Anna Nicole Smith and Forum Shopping in Non-Bankruptcy Cases

A little while back I linked to a column by Toensing and DiGenova on the Anna Nicole Smith case before the Supreme Court.  I noted at the time that I agreed with their central argument (especially with respect to bankruptcy) but that I didn’t really follow their other example: “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.”

In connection with that question I came across a column in The Hill by Lanny J. Davis and David B. Rivkin, Jr., “The Anna Nicole Smith Supreme Court case: Uniting liberals and conservatives” which is based on an amicus brief that they filed.  It still focuses on the bankruptcy court issue (not the tax court) but it notes that forum-shopping can negatively affect civil rights claimants as well:

Hundreds of millions of dollars hang in the balance.

So do fundamental guarantees of independent judges, constitutional fidelity and justice. These are what’s brought together a strange-bedfellows coalition of liberals, conservatives and independents, all standing up for the Supreme Court to take Article III of the Constitution, which lays out the requirements for judges and the courts, as seriously as the Framers intended.

The position taken by Ms. Smith’s estate offends progressives, who do not want a plaintiff in a state civil rights case to be vulnerable to being trumped by a decision by a bankruptcy court. A bankruptcy judge is not required to abide by the Seventh Amendment’s right to a trial by jury, nor the various due-process rights protected by the rules that govern Article III-federal judges cases. Bankruptcy judges were created by Congress under Article I of the Constitution to relieve Article III judges of the need to preside over complex and arcane bankruptcy cases that have little to do with the usual subject matters before the courts. Under the Constitution, Congress couldn’t do any more than that, such as reassigning typical lawsuits to non-Article III judges. And indeed, Congress didn’t intend to give bankruptcy judges final decisionmaking authority over “non-core” bankruptcy issues, things that go beyond the simple adjudication of debtors’ and creditors’ rights. 

At the same time, the position taken by Ms. Smith’s attorneys also offends conservative principles. First, it would allow a judge created by Congress to intrude on the independent, final decisionmaking powers of federal judges, expressly invested with such powers by Article III of the Constitution. Second, it would ignore federalist principles deferring to the states, such as state court systems, except for where the Constitution expressly provides for overriding state legal authority.

One hopes that the Supreme Court’s liberals and conservatives will find the same common ground as we did in submitting a brief to the court on behalf of the National Black Chamber of Commerce and the American Board of Trial Advocates.


I should have noted that the concern about using bankruptcy to evade a plaintiff’s right to a jury trial was also raised in Judge Kleinfeld’s concurring opinion in the 9th Circuit.

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