December 8, 2010

Ruminations On Enforcing A Judgment

Collecting a judgment can be a real pain. The paperwork can be daunting to the uninitiated. A mistake in the smallest of details can trip you up in getting the official machinery moving in your direction, especially since the Alaska Court System can be slow to process execution packages even when everything is in order.

It seems like an odd sort of problem to have. The whole point of the civil justice system is to give private parties an effective dispute resolution procedure so that they don’t settle things out in the streets. In view of that aspiration, you might think that making use of the ultimate hammer – execution – would be looked upon with favor. I mean, the claims have already been fully adjudicated before a judgment even gets entered. What more is there to decide?

Guillotine_%28PSF%29.pngBut this is not the view the Court System or even the Alaska Legislature seems to have. There always seems to be another hurdle to overcome, another exemption to adjudicate, or a waiting period to hold things up just a little while longer. The extra time and expense it takes to collect just bogs down the whole process and, in some instances, makes enforcement of the judgment impractical.

It wasn’t always this way. Some decades back the courts actually thought they should be pro-active in enforcing their determinations. But things started to tighten up in the 60s when the U.S. Supreme Court began utilizing the due process clause to put the clamps on abbreviated enforcement procedures. Since then, the collection of judgments has gotten more difficult.

One could hope that it is about time for the pendulum to start to swing back the other direction. Why can’t execution packages be processed more expeditiously? Is any purpose really served by the rule that only one writ of execution can be outstanding at a time, since all collections have to be deposited in the court registry anyway? Are all the exemptions to execution really justified?

(The Ninth Circuit’s recent decision in Peterson v. CMA CGM is what got me thinking about these issues. The plaintiffs in Peterson recovered a $2.6 billion judgment (that's billion with a "b") against Iran over Iran’s participation in the 1983 bombing of the U.S. Marines’ barracks in Lebanon. The plaintiffs sought to collect part of this huge judgment by executing on an obligation that a French shipping company owed to Iran. The Nines held that the execution was invalid because the French company’s obligation was not “property in the United States,” even though the French company did business here and was subject to personal jurisdiction here. And it reached this conclusion even though immunity had not been plead as a defense to execution but was raised by the court on its own. You know executing on a judgment is tough sledding when the courts prevent doing so in an case of state-sponsored terrorism.)