law to activities of a church or its adherents in their furtherance of their religious belief is an exercise of state power." Id. Similarly, Cohen v. Cowles Media Co. held that a state court's application of the common law doctrine of promissory estoppel to enforce a newspaper's confidentiality agreement was subject to constitutional scrutiny, as an "application of state rules of law." 501 U.S. 663, 668, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991).
In short, only the tort law of Japan, and not the law of any state or the federal government, underlay the Japanese judgment. The first Lugar prong therefore does not apply.
Even if enforcement of the Japanese judgment satisfied the first prong of the Lugar framework, it would fail the second. Here, "the party charged with the deprivation" is not "a person who may fairly be said to be a state actor," where "state actor" means an actor for whom a domestic governmental entity is in some sense responsible. Lugar, 457 U.S. at 937, 102 S.Ct. 2744. Although the Japanese courts are organs of the State of Japan, they are not organs of the federal or California government. And while the Japanese courts surely perform a public function in Japan, they were not compelled to conclude as they did by American law, or aided in their decision by the participation of an American governmental actor or entity.
Nor can Ohno, in bringing an enforcement suit under California's Uniform Act, be likened to a state actor. "`The Supreme Court has articulated four tests for determining whether a [non-governmental person's] actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test.'" Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir.2012) (quoting Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir.2002)). Most relevant here are the "public function" and "joint action" tests
Ohno's use of California's Uniform Act as a litigant does not make her a state actor through the public function test. Although the court assuredly performs a public purpose, a private individual seeking a remedy from a court is seeking gain for him or herself, a purely private act. "[M]erely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator ... with the judge." Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).
Nor does Ohno's invocation of the Uniform Act convert the underlying Japanese judgment into the joint action of Ohno and the State of California or the district court. Again, although California's Uniform Act creates the legal framework that may entitle the holder of a qualifying foreign-country money judgment to recognition and enforcement of that judgment in the courts, the Uniform Act is not the source of the substantive legal rights underlying the judgment enforced.
To be sure, the district court's enforcement order facilitates Ohno's efforts to recover in the United States the sum of money awarded by the Japanese court. But the district court, through its implementation of the procedures established by the Uniform Act, cannot be said to provide "significant assistance" to the underlying acts that the Church contends constituted the core violation of its First Amendment rights — namely, judicial scrutiny of the content of its religious beliefs and imposition of liability for the consequences of its
Notably, the cases in which the Supreme Court has held that private use of state-created procedures amounts to state action have, by and large, concerned due process challenges to the state procedures themselves or their application. Those cases have not addressed constitutional challenges to the underlying causes of action that prompted the non-governmental party's recourse to the state enforcement procedures. See, e.g., Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); Lugar, 457 U.S. 922, 102 S.Ct. 2744; Sniadach, 395 U.S. 337, 89 S.Ct. 1820.
As to a final joint action consideration, it cannot be said that the federal or California government in any meaningful way accepts benefits derived from the allegedly unconstitutional actions. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 926 (9th Cir.2011). At most, the United States may gain some diplomatic benefit when it recognizes foreign-country judgments, manifested through increased reciprocity in the treatment of U.S. judgments abroad. But this benefit is, once again, independent of the content of the judgments recognized and so cannot be said to incorporate the allegedly unconstitutional acts underlying them.
In sum, neither the Uniform Act nor the district court's challenged enforcement at Ohno's behest of the Japanese money judgment meets the standards for state action, under the controlling Lugar framework, with regard to the substance of the Japanese judicial decision. Both the Act and the court's involvement in implementing it are assuredly governmental actions. But the purposely limited nature of that involvement undermines the attribution to domestic governmental actors of responsibility for the Japanese court's determination
Consideration of the seminal civil rights case, Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, does not alter our mode of analysis under the generally applicable Lugar framework or lead us to conclude otherwise. Shelley established that judicial enforcement of a legal right or obligation whose source is not domestic governmental action can constitute state action triggering constitutional scrutiny. See id. at 20, 68 S.Ct. 836. Specifically, Shelley held that a state court's enforcement of racially restrictive housing covenants entered into between private land owners amounts to state action in violation of the Equal Protection Clause. Id. The Court viewed the interposition of judicial coercive power to enforce racially discriminatory private agreements as governmental discrimination on the basis of race. Id. at 20-21, 68 S.Ct. 836; see also Barrows v. Jackson, 346 U.S. 249, 254, 258, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) (applying the same state action principle to a court's award of damages for violation of a discriminatory private contract).
But Shelley has not been interpreted as meaning that domestic judicial enforcement of any monetary obligation necessarily transforms the circumstances that gave rise to that obligation into state action for constitutional purposes.
Similarly, in the context of judicial confirmation of arbitral awards, loosely analogous to recognition of foreign-country money judgments, the Eleventh Circuit has held that "mere confirmation of a private arbitration award by a district court is insufficient state action to trigger the application of the Due Process Clause." Davis v. Prudential Secs., Inc., 59 F.3d 1186, 1192 (11th Cir.1995). Other courts agree. United States v. American Society of Composers, Authors & Publishers, 708 F.Supp. 95 (S.D.N.Y.1989), for example, held that a court's "mere approval ... of the use of arbitration did not create any state action" lest "all arbitrations ... be subject to due process limitations through the simple act of appealing the arbitrators' decisions to the court system." Id. at 97. And the California Court of Appeal has made clear that "the limited state involvement of converting the [arbitration] award into a judgment ... [does] not engender the same due process incidents required with respect to an award originally assessed and imposed by a court." Rifkind & Sterling, Inc. v. Rifkind, 28 Cal.App.4th 1282, 1292, 33 Cal.Rptr.2d 828 (1994).
Courts' reluctance, since Shelley, to expand that case's holding too far beyond its original context stems from a concern for preserving a sphere for private action and private actors, not subject to the constitutional constraints designed to protect our populace from governmental control and overreaching. "[I]f, for constitutional purposes, every private right were transformed into governmental action by the mere fact of court enforcement of it, the distinction between private and governmental action would be obliterated." Edwards v. Habib, 397 F.2d 687, 691
For all these reasons, the district court's enforcement of the Japanese judgment does not render the substantive law applied by the Japanese court, or the judgment it reached in applying that law, domestic state action directly constrained by the California or U.S. Constitutions. Consequently, contrary to the Church's contention, non-recognition of the judgment cannot be constitutionally mandatory.
In so holding, we do not suggest that "all that matters" in the state action inquiry is whether an American entity "is the origin of the legal right" enforced in a domestic court. Rosen, 53 Emory L.J. at 207. For example, there may be circumstances in which the nature of the enforcement action requires the court to take such an active role in, or to exercise sustained supervision of, the underlying legal decision or the resulting allocation of rights that it becomes appropriate to view the court's activities as governmental actions with regard to the substance of the underlying decision or of the resulting order.
Such may well be the case, for example, with regard to the enforcement in a domestic court of some (or all) injunctions issued by foreign countries. Injunctions directly compel or forbid a party's actions, and thus may be seen as placing the domestic court's imprimatur behind the substance of the foreign court's order to that extent. Also, enforcement of injunctions implies the authority to exercise contempt and modification powers after the injunction issues; the exercise of such authority may entangle the enforcing court in the merits of the underlying dispute. Whether or not these aspects of injunctive relief could result in a determination that enforcement by a domestic court of a particular foreign injunction constitutes state action for constitutional purposes, those same considerations are not present where, as here, the enforcement is of an order to pay over a pre-determined amount of money. In the latter instance, the connection between the narrow domestic court order and the asserted violation by the foreign court of substantive rights protected by our Constitution is simply too attenuated, without more, to attribute responsibility for the merits of the underlying judgment to a domestic state actor. And, standing alone, the order — to pay money to someone — does not mandate a constitutionally protected act.
Because the Church's constitutional claim fails at the state action stage, we need not decide directly whether the First Amendment's protections actually do reach the assertedly religious expression at issue in the Japanese suit. As three judges noted in Yahoo! II, "[t]he extent of First Amendment protection of speech accessible solely by those outside the United States is a difficult and, to some degree, unresolved issue" and "the extent — indeed the very existence — of such an extraterritorial right under the First Amendment [to publish speech in violation of foreign law] is uncertain." 433 F.3d at 1217, 1221
Ohno was in Japan at all relevant times, and the Church communicated with her there.
Our analysis does not, however, foreclose other, non-constitutional bars to enforcement of a foreign-country money judgment, such as repugnancy to public policy. As we discuss next, there can be sound policy justifications for refusing to recognize foreign-country money judgments that the Constitution would forbid a domestic court from rendering in the first instance.
In addition to its constitutional argument, the Church contends that the Japanese judgment is not entitled to recognition and enforcement under California's Uniform Act because it is "repugnant to the public policy" embodied in the Religion Clauses of the Federal and State Constitutions. A foreign judgment that would be unconstitutional if rendered in this country necessarily qualifies as repugnant, the Church maintains, making its recognition an abuse of discretion under California's Uniform Act.
The Act permits — but does not require — courts to deny recognition to foreign monetary awards if either "[t]he judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of California or of the United States." § 1716(c)(3) (emphases added). Accordingly, we examine whether either the Japanese law on which the judgment rests or the judgment issued meets the stringent standard for repugnancy under California law.
We first address the proper standard for reviewing a district court's decision
Absent a demonstrated ground for non-recognition, enforcement of a qualifying foreign-country money judgment is mandatory under California's Uniform Act. § 1716(a). Here, the district court's decision to recognize and enforce the Japanese court's judgment, over the Church's objections, hinged on a preliminary determination that neither the judgment nor the underlying cause of action was fundamentally incompatible with, and therefore repugnant to, the Religion Clauses. Because that determination was a conclusion of law, we, as in Hashim, examine de novo the district court's legal evaluation. Given that the Church has asserted no other ground for non-recognition on appeal, if the district court correctly determined that neither the Japanese judgment nor the underlying cause of action is repugnant to public policy, then recognition of the damages award was statutorily required.
California courts have set a high bar for repugnancy under the Uniform Act. The standard, rooted in the public policy exception to the comity doctrine at common law, see Hilton v. Guyot, 159 U.S. 113, 205-06, 227-28, 16 S.Ct. 139, 40 L.Ed. 95 (1895), measures not simply whether the foreign judgment or cause of action is contrary to our public policy, but whether either is "so offensive to our public policy as to be `prejudicial to recognized standards of morality and to the general interests of the citizens.'" Java Oil Ltd. v. Sullivan, 168 Cal.App.4th 1178, 1189-92, 86 Cal.Rptr.3d 177 (2008) (emphasis added) (quoting Wong v. Tenneco, Inc., 39 Cal.3d 126, 135-36, 216 Cal.Rptr. 412, 702 P.2d 570 (1985)). Thus, "even where it is agreed that a foreign law offends public policy, it may still be applied in a limited context where the potential harm is minimal." Wong, 39 Cal.3d at 136, 216 Cal.Rptr. 412, 702 P.2d 570. Put another way, the public policy exception codified at § 1716(c)(3) does not apply unless a foreign-country judgment or the law on which it is based is "so antagonistic to California [or federal] public policy interests as to preclude the extension of comity." Crockford's Club Ltd. v. Si-Ahmed, 203 Cal.App.3d 1402,
In the context of an Arizona enforcement action, construing common law principles of international comity similar to those on which California's Uniform Act is based, see Manco Contracting Co., 45 Cal.4th at 198, 85 Cal.Rptr.3d 233, 195 P.3d 604, we observed that "few judgments fall in the category of judgments that need not be recognized because they violate the public policy of the forum," In re Hashim, 213 F.3d at 1172 (internal quotation marks omitted). "It has long been the law that unless a foreign country's judgments are the result of outrageous departures from our own motions of `civilized jurisprudence,' comity should not be refused." British Midland Airways Ltd. v. Int'l Travel, Inc., 497 F.2d 869, 871 (9th Cir. 1974) (quoting Hilton, 159 U.S. at 205, 16 S.Ct. 139).
Simple inconsistency between American state or federal law and foreign law, then, does not render a foreign judgment unenforceable by reason of repugnancy. See Yahoo! II, 433 F.3d at 1215 (plurality opinion). Foreign judgments are not to be "tried afresh" in U.S. courts, applying domestic concepts. See Hilton, 159 U.S. at 202-03, 16 S.Ct. 139. "We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home." Loucks ex rel. Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111, 120 N.E. 198 (1918) (Cardozo, J.).
Applying these principles, courts in other jurisdictions have declined to enforce foreign-country money judgments on grounds of repugnance to the public policy embodied in the First Amendment, but only where there were stark differences between foreign and domestic law. In Telnikoff v. Matusevitch, 347 Md. 561, 702 A.2d 230 (1997), for example, Maryland's high court declined to enforce an English libel judgment under principles of comity
In Yahoo! I, the Northern District of California, in an opinion reversed on jurisdictional grounds, see Yahoo! II, 433 F.3d 1199, applied similar logic to that in Telnikoff and Bachchan and barred enforcement of a French injunction requiring the Internet company Yahoo! to block French users' access to Nazi-related website content. See Yahoo! I, 169 F.Supp.2d at 1184-85. The "content and viewpoint-based regulation" of Internet speech, the district court held, "clearly would be inconsistent with the First Amendment if mandated by a court in the United States." Id. at 1192-93.
These cases do not suggest that a looser standard applies when the asserted repugnancy arises from an inconsistency with U.S. constitutional as opposed to statutory or common law principles. There is no California case so holding and no basis in the statutory language for such a conclusion. Rather, the cases underscore that only judgments presenting a direct and definite conflict with fundamental American constitutional principles will be denied recognition because repugnant.
Such direct conflict is more apt to arise where the foreign-country judgment — or the law underlying it — does not incidentally or indirectly affect conduct that may be protected in the United States, but expressly targets such conduct. Telnikoff, Bachchan, and Yahoo! (I & II), all concerned challenges to enforcement of foreign-country judgments issued on the basis of foreign laws specific to speech or expression — such as libel, defamation and hate speech laws — not laws of general application, such as the Japanese tort laws underlying the judgment at issue here.
The situation with which we are faced here is quite otherwise. As will appear, it is highly debatable, at least, whether tort liability could be imposed on the Church for inducing Ohno's Transfers, and the ultimate determination of that question would be highly fact-dependent. As the Japanese cause of action and judgment in this case are not antithetical to the Religion Clauses, they are not repugnant to California or U.S. public policy in the sense required by the exception in California's Uniform Act.
In evaluating the repugnancy of a foreign cause of action, we compare the legal basis for liability and the plaintiff's claims for relief in the foreign court with comparable grounds for suit in the United States. If American law recognizes generally parallel causes of action, the foreign cause of action cannot be said to be repugnant to American public policy.
This assessment does not depend on whether the standards for evaluating a cause of action or the elements required to state a claim are identical under domestic and foreign law. Instead, we necessarily focus on the fundamentals of the cause of action underlying the foreign judgment and defenses thereto, "not the differences in the bodies of law" or in the way in which remedies are afforded. Soc'y of Lloyd's v. Reinhart, 402 F.3d 982, 995 (10th Cir. 2005); see also Soc'y of Lloyd's v. Turner, 303 F.3d 325, 332 (5th Cir.2002). That a particular cause of action does not exist, or that a particular claim would not be cognizable, in California does not obligate us to refuse enforcement of a judgment, as long as the existence of the cause of action is not itself repugnant to California public policy. See Restatement (Third) of Foreign Relations Law of the United States § 482 cmt. f (1987); Restatement (Second) of Conflict of Laws § 117 (1971).
Here, the Church was held liable under article 709 of the Japanese Civil Code, which provides that "[a] person who has intentionally or negligently infringe[d] any right of others, or legally protected interest of others, shall be liable to compensate
We look next at the particular claims on which the tort cause of action was based. Ohno's claims are analogous to actions for undue influence, fraud, negligent or intentional infliction of emotional distress, and unjust enrichment under California law. See Cal. Civ.Code §§ 1572 (fraud), 1575 (undue influence); 1714 (liability for willful or negligent injury to others).
American courts can recognize tort liability for acts assertedly motivated by religion. The Religion Clauses do not bar tort claims against a religious entity or its members, so long as adjudicating the cause of action does not require a court to judge the validity of religious beliefs or interfere with ecclesiastical decisionmaking regarding self-governance or employment. See, e.g., United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); Molko v. Holy Spirit Ass'n for Unification of World Christianity, 46 Cal.3d 1092, 1115-16, 252 Cal.Rptr. 122, 762 P.2d 46 (1988); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 956, 959-62 (9th Cir.2004) (citing Bollard v. Cal. Province of Soc'y of Jesus, 196 F.3d 940, 945-47 (9th Cir.1999)).
The Religion Clause protections "embrace[] two concepts — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir.2009); Molko, 46 Cal.3d at 1112, 252 Cal.Rptr. 122, 762 P.2d 46. Conduct, including speech-based conduct such as solicitation, "remains subject to regulation for the protection of society." Cantwell, 310 U.S. at 304, 60 S.Ct. 900. So recognizing, California courts have entertained claims of fraud, undue influence, and intentional infliction of emotional distress brought
With respect to speech related to solicitation for a religious cause, there is no categorical bar under domestic law to a claim in tort. The state is "free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience." Cantwell, 310 U.S. at 306-07, 60 S.Ct. 900. The preservation of this state regulatory authority is important, given that speech may be the vehicle through which undue influence is exerted, depending on the context and manner in which it is conveyed. See, e.g., Dovydenas v. The Bible Speaks (In re The Bible Speaks), 869 F.2d 628, 645-46 (1st Cir.1989) (rejecting a church's First Amendment defense against claims that it exerted undue influence to obtain gifts because the court's findings rested on the church's secular statements and actions).
There are, to be sure, definite limitations on what constitutes under California law a cognizable tort claim arising from facially religious conduct: No cause of action will be recognized where a plaintiff challenges the verity of religious statements or beliefs. "It is settled that inquiry into the truth or falsity of religious beliefs is foreclosed by constitutional guarantees of religious freedom and that the courts may ask only whether the proponent of a particular religion holds his beliefs honestly and in good faith." Hallinan v. Roman Catholic Archbishop of S.F. (In re Estate of Supple), 247 Cal.App.2d 410, 414, 55 Cal.Rptr. 542 (1966) (refusing to pass on the truth of religious statements alleged to have unduly influenced a testator's actions). And the California Court of Appeal has refused to entertain actions that require the court to determine whether the actions of an individual not party to the lawsuit were induced by faith or coercive persuasion. Katz v. Superior Court, 73 Cal.App.3d 952, 141 Cal.Rptr. 234 (1977) (overturning conservatorship orders granted to parents of members of the Unification Church who claimed their children were brainwashed).
Similarly, under the Religion Clauses, claims of intentional infliction of emotional distress against churches or other religious entities "based merely on threats of divine
As noted above, the Japanese law under which the Church was sued permits liability for the infringement of another's rights based either on an intentional or negligent state of mind. See Minp;o [Civ. C.] art. 709 (Japan). To the extent that Ohno's claim amounted to one for merely negligent infliction of emotional distress as a result of facially religious conduct, it may not have been cognizable under California law. But California courts have pronounced no bar to claims for negligent infliction of economic injury, and Ohno clearly asserted pecuniary losses as well as pain and suffering. Moreover, the reason the California Court of Appeal has given for barring recovery from religious entities for the negligent infliction of emotional distress is not that such liability necessarily offends the Religion Clauses, but rather that religious organizations have no duty of care to avoid causing their members emotional injury. See Wollersheim I, 212 Cal.App.3d at 900-01, 66 Cal.Rptr.2d 1. If such a duty of care exists under Japanese law, this difference from California law does not denote repugnance to a public policy embodied in the Religion Clauses.
Ohno's claims, which relate to economic as well as emotional injury, do not directly impugn the Church's religious beliefs or teachings. The Japanese trial court rejected the Church's argument that the lawsuit was a purely religious dispute and explicitly disavowed the notion that it was scrutinizing the Church's beliefs, stating that there was no "need to make a judgment about the religious teaching itself, in order to make a determination about the validity of [Ohno's] claim." The court further recognized that solicitation of donations by religious entities is legal and protected from liability in Japan, so long as the methods used are within the scope of what is "socially appropriate." Where inducement of donations incite anxiety, confusion, or terror, however, such that the donation cannot be considered to be based on the individual's free will, then a tort can be established. It was within these parameters that the Japanese court adjudicated Ohno's claims. Far from being so divergent from domestic legal principles as to be repugnant to public policy, the causes of action underlying the Japanese judgment were generally similar to, although possibly broader than, those that would be cognizable under California law.
In other words, had Ohno alleged that she had been tortiously induced to donate hundreds of thousands of dollars to a church in California, she could have sued the religious entity or its officers here, too. Whether she would prevail on the particular facts of her case or whether the defendants could successfully raise constitutional defenses to any of her claims is a separate question, which we address next. We are not persuaded that the cause of action underlying the Japanese judgment is antithetical to California public policy regarding religious freedom.
We turn next to the repugnancy of the judgment itself. The Church contends that the judgment is repugnant to public policy because it is incompatible with the Religion Clauses of the California and Federal Constitutions in two respects: First, the judgment necessarily involved an assessment by the court of the validity of the Church's religious teachings; and, second, the imposition of tort liability placed a burden on the Church's exercise of its religion without a compelling state interest in doing so. As will appear, the first contention is unsupported in the record. And the second cannot be grounds for declaring the judgment repugnant to public policy precisely because it presents a close question under California and federal law. In this context, where a repugnancy determination hinges on a definitive finding of conflict between foreign and domestic law, the debatability of the validity of the Church's legal position is its downfall.
Ohno's tort suit rests largely on factbound determinations regarding the nature of the actions that gave rise to her asserted injuries. Ohno contends that "the actual [Japanese] judgment was manifestly and explicitly concerned with conduct — the coercion, the overpowering of [her] own will, the deprivation of medications, the destruction of family relations, and the targeted fleecing of [her] assets." The Church, however, characterizes the Japanese judgment as imposing liability for Ohno's reactions to its "protected religious speech about the consequences of disobedience to God's commandments."
By its plain language, the Japanese judgment does appear to attach liability to the speech of a religious entity: The illegal act is described as "inducement" or "solicitation," based on "fraudulent and intimidating statements." But the Japanese trial court neither limited its focus to speech that was religious in nature nor rested its ruling on findings regarding the content of any religious speech at issue. The court made findings related to the Church's communications with Ohno regarding her living situation, contact with her family, and medical care, as well as pressure exerted on her to transfer funds to the Church, any or all of which may have been secular in nature. And while the judgment recounts the substance of some of the Church's teachings, the court's language suggests that it attributed the harms Ohno suffered not to the content of the Church's threats, but to the context in which they were made — that Ohno was isolated from her family, not taking medication for her depression, and suffering from general ataxia. The judgment states that the Church's conduct in soliciting money from Ohno, who was "under such a psychological condition," "incite[d] anxiety" and "cause[d] terror," such that the Transfers cannot be said to have been made of Ohno's free will. The record does not support an inference that the Japanese court imposed liability because of the "specific motivating ideology," opinion, or perspective behind the Church's communication with Ohno, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), or a finding regarding the truth or falsity of the Church's religious beliefs, see Ballard, 322 U.S. at 87-88, 64 S.Ct. 882.
While the facts of Ohno's case may not be as egregious as those in Wollersheim and Molko, where the plaintiffs alleged they were physically coerced and deceived as to the identity of the church they were joining, the difference is a matter of degree, not kind. To be sure, California tort law would require proof of elements not found in the Japanese judgment. The tort of fraud under California law, for example,
The Japanese trial court's judgment does not clearly establish either knowledge or intent on the part of Yasuma or Saints of Glory to "incite anxiety" or "cause terror." Facts in the record such as Yasuma's discouragement of the use of medication, Ohno's regular attendance at Church services, and the Church's oversight of her living situation permit an inference that Defendants were aware of Ohno's vulnerable mental and physical condition, and knew or should have known of the likelihood of causing her emotional harm or exerting undue influence. But the record reflects no discrete findings regarding the Church's knowledge of Ohno's depression and ataxia, whether Yasuma held a position of confidence and authority over Ohno, and whether the Church intended to take advantage of her.
For reasons we have surveyed, however, that the Japanese court did not find all the requisite elements of the causes of action for undue influence, fraud, or infliction of emotional distress under California law does not make the judgment antithetical to the basic precepts of tort law in this country, or to constitutional principles. Enforcing a defamation or libel judgment absent a finding of malice stands in direct tension with constitutional principles, because it punishes speech on the basis of content. In contrast, imposing tort liability absent a finding of intent, for actions that may or may not constitute protected religious conduct, does not give rise to the same stark clash of legal principles.
Even if a court in the United States could find the requisite elements of Ohno's tort claims, the Church maintains, the Religion Clauses would bar recovery. But the record does not show that the Church has so clearly made out a viable Free Exercise defense as to render the Japanese judgment antithetical to the fundamental principles underlying American protection of freedom of religion.
To invoke the protection of the Religion Clauses against a judgment in tort, the Church would have to demonstrate that imposing liability in damages substantially burdened its sincerely held religious beliefs or practices and that the state's justifications for that burden did not outweigh any infringement on the Church's religious freedom, under the applicable standard of scrutiny.
The threshold requirement for a defense based on the Religion Clauses is to show that one sincerely holds beliefs as religious views. Malik v. Brown, 16 F.3d 330, 333 (9th Cir.1994). Courts typically give credence to assertions of sincerely held religious beliefs in absence of any challenge to their sincerity or religious motives, and so long as they are not "so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause." Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir.2008) (taking the plaintiff's assertion that his dietary needs were religiously motivated as prima facie evidence of sincere religious beliefs); Malik, 16 F.3d at 333 (giving credence to the plaintiff's testimony regarding the reasons for his adoption of a Muslim name in absence of anything in the record challenging the sincerity of his religious beliefs). Construing the facts in the light most favorable to the Church, as we must on review of summary judgment, we presume that their actions were based on sincerely held religious beliefs.
Next, the Church would have to show that the order to pay damages to Ohno imposed a "substantial or, in other words, legally significant," Smith v. Fair Emp't & Hous. Comm'n, 12 Cal.4th at 1166-67, 51 Cal.Rptr.2d 700, 913 P.2d 909, burden on its exercise of religion. "[A] substantial burden must place more than an inconvenience on religious exercise"; it must have a "tendency to coerce individuals into acting contrary to their religious beliefs" or "exert[] substantial pressure on an adherent to modify his behavior and to violate his beliefs." Guru Nanak Sikh Soc'y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir.2006) (internal quotation marks omitted).
To be sure, "the burden of tort damages is direct." Paul, 819 F.2d at 881. While a tort damages judgment does not criminalize the conduct for which liability is imposed, it effectively makes the challenged actions "unlawful." Id.
Here, however, it is questionable whether the Church could demonstrate that the burden imposed infringes on protected religious beliefs, not merely on conduct accompanied by such beliefs. Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), rejected the notion that "when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation." Id. at 882, 110 S.Ct. 1595. Accordingly, that the Church's conduct may have been motivated by religious
Even if we presume that the Church could show the imposition of tort liability to be a substantial burden on its religious exercise, it would still have to surmount a final hurdle: proving that its burden outweighed the governmental interest in the regulation of tortious activity. Again, construing the facts in favor of the Church, we presume that strict scrutiny would apply and the judgment could be upheld only upon demonstration that enforcement of tort law serves a compelling state interest. Paul, 819 F.2d at 882-83 & n. 6 (citing Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)). This presumption is appropriate, as a law of general application that implicates "`the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press'" remains subject to strict scrutiny. San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031 (9th Cir.2004) (quoting Smith, 494 U.S. at 881, 110 S.Ct. 1595). Because the Church contends that the imposition of tort liability here burdens its religious speech, this case might qualify as a "`hybrid'" one in an American court, triggering strict scrutiny under federal constitutional law. See id. at 1031 (quoting Miller v. Reed, 176 F.3d 1202, 1204 (9th Cir.1999)).
But we are not persuaded that a California court could not conclude that "the state's interest in allowing tort liability" as a means of protecting vulnerable individuals against undue influence, abuse of confidence for pecuniary gain, and fraud is compelling enough "to outweigh any burden" imposed on the Church's action. See Molko, 46 Cal.3d at 1117, 252 Cal.Rptr. 122, 762 P.2d 46 (citing Wisconsin v. Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)). Nor are we persuaded that a California court would not deem tort law the least restrictive means of pursuing the state's compelling interests. This result is particularly likely given that the religious expression at issue here was targeted at Ohno specifically, rather than a more general audience. Holding the Church liable in this case may discourage it from soliciting funds in the manner pursued here, from individuals in a comparable psychological or medical state, or from otherwise exerting undue influence to obtain donations in the future. It does not, however, substantially inhibit Yasuma and Saints of Glory from practicing their religion or disseminating their teachings.
Construing the facts in the Church's favor, Ohno may well have failed to prevail in a California court on all her claims. But it is far from "clear-cut," Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir.1986), and so certainly debatable, whether the Religion Clauses would bar an American
In sum, the Japanese award cannot be said to fall into the narrow class of judgments that must be refused enforcement because repugnant to public policy. Neither the law applied nor the particular judgment issued is "so antagonistic" to the public policy embodied in the Religion Clauses, Crockford's Club Ltd., 203 Cal. App.3d at 1406, 250 Cal.Rptr. 728, or so "inherently vicious, wicked or immoral, and shocking to the prevailing moral sense," Viewfinder, 489 F.3d at 479-80, as to preclude recognition.
The roots of California's Uniform Act and its presumption that foreign-country money judgments are enforceable lie in principles of international comity:
Hilton, 159 U.S. at 205-06, 16 S.Ct. 139. The Church has not demonstrated any such ground for non-recognition here.
Enforcement, by the district court, of the Japanese damages award did not render the imposition of tort liability domestic state action, subject to constitutional constraints. Thus, the district court's order did not directly violate the Federal or California Constitution. Nor is the Japanese judgment or the underlying cause of action so antithetical to the protections afforded by the Religion Clauses as to permit — let alone require — non-recognition under California's Uniform Act by reason of repugnancy to public policy. For the foregoing
Cal.Civ.Proc.Code § 1716(b).
Section 1716(c) provides that a court is "not required to recognize a foreign-country [money] judgment if" any of the following nine discretionary grounds for non-recognition exists: (1) lack of notice to the defendant; (2) fraud; (3) repugnancy of the foreign judgment or cause of action to public policy; (4) conflict with another final and conclusive judgment; (5) contrariness to an agreement between the parties regarding the resolution of disputes; (6) inconvenience of the foreign forum; (7) doubts about the integrity of the rendering court; (8) incompatibility of the judgment with the requirements of due process of law; and (9) a recovery under defamation law that provides less protection for freedom of speech and the press than is provided under the U.S. and California Constitutions. Id.
On appeal, we dismissed the Yahoo! I case for lack of personal jurisdiction and ripeness, without mentioning Shelley or its reasoning. Yahoo! II, 433 F.3d at 1201. To the extent that the opinions discussed the merits of the First Amendment question, a majority of the judges on the en banc panel assumed that the constitutionality of enforcing the challenged foreign judgment would depend on whether compliance with the French court's order would restrict Yahoo!'s dissemination of, and users' access to, speech in the United States. See id. at 1220-22 (plurality opinion); id. at 1234-35, 1244-45 (Fisher, J., concurring in part and dissenting in part).
Other courts addressing similar issues have held, without discussing state action directly or otherwise explaining their conclusion, that where a foreign judgment fails to comport with domestic constitutional requirements, "the refusal to recognize the judgment should be, and it is deemed to be, `constitutionally mandatory.'" Bachchan v. India Abroad Publ'ns Inc., 154 Misc.2d 228, 585 N.Y.S.2d 661, 662 (N.Y.Sup.Ct.1992); see also Viewfinder, 489 F.3d at 480 (holding "unenforceable" judgments that "impinge on First Amendment rights") (quoting Bachchan, 585 N.Y.S.2d at 662, and Yahoo! I, 169 F.Supp.2d at 1189-90). Although those rulings may assume that judicial enforcement transforms the underlying foreign judgment into one adopted by and attributable to the domestic court, the opinions do not identify the basis for any such unarticulated assumption.
Our sister circuits have applied a similarly strict standard to the repugnancy exception of other states' foreign judgment enforcement statutes. See Viewfinder, 489 F.3d at 479-80 ("The public policy inquiry rarely results in refusal to enforce a judgment unless it is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense." (internal quotation marks omitted)); Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir. 1986) (describing the repugnancy standard as "high, and infrequently met," applying only in "clear-cut" cases where the judgment or cause of action on which it is based is contrary to "`fundamental notions of what is decent and just'" (quoting Tahan v. Hodgson, 662 F.2d 862, 864 (D.C.Cir.1981))); Sw. Livestock & Trucking Co. v. Ramon, 169 F.3d 317, 321 (5th Cir. 1999) (noting that the "level of contravention of Texas law" has to be "high" for the court to deny recognition on public policy grounds); cf. Andes v. Versant Corp., 878 F.2d 147, 150 (4th Cir. 1989) (holding, without expressly discussing repugnancy to public policy, that a court applying Maryland's Uniform Foreign-Money Judgments Act would not give effect to an English rule of preclusion that is "so much at odds with normal American notions of litigation that no American jurisdiction would readily embrace it").
