Every year, schools and government agencies join the nation in observing Constitution Day and Citizenship Day the week before and after Sept. 17, the anniversary of the signing of the Constitution. Federal courts participate by offering educational resources and experiences in their communities. Below, UNH associate professor of political science Susan Siggelakis reflects on "The Diversity Case that Wasn't."
In American society today we hear a lot about the concept of diversity — ethnic, gender and racial diversity, diversity in political orientations, diversity of religious belief, just to name a few. The United States Constitution, too, recognizes a type of diversity you might not think of: i.e. the diversity of state citizenship. (although if you are a New Hampshire citizen you may have your own opinion of Massachusetts drivers!).
Article III of the United States Constitution reads (in part):
The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made or which shall be made under their authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States ...
This provision, Article III, Sec. 2, lists explicitly the types of cases that may be brought in federal court. As you may know, the states preceded the nation and the state courts in the original 13 states preceded the establishment of the national government and, of course, national (federal) courts. Thus federal courts are courts of limited jurisdiction, i.e. they can only hear the types of cases that we the people, the authors of the founding document, authorized them to hear in Article III. All other jurisdiction was left to the state courts.* One might be surprised to find out that until well after the Civil War, state courts heard the lion’s share of litigation in the United States, with federal courts doing relatively little. However, the federal courts always did and continue to decide a goodly number of what are called diversity cases. Diversity cases are cases in which a citizen of one state (or U.S. territory) sues a citizen in another state (or U.S. Territory), generally for a dollar amount of money for a breach of civil law such as acting negligently, breaching a contract, selling a defective product, etc. If both litigants were citizens of the same state (or same territory), normally these types of cases would be filed in state court. But when ‘diversity’ among the adverse parties exists, the Framers of the U.S. Constitution feared that state courts would be biased in favor of their own citizens and decide the case to the detriment of the out-of-stater. In other words, the Framers didn’t trust state court judges to be impartial. They left it up to Congress to decide what dollar amount claimed in a civil suit could get your case into federal court. Today that amount has to exceed $75,000. Anything under that amount is relegated to the state courts, under the assumption that it’s not very consequential for either party and federal courts are too busy with more important matters than to deal with these. If a state court judge happens to be biased in these lesser cases ... tough luck.
Establishing diversity of citizenship of both parties to the lawsuit is thus crucial for getting your case heard in federal court. It’s a procedural requirement which must be satisfied before the substance of the lawsuit can be entertained by a federal judge. Every state has at least one federal trial court (Maine has only one, for example, while California, much more populated, has four) where such a case can be filed. One might think this is a relatively straightforward matter. If I, a New Hampshire citizen, sue a Massachusetts citizen for breaching a contract we made together, each of us almost assuredly knows that the other hails from out of state. But one federal case decided in 1996 shows how problems can arise.
In Bissell v. Breakers By-The-Sea, a plaintiff filed a lawsuit in federal trial court in Maine in 1996. The subject matter of the case isn’t important. What was important was that the people suing (the plaintiffs) said they were residents of St. Thomas (U.S. Virgin Islands) and the people they were suing (the defendants) were residents of Maine. Jurisdictionally this would seem to be a no-brainer. This case, under Article III diversity jurisdiction, could be heard in federal court. The case proceeded over a number of weeks, eventually completing its various phases such as discovery, motions, jury selection, and a four-day trial. etc. under the supervision of a federal district court judge. The jury found for the defendants, happily for them. As is often the case, the plaintiffs, as losers in the trials, filed for an appeal in the First Circuit Court of Appeals, located in Boston. It was only at that point that the plaintiffs’ lawyers realized that the people they had been representing did not really live in St. Thomas after all but were actually residents of Tortola (the British Virgin Islands) at the time they had originally filed their complaint in Maine’s federal court. If the plaintiffs’ true residence had been known at the outset, diversity jurisdiction would have been defeated, as American citizens who live in a foreign country do not qualify for diversity jurisdiction. But what about the defendants? They had won at the trial level!! Wouldn’t it be unfair to negate their victory due to this procedural problem? The defendants had trusted both the plaintiffs, their own lawyers and the federal judge. Essentially all parties to the case, though mistaken, had proceeded in good faith on an erroneous factual belief. Thousands of dollars and many hundreds of hours had been spent on this case for it to be voided because of the lack of jurisdiction. Even the trial judge admitted that such an outcome would be both inefficient and unfair, especially to the winning party.
However, none of this mattered. After the truth of residency had been uncovered, the case had to be voided. Courts cannot confer jurisdiction on themselves as that is only for Congress and the Constitution. As numerous legal precedents have established, when a factual premise on which jurisdiction depends turns out to be unsupported at any point no matter how late in the process, the case must be dismissed. And so this case was erased from federal legal history. In another strange twist in an already strange story, the plaintiff (Bissell) then asserted that she was in fact a resident of Maine (neither Tortola nor the U.S. Virgin Islands). Yet, this could not resurrect federal jurisdiction either. If this new ‘fact’ was indeed true, it meant that a Maine plaintiff (Bissell) and a Maine defendant (Breakers) existed. Such a case, if brought anew, would have to be filed in state court because, once again, there was no diversity of citizenship. In the end, the Maine federal judge, despite having sympathy for the ‘winning’ defendants, had no choice but to dismiss. However, Judge Hornby managed to inject a bit of levity into his opinion while at the same time expressing his own view of this absurd, albeit legally compelled result by quoting from Charles Dickens’s novel, The Adventures of Oliver Twist. “The law is a ass — an idiot,” proclaimed Mr. Bumble.^
*state courts could also have concurrent jurisdiction with the federal courts but that’s a matter for another day
^When Mr. Bumble is told by a judge that English law presumes that a wife acts under the direction of her husband, he retorts: “If the law supposes that ... the law is a ass — an idiot.”
