(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued September 24, 2001 -- Decided January 30, 2002
LONG, J., writing for a majority of the Court.
The sole issue before the Court is whether the fugitive entitlement doctrine (the doctrine) should be applied
to bar an appeal in a civil case. The doctrine provides that a fugitive from justice will be barred from seeking relief
from the judicial system whose authority he or she evades.
Tatsuya Matsumoto and Satoko Matsumoto were married in Japan in 1984. Their only child, Hyugo, was
born in New York in 1985. The Matsumotos lived in New Jersey from 1985 to 1997. During that time, they were
supported by Tatsuya's mother, Kazuko, who lived in Japan.
In March 1997, the Matsumotos traveled to Japan. During their stay, the Matsumotos' marriage fell apart.
Satoko claims that Tatsuya and Kazuko began to pressure her to stay in Japan, and that she had been forcibly
detained in an effort to coerce her into remaining in Japan. Satoko fled to her mother's house and, thereafter, was
prevented from communicating with her son. Satoko returned to America by herself. Tatsuya, on the other hand,
claims that Satoko's return to the United States without Hyugo was voluntary. Tatsuya briefly returned to America
to liquidate all bank accounts, totaling over $1,000,000; sell the cars; and ship all the furniture to Japan. Satoko
claims that Kazuko, who owned the marital residence in Cedar Grove, had someone change the locks and remove
Satoko's personal belongings from the house.
In April 1997, Satoko filed a complaint for custody and separate maintenance and an ex parte application
for an order to show cause. She was awarded sole temporary custody of Hyugo and exclusive possession of the
Cedar Grove residence. Tatsuya and Kazuko were ordered to return Hyugo within 48 hours. In addition, the court
ordered Tatsuya to account for all personal property he had removed from New Jersey and enjoined him from
dissipating assets acquired by the parties during the marriage. Neither Tatsuya nor Kazuko complied with the Order
and, on May 2, 1997, a supplemental order to show cause issued, threatening arrest warrants for contempt of court.
Tatsuya and Kazuko failed to respond, and on July 3, 1997, the trial court entered a Final Order imposing sanctions
against Tatsuya and Kazuko of $1000 per day going back to the date Hyugo was removed to Japan and continuing
to accrue until Hyugo was returned. Tatsuya was also found in violation of Satoko's rights for failure to comply
with the Order directing him to account for the personal property he removed from the State.
In June 1997, Satoko filed an Amended Complaint, alleging additional causes of action, including
intentional infliction of emotional distress, international interference with custody, fraud, and conversion. The
complaint also sought equitable distribution. In September 1997, Satoko filed a Second Amended Complaint
adding claims for divorce and alimony. Neither Tatsuya nor Kazuko responded and, accordingly, a default was
entered. A subsequent motion to vacate default was denied.
On December 4, 1997, criminal indictments issued against Tatsuya and Kazuko for conspiracy to interfere
with child custody, interference with child custody, and child endangerment. Thereafter, bench warrants were issued
for Tatsuya's and Kazuko's arrest for failure to appear at the arraignment. In March 1998, Tatsuya and Kazuko
sought to waive personal jurisdiction defenses in exchange for a dismissal of the arrest warrants, monetary
sanctions, and criminal indictments. Tatsuya also offered to bring Hyugo to New Jersey and set up residence until
the custody issues were resolved. Those requests were denied. Hyugo did return to New Jersey briefly. However,
his persistent demands to return to school in Japan coupled with his abusive behavior toward his mother, alleged by
Satoko to have been caused by Tatsuya and Kazuko, forced Satoko to allow Hyugo to return to Japan.
Tatsuya's and Kazuko's motion seeking to participate in the divorce action was denied by the trial court,
except for the opportunity to cross-examine Satoko's witnesses. In July 1999, an Amended Judgment of Divorce
was entered awarding Satoko, among other things, the marital residence, $944,500 in assets, permanent alimony of
$48,000 per year, $54,000 in retoactive alimony, sole custody of Hyugo and $271per week in child support. The
trial court also imposed on Tatsuya and Kazuko (jointly and severally) compensatory damages of $179,000 for
intentional interference with custody; punitive damages totaling $300,000;and attorneys fees and costs.
Tatsuya and Kazuko appealed the judgments against them. The Appellate Division held that, based on the
fugitive entitlement doctrine, the refusal of Tatsuya and Kazuko to comply with court orders prevented
consideration of their appeals. The court dismissed their appeals without prejudice, allowing for reinstatement if
they surrendered to the courts or if the outstanding warrants against them were vacated.
The Supreme Court granted certification.
HELD: The fugitive entitlement doctrine can be applied to bar an appeal in a civil matter.
1. Where a defendant is a fugitive from criminal prosecution or conviction, the application of the fugitive
disentitlement doctrine to bar him or her from pursuing a criminal appeal is firmly rooted in the criminal law and in
New Jersey jurisprudence. For the doctrine to apply, there must be a sufficient connection between defendant's
fugitive status and the appellate process in order to make dismissal of the appeal a reasonable sanction. (Pp. 10-14)
2. In 1996, the US Supreme Court first declared the doctrine applicable to a criminal fugitive attempting to contest
a related civil matter. Both state and federal precedent demonstrate that the doctrine can be applied in a civil or
criminal case so long as the party's fugitive status is sufficiently connected to the litigation in which the doctrine is
sought to be invoked and so long as nothing less than dismissal will suffice. What is crucial is the inquiry into
whether an alternative short of dismissal will render enforcement of the underlying judgment certain and remove the
risk of prejudice to the fugitive's adversary. (Pp. 15-24)
3. Federal and state case law, as well as this State's adherence to the doctrine in criminal cases, leads the Court to
conclude that the doctrine is applicable to civil matters. However, the following guidelines apply: the party against
whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status
must have a significant connection to the litigation in which the doctrine is sought to be invoked; invocation of the
doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by
the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response. (Pp. 24-26)
4. Tatsuya's and Kazuko's criminal fugitive status based on their failure to return is clear. There is an intimate
connection between Tatsuya's fugitive status and the disposition of the matrimonial estate and the alimony award.
In addition, the compensatory and punitive damage judgments and counsel fee award were imposed specifically for
Tatsuya's acts of interference with custody and are related directly to the subject of the indictment from which he is
a fugitive. He is also a civil fugitive in this matter. Nonetheless, there is a lesser remedy that could satisfy all of the
interests involved. Thus, if Tatsuya wishes to appeal the relevant Orders, he may do so if he posts a bond in the full
amount of the judgments pending against him to ensure enforcement and to avoid prejudice to Satoko. If he refuses
to post the bond, the doctrine will be applied to continue the dismissal of his appeal. Of course, a parent's right to
custody of a child is fundamental and cannot be extinguished or limited because of litigant misbehavior. Thus, the
doctrine cannot apply in child custody cases, such as Tatsuya's, in which no enforcement issue exists. (Pp. 26-32)
5. The compensatory and punitive damage awards and counsel fee award against Kazuko are fully related to her
fugitive status under the indictments. As with Tatsuya, a lesser sanction is sufficient. If Kazuko separately bonds
the damages judgments and counsel fee award, thus rendering any order of the court enforceable, she may proceed
with her appeal. If not, her appeal will remain dismissed. Kazuko's appeal regarding the Cedar Grove residence
cannot be barred because the proceeds of the sale of the home have been held in escrow. (Pp. 32-34)
Judgment of the Appellate Division is AFFIRMED as MODIFIED to allow Tatsuya and Kazuko to
appeal the damages and counsel fee award against them so long as they provide the required security. Tatsuya may
appeal the determination of child custody and Kazuko may appeal the award of the house to Satoko.
JUSTICE VERNIERO dissenting, in which JUSTICE COLEMAN joins, disagrees with the majority's
formulation of the standard to be used when deciding whether to apply the doctrine. Here, all aspects of the civil
matter, including child custody issues, are linked to the outstanding warrants and pending criminal allegations. The
record, therefore, justifies application of the doctrine. Defendants should not be permitted to simply post a bond to
gain benefit of our civil courts while they continue to ignore the civil warrants and avoid answering the criminal
indictment.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LAVECCHIA and ZAZZALI join in JUSTICE
LONG'S opinion. JUSTICE VERNIERO filed a separate dissenting opinion in which JUSTICE COLEMAN
joins.
SUPREME COURT OF NEW JERSEY
A-81/
82 September Term 2000
SATOKO MATSUMOTO,
Plaintiff-Respondent,
v.
TATSUYA MATSUMOTO and KAZUKO
MATSUMOTO,
Defendants-Appellants.
Argued September 24, 2001 -- Decided January 30, 2002
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
335 N.J. Super. 174 (2000).
Laurence H. Olive argued the cause for
appellant Tatsuya Matsumoto.
Joan E. Pransky argued the cause for
appellant Kazuko Matsumoto.
Joseph J. Haskins, Jr., argued the cause for
respondent.
The opinion of the Court was delivered by
LONG, J.
This case requires us to determine whether the fugitive
disentitlement doctrine should be applied to bar an appeal in a
civil case and if so, to limn its contours.
I
Defendant, Tatsuya Matsumoto, married plaintiff, Satoko
Matsumoto, in Japan on March 18, 1984. Their only child, Hyugo,
was born in New York City on July 6, 1985. The Matsumoto family
resided in New Jersey from 1985 to 1997. During that time, they
were essentially supported by Tatsuya's mother, Kazuko Matsumoto,
who lived in Japan. They resided in a house Kazuko owned in
Cedar Grove. Over time, the marital relationship began to
deteriorate. In March 1997, the Matsumotos and their son
traveled to Japan for the purpose of enabling Satoko to attend a
Buddhist ceremony commemorating the anniversary of the death of
her father. The Matsumotos differ over what happened during the
trip but agree that their son remained in Japan and that they
returned to the United States on separate flights.
Satoko contends that during the trip Tatsuya and his mother
began to pressure her to stay in Japan, and that Tatsuya forcibly
detained her for a period of time in an effort to coerce her to
remain in Japan permanently. She also claims that she had to
flee to her mother's house, and that thereafter Kazuko prevented
her from communicating with Hyugo. Satoko returned to the United
States by herself. Tatsuya contends that Satoko's return to
America without Hyugo was volitional.
Tatsuya left Hyugo with his grandmother and briefly returned
to the United States where he liquidated all bank accounts,
totaling over $1,000,000, sold the cars, and had all the
Matsumotos' furniture shipped to Japan. The contents of the
house had a value of $413,000. Tatsuya also informed Hyugo's
school that his son would not be returning. Satoko claims that
during that time Kazuko had the locks changed on the marital
residence, instructed her real estate manager not to give the
keys to Satoko and directed the agent to remove Satoko's personal
belongings from the house.
On April 25, 1997, Satoko filed a complaint for custody and
separate maintenance and an ex parte application for an order to
show cause. She was awarded sole temporary custody of Hyugo and
exclusive possession of the house in Cedar Grove. Tatsuya and
Kazuko were ordered to return Hyugo within forty-eight hours. In
addition, the court ordered Tatsuya to account for all personalty
he had removed from New Jersey and enjoined him from dissipating
assets acquired by the parties during the marriage.
Neither Tatsuya nor Kazuko complied with the order. As a
result, on May 2, 1997, a supplemental order to show cause
issued, which included the threat of arrest warrants against
Tatsuya and Kazuko for contempt. Tatsuya and Kazuko did not
respond, and on July 3, 1997, the trial court entered a final
order imposing sanctions against them of $1,000 per day
retroactive to the date Hyugo was removed to Japan and continuing
to accrue until Hyugo was returned. That order also adjudicated
Tatsuya in violation of Satoko's rights for his failure to comply
with the April 25, 1997 Order directing him to account for the
personalty he had removed from New Jersey.
In June 1997, Satoko filed an Amended Complaint alleging
additional causes of action, including intentional infliction of
emotional distress, international interference with custody,
fraud and conversion. The complaint contained a prayer for
equitable distribution. In September 1997, Satoko filed a Second
Amended Complaint adding claims for divorce and alimony. Neither
Tatsuya nor Kazuko responded. Accordingly, a default was
entered. A subsequent motion by Kazuko's attorney to reopen the
default was denied.
On December 4, 1997, criminal indictments issued against
Tatsuya and Kazuko for conspiracy to interfere with child
custody, interference with child custody, and child endangerment.
On December 23, 1997, bench warrants issued for Tatsuya's and
Kazuko's arrest for failure to appear at the arraignment.
In March 1998, Tatsuya and Kazuko submitted certifications
to the trial court offering to waive personal jurisdiction
defenses in exchange for a dismissal of the arrest warrants,
monetary sanctions and criminal indictments. Tatsuya further
responded that he would bring Hyugo to New Jersey and would
establish a temporary residence until the court decided the
custody issue. In May 1998, the trial court denied Tatsuya's
request. In June 1998, Kazuko's attorney contacted Satoko's
attorney and asked him to cooperate in vacating the civil and
criminal warrants so that Tatsuya and Kazuko could bring Hyugo
back to New Jersey.
Having received no response, the attorney faxed a letter to
Satoko's attorney informing him that Hyugo would be arriving at
Newark airport at 6:55 p.m. on July 16, 1998. Satoko's attorney
wrote back stating that Satoko would not be available from mid-
July until after August 24, 1998. Hyugo returned to the United
States on or about July 10, 1998.
During the period that Hyugo was in Japan, Tatsuya and
Kazuko refused all letters and gifts sent to him by Satoko, and
mother and son became estranged. Thus, when Hyugo initially came
back to New Jersey, he stayed at a friend's house and Satoko
visited him. Ultimately, Hyugo moved in with Satoko but their
differences were irreconcilable. Satoko alleges that Hyugo was
programmed by Tatsuya and Kazuko “to exhibit unprecedented
violence and hostility towards [her],” and that during the time
that Hyugo stayed with her he was physically abusive - “kicking
her repeatedly, knocking her to the ground, and striking her with
a plastic bottle.” Ultimately, because Hyugo's demands to return
to Japan were relentless and Satoko could no longer control him,
she felt that she had no choice but to allow him to leave.
However, she sought an Order that would give her continued
custody of Hyugo while he attended school in Japan (as he was
demanding) and require him to live with her at times that the
school was not in session.
The matter was set down for a hearing on September 21, 1998.
In the interim, on September 11, Satoko allowed Hyugo to return
to Japan. Satoko wrote to Hyugo and the letters were not
returned. Instead, Hyugo wrote the following responses: “. . .
you bitch”; “Go to hell and die”; “Don't send any more mail”;
“Don't use me for the case”; and “I have severed all the ties
with you.”
In February, 1999, Tatsuya and Kazuko filed a motion to
“Define Rights of Defendants at Default and Sanction Hearing.”
In essence, they sought the right to fully participate in the
divorce action. The application was denied except for the
opportunity to cross-examine Satoko's witnesses. Counsel for
Tatsuya made an oral request that Hyugo be examined by a
psychologist and interviewed by the trial court. The trial court
ruled that Tatsuya, as a party in default, lacked standing to
make that application. Subsequently, in April 1999, Hyugo's
paternal uncle, Dr. Yasunori Matsumoto, sought to represent Hyugo
and to be appointed as guardian ad litem to participate in a best
interests investigation. He proposed an in camera interview with
the child. On April 6, 1999, the court appointed Dr. Matsumoto
as guardian ad litem conditioned upon the posting of a $100,000
surety bond, and appointed Dr. Madelyn Milchman, Ph.D., to
conduct a psychological evaluation. On April 23, 1999, the court
interviewed Hyugo in camera.
On June 7, 1999, Dr. Milchman issued a report recommending
that (1) both parents receive complete psychological and custody
evaluations before a final custody award issued; and (2) Hyugo's
stated desire to live in Japan should, pending the award, be
respected. She also concluded that Hyugo did not show evidence
of having been “programmed” or “brainwashed.”
A Judgment of Divorce entered in June 1999 granted Satoko
temporary legal and residential custody of Hyugo. An Amended
Judgment of Divorce was entered in July 1999. As a result,
Satoko was awarded the marital residence, $944,500 in assets,
permanent alimony in the amount of $48,000 per year, retroactive
alimony in the amount of $54,000, and sole custody of Hyugo along
with child support in the amount of $271 per week. Tatsuya was
further ordered to pay for Hyugo's medical and dental insurance
and to maintain two irrevocable life insurance policies to
protect the alimony and child support awards, respectively. In
addition, the court imposed on both Tatsuya and Kazuko (jointly
and severally) compensatory damages of $179,500 for their
intentional interference with custody as well as punitive damages
($100,000 against Tatsuya and $200,000 against Kazuko.) Finally,
Satoko was awarded attorneys' fees and costs totaling $58,152.
Dr. Yasunori Matsumoto's application for the return of his
escrowed funds was denied. Tatsuya and Kazuko appealed from the
entirety of the judgments against them, and Dr. Yasunori
Matsumoto appealed from the denial of the return of his funds.
The Appellate Division reversed the trial court's order
denying Dr. Matsumoto's application that the escrowed funds be
returned to him. Matsumoto v. Matsumoto,
335 N.J. Super. 174,
187-88 (App. Div. 2000). With respect to Tatsuya and Kazuko, the
Appellate Division held: (1) the exercise of personal
jurisdiction over Kazuko did not violate the due process clause;
and (2) the refusal of Tatsuya and Kazuko to comply with court
orders prevented consideration of their appeals based on the
“fugitive disentitlement doctrine”:
[B]ecause the trial court had jurisdiction
over both defendants, their refusal to
respond to the warrants, return to the State
and litigate here prevents our consideration
of their respective appeals. See, e.g.,
Molinaro v. New Jersey,
396 U.S. 365, 366,
90 S. Ct. 498, 498-99,
24 L. Ed.2d 586, 587-88
(1970); State v. Rogers,
90 N.J. 187,
447 A.2d 537 (1982) (criminal appeals); Kamelia
S. v. Derek S., 82 Cal. App.4th 1224, 1229,
98 Cal. Rptr.2d 816 (Ct. App.2d Dist. 2000)
(appeal dismissed where appellant violated
court orders, was in contempt for absconding
with child who had been placed in foster care
and warrants were issued for his arrest).
[Id. at 185 (footnote omitted).]
The Appellate Division stated that “in these circumstances we
believe that defendants should not be able to ask us for relief
while refusing to otherwise respond to the lawful orders of our
courts.” Ibid. Accordingly, the court dismissed the appeals of
Tatsuya and Kazuko without prejudice to reinstatement upon their
surrender or upon vacation of the warrants outstanding against
them. The Appellate Division also lifted the stay that it had
imposed on the distribution to Satoko of the proceeds of the sale
of the marital residence. On motions of Kazuko and Satoko, we
reimposed the stay but permitted the distribution of $25,000 from
the funds held in escrow.
We granted the petitions for certification filed by Tatsuya
and Kazuko on a single issue: the application of the fugitive
disentitlement doctrine to them.
167 N.J. 635 (2001). In
essence, both Tatsuya and Kazuko claim the fugitive
disentitlement doctrine should not be adopted for use in civil
cases and, alternatively, that if adopted it should be narrowly
applied. Kazuko argues separately that even if the fugitive
disentitlement doctrine applies to civil cases, it is
inapplicable to her because she did nothing to warrant its
invocation. We have carefully reviewed the record in light of
those contentions. We now affirm but modify the judgment of the
Appellate Division.
II
Fugitive disentitlement is a doctrine that springs out of
the inherent power of courts to enforce their judgments and
protect their dignity. Martha B. Stolley, Sword or Shield: Due
Process and the Fugitive Disentitlement Doctrine, 87 J. Crim. L.
& Criminology 751, 778-79 (1997). In essence, it provides that
“a fugitive from justice may not seek relief from the judicial
system whose authority he or she evades.” Id. at 752 (footnote
omitted); see also Molinaro, supra, 396 U.S. at 366, 90 S.Ct. at
498, 24 L.Ed.
2d at 587-88 (“No persuasive reason exists why this
Court should proceed to adjudicate the merits of a criminal case
after the convicted defendant who has sought review escapes from
the restraints placed upon him pursuant to the conviction.”).
The doctrine is rooted in the criminal law, and its most
common application has been a nearly automatic bar to the
criminal appeal of a defendant who has become or remains a
fugitive from justice. The United States Supreme Court approved
that application over a century ago. Molinaro, supra, 396 U.S.
at 365-66, 90 S.Ct. at 498-99, 24 L.Ed.
2d at 587 (citing Allen v.
Georgia,
166 U.S. 138, 141,
17 S.Ct. 525, 526,
41 L.Ed. 949, 950
(1897); Bohanan v. Nebraska,
125 U.S. 692,
8 S.Ct. 1390, 1390-91,
31 L.Ed. 854 (1887); Smith v. United States,
94 U.S. 97, 97-98,
24 L.Ed. 32, (1876)); see also Estelle v. Dorrough,
420 U.S. 534,
537,
95 S.Ct. 1173, 1175,
43 L.Ed.2d 377, 380 (1975) (noting that
court “has long followed the practice of declining to review the
convictions of escaped criminal defendants”). Most federal and
state courts have followed suit. See, e.g.,United States v.
Morgan,
254 F.3d 424, 427 (2nd Cir. 2001); United States v.
Hanzlicek,
187 F.3d 1219, 1220 (10th Cir. 1999); Parretti v.
United States,
143 F.3d 508, 511 (9th Cir.), cert. denied,
525 U.S. 877,
119 S.Ct. 179,
142 L.Ed.2d 146 (1998); United States v.
Wright,
902 F.2d 241, 242 (3rd Cir. 1990); United States v.
Amado,
754 F.2d 31 (1st Cir. 1985); People v. Elkins,
55 P. 599
(Cal. 1898); Doren v. State,
104 N.E. 500 (Ind. 1914); Lofton v.
State,
115 So. 592 (Miss.), cert. denied,
278 U.S. 568,
49 S.Ct. 83,
73 L.Ed. 510 (1928); Arvey v. State,
583 P.2d 1086, 1087
(Nev. 1978); People v. Jones,
632 N.Y.S.2d 201 (N.Y. App. Div.
1995); State v. Dalton,
115 S.E. 881 (N.C. 1923); State v. Bell,
608 N.W.2d 232, 325 (N.D. 2000); Snyder v. State,
210 P.2d 787
(Okla. Crim. App. 1949); State v. Spry,
30 S.E.2d 88, 90 (W. Va.
1944).
For fugitive disentitlement purposes, the notion of who is a
fugitive includes a
person who, having committed a crime, flees
from [the] jurisdiction of [the] court where
[a] crime was committed or departs from his
usual place of abode and conceals himself
within the district. Empire Blue Cross and
Blue Shield v. Finkelstein,
111 F.3d 278, 281
(2d Cir. 1997) (citing Black's Law Dictionary
604 (5th ed. 1979)).
[United States v. Barnette, supra, 129 F.
3d
at 1184 (alterations in original).]
However, a defendant need not leave the jurisdiction after
committing a crime to qualify as a fugitive. He may, while
legally outside the jurisdiction, “constructively flee by
deciding not to return.” Ibid. (citation omitted).
It has consistently been held that the application of the
doctrine of fugitive disentitlement requires that a “sufficient
connection exist between defendant's fugitive status and the
appellate process so as to make dismissal a reasonable sanction.”
United States v. Delgarza-Villarreal,
141 F.3d 133, 137 (5th Cir.
1997) (citing Ortega-Rodriguez,
507 U.S. 234, 243-45,
113 S.Ct. 1199, 1205-06,
122 L.Ed.2d 581, 597 (1993)). That connection
obviously exists where a defendant who has fled the jurisdiction
after conviction seeks to file a criminal appeal while remaining
a fugitive from justice. Ibid. However, in Ortega-Rodriguez,
supra, where a defendant fled the jurisdiction after conviction
but was returned to custody by the time the appeal was heard, the
Supreme Court recognized that there was not a sufficient
connection between defendant's prior fugitive status and the
appellate process to warrant barring his resort to the courts.
507 U.S. at 243-45, 113 S.Ct. at 1205-06, 122 L.Ed.
2d at 597.
The nexus required by Ortega-Rodriguez is an integral part of the
fugitive disentitlement doctrine.
New Jersey has long recognized the application of the
fugitive disentitlement doctrine in purely criminal settings in
accordance with United States Supreme Court practice. For
example, in State v. Prince,
140 N.J. Super. 418, 419 (App.
Div.), appeal reinstated,
71 N.J. 347 (1976), the defendant
escaped and remained at large during the pendency of his appeal.
The Appellate Division dismissed the appeal. Although we
ultimately reinstated it for reasons that are not relevant here,
the Appellate Division correctly recognized:
[I]t is abundantly clear that a state may
constitutionally “adopt a policy which deters
escapes by prisoners.”
New Jersey formulated such a policy many
years ago. An escape is a contempt of the
judgment of the court ordering the
confinement. While in such contempt,
defendant is not entitled to the
consideration of the judiciary or relief at
the hands of the court.
[Id. at 420 (citations omitted).]
Similarly, in State v. Rogers,
90 N.J. 187, 189 (1982), the
defendant fled the jurisdiction while his appeal was pending.
The State moved to dismiss the appeal, and defense counsel argued
that the important issue in the case required the Court to decide
the case as though defendant were not a fugitive. Ibid. We
declined to address the issue, noting that “[i]n most
jurisdictions, courts will dismiss the appeal of a fugitive.”
Ibid.
Taking a cue from Ortega-Rodriguez, the Appellate Division
has refused to apply the doctrine where it considered the
connection between defendant's pending criminal appeal and his
fugitive status too attenuated. State v. Canty,
278 N.J. Super. 80, 83 (App. Div. 1994) (noting that justifications for
dismissing fugitive defendant's appeal are less compelling in
context of dismissing motion to suppress). Recently, we
obliquely reached a similar conclusion in State v. Fisher,
156 N.J. 494, 506-07 (1998), where we held that a defendant's prior
fugitive status would not warrant barring his resort to the
court once he had been recaptured. Thus, where a defendant is a
fugitive from criminal prosecution or conviction, the application
of the fugitive disentitlement doctrine to bar him from pursuing
a criminal appeal is firmly rooted in our jurisprudence.
III
In 1996, a new aspect of the fugitive disentitlement
doctrine emerged when the United States Supreme Court first
declared it applicable in a case in which a criminal fugitive
sought not to challenge the criminal charges pending against him,
but to contest a related civil matter. In Degen v. United
States,
517 U.S. 820, 821,
116 S.Ct. 1777, 1779,
135 L.Ed.2d 102,
107 (1996), a federal grand jury indicted Degen for distribution
of marijuana, money laundering and other crimes, and the
government sought the civil forfeiture of his properties
allegedly used to facilitate, or purchased with the proceeds of,
his drug sales. Degen, who had moved to Switzerland, filed an
answer in the civil action to contest the forfeiture. Id. at
822, 116 S.Ct. at 1780, 135 L.Ed.
2d at 107. The district court
granted a government motion to strike Degen's answer and entered
summary judgment against him, holding that he “was not entitled
to be heard in the civil forfeiture action because he remained
outside the country, unamenable to criminal prosecution.” Ibid.
The United States Supreme Court reversed the Ninth Circuit's
decision affirming that judgment, recognizing, for the first
time, the theoretical applicability of fugitive disentitlement in
a civil case but holding that the doctrine does not permit the
district court to automatically enter summary judgment in favor
of the government in a civil forfeiture action based on a
claimant's criminal fugitive status. Id. at 827-29, 116 S.Ct. at
1782-83, 135 L.Ed.
2d at 110-12. Rather, a case specific analysis
must be undertaken in order to determine whether the invocation
of the fugitive disentitlement doctrine is warranted.
In so doing, the Court catalogued the five putative
rationales for extending disentitlement to a civil case against a
criminal fugitive: 1) risk of delay or frustration in determining
the merits of the claim; 2) unenforceability of the judgment; 3)
the compromising of a criminal case by the use of civil discovery
mechanisms; 4) redressing the indignity visited on the court; and
5) deterring flight by criminal defendants. Id. at 824-28, 116
S.Ct. at 1781-83, 135 L.Ed.
2d at 108-11. Rejecting each
rationale on the facts before it, the Court found no risk that
the district court would be delayed or frustrated in rendering an
enforceable judgment because the court's jurisdiction over the
property was secure. Id. at 825, 116 S.Ct. at 1781, 135 L.Ed.
2d
at 109. In addition, the Court rejected the contention that the
criminal prosecution might be prejudiced by Degen's participation
in the forfeiture case. Holding that there are other ways of
protecting the Government's interests besides “the harsh sanction
of absolute disentitlement,” the Court explained:
[Defendant's] absence entitles him to no
advantage. If his unwillingness to appear in
person results in non-compliance with a
legitimate order of the court respecting
pleading, discovery, the presentation of
evidence, or other matters, he will be
exposed to the same sanctions as any other
uncooperative party. A federal court has at
its disposal an array of means to enforce its
orders, including dismissal in an appropriate
case.
[Id. at 827, 116 S.Ct. at 1782, 135 L.Ed.
2d
at 110.]
Although the need to deter flight from criminal prosecution and
to redress the indignity visited upon the court by the
petitioner's absence from the criminal proceeding are always
substantial interests, the Court found that “disentitlement is
too blunt an instrument for advancing them.” Id. at 828, 116
S.Ct. at 1783, 135 L.Ed.
2d at 111. “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.” Ibid. “A court's
inherent power is limited by the necessity giving rise to its
exercise. There was no necessity to justify the rule of
disentitlement in this case; to strike [defendant's] filings and
grant judgment against him would be an excessive response to the
concerns here advanced.” Id. at 829, 116 S.Ct. at 1783, 135
L.Ed.
2d at 111-12.
Degen has been read to
shift[ ] the emphasis from considerations of
dignity, deterrence, respect, propriety, and
symmetry found in a number of earlier
[fugitive disentitlement] cases to the kind
of practical considerations that inform the
decision whether to dismiss a suit with
prejudice as a sanction for mistakes,
omissions, or misconduct.
[Sarlund v. Anderson,
205 F.3d 973, 974 (7th
Cir. 2000) (citations omitted).]
Post-Degen cases recognizing the doctrine but finding dismissal too harsh a remedy include: Bano v. Union Carbide Corp., 273 F.3d 120, 125-26 (2nd Cir. 2001) (holding doctrine not applicable to strike defendants' dispositive trial motions and affirmative defenses where defendants were fugitives from criminal prosecution in India and were present before district court; “insufficient nexus” existed between status as fugitive and civil proceedings here, and no purpose of doctrine could be served by its application); Barnette v. Young Men's Christian Ass'n, 268 F.3d 614, 618-19 (8th Cir. 2001) (holding dismissal of fugitive's Fair Labor Standards Act claims unnecessary to effectuate concerns underlying doctrine where there was “no substantial connection” between status as fugitive (arising from violation of probation) and civil case; his presence had not yet been required at any proceeding in civil case; and he had since been returned to custody); FDIC v. Pharaon, 178 F.3d 1159, 1162- 63 (11th Cir. 1999) (holding fugitive disentitlement doctrine, without more, inappropriate basis to strike answer and bar criminal fugitive from defending himself in related civil case, and noting that fugitive's absence gave him no advantage); Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998) (finding abuse of discretion in dismissal of criminal fugitive's civil action challenging conditions of prior confinement on unrelated charges, where there was “no nexus” between civil case and fugitivity from passport fraud conviction and no indication that fugitive had failed to comply with any order issued in civil case); Cooper v. Villaburdi, No. 00C-08-174JEB (Del. Super. Ct. Oct. 2, 2001), available at 2 001 WL 1198933, at *2 (recognizing inherent authority to apply doctrine “reasonably and with restraint,” but declining to dismiss fugitive plaintiff from case where entire matter dismissed for failure to state a claim); Holland v. United States, 690 N.E.2d 463, 465 (Mass. App. Ct. 1998) (reversing for reconsideration trial court's strict application of doctrine to bar sister of fugitive from petitioning for appointment as receiver of fugitive's property subject to forfeiture proceedings). But see Sarlund v. Anderson, 205 F.3d 973, 975 (7th Cir. 2000), which upheld the dismissal of a criminal fugitive's civil rights action against law enforcement officers because the fugitive's absence would severely prejudice the defendants, and “nothing short of dismissal of his suit” would protect the defendants and prevent the fugitive from “using the litigation process to harass the defendants with impunity.”
Degen also spawned a sub-set of fugitive disentitlement cases arising purely in a civil setting. Those decisions expanded the concept of who is a fugitive for the purpose of applying the doctrine:
It has been held that “a fugitive from justice need not be a fugitive in a criminal matter.” [Empire Blue Cross and Blue Shield v. Finkelstein, supra, 111 F. 3d at 281.] In Finkelstein, the Second Circuit, looking at this definition of fugitive, ruled that defendants in an entirely civil matter, facing a large judgment, were fugitives for purposes of the doctrine because they “continued to evade arrest.” Id. at 282 (defendants' whereabouts unknown after issuance of bench warrants for failing to appear at depositions and to comply with court orders). See also Perko v. Bowers, 945 F.2d 1038 (8th Cir. 1991) (doctrine can be applied in civil cases); United States v. Van Cauwenberghe, 934 F.2 1048 (9th Cir. 1991) (doctrine can be applied to quasi-criminal or civil cases). Under certain circumstances the disentitlement doctrine may be even more applicable to civil than criminal cases: because a defendant-appellant's liberty is not at stake, less harm can come from the refusal to entertain the appeal. See Conforte v. Commissioner, 692 F.2d 587, 589 (9th Cir. 1982).
[United States v. Barnette,
129 F.3d 1179,
1183 (11th Cir. 1997).]
Among the federal cases recognizing the theoretical
applicability of the doctrine in a purely civil setting are Goya
Foods, Inc. v. Unanue-Casal, ___ F.3d ___, ___ (1st Cir. 2001)
(dismissing appeal of fugitive judgment debtor and his wife from
orders of contempt and execution of judgment where fugitives
“connived at violating the orders, enriched themselves by $4.2
million, and then fled the jurisdiction”; flight was from same
proceeding in which contempt orders issued; and appeals
themselves were without merit and designed to frustrate and delay
enforcement of judgment); Pesin v. Rodriguez,
244 F.3d 1250,
1252-53 (11th Cir. 2001) (applying doctrine to dismiss appeal by
mother of grant of father's Hague Convention petition for child
custody where mother had absconded with children and their
whereabouts were unknown, continued to defy court orders to
return children, continued to evade arrest, and would likely defy
any adverse ruling); Walsh v. Walsh,
221 F.3d 204, 215-16 (1st
Cir. 2000) (declining to apply doctrine to dismiss father's
petition under Hague Convention for return of children from
mother who had taken them away with her to United States;
practical considerations of doctrine not strong enough to warrant
application in case involving parental rights, there was no
showing that his status as fugitive impaired rights of mother,
and all Hague Convention petitions involve enforcement
difficulties because by definition one party lives in foreign
jurisdiction); March v. Levine,
136 F. Supp.2d 831, 856-60 (M.D.
Tenn. 2000) (refusing to dismiss father's Hague Convention
petition for return of children from their grandparents where
father held in contempt after lawfully moving to Mexico;
application of doctrine “far too harsh” in case involving
parental rights where Degen rationales of enforceability,
protecting dignity of court, and preventing risk of delay or
frustration would not be advanced), aff'd,
249 F.3d 462 (6th Cir.
2001); United States v. Barnette, supra, 129 F.
3d at 1184-86
(dismissing appeal from civil contempt order issued against wife
of convicted criminal defendant for failing to comply with
discovery requests and orders to pay balance of prior forfeiture
judgment against husband where wife's fugitive status effected an
unauthorized stay of contempt judgment thus making enforcement
impossible); Finkelstein, supra, 111 F.
3d at 282 (dismissing
defendants' appeal of civil judgment where status as fugitives
from civil court orders and bench warrants for failure to respond
to post-judgment discovery to assist judgment collection affected
judgment from which they sought to appeal; fugitivity rendered
enforcement of civil judgment impossible and nothing short of
dismissal could minimize prejudice to plaintiffs in light of fact
that defendants' whereabouts were unknown).
Various state courts also have applied the doctrine in
purely civil cases. Guerin v. Guerin,
993 P.2d 1256, 1258 (Nev.
2000) (dismissing appeal of divorce decree by wife evading arrest
pursuant to bench warrant and contempt orders issued for failure
to transfer real property to husband); Scelba v. Scelba,
535 S.E.2d 668, 671-73 (S.C. Ct. App. 2000) (barring appeal of
divorce decree by wife where she was in contempt for failing to
abide by family court orders to account for and return property
and willfully failed to appear at deposition, and bench warrant
still outstanding for her arrest; nexus between fugitive status
and appeal strong, and so long as wife remained fugitive “the
husband has no practical means of enforcing the final divorce
decree”).
If the cited cases were to be boiled down to their essence,
it would be this: the fugitive disentitlement doctrine is an
arrow in the judicial quiver that can be let loose in a criminal
or civil case so long as the party's fugitive status is
sufficiently connected to the litigation in which the doctrine is
sought to be invoked and so long as nothing less than dismissal
will suffice. What is crucial is the inquiry into whether an
alternative short of dismissal will render enforcement of the
underlying judgment certain and remove the risk of prejudice to
the fugitive's adversary. If so, the only remaining relevant
rationales for application of the doctrine are: (i) redressing
the indignities visited upon our courts by the fugitives' absence
and refusal to comply with lawful court orders; and (ii)
deterring flight from criminal prosecution. Degen, supra, 517
U.S. at 828, 116 S. Ct. at 1783, 135 L.Ed.
2d at 111. Degen
instructs us that those goals, while laudable, are insufficient
to warrant the rough justice that would be visited upon the
fugitive by precluding consideration of his or her appeal on the
merits.
We adopt as our guide the following standards that we have distilled from relevant case law: the party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response. Degen, supra, 517 U.S. at 824-28, 116 S.Ct. at 1781- 83, 135 L.Ed. 2d at 108-11; Walsh, supra, 221 F. 3d at 215-16. See also Goya Foods, Inc., supra, ___ F.3d at ___ (noting that fugitive disentitlement doctrine is “discretionary rather than automatic and to be applied with caution”). That is the backdrop against which our evaluation of this case must take place.
VI
Our analysis begins with the observation that both Tatsuya and Kazuko plainly are criminal fugitives insofar as criminal indictments have been returned against them and bench warrants have issued upon their failure to appear for arraignment. Both Tatsuya and Kazuko are aware of the charges pending against them, but have continued to remain outside the jurisdiction of the court.
Tatsuya and Kazuko apparently believe, after keeping Hyugo away from Satoko for eighteen months and refusing any communication from her, resulting in Hyugo's total estrangement from his mother, that the slate was wiped clean and the criminal indictments rendered irrelevant when they put him on a plane and dropped him at Newark Airport. That is neither the fact nor the law. A person who has kidnapped or harbored a kidnapped victim is not absolved of wrongdoing when the victim is returned. The indictments required Tatsuya and Kazuko to answer for their conduct during the time that Hyugo was in their custody in Japan. They have declined to do so. Thus, their criminal fugitive status based upon their refusal to return is clear. United States v. Barnette, supra, 129 F. 3d at 1184.
Because the criminal indictment flowed solely from Hyugo's custody, Tatsuya and Kazuko argue alternatively that there is no reason to preclude them from appealing purely civil orders entered in connection with the divorce. More particularly, at issue are custody, the equitable distribution award of the marital home to Satoko, the order granting Satoko $944,500 in marital assets, the permanent alimony and child support awards, the compensatory and punitive damages awards for interference with custody, and attorneys' fees.
What is initially presented is an Ortega-Rodriguez question. Are the civil orders Tatsuya and Kazuko seek to appeal sufficiently connected to their fugitive status to make invocation of the fugitive disentitlement doctrine appropriate? If that question is answered affirmatively, we must resolve whether dismissal is a reasonable sanction necessary to enforce the judgment or avoid prejudice to Satoko.
We begin with Tatsuya. Part of what made it possible for Tatsuya to live in Japan with Hyugo for eighteen months, contrary to the court's orders that he return the boy, was that Tatsuya took all of the marital assets with him and retained all of the money he had been ordered to pay as alimony to Satoko. His access to those assets, and the concomitant fact that he had no fear of losing the marital assets in the divorce action, clearly paved the way for him to spend those months away from the United States secreting Hyugo from his mother. Thus, there is an intimate connection between Tatsuya's fugitive status and the disposition of the matrimonial estate and the alimony award. Likewise, the compensatory and punitive damages judgments and counsel fee awards were imposed specifically for Tatsuya's acts of interference with custody and are related directly to the subject of the indictment from which he is a fugitive. More importantly, Tatsuya is also a civil fugitive in the very appeal that is pending. He was ordered to return what he took when he denuded the marital estate and has refused to do so, evading sanctions by remaining outside the jurisdiction of the court.
What remains is the question of whether dismissal is “too blunt an instrument” under the circumstances. Because Tatsuya plundered the marital estate, he has no assets here to satisfy any judgment entered against him.See footnote 11 Thus, his appeal should not be permitted to proceed unless conditions are imposed to avoid prejudice to Satoko and to ensure enforcement of any judgment. However, we think a lesser remedy than disentitlement could satisfy all of the interests involved. Accordingly, if Tatsuya wishes to appeal the relevant orders, he may do so if he posts a bond in the full amount of the judgments pending against him to assure the enforceability thereof and to avoid prejudice to Satoko. Indeed, because he has effected, by self-help measures, a stay of the trial court judgment, a bond would be appropriate under the Court Rules. R. 2:9-5(a) (providing for stay of civil judgment of money or property disposition “only upon the posting of a bond pursuant to R. 2:9-6 or a cash deposit pursuant to R. 1:13-3(c)”). If Tatsuya chooses not to post such a bond, the fugitive disentitlement doctrine will be applied to continue the dismissal of his appeal.
There is one additional, distinct issue relative to Tatsuya that requires disposition: his appeal of the custody award. As has been previously discussed, Tatsuya ultimately returned Hyugo to the United States in accordance with the trial court's order, thus rendering him compliant with that order. Since that time, with Satoko's consent, Hyugo has returned to Japan for school. The trial court order granted sole custody to Satoko along with child support.See footnote 22 Although he was granted the right to cross- examine Satoko's witnesses at the custody hearing, Tatsuya was not allowed to present a case. It is that limitation on his participation and the resulting custody order that he seeks to appeal.
Custody is in an entirely different category than other issues for fugitive disentitlement purposes. We have long recognized that the child's best interests are paramount in child custody matters. Baures v. Lewis, 167 N.J. 91, 115 (2001) (“[T]he ultimate judgment [of custody] is squarely dependent on what is in the child's best interests.”) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Fantony v. Fantony, 21 N.J. 525, 536 (1956) (“Our law in a cause involving the custody of a minor child is that the paramount consideration is the safety, happiness, [and] physical, mental and moral welfare of the child.”)). Part and parcel of such a determination is the full participation of both parents in the process so that the court has before it all relevant evidence regarding what custody award would best serve the child's interest. See Benda v. Benda, 122 N.J. 174, 175 (1990) (ordering that mother be allowed full participation in Indiana child custody hearings “without any prior determination of contempt for violation of past orders”); Hinton v. Searles, 368 N.E.2d 937, 941 (Ind. App. 1977) (viewing as suspect foreign state decision modifying child custody order in favor of father because without presence of mother and children at proceeding “there could be no informed decision of what action was in the best interests of the children”).
Moreover, we have consistently recognized that a parent's right to the custody and companionship of his or her child is a fundamental one. V.C. v. M.J.B., 163 N.J. 200, 218 (2000); Watkins v. Nelson, 163 N.J. 235, 245; New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 617 (1986); accord Walsh, supra, 221 F. 3d at 216 (“[U]nder the [United States] Constitution, parents have a fundamental interest in their relationships with their children.”). Such a right cannot be extinguished or limited because of litigation misbehavior. Sheehan v. Sheehan, 38 N.J.Super. 120, 127 (App. Div. 1955) (holding that fact that mother may have been in contempt for removing children from Maryland “should not of itself be grounds to award custody to [father]”) (following In re Shaheen, 127 N.J.Eq. 75, 76-77 (1940) (holding that contempt of mother must be adjudged separate and apart from best interests of child; “punishment of her contumacy . . . should not have struck through the child”)); accord Hinton, supra, 368 N.E. 2d at 941 (holding that mother's status as fugitive from justice irrelevant to best interests of child and thus never should play role in “proper custody determination”). Indeed, it has been held that “applying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights.” March v. Levine, supra, 136 F.Supp. 2d at 859 (quoting and following Walsh v. Walsh, supra, 221 F. 3d at 216).
Given those principles, whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists. To be sure, like courts in other jurisdictions, we would impose the doctrine in a case in which the fugitive parent has removed or hidden the child, thereby making enforcement improbable in the event of a decision unfavorable to the fugitive parent. See, e.g., Pesin v. Rodriguez, supra, 244 F. 3d at 1253 (applying fugitive disentitlement doctrine to dismiss appeal of mother in hiding with children where “her behavior to date leaves little doubt that she would defy an adverse ruling”). That is not the case here. Thus, under Degen and Walsh, no interest would be served by application of the doctrine of fugitive disentitlement to dismiss the custody aspect of Tatsuya's appeal.
We turn next to Kazuko. Clearly the compensatory and punitive damages awards and the counsel fee award against Kazuko are fully related to her fugitive status under the indictments. As in the case of Tatsuya, those sanctions were imposed because of the allegations regarding Kazuko's actions vis-a-vis Hyugo, who lived with her in Japan despite court orders that he be returned. Those judgments total over $400,000, and an appeal with respect to them is sufficiently connected to Kazuko's fugitive status within the meaning of Ortega-Rodriguez. Thus, the only question is whether dismissal is too heavy-handed a remedy. If the appeal were to proceed, and Kazuko remained liable for the punitive, compensatory and counsel fee awards, there is no security for those judgments. Thus, enforcement of the court's lawful orders could not be guaranteed and, after being required to participate in the appellate process, Satoko would have a hollow victory. As with Tatsuya, however, we think a lesser sanction will suffice. If Kazuko separately bonds the punitive and compensatory damages judgments and the counsel fee award, thus rendering any order of the court enforceable, she may proceed with her appeal.See footnote 33 Failing that, it will remain dismissed. Kazuko's claim regarding her house in Cedar Grove presents a slightly different problem. She argues that the allocation of the house to Satoko as part of equitable distribution is totally unrelated to the charges in the indictment from which she is a fugitive. That is a debatable issue based upon her course of dealing with Satoko and Tatsuya. However, it need not be resolved at this juncture because, even if it could be said that the distribution of Kazuko's house is connected to her fugitive status within the meaning of Ortega-Rodriguez, barring her access to the court would not be appropriate. Because the proceeds from the sale of the house have been held in escrow by counsel in New Jersey to secure enforcement (and have been partially distributed to Satoko), there is no reason to bar Kazuko's appeal on that issue.See footnote 44
VIII
The judgment of the Appellate Division is affirmed but modified to allow Tatsuya and Kazuko to appeal the damages and counsel fee awards against them so long as they provide the security that we have required. If they fail to do so, those aspects of their appeals will remain dismissed. Tatsuya may nonetheless appeal the determination of child custody and the related support award. Kazuko may appeal the award of the house to Satoko.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LaVECCHIA, and ZAZZALI join in JUSTICE LONG's opinion. JUSTICE VERNIERO filed a separate dissenting opinion in which JUSTICE COLEMAN joins.
SUPREME COURT OF NEW JERSEY
A-81/ 82 September Term 2000
SATOKO MATSUMOTO,
Plaintiff-Respondent,
v.
TATSUYA MATSUMOTO and KAZUKO
MATSUMOTO,
Defendants-Appellants.
VERNIERO, J., dissenting.
I would affirm the judgment of the Appellate Division
substantially for the reasons expressed in Judge Stern's
meticulous opinion. Matsumoto v. Matsumoto,
335 N.J. Super. 174
(2000). Defendants spurned the civil orders of the trial court,
and they remain at large under existing arrest warrants.
Consequently, the Appellate Division dismissed their appeals
“without prejudice to reinstatement upon surrender of the
defendants and/or vacation of the warrants now outstanding
against them.” Id. at 186 (footnote omitted). That disposition
is eminently fair under the circumstances.
While remaining beyond the reach of New Jersey's law
enforcement authorities, each defendant is permitted by the Court
to post a bond and, in so doing, to prosecute his or her civil
appeal. Like the majority, I favor employing the fugitive
disentitlement doctrine fairly and equitably in all cases.
However, I disagree with my colleagues in their formulation of
the standard to be used when deciding whether to apply the
doctrine in these and future circumstances. In a nutshell, I
believe that the Court's approach may limit the doctrine so
severely that it is rendered useless.
As a general rule, the doctrine does not apply “[a]bsent
some connection between a defendant's fugitive status and his
appeal[.]” Ortega-Rodriguez v. United States,
507 U.S. 234, 249,
113 S. Ct. 1199, 1208,
122 L.