Amicus Brief — Pincus v. Estate of Greenberg

LAP OTS TN re

RSI

No. 80-1040

DS eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

( Mrver Pincus, Appellant,

Vv.

EstaTE Or LEO GREENBERG, THE HONORABLE

Pau. M. MARKO, III and THE HONORABLE

Leroy H. Mor, Appellees.

On Appeal From The Supreme Court Of Florida

BRIEF FOR AMICUS CURIA E THE STATE

OF FLORIDA

Jim SMITH,

Attorney General of the

State of Florida

BRUCE BARKETT,

Assistant Attorney General

THOMAS A. BEENCK,

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

Suite 1501 — The Capitol

Tallahassee, Florida 32301

(904) 488-9935

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

PAGE

See UII tA Poo ce a ili

INTEREST OF AMICUS CURIAE ............0cccceeccceee ]

UN MP EMO CAM So hc cas c as vacvcbsvccoue. 2

SUMMARY OF ARGUMENT .............cccccecccccceucce 3

Ee Foe UREN k Con cca dN vet enk oc kc ee 4

I. THE APPEAL PRESENTS No JUSTICIABLE CASE OR

RE bo hGudn Vi cat g Probe a: 4

Il. THE APPEAL PRESENTS No SUBSTANTIAL FEDERAL

SMEG Naty en a teeta ele onl On 5

A. The Administration Of Estates Is Commit-

ted By The Constitution To The Several

Ae oe eas on wows cane aes 5

B. No Fundamental Rights Are Infringed By

BENG PME UIE os hiv w o.bh0 bdo we ncacs 7

1. There is no fundamental right to ap-

point a personal representative........ 7

2. The right to travel is not unconstitu-

tionally restricted by the Florida

erp a ee TEE Pe ey ee 9

3. The appellant’s fundamental right to

pursue a livelihood is not infringed by

the Florida statutes...............0.. 1]

C. Since No Fundamental Right Is Infringed,

The Florida Statutes Need Only Reasonably

Serve An Important State Interest ......... 1]

1. The Florida statutes do not deny the

decedent or the appellant equal protec-

CGS ek Wass ee CMeeuber Se ere ea: 11

2. The Florida statutes do not deny the

decedent or the appellant due process of

i EO oa Er en IE RON De 13

D. The Florida Statutes Do Not Deny The Ap-

pellant The Privileges And Immunities Of

Wie Citinetis OF PIOGMR fo ois ccc cco vcses. 14

Table of Contents Continued

PAGE

E. The Appellant’s Claim Under The Com-

merce Clause Is Not Properly Before This

Court And Is Wholly Without Merit ....... 15

F. The Appellant’s Claim Under The Full Faith

And Credit Clause Is Not Properly Before

This Court And Is Wholly Without Merit... 15

ee oa 5 wad ae Wd ae Oe a Kb bd 17

ili

TABLE OF AUTHORITIES

CASES: PAGE

Auto Workers v. Scofield, 382 U.S. 205 (1965).......... 4, 16

Beanery. Cart, 369 U.S. 166 (1962)... ccc ccc csccccccs 9

Baldwin v. Montana Fish & Game Commission, 436 U.S.

ER TS Ee ey 14

Beverly Beach Properties v. Nelson, 68 So.2d 604 (Fla.

1953), cert. denied, 348 U.S. 816 (1954) ............

Boddie v. Connecticut, 401 U.S. 371 (1971) ............. 8

Brown v. Supreme Court of Virginia, 414 U.S. 1034,

aff’g 359 F. Supp. 549 (E.D. Va. 1973) .... 6,9, 10, 11, 12

Cee vw. corres, 425 U.S. LCIGTE). 5... cece cc ecces 10

Cardinale v. Louisiana, 394 U.S. 437 (1969)............. 15

DeBacker v. Brainard, 396 U.S. 28 (1969). .............. 15

Fain v. Hall, 463 F. Supp. 661 (M.D. Fla. 1979) ......... 3

ee I EE stn EE OED 5 occ cress ccccsceces

Florida Steel Corporation v. Dickinson, 328 So.2d 418

es nk pw ee clde bes eocesec 2

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)... 5, 11, 15

GTE Sylvania, Inc. v. Consumers Union, 444 U.S. 818

Te ee ones bbb boeeeee 5

Head v. New Mexico Board of Examiners, 374 U.S. 424

eres Veet cane rdsbaesedececes 15

Hicklin v. Orbeck, 437 U.S. 518 (1978) ......... 0.00000 14

Huron Portland Cement Co. v. City of Detroit, 362 U.S.

i sess sk bsee koe beeeeee 15

In re Emery, 59 Ohio App. 2d 7, 391 N.E.2d 746 (1978)... 11

Be Pe MD Woes FET CRSIOD occ cccccccccccccccss 11

In re Mulford, 217 Ill. 242, 75 N.E. 345 (1905)........... 14

Irving Trust Co. v. Day, 314 U.S. 556 (1942) ............ 5

Kovrak v. Ginsburg, 358 U.S. 52 (1958) .........-000e.. 6

iV

Table of Authorities Continued

CASES: PAGE

Labine v. Vincent, 401 U.S. 532 (1971) ......... 0c eee 5

ES RS BEB 0) 5, 11

Bee yc Pe, Ge OS. SSC CIFTD).. 2. ww vc cenee 5, 8,9, 11, 14

Lindsey v. Normet, 405 U.S. 56 (1972) .........e ee eeeee 8

Lindsley v. National Carbonic Gas Co., 220U.S.61 (1911) 13

Loving v. Virginia, 388 U.S. 1(1967)......... 0c eee eee 8

Martin v. Walton, 368 U.S. 25 (1961) ..........0 eee ee.

McCarthy v. Philadelphia Civil Service Commission, 424

et leche < ck nena cenicenstvvces 10

McDonald v. Board of Election, 394 U.S. 802 (1969) ..... 13

Memorial Hospital v. Maricopa County, 415 U.S. 250

CUCL CERURE Rhee doses ceececscccescess 10

Mishkin v. New York, 383 U.S. 502 (1966) ............-. 15

Moore v. Supreme Court of South Carolina, 447 F. Supp.

527 (D.S.C. 1977), aff’d, 577 F.2d 735 (4th Cir.), cert.

SE ET PO CESTOD, pc cc esc cccccnsccccees 14

Norfolk and Western Railway Co. v. Beatty, 423 U.S.

1009, aff’g 400 F. Supp. 234 (S.D. Ill. 1975)......... 5,9

Parham v. Hughes, 441 U.S. 347 (1979) .........50 eee 13

EE) ae 8

San Antonio Independent School District v. Rodriguez,

slew cccbbcesedsveccsaceceses 8,9

Sanks v. Georgia, 401 U.S. 144 (1971). ........ 0. eee eee 5

Shapiro v. Thompson, 394 U.S. 618 (1969)...........4-. 10

Sosna v. Iowa, 419 U.S. 393 (1975) ....... cece eee ees 14

Texas v. New Jersey, 379 U.S. 674 (1965) ..........0455. 2

Union National Bank v. Lamb, 337 U.S. 38 (1949) ....... 15

United States v. Fruehauf, 365 U.S. 146(1961) ......... 5

United States v. Moser, 266 U.S. 236 (1924) ............. 16

Table of Authorities Continued

CASES: PAGE

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)... 13

Western Union Telegraph Co. v. Foster, 247 U.S. 105

NEU ey Sc ee Ray ws aa eu et 4, 16

Weinberger v. Salfi, 422 U.S. 749 (1975)... 0... cece cece 13

Wilson v. Wilson, 416 F. Supp. 984 (D. Ore. 1976), aff'd,

oN SE NII Chalet OPEN tae eae 12

STATUTES:

es a PE RPT x vo v Soc so os b oo bd obec ede 12

Pe RIOD oe nk ras 0 8s bh xO eddliowe vena. 7

Pees es PRION 657 60h ba cb decane ekitces 7

Pa ee a ie iey ae tte ey cly pee eta ey 7

ee Le LL 1): an a ae nee ee ae 7

Pee Ns CPSP ED CEOTOD soy bcc vessccduvaweccee vies 7

MISCELLANEOUS:

Restatement (Second) of Judgments §88.7 (Tentative Draft

Pe NG LOT is Se veers ated bo ae ee 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1040

I. MEYER PINCUS, Appellant,

Vv.

EsTATE OF LEO GREENBERG, THE HONORABLE

PAUL M. MARKO, III and THE HONORABLE

Leroy H. Mog, Appellees.

On Appeal From The Supreme Court Of Florida

BRIEF FOR AMICUS CURIAE THE STATE

OF FLORIDA

INTEREST OF AMICUS CURIAE

: The Attorney General of the State of Florida, pur-

suant to Rule 36.4, Rules of the Supreme Court of the

United States, respectfully submits this brief on behalf

of the State of Florida as amicus curiae urging that this

appeal be dismissed on the grounds that it fails to pre-

sent a substantial federal question or a justiciable case

or controversy. Alternatively, the State of Florida sub-

mits that the judgment of the Supreme Court of Florida

should be summarily affirmed.

The appellant seeks in this action to declare un-

constitutional statutes of the State of Florida precluding

a nonresident who is not a relative of the decedent from

serving as personal representative of a Florida estate.

However, because the appellant did not name as a party

below the State or any other person interested in defen-

ding the statutes, the State has a vital interest in appear-

ing as amicus curiae in support of its legislation. '

STATEMENT OF THE CASE

Leo Greenberg moved to Florida in 1972 and died a

resident of that state in 1978.’ His will designated the

appellant, who drafted the will, as an alternate choice

for co-personal representative. The appellant, I. Meyer

Pincus, is a resident of New York who is not a relative

of the decedent. He petitioned the Florida probate court

for appeintment as co-personal representative of the

estate upon the withdrawal of an original nominee, but

the petition was denied in accordance with Florida’s

statutory requirement that a personal representative be

either a relative of the deceased or a Florida resident.

Mr. Pincus, while serving as an attorney for the

estate, appealed the order denying his appointment,

' The State of Florida wishes to preserve its right to intervene

pursuant to Rule 28.4(c) if the judgment below is not summarily af-

firmed or the appeal dismissed.

2 His estate consisted of Florida real estate, deposits in Florida

banks, and intangible personal property, the situs of which is in

Florida. See Florida Steel Corporation v. Dickinson, 328 So.2d 418

(Fla. 1976); Beverly Beach Properties v. Nelson, 68 So.2d 604 (Fla.

1953), cert. denied, 348 U.S. 816 (1954); cf. Texas v. New Jersey,

379 U.S. 674 (1965) (intangibles escheat to state of owner’s

domicile).

3

naming only the estate as an adverse party. The

qualified personal representative of the estate and the

primary beneficiaries consented to and supported the ap-

pellant’s appointment as personal representative. Neither

the appellee estate nor any other party has presented any

arguments in opposition to the appellant’s claims.

The Attorney General filed on behalf of the State

of Florida a motion to intervene as a party at the ap-

pellate level, but was allowed to participate only as

amicus curiae. The judges who denied the appellant’s

appointment were named as ‘‘narties’’ only upon filing

of the Notice of Appeal to this Court.

In the probate court proceedings, Mr. Pincus

asserted that the Florida statutes violated the privileges

and immunities clause and the fourteenth amendment of

the United States Constitution. During the appeal pro-

ceedings, the decision in Fain v. Hall, 463 F. Supp. 661

(M.D. Fla. 1979), was rendered, holding that due pro-

cess requires that a nonresident nominee be afforded a

hearing to demonstrate his ability to perform as per-

sonal representative. After that decision was rendered,

appellant contended that the Fain decision worked an

‘‘estoppel by judgment’’ binding the Florida courts. The

appellant did not assert in the state court proceedings

that the Florida statutes violated the commerce clause or

expressly claim that the probate court’s denial of his ap-

pointment violated the full faith and credit clause. The

Supreme Court of Florida rejected the appellant’s con-

stitutional claims and upheld the Florida statutes.

SUMMARY OF ARGUMENT

There is no case or controversy presented by the ap-

peal because there is no adverse party to the suit.

J

Furthermore, the appeal presents no substantial

federal question. The Constitution commits to the states

the regulation of the administration of estates and the

devolution of property within their jurisdictions, There

is no federally protected fundamental right to appoint a

personal representative, and, in the context of this case,

there is no infringement of the fundamental rights to

travel and to earn a livelihood. The statutory preclusion

of unrelated nonresidents from serving in the important

fiduciary capacity of personal representative is com-

parable to residency requirements for the practice of law

and is rationally related to an important state goal, the

effective and efficient administration of estates. Thus,

the statutes do not deny any citizen equal protection,

due process or the privileges and immunities of Florida

residents. Appellant’s commerce clause claim was not

timely raised and is without merit. His full faith and

credit claim was not expressly asserted below, is not a

proper issue for appeal, and is without merit.

ARGUMENT

I. THE APPEAL PRESENTS NO _ JUSTI-

CIABLE CASE OR CONTROVERSY.

There have never been any adverse proceedings be-

tween I. Meyer Pincus and the only nominal adverse par-

ty below, the Estate of Leo Greenberg, and the presence

of an amicus is insufficient to create a justiciable con-

troversy. See Auto Workers v. Scofield, 382 U.S. 205

(1965); Western Union Telegraph Co. v. Foster, 247

U.S. 105 (1917). Since the Court is being asked to

render an advisory opinion on important state legislation

in a case in which the record has not been fully

developed through the presence of an adverse party

undertaking to uphold the Florida statutes, it should

5

decline to hear this appeal. See Sanks v. Georgia, 401

U.S. 144 (1971); United States v. Fruehauf, 365 U.S.

146, 157 (1961); see generally GTE Sylvania, Inc, v.

Consumers Union, 444 U.S. 818 (1980).

Il. THE APPEAL PRESENTS NO SUBSTAN-

TIAL FEDERAL QUESTION.

A. The Administration Of Estates Is Commit-

ted By The Constitution To The Several

States.

The Constitution commits to the states the power to

control and regulate the disposition of property within

their jurisdictions and the administration of the estates

of their citizens. See Lalli v. Lalli, 439 U.S. 259 (1978);

Labine v. Vincent, 401 U.S. 532 (1971). Thus, supervi-

sion of testamentary dispositions is a legitimate and im-

portant state interest. Nothing in the Constitution for-

bids a state from limiting or even abolishing the power

to make a testamentary bequest of property within its

jurisdiction. /rving Trust Co. v. Day, 314 U.S. 556, 562

(1942).

Supervision of the administration of estates is a

governmental function which, like the administration of

justice, is entrusted to the courts. In both instances, the

state has a significant and even compelling interest in

ensuring that individuals acting in a representative

capacity can fulfill their fiduciary obligations. A state’s

authority to regulate the practice of law is well recogniz-

ed, see, e.g., Goldfarb v. Virginia State Bar, 421 U.S.

773, 792 (1975), and simple residency requirements for

admission to state bars have been consistently found not

to infringe any fundamental rights. Leis v. Flynt, 439

U.S. 438 (1979); Norfolk and Western Railway Co. v.

Beatty, 423 U.S. 1009, aff’g 400 F. Supp. 234 (S.D. Ill.

6

1975); Brown v. Supreme Court of Virginia, 414 U.S.

1034, aff’g 359 F. Supp. 549 (E.D. Va. 1973). Appeals

which present constitutional attacks on residency re-

quirements for state bar admission are uniformly

dismissed for failure to present a substantial federal

question, Martin v. Walton, 368 U.S. 25 (1961); Kovrak

v. Ginsburg, 358 U.S. 52 (1958), and this appeal should

be treated in like fashion.

The state’s interest in the appointment of a personal

representative is in many respects even more compelling

than the general regulation of the practice of law. The

state’s role in limiting the individuals who may serve as

personal representatives is equivalent to that in appoin-

ting a qualified guardian to represent a minor or an in-

competent, or in selecting a receiver in insolvency pro-

ceedings. In each case, the state must assure that the in-

dividual will protect the interests of one who is not pre-

sent or able to guide the representative or the court or

to personally evaluate the representative’s performance.

The discretion to make or approve the appointment of a

personal representative has traditionally been delegated

to the courts, and the states have legislatively restricted

the class of persons from which the selection can be

made to exclude those not best situated to serve.

By enacting the statutes in issue, the Florida

legislature concluded that unrelated nonresidents are not

in the best position to perform the duties of personal

representatives. The administration of a decedent’s

estate is an intensely localized matter, requiring that the

personal representative be well informed on local issues

such as the scope of local property values, the identity

of convenient and reputable appraisers, and local

business practices. He must also be readily available to

the court, beneficiaries and creditors in order to answer

7

questions and take all necessary and timely actions.’

Because this regulation of the process contributes to the

effective, efficient and expeditious administration of the

estate, it is, at a minimum, substantially related to this

legitimate and compelling state goal.

B. No Fundamental Rights Are Infringed By

The Florida Statutes.

(1) There is no fundamental right to ap-

point a personal representative.

This Court has steadfastly resisted efforts to expand

fundamental rights and has confined that concept to

> The availability of the personal representative, defined more

broadly than mere amenability to service of process, is important to

the effective administration of estates. Under Florida’s statutory

scheme, the personal representative must take possession of the

estate assets, Fla. Stat. §733.607 (1978), must perform, compromise

or refuse performance of the decedent’s contracts, id. §733.612(2),

and must secure appraisals of assets. /d. §733.605. In the area of

creditors’ claims, the representative has an obligation to creditors

and beneficiaries, id. §733.612(20) and (24), and must evaluate

claims against the estate and, to preserve decedent’s rights, object

to them within four months of the first publication of notice of ad-

ministration and, where necessary, sue to recover assets. He must

consult with beneficiaries on a continuing basis regarding their

needs and the timing, nature and tax aspects of distributions. He

must file tax returns and reports and inventories required by the

local probate court. /d. §733.604(1). The statutes empower the per-

sonal representative, without a court order, to continue any unin-

corporated business of the decedent for a period, id. §733.612(22),

and to sell the decedent’s property under a testamentary power to

do so. Id. §733.613. The Florida courts must supervise these ac-

tions, and the Florida legislature can, on the basis of practical ex-

perience, resonably conclude that administration by Florida

residents should be more effective since residents are more likely

than nonresidents to be responsive to the Florida judiciary.

8

those rights which are explicitly or implicitly guaranteed

by our federal Constitution. Thus, such important in-

terests as education and housing are not deemed to be

fundamental rights. See, e.g., San Antonio Independent

School District v. Rodriguez, 411 U.S. 1 (1973) (educa-

tion); Lindsey v. Normet, 405 U.S. 56 (1972) (housing).

The Constitution does not expressly provide a right to

appoint a personal representative to oversee one’s

testamentary disposition, and the constitutional language

cannot be construed to imply such a fundamental right.

There is not even a fundamental right to make a

testamentary disposition of one’s property or to receive

a testamentary devise. These are statutory privileges

created by the states pursuant to the power constitu-

tionally reserved to them. Consequently, there can be no

fundamental right to appoint a personal representative

to oversee that testamentary disposition and the ad-

ministration of one’s estate.‘

The appointment of a personal representative can-

not be equated with the intimate family decisions

regarding procreation, divorce and marriage addressed

respectively by this Court in Roe v. Wade, 410 U.S. 113

(1973), Boddie v. Connecticut, 401 U.S. 371 (1971), and

Loving v. Virginia, 388 U.S. 1 (1967). The Constitution

does not create a broad category of fundamental rights

under the banner of ‘‘family decisions.’’ Decisions

regarding procreation, divorce or marriage have been

deemed by the Court to be fundamental only because

they are encompassed by the constitutional right of

privacy. The right of privacy cannot logically be expand-

ed to include the choice of a personal representative.

‘This Court has recognized that there is no right of federal

origin allowing one to choose an attorney who does not meet state

residency qualifications. E.g., Leis v. Flynt, 439 U.S. 438 (1979).

9

The selection of a family doctor or lawyer is a more

vital family decision than the selection of a personal

representative. Yet it is well settled that even these deci-

sions do not involve fundamental rights, Leis v. Flynt,

439 U.S. at 443, Brown v. Supreme Court of Virginia,

359 F. Supp. at 559 and 562 n.15, and cannot be given

that status simply because they may be remotely related

to some constitutionally protected right. Cf. San An-

tonio Independent School District v. Rodriguez, 411

U.S. 1 (1973). As stated in Norfolk and Western

Railway Co. v. Beatty, 400 F. Supp. 234, 237 (S.D. Iil.),

aff’d, 423 U.S. 1009 (1975), ‘‘No constitutional basis is

found to grant a civil litigant, patient or other client the

right to compel the admission of a nonresident to the

practice of law, medicine, or other profession within a

state.’’ Likewise, there can be no constitutional basis for

a right to appoint a personal representative simply

because that action may affect family members.

Even if there were some fundamental right to ap-

point a personal representative, it would be the

testator’s right. A denial of any such right of the

testator could result in injury only to the protected in-

terests of the estate or its beneficiaries, who are not ap-

pellants in this suit. Mr. Pincus personally has suffered

no such injury, and therefore has no standing to assert

infringement of any right of the decedent. See Flast v.

Cohen, 392 U.S. 83, 98-101 (1968); Baker v. Carr, 369

U.S. 186, 204 (1962).

(2) The right to travel is not unconstitu-

tionally restricted by the Florida

statutes.

Although the right to travel throughout the states is

a fundamental right protected by the Constitution, state

10

statutes are subject to strict scrutiny only if they

somehow penalize the exercise of that right. See

Memorial Hospital v. Maricopa County, 415 U.S. 250,

256-57 (1974); Shapiro v. Thompson, 394 U.S. 618, 631

(1969). Mr. Pincus complains that Leo Greenberg’s right

to travel was unconstitutionally penalized because his

chosen personal representative was no longer qualified

to serve when Mr. Greenberg moved to Florida.

However, the right to travel requires only that a person

who moves from one state to another be given benefits

equal to those enjoyed by residents of the state to which

he travels, not superior rights that he enjoyed in the

state from which he came. Califano v. Torres, 435 U.S.

1 (1978). All citizens of Florida are prohibited by the

Florida statutes from having unrelatea nonresidents

serve as personal representatives. Thus, the statutes may

make Florida a less attractive destination to the testator,

but they do not unconstitutionally restrict his fundamen-

tal right to travel. This Court has consistently recogniz-

ed that simple residency requirements do not unconstitu-

tionally impact on the right to travel. McCarthy v.

Philadelphia Civil Service Commission, 424 U.S. 645

(1976); Maricopa County, 415 U.S. at 255; accord,

Brown v. Supreme Court of Virginia, 359 F. Supp. at

561.

In any event, the appellant has no standing to assert

an unconstitutional restriction of the testator’s right to

travel. An infringement of that right would not result in

any direct injury to any constitutionally protected in-

terest of the appellant.

1]

(3) The appeliant’s fundamental right to

pursue a livelihood is not infringed by

the Florida statutes.

Appellant’s fundamental right to pursue a

livelihood gives him no more constitutional right to

serve as a personal representative in Florida than he has

to practice law in Florida. Residency requirements for

bar admission do not violate a nonresident’s fundamen-

tal right to earn a livelihood. See Leis v. Flynt, 439 U.S.

438 (1979); Goldfarb v. Virginia State Bar, 421 U.S.

773; 792 (1975); In re Griffiths, 413 U.S. 717, 722-23

(1973); Brown v. Supreme Court of Virginia, 359 F.

Supp. 549 (E.D. Va. 1973). A residency requirement for

personal representatives likewise cannot violate that

right.

C. Since No Fundamental Right Is Infringed,

The Florida Statutes Need Only

Reasonably Serve An Important State In-

terest.

(1) The Florida statutes do not deny the

decedent or the appellant equal pro-

tection.

Regardless of the level of scrutiny applied, the

Florida statutes do not violate the equal protection

clause because the residency requirement is substantially

related to the State’s compelling and important interest

in the efficient and effective administration of estates.

See Lalli v. Lalli, 439 U.S. 259 (1978) (equal protection

allows staté to restrict illegitimate’s right of inheritance);

In re Emery, 59 Ohio App.2d 7, 391 N.E.2d 746 (1978)

(statutory preclusion of nonresident executors held not

to deny equal protection). Cf. Brown v. Supreme Court

12

of Virginia, 414 U.S. 1034, aff’g 359 F. Supp. 549 (E.D.

Va. 1973) (residency requirement for bar admission held

not a denial of equal protection); accord, Wilson v.

Wilson, 416 F. Supp. 984 (D. Ore. 1976), aff'd, 430

U.S. 925 (1977).

The Florida legislature could rationally decide that

requiring a personal representative to be a Florida resi-

dent or a relative of the decedent would better ensure

that creditors, beneficiaries and assets will be protected

and that the estate will be administered without needless

delays or costs.’ The exception for nonresident relatives

does not indicate, as appellant contends, that the

residency requirement is illogical. A relative named by a

testator is in most circumstances a trusted family

member who is also a primary beneficiary of the estate

or has a personal interest in the welfare of other

beneficiaries. He is more likely to be in close contact

with beneficiaries and creditors and to make himself

available in the state of the decedent’s residence to pro-

tect his personal interest in the administration of the

estate. Therefore, his interest in the expeditious, effi-

cient and effective administration of the estate counter-

balances any disadvantage of having a nonresident per-

sonal representative.

‘ Contrary to the appellant’s assertions, a bonding requirement

inadequately protects the estate from potential loss. Florida law

specifically provides for waiver of the posting of bond by a per-

sonal representative. See Fla. Stat. §733.402 (1978). Such a waiver

is frequently inserted in wills, and was indeed inserted in the

Greenberg will. In addition, the fact that a nonresident personal

representative is amenable to service of process in Florida courts in

some instances affords inadequate protection. No provision of the

Florida statutes establishes service in an action for mismanagement

of the estate by a nonresident personal representative. His failure to

perform his duties properly could, therefore, result in detriment to

the estate and loss to the beneficiaries and creditors.

13

The fact that a particular unrelated nonresident

may be able to perform as well as a nonresident relative

does not make the statutory classification illogical. As

the Court stated in Lindsley v. National Carbonic Gas

Co., 220 U.S. 61, 78 (1911), ‘‘A classification having

some reasonable basis does not offend against [the equal

protection] clause merely because it is not made with

mathematical nicety, or because in practice it results in

some inequality.” See Parham v. Hughes, 441 U.S. 347,

357-58 (1979).

(2) The Florida statutes do not deny the

decedent or the appellant due process

of law.

The Florida statutes do not establish an irrebuttable

presumption that nonresidents are not competent to

serve as personal representatives, but merely reflect a

legislative determination of the most effective method

for the administration of estates. Under the Florida

statutes, the competence of the appellant is irrelevant.

Even if the statutes are analyzed as containing a

presumption, however, due process does not require that

the appellant be given a hearing to demonstrate his

qualifications because the Florida statutes do not im-

pinge upon fundamental rights or involve a suspect

classification. It is only essential that there be some ra-

tional connection between the fact of nonresidency and

the presumption that estates are better administered by

residents or family members, and that this connection

not be so unreasonable as to be arbitrary. Usery v.

Turner Elkhorn Mining Co., 428 U.S. 1 (1976);

Weinberger v. Salfi, 422 U.S. 749 (1975); McDonald v.

Board of Election, 394 U.S. 802 (1969). As already

noted, the Florida legislature can rationally conclude

that unrelated nonresidents are not best suited to serve

14

as personal representatives. Thus, the statutes are

neither arbitrary nor unreasonable. See Leis v. Flynt,

439 U.S. at 443-45; Sosna v. Iowa, 419 U.S. 393, 409-10

(1975); Moore v. Supreme Court of South Carolina, 447

F. Supp. 527 (D.S.C. 1977), aff’d, 577 F.2d 735 (4th

Cir.), cert. denied, 439 U.S. 984 (1978).

D. The Florida Statutes Do Not Deny The

Appellant The Privileges And Immunities

Of The Citizens Of Florida.

Mr. Pincus apparently claims that he was denied

the privilege of serving as a personal representative in

Florida, and that reservation of that activity for

residents or relatives of decedents violates the privileges

and immunities clause. Yet the privileges and immunities

clause protects against only those distinctions between

residents and nonresidents which hinder the formation,

purpose or development of a single union of states and

requires that nonresidents be treated equally with

residents only where the nonresident is seeking to

‘engage in an essential activity or exercise a basic

right.’’ Baldwin v. Montana Fish and Game Commis-

sion, 436 U.S. 371, 387 (1978); see Hicklin v. Orbeck,

437 U.S. 518 (1978).

Serving as a personal representative does not rise to

the level of an essential activity or basic right, nor can it

be said to be a privilege or immunity bearing upon the

vitality of this nation as a single entity. Accordingly, ap-

pellant’s appointment is not protected by the privileges

and immunities clause of the Constitution. See In re

Mulford, 217 Ill. 242, 75 N.E. 345 (1905) (statutory

preclusion of nonresident executors held not to violate

the privileges and immunities clause).

15

E. The Appellant’s Claim Under The Com-

merce Clause Is Not Properly Before This

Court And Is Wholly Without Merit.

The appellant did not raise his commerce clause

claim in the Florida courts and has therefore failed to

preserve this issue for review by this Court. See Car-

dinale v. Louisiana, 394 U.S. 437 (1969).

Even if the commerce clause claim were properly

raised below, it has no merit. Denying the appellant the

right to serve as the personal representative of an estate

does not ‘‘materially restrict the free flow of commerce’’

and has at most only a de minimus and incidental effect

upon interstate commerce. See Goldfarb v. Virginia

State Bar, 421 U.S. at 792; Head v. New Mexico Board

of Examiners, 374 U.S. 424 (1963); Huron Portland Ce-

ment Co. v. City of Detroit, 362 U.S. 440 (1960).

F. The Appellant’s Claim Under The Full

Faith And Credit Clause Is Not Properly

Before This Court And Is Wholly Without

Merit.

The appellant did not expressly assert a full faith

and credit claim in the Florida courts and has therefore

also failed to preserve this issue for review.

Moreover, the appellant’s full faith and credit claim

does not address the constitutional validity of the

Florida statutes but is an attack upon the action of the

Supreme Court of Florida in not following the Fain

decision. This issue is not a proper subject for appeal,

and should be disregarded in determining the propriety

of ‘eviewing this case. See DeBacker v. Brainard, 396

U.S. 28 (1969); Mishkin v. New York, 383 U.S. 502,

512 (1966); Union National Bank v. Lamb, 337 U.S. 38

(1949).

16

Furthermore, the judgment in Fain does not bind

the appellee estate, which was neither a party nor in

privity with parties to that suit.* Appellant’s contention,

which is in effect an assertion that the judgment of the

first court to decide an issue of law may be used by a

stranger to the first action to estop a defendent also a

stranger to the first action, is patently erroneous. A

federal district court’s declaratory judgment on unmixed

questions of law regarding the constitutionality of a

state statute of public importance does not estop that

state’s highest court from reaching an independent deci-

sion. See United States v. Moser, 266 U.S. 236, 242

(1924); Restatement (Second) of Judgments §88.7 (Ten-

tative Draft No. 3, 1976).

*° The State of Florida, as an amicus in this case, is not a party

for purposes of res judicata or collateral estoppel. See Auto

Workers v. Scofield, 382 U.S. 205 (1965); Western Union Telegraph

Co. v. Foster, 247 U.S. 105 (1917). The appellant was not a party

to the Fain case. The appellees Paul M. Marko, III and Leroy H.

Moe were not named as parties in the state court proceedings in this

case.

17

CONCLUSION

For the reasons stated herein, either this appeal

should be dismissed or the judgment of the Supreme

Court of Florida should be affirmed.

Respectfully submitted,

JIM SMITH

Attorney General of the

State of Florida

BRUCE BARKETT

Assistant Attorney General

THOMAS A. BEENCK

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

Suite 1501 — The Capitol

Tallahassee, Florida 32301

(904) 488-9935