The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_367/91_367.zc1

Text File | 1992-06-14 | 15.8 KB | 294 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 91-367
--------
CAROL ANKENBRANDT, as next friend and mother
of l. r. and s. r., PETITIONER v. JON A. RICHARDS
and DEBRA KESLER
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 15, 1992]

  Justice Blackmun, concurring in the judgment.
  I agree with the Court that the District Court had
jurisdiction over petitioner's claims in tort.  Moreover, I
agree that the federal courts should not entertain claims for
divorce, alimony, and child custody.  I am unable to agree,
however, that the diversity statute contains any -exception-
for domestic relations matters.  The Court goes to remark-
able lengths to craft an exception that is simply not in the
statute and is not supported by the case law.  In my view,
the longstanding, unbroken practice of the federal courts in
refusing to hear domestic relations cases is precedent at
most for continued discretionary abstention rather than
mandatory limits on federal jurisdiction.  For these reasons
I concur only in the Court's judgment.
                            I
  The Court holds that the diversity statute contains an
-exception- for cases seeking the issuance of a divorce,
alimony, or child custody decree.  Ante, at 11-15.  Yet no
such exception appears in the statute.  The diversity statute
is not ambiguous at all.  It extends the jurisdiction of the
district courts to -all civil actions- between diverse parties
involving the requisite amount in controversy (emphasis
added).  28 U. S. C. 1332.
  This Court has recognized that in the absence of a
-clearly expressed- intention to the contrary, the language
of the statute itself is ordinarily -conclusive.-  See, e.g.,
Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,
447 U. S. 102, 108 (1980).  The Court apparently discovers
in the history of the diversity statute and this Court's own
case law a clearly expressed intention contrary to the words
of the statute.  First, the Court observes that the diversity
statute formerly extended only to -all suits of a civil nature
at common law or in equity- rather than to -all civil
actions.-  Ante, at 8-9.  Then the Court interprets this
Court's decision in Barber v. Barber, 21 How. 582 (1859), to
read into this -common law or equity- limitation an
exclusion of matters, such as actions for divorce and
alimony, that were not cognizable in the English courts of
common law and equity.  Ante, at 9.  The Court points to
what it regards as Congress' -apparent acceptance- of this
construction of the diversity statute.  Ante, at 10.  Finally,
notwithstanding Congress' replacement in 1948 of the
-common law and equity- limitation with the phrase -all
civil actions,- the Court considers this to be evidence that
Congress adopted the prior -well-known construction- of the
diversity statute.  Ante, at 11.
  I have great difficulty with the Court's approach.
Starting at the most obvious point, I do not see how a
language change that, if anything, expands the jurisdiction-
al scope of the statute can be said to constitute evidence of
approval of a prior narrow construction.  Any inaction on
the part of Congress in 1948 in failing expressly to mention
domestic relations matters in the diversity statute reflects
the fact, as is discussed below, that Congress likely had no
idea until the Court's decision today that the diversity
statute contained an exception for domestic relations
matters.
  This leads to my primary concern: the Court's conclusion
that Congress understood Barber as an interpretation of the
diversity statute.  Barber did not express any intent to
construe the diversity statute-clearly, Barber -cited no
authority and did not discuss the foundation for its an-
nouncement- disclaiming jurisdiction over divorce and
alimony matters.  Ante, at 5.  As the Court puts it, it may
only be -inferred- that the basis for declining jurisdiction
was the diversity statute.  Ante, at 9.  It is inferred not
from anything in the Barber majority opinion.  Rather, it is
inferred from the comments of a dissenting justice and the
absence of rebuttal by the Barber majority.  Ante, at 9.
The Court today has a difficult enough time arriving at this
unlikely interpretation of the Barber decision.  I cannot
imagine that Congress ever assembled this construction on
its own.
  In any event, at least three subsequent decisions of this
Court seriously undermine any inference that Barber's
recognition of a domestic relations -exception- traces to a
-common law or equity- limitation of the diversity statute.
In Simms v. Simms, 175 U. S. 162 (1899), the Court heard
an appeal by a husband from the Supreme Court of the
Territory of Arizona affirming the territorial District Court's
dismissal of his bill for divorce and its award to his wife of
alimony and counsel fees pendente lite.  The wife sought
dismissal of the appeal to this Court because the suit
involved domestic relations.  In contrast to Barber, the
Court undertook an extensive review and discussion of the
statutory bases for its jurisdiction over the appeal.  It
expressly recognized that its appellate jurisdiction was
confined to -those cases, and those cases only, at law or in
equity.-  175 U. S., at 167 (emphasis added).  Neverthe-
less, the Court in Simms did not find the -common law or
equity- limitation to be a bar to jurisdiction.  The Court
distinguished Barber, not on grounds that the jurisdictional
statute in Barber was limited to cases in law and equity
while that in Simms was not-indeed, it could not be so
distinguished.  The Court distinguished Barber on grounds
that it involved domestic relations matters in the States
rather than in the territories.  It reasoned that the whole
subject of domestic relations -belongs to the laws of the
State, and not to the laws of the United States,- while -[i]n
the Territories of the United States, Congress has the
entire dominion and sovereignty, national and local.-  Id.,
at 167-168.  Today the Court infers an interpretation of
Barber that the Court in Simms plainly rejected.
  The second decision undermining the Court's interpreta-
tion of Barber is De La Rama v. De La Rama, 201 U. S. 303
(1906), in which the Court took jurisdiction over an appeal
from the Supreme Court of the Philippine Islands in a
wife's action for divorce and alimony.  Citing Barber, De La
Rama explained the historical reasons that federal courts
have not exercised jurisdiction over actions for divorce and
alimony.  The -common law or equity- limitation the Court
now finds so significant was not among those reasons.
This was so even though the appellate jurisdictional statute
at issue there extended to -all actions, cases, causes, and
proceedings,- 32 Stat. 695, opening the door for the Court
easily to have distinguished Barber on the grounds of the
-common law or equity- limitation in the diversity statute.
Instead, explicitly reaffirming the grounds relied upon in
Simms for distinguishing Barber, the Court pointed to the
absence of any need to defer to the States' regulation of the
area of domestic relations in the context of an appeal from
a nonstate, territorial court.  Id., at 308.
  The third decision is Ohio ex rel. Popovici v. Agler, 280
U. S. 379 (1930).  In Popovici, a Roumanian vice-consul was
sued by his wife in an Ohio state court for a divorce and
alimony.  He defended by claiming that the Ohio state court
had no jurisdiction to grant the divorce, because federal
statutes granted exclusive jurisdiction to the federal courts
of -all suits and proceedings against . . . consuls or vice-
consuls- and -all suits against consuls and vice-consuls.-
280 U. S., at 382-383 (quoting the Act of March 3, 1911, c.
231, 36 Stat. 1161, 1093).  Rejecting this claim, Justice
Holmes observed for a unanimous Court that the jurisdic-
tional statutes -do not affect the present case if it be true as
has been unquestioned for three-quarters of a century that
the Courts of the United States have no jurisdiction over
divorce.-  Id., at 383.  The Court traced this absence of
jurisdiction not to the diversity statute but apparently to
the Constitution itself:
-If when the Constitution was adopted the common
understanding was that the domestic relations of hus-
band and wife and parent and child were matters
reserved to the States, there is no difficulty in constru-
ing the instrument accordingly and not much in dealing
with the statutes.  `Suits against consuls and vice-
consuls' must be taken to refer to ordinary civil pro-
ceedings and not to include what formerly would have
belonged to the ecclesiastical Courts.-  Id., at 383-384.

I think it implausible to believe that, especially after
Popovici, Congress could be said to have accepted this
Court's decision in Barber as simply a construction of the
diversity statute.  Accordingly, the Court is without a
requisite foundation for ratifying what Congress intended.
Compare Flood v. Kuhn, 407 U.S. 258, 283-284 (1972)
(declining to overturn prior precedent explicitly exempting
professional baseball from antitrust laws where Congress
-by its positive inaction- has allowed prior decisions to
stand).
  Even assuming the Court today correctly interprets
Barber, its extension of any domestic relations -exception-
to the diversity statute for child custody matters is not
warranted by any known principles of statutory construc-
tion.  The Court relies on In re Burrus, 136 U. S. 586
(1890), in which the Court denied the -jurisdiction- of a
federal district court to issue a writ of habeas corpus in
favor of a father to recover the care and custody of his child
from the child's grandfather.  That case did not involve the
diversity statute, but rather the habeas corpus statute, and
the Court expressly declined to address the diversity
statute.  Id., at 597.  To the Court today this is just a
-technica[l]- distinction.  Ante, at 13.  I find it germane,
because, to the best of my knowledge, a court is not at
liberty to craft exceptions to statutes that are not at issue
in a case.
                           II
                            A
  To reject the Court's construction of the diversity statute
is not, however, necessarily to reject the federal courts'
longstanding practice of declining to hear certain domestic
relations cases.  My point today is that no coherent -juris-
dictional- explanation for this practice emerges from our
line of such cases, and it is unreasonable to presume that
Congress divined and accepted one from these cases.  To be
sure, this Court's old line of domestic relations cases
disclaimed -jurisdiction- over domestic relations matters
well before the growth and general acceptance in recent
decades of modern doctrines of federal abstention that
distinguish the refusal to exercise jurisdiction from dis-
claiming jurisdiction altogether.  See generally C. Wright,
Law of Federal Courts 302-330 (1983) (discussing growth
of traditional abstention doctrines).  See also Francis v.
Henderson, 425 U. S. 536, 538-539 (1976) (recognizing
abstention in the context of the habeas corpus statute
where -considerations of comity and concerns for the orderly
administration of criminal justice require-).  Nevertheless,
the common concern reflected in these earlier cases is, in
modern terms, abstentional-and not jurisdictional-in
nature.  These cases are premised not upon a concern for
the historical limitation of equity jurisdiction of the English
courts, but upon the virtually exclusive primacy at that
time of the States in the regulation of domestic relations.
As noted above, in Simms and De La Rama, this Court
justified its exercise of jurisdiction over actions for divorce
and alimony not by any reference to the scope of equity
jurisdiction but by reference to the absence of any interest
of the States in appeals from courts in territories controlled
by the National Government.  Similarly, in cases wholly
outside the -common law or equity- limitation of the
diversity statute, the Court has denied federal court review.
Popovici, supra (consuls and vice-consuls statutes); In re
Burrus, supra (habeas corpus).  As the Court once stated:
-The whole subject of the domestic relations of husband and
wife, parent and child, belongs to the laws of the States and
not to the laws of the United States.-  In re Burrus, 136
U. S., at 593-594.
  Whether the interest of States remains a sufficient
justification today for abstention is uncertain in view of the
expansion in recent years of federal law in the domestic
relations area.  I am confident, nonetheless, that the
unbroken and unchallenged practice of the federal courts
since before the War Between the States of declining to
hear certain domestic relations cases provides the very rare
justification for continuing to do so.  It is not without
significance, moreover, that, because of this historical
practice of the federal courts, the States have developed
specialized courts and institutions in family matters, while
Congress and the federal courts generally have not done so.
Absent a contrary command of Congress, the federal courts
properly should abstain, at least from diversity actions
traditionally excluded from the federal courts, such as those
seeking divorce, alimony, and child custody.
  The Court is correct that abstention -rarely should be
invoked.-  Ante, at 15.  But rarer still-and by far the
greater affront to Congress-should be the occasions when
this Court invents statutory exceptions that are simply not
there.  It is one thing for this Court to defer to more than
a century of practice unquestioned by Congress.  It is quite
another to defer on a pretext that Congress legislated what
in fact it never did.  Although there is no occasion to resolve
the issue in definitive fashion in this case, I would suggest
that principles of abstention provide a more principled basis
for the Court's continued disinclination to entertain
domestic relations matters.
                            B
  Whether or not the domestic relations -exception- is
properly grounded in principles of abstention or principles
of jurisdiction, I do not believe this case falls within the
exception.  This case only peripherally involves the subject
of -domestic relations.-  -Domestic relations- actions are
loosely classifiable into four categories.  The first, or -core,-
category involves declarations of status, e.g., marriage,
annulment, divorce, custody, and paternity.  The second, or
-semi-core,- category involves declarations of rights or
obligations arising from status (or former status), e.g.,
alimony, child support, and division of property.  The third
category consists of secondary suits to enforce declarations
of status, rights, or obligations.  The final, catch-all catego-
ry covers the suits not directly involving status or obliga-
tions arising from status but that nonetheless generally
relate to domestic relations matters, e.g., tort suits between
family or former family members for sexual abuse, batter-
ing, or intentional infliction of emotional distress.  None of
this Court's prior cases that consider the domestic relations
-exception- involves the type of periphery domestic relations
claim at issue here.
  Petitioner does not seek a determination of status or
obligations arising from status.  Moreover, any federal court
determination of petitioner's claims will neither upset a
prior state court determination of status or obligations
appurtenant to status, nor pre-empt a pending state court
determination of this nature.  Compare Moore v. Sims, 442
U. S. 415 (1979) (applying Younger abstention doctrine to
prevent federal court action seeking to enjoin pending state
child custody proceeding brought by state authorities).
While petitioner's claims do not involve a federal question
or statute-the presence of which would strongly counsel
against abstention, see Colorado River Water Cons. Dist. v.
United States, 424 U. S. 800, 815, n. 21 (1976)-petitioner's
state law tort claims for money damages are easily cogniza-
ble in a federal court.  All these considerations favor the
exercise of federal jurisdiction over petitioner's claims.