Court Creates Legal Exception, Blocks Extradition

The state Supreme Court carved an exception to extradition law Thursday, ruling that a San Bernardino father should not be returned to Louisiana where he faces kidnaping charges because he had legal custody of his children under California law.

The court by a 6-1 vote said a person can be extradited only if he or she is charged with a crime, and reasoned that Richard Smolin committed no crime because a California court had granted him custody of the children.

Smolin’s children were living with his ex-wife, Judith Pope, in Louisiana when he took them from a bus stop in March, 1984. She originally has been granted custody of the children in California and moved to Louisiana; her ex-husband later won custody of the children. Louisiana authorities, based on a complaint by the ex-wife, charged Smolin with kidnaping and asked for his extradition, a request granted by Gov. George Deukmejian.

But Smolin, a deputy public defender in San Bernardino County, asked the San Bernardino court that granted him sole custody in 1981 to turn down the extradition. Superior Court Judge William Pitt Hyde of San Bernardino agreed, finding that the San Bernardino court’s custody order was legitimate.

Justice Stanley Mosk, writing for the majority, noted that in nearly all other extradition cases, courts cannot delve into whether the person to be extradited is innocent, and must order extradition almost automatically.

‘No Valid Reason’

But in creating the exception Thursday, Mosk wrote: “We perceive no valid reason for . . . creating a rule that a court may not take judicial notice of its own orders . . . in an extradition proceeding.

“So far as we are aware, the validity of that order had never been challenged by either Judith or Louisiana at the time the alleged kidnaping occurred,” Mosk wrote.

Dissenting Justice Malcolm M. Lucas, while urging that Louisiana’s request be honored, acknowledged that Smolin’s custody order was valid. He argued, however, that California has extremely limited authority to overrule extradition requests, and should confine itself to such narrow questions as whether out-of-state paper work is in order.

“My colleagues . . . confuse the question of whether defendants are substantially charged with a crime with the question of whether defendants are innocent,” Lucas wrote, adding that the issue should be left to a Louisiana court to decide.

Smolin’s lawyer, Dennis Riordan, said the children, 11 and 12 years old, remain with Smolin. They believe that so long as the case is pending, they cannot visit their mother in Louisiana for fear that they again would be separated from their father.

Riordan said he plans to ask Deukmejian to rescind his extradition order.