Legal Commentary

Toensing and DiGenova on Anna Nicole Smith

By Todd Zywicki

Victoria Toensing and Joe DiGenova have a column in today?s Washington Times previewing the upcoming oral argument in the latest round of the Anna Nicole Smith case.  Their concluding paragraphs get to what they see as the bottom-line issue:

It all comes down to a matter of simple timing. Although the bankruptcy court was the first to rule and ruled in favor of Smith, that decision was not final. The Texas probate court, in turn, ruled in favor of E. Pierce Marshall and did so before the federal court?s de novo review. Therefore, the Texas court is the clear court of record regarding the estate matter. The bankruptcy court finding and subsequent belated federal court review are moot.

It?s easy for Smith?s scandalous life (and death) and complicated legal terminology to detract from the real issue at play here. This case is very simple. Common sense dictates a Supreme Court ruling in favor of the Marshall family, but the rule of law dictates it, too. Should that not be so, the American public and our time-honored judicial system will be the worse for it. For example, those who believe in federalism would not want to see a state court?s legal holding overturned by a federal court a thousand miles away that has no expertise in Texas probate law. In another instance, a civil rights litigant filing a claim of racial discrimination in the workplace would not want a judge in a specialty tax court to decide his case. When it comes to the law, there are many gray areas. Stern v. Marshall offers the Supreme Court an opportunity to make this issue quite black and white. Here?s hoping the justices take it.

As I have said previously, in my view the 9th Circuit reached the correct result, but if anything did not go far enough to close the door on bankruptcy forum-shopping.  On the facts here, though, I think that Toensing and DiGenova have it right?Smith?s tort counterclaim was non-core to the bankruptcy case and so the federal court?s judgment did not become final until after the state court?s opinion.

While it is easy to see how someone could manufacture bankruptcy jurisdiction (which seems to be what Smith did here), it is less obvious to me that their second example of forum-shopping is realistic?I?m not sure how a civil rights claim would end up in tax court.  But, then again, I confess minimal knowledge about tax court jurisdiction, so I may just be missing something here that someone can explain to me.  Even if I?m right about that, that?s also not to say that similar forum-shopping concerns might not arise in other areas of law as well that I?m not aware of.

Full post as published by The Volokh Conspiracy on January 07, 2011 (boomark / email).