Because this distinguished and brilliant jurist seems rather grumpy as of late. Last week, in a published opinion, he slapped around the IRS.
And now Judge Richard Posner — who, by the way, will be assuming virtual form later this month — delivers stinging benchslaps to lawyers for playing fast and loose with jurisdiction:
[T]he lawyers have wasted our time as well as their own and (depending on the fee arrangements) their clients’ money. We have been plagued by the carelessness of a number of the lawyers practicing before the courts of this circuit with regard to the required contents of jurisdictional statements in diversity cases.
It is time, as we noted in BondPro, that this malpractice stopped. We direct the parties to show cause within 10 days why counsel should not be sanctioned for violating Rule 28(a)(1) and mistaking the requirements of diversity jurisdiction. We ask them to consider specifically the appropriateness, as a sanction, of their being compelled to attend a continuing legal education class in federal jurisdiction.
Ouch. But query whether forced attendance at a CLE class on federal jurisdiction constitutes “cruel and unusual punishment” under the Eighth Amendment.
Continued commentary, after the jump.
Judge Posner continues:
Are we being fusspots and nitpickers in trying (so far with limited success) to enforce rules designed to ensure that federal courts do not exceed the limits that the Constitution and federal statutes impose on their jurisdiction? Does it really matter if federal courts decide on the merits cases that they are not actually authorized to decide? The sky will not fall if federal courts occasionally stray outside the proper bounds. But the fact that limits on subject-matter jurisdiction are not waivable or forfeitable–that federal courts are required to police their jurisdiction–imposes a duty of care that we are not at liberty to shirk. And since we are not investigative bodies, we need and must assure compliance with procedures designed to compel parties to federal litigation to assist us in keeping within bounds.
“[F]usspots”? We’re lovin’ it!
Is Judge Posner overreacting? Maybe. But he’s doing so in fun fashion, so all is forgiven.
Interesting that Judge Posner acknowledges that “[t]he sky will not fall” if federal courts overstep their jurisdictional boundaries every now and then. That’s true. But it’s something that many judicial conservatives don’t like to admit, regarding even the slightest deviation from federal jurisdictional limits as threatening federal-state comity and the health of American democracy, by placing us on the slippery slope to rule by Platonic guardians in black robes.
More from Judge Posner:
Hence Rule 28 and hence the responsibility of lawyers who practice in the federal courts, even if only occasionally, to familiarize themselves with the principles of federal jurisdiction. It would be delightful, but irresponsible in the extreme, for us to ignore the limits on our jurisdiction, forget the rules intended to prevent us from ignoring those limits, direct the Clerk of the court to tear out the parties’ jurisdictional statements before distributing the briefs to us, and jump directly to the merits of any case that the parties would like to litigate in federal court.
Would it really be “delightful” for federal judges “to ignore the limits on [their] jurisdiction”? Not universally; only in cases where the issue outside federal jurisdictional limits is sexy or interesting. E.g., all the juicy celebrity divorces that get heard in state court.
As we learned at Yale Law School, one of the purposes of federal jurisdiction is to protect federal judges from all the boring crap that state judges have to put up with.
The foregoing benchslappery was joined only by newly crowned Chief Judge Frank Easterbrook. The third member of the panel, Judge Terence T. Evans, declined to participate — and questioned whether Judge Posner has been taking his meds:
I decline to join the court’s stinging criticism of the attorneys regarding their less-than-perfect jurisdictional statements. Sure, the plaintiffs should have said the amount in controversy exceeds $75,000, not that it is $75,000. And sure, both sides stumbled on their declarations regarding the dual citizenship of the corporate defendants. But, at best, these are low misdemeanors; yet the court treats them like felonies. I would not label these minor flaws as “blunders,” nor would I come close to saying this is “malpractice” which must be stopped. Also I would not issue an order to show cause, and I certainly would not suggest that an appropriate sanction might be to compel the lawyers’ attendance at “a continuing legal education class on federal jurisdiction.”
What happened in this case is not particularly unusual. The plaintiffs, represented by what appears to be a small law firm, filed this suit almost five years ago in state court where jurisdictional requirements are easily satisfied and rarely questioned. The defendants, represented by a “national law firm with lawyers in 27 offices coast-to-coast” (according to the firm’s Web site) removed the case to federal court. That there is diversity jurisdiction has never been questioned by anyone, including at least two district court judges who issued written decisions as the case poked along for four years through discovery and several in-court proceedings. The plaintiffs then lose their case on summary judgment and file an appeal raising the issue that cuts to the very heart of their suit. Given this situation, when all eyes are really on the guts of the case, I think we should be more tolerant of the jurisdictional statement hiccups that have occurred here.
If that blockquote was too long for you to read, we’ll summarize it with the words of Bart Simpson: “Don’t have a cow, man.”
A favor to ask of our readership: Would someone with PACER access please look up which “national law firm with lawyers in 27 offices” is involved in this case, and post that information in the comments? Thanks.
P.S. Thanks to Howard Bashman for this excellent primer on how to link to Seventh Circuit opinions — which is really way more difficult than it ought to be.
1. The firm in question is apparently Hinshaw & Culbertson LLP. We’re not familiar with them, even though they seem to have more outposts than Starbucks.
2. Interesting commentary on an ironic aspect of this case, from Ted Frank (a former Seventh Circuit clerk himself).
Smoot v. Mazda Motors of America, Inc. [Seventh Circuit (PDF) via How Appealing]
Smoot v. Mazda [Point of Law]
Earlier: Benchslapped: Judge Posner Gets Medieval on the IRS