Owen v. Owen

¶1(concurring specially).

¶2I am pleased to see an erosion of the lex loci delicti rule but strongly assert that the majority does not go far enough. By adopting the public policy exception, the majority brings South Dakota’s conflicts of law approach out of the middle ages. I believe we should now enter the twentieth century by joining the vast majority of states in abolishing lex loci completely and adopting an approach which best suits these modern times.1

¶3Before proceeding further with this special writing, I will explain that I will give my “bottom-line” first and then state my reasons. This will hopefully make my rationale easier to follow. In my extensive research I was surprised to find the voluminous writing that has been done on this subject by countless judges, scholars, law students and other legal authors.2 I have attempted to give thoughtful, objective analysis to the subject and believe that the following solution is in the best interests of the citizens and law of our state.

¶4SOLUTION

¶5SOUTH DAKOTA SHOULD ADOPT THE “CHOICE-INFLUENCING CONSIDERATIONS” APPROACH WHEN FACING CHOICE-OF-LAW CONFLICTS.

¶6RATIONALE

¶7As I see it, we have three alternatives: (1) Remain with the few jurisdictions that retain lex loci; (2) Follow the majority’s approach and make a piecemeal, ad hoc erosion of lex loci; or (3) Join the vast *715majority of jurisdictions which abolish the archaic and rigid rule of lex loci in favor of an approach which gives flexibility and addresses conflicts of laws issues in a responsible and equitable manner.

¶8WHY ABANDON LEX LOCI?

¶9It is difficult to find a learned, thoughtful writing which defends lex loci. Perhaps the most common (if not only) defense of the rule is that it is simple and easy to apply. This, I suggest, lacks certain intellectual elegance..

¶10It seems to be generally accepted that lex loci lacks analytical focus and has no objective standards. Sprague, Choice of Law: A Fond Farewell to Comity and Public Policy, 74 Cal.L.Rev. 1447 (1986). The underlying rationales for the rule, when put into practice, are simply not advanced, thus there is no reason to preserve it. Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292 (1987).

¶11The more modern approaches to conflicts of law are considered “a necessary development to free the judicial system from the increasingly obvious inappropriateness of the old rules.” Sprague, supra, at 1476. As Professor Weintraub in “Commentary on the Conflict of Laws,” Second Edition, at § 6.19, said:

But in shaping legal rules to apply to the complexities of the human condition, a quest for absolute certainty and complete simplicity is a child’s dream. Rigid, simple rules produce irrational and dysfunctional solutions to variar ble, complex problems. Legal rules should be, perhaps inevitably must be, rules that produce socially desirable solutions to the problems to which those rules are addressed and that also are feasible for the members of a learned profession to administer. The place-of-wrong rule focuses on the one contact, injury, that, in unintentional tort cases, is most likely to be unrelated to the policy of any tort rule. The price paid for simplicity of that rule is, therefore, too high. (Emphasis added.)

¶12See also Scoles and Hay, Conflict of Laws, Hornbook Series (L.Ed.1984); Leflar, The Law of Conflict of Laws (1959); Hancock, Studies in Modern Choice-of-Law: Torts, Insurance, Land Titles (1984).

¶13As stated by Chief Justice Wuest’s special concurrence3 in Hofer v. Meyer, 295 N.W.2d 333, 337-38 (S.D.1980): “These ancient decisions have no place in modern society.” In Hofer, Chief Justice Wuest went on to state:

The common law is not a rigid and arbitrary code, erystalized and immutable. Rather, it is flexible and adapts itself to changing conditions. It is an accumulation of expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals with respect to private disputes. What may be considered a just disposition of a dispute at one stage of history may not be at another stage, considering changing social, economic and other conditions of society. The principle of stare decisis was not meant to keep a stranglehold on developments which are responsive to new values, experiences and circumstances. (Emphasis added.)

¶14WHY NOT ADOPT THE PUBLIC POLICY EXCEPTION ?4

¶15Certainly this is preferred to blindly applying lex loci. We must remember, however, that it does not cure the weaknesses inherent in the rigid rule. Like the rule itself, it lacks analytical focus. It has been characterized as “an escape hatch to avoid absurd results.” Sprague, supra, at 1451. It is said to have arisen “not because of analytical accuracy, nor because it provided for principled decision, but as an alterna*716tive to the rigid and inappropriate requirements of vested rights.” Id. It has been criticized as “too easy to use without hard legal thinking,” Id. at 1452, “a substitute for the intellectual exertion necessary to find appropriate factors,” Id., and as “purely duplicative, and therefore obsolete, because the ‘public policies’ employed defensively in earlier times are already an integral part of the modem analysis.” Id. at 1458.

¶16Along with the foregoing, there are other problems. The majority holds that Indiana’s guest statute (and presumably those in other states) violates our public policy. One does not have to do much thinking to identify many other statutory areas varying from ours which would arguably come within the same category. Such other areas of law include the dramshop cases,5 interspousal immunity,6 statutory damage limitations,7 workers’ compensation,8 insurance9 and criminal law.10 What do we do then? What predictability do we have? Does this serve our citizens, bench and bar in a reasonable manner? I suggest that it does not!

[TJhough the modern approaches have themselves been criticized, a return to the doctrine of comity and public policy would not resolve their weaknesses. Since the doctrines of comity and public policy can no longer serve a useful purpose, they should be abandoned by modern courts and relegated to background studies of the evolution of choice-of-law doctrine in the United States.

¶17Id. at 1448.

¶18WHAT ARE THE ALTERNATIVES?

¶19Once we properly resolve to finally depart from the lex loci rule and its public policy exception, we must decide on the appropriate approach to follow. Note that I have said “approach” not a “rule.” As stated by Professor Reese at 57 Cornell L.Rev. 315 (1972),

By ‘rule’ is meant a phenomenon found in most areas of the law, namely a formula which once applied will lead the court to a conclusion. To be sure, there will inevitably be questions as to a rule’s proper scope of application, including questions of how the words that comprise the rule should be defined or interpreted. Once it has been decided what a rule means and how it should be applied, however, a conclusion will be reached through the rule’s application.

By ‘approach’ is meant a system which does no more than state what factor or factors should be considered in arriving at a conclusion.

¶20There seem to be three generally accepted approaches in dealing with choice of law conflicts: (1) “dominant contacts”; (2) “governmental interest”; and (3) “choice-influencing considerations.” 16 Am.Jur.2d Conflict of Laws, §§ 103-105 (1979); 15A C.J.S. Conflict of Laws § 8(4) (1967); Restatement (Second) of Conflict of Laws 2d § 145 (1969); Annotation, Modern Status of Choice of Law in Application of Automobile Guest Statutes, 63 A.L.R.4th 167 (1988); Annotation, Choice of Law Considerations in Application of Aviation Guest Statutes, 62 A.L.R.3d 1076 (1975); Annotation, Modern Status of Rule that Substantive Rights of Parties to a Tort Action are Governed by the Law of the Place of the Wrong, 29 A.L.R.3d 603 (1970).

¶21Much has been written on all of these approaches. Although I give citations to various writings on these alternatives, I will not make detailed comparisons. Suffice it to say that the dominant contacts approach was first adopted by New York in Babcock v. Jackson, 12 N.Y.2d 473, 191 *717N.E.2d 279, 240 N.Y.S.2d 743 (1963),11 and has since been generally adopted as the “most significant relationships” approach in the Restatement, supra. The “governmental interest” approach was adopted by California in Reich v. Purcell, 67 Cal.2d 551, 432 P.2d 727, 63 Cal.Rptr. 31 (1967). The “choice-influencing considerations” approach was refined by Professor Leflar and ultimately adopted by the State of Wisconsin in Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967).12 Various other states, including Minnesota, Arkansas, Hawaii, New Hampshire and Massachusetts, have followed Wisconsin’s lead.

¶22WHAT IS THE CHOICE-INFLUENCING CONSIDERATION APPROACH?

¶23When faced with a choice-of-law decision, the court considers and grounds its conclusion on the following considerations:

Predictability of results;

Maintenance of interstate and international order;

Simplification of the judicial task; Advancement of the forum’s governmental interests;

¶24Application of the better rule of law.

¶25All of the elements of choice-influencing considerations were well analyzed and set forth in Heath, supra.As Leflar later stated: “The choice-influencing considerations approach agrees that state interests should always be taken into account in choice of law, but holds that this is not the only relevant choice-influencing consideration.” Currie, Comments on Reich v. Purcell, 15 UCLA L.Rev. 551, 638 (1968). Additionally, Professor Leflar in various writings has analyzed them further. “The plain fact is that the considerations have been present and operative all along, and have been motivating reasons behind every choice-of-law rule that was ever formulated and every case that was ever decided.” Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y. Univ.L.Rev. 267, 324-25 (1966). Professor Leflar’s proposal is not a rule but a method of analysis in which choice of law decisions are based upon these choice-influencing considerations because they are relevant to a reasonable choice of law. Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1968); Conklin v. Homer, 38 Wis.2d 468, 157 N.W.2d 579 (1968). By applying these considerations, courts can assess the pertinent interests and policy factors involved and achieve a desirable result in each situation. Peters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981). In the attempt to obtain that result, we must recognize that one of the functions of the law of conflicts is to make sure that relations between the states and commerce between them is harmonious and equitable to the parties concerned while still preserving the integrity of the forum law. Heath, supra.

¶26An application of lex loci which may result in an equitable decision is merely happenstance. Because of its mechanical nature equity is not a conscious factor. In its discussion of Leflar’s “governmental interest” consideration, the court in Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977) (citing Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1968)), noted that the truest interest of the forum is in the fair and efficient administration of justice. The choice should not be one of preferred parties but of preferred law. Heath, supra(citing Leflar, Conflicts of Law: More on Choice-Influencing Considerations (Book H), 54 Calif.L.Rev. 1584 (1966)).

¶27SUMMARY

¶28The subject warrants greater in-depth analysis than I have expressed herein. Were I to be writing a majority opinion, I would go to greater lengths to explain and articulate our reasons in adopting the proper approach to conflicts of law. In the interest of conserving further judicial manpower, I will simply conclude by stating that we must abandon the archaic, obsolete, irrational, rigid rule of lex loci and *718adopt an appropriate, modern approach to conflicts of laws. I would adopt the holding of Heathand other similar cases and hold that in conflicts-of-law disputes we must analyze and apply the appropriate choice-influencing considerations in determining the appropriate law to apply.

¶29I am authorized to state that Justices HENDERSON and SABERS join in this special concurrence.