Amicus Curiae Brief — Marshall v. Marshall

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

”)

No. 04-1544

IN THE

Supreme Court of the United States

VICKIE LYNN MARSHALL,

Petitioner,

Vv.

E. PIERCE MARSHALL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE PHILANTHROPY ROUNDTABLE

AS AMICUS CURIAE

SUPPORTING THE RESPONDENT

RONALD A. CASS *

CASS & ASSOCIATES, PC

10560 Fox Forest Drive

Great Falls, Virginia 22066

* Counsel of Record (703) 438-7590

WILSON-EPES PRINTING COo., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

1ABLE OF AUTHORITIES

INTEREST OF AMICUS

STATEMENT

SUMMARY OF ARGUMENT

\RGU MENI

1 CONGRESS DID NOT EXTEND FEDERAI

ILRISDICTION TO MATTERS WITHIN

THE SPECIAL COMPETENCE OF STATI

PROBATE COURTS

\. Precedents recognize the absence of ted

cral jurisdicuion over matters speciilly

given to state probate courts

B. Circuntt court precedents also support

absence of federal court jurisdiction over

matters specially given to state probat

Il PARTICULAR CONCERNS WITH MAI

IERS SPECIALLY GIVEN TO STATE PRO

BATE COURTS SUPPORT DECISION THAT

THERE IS NO FEDERAL JURISDICTION

\. Special concerns attach to dispos teow

AIL AL ik } aSSCLS

B. In is im } COMSISTCNCS nd pudict

economy support special jurisdictro

STAC probate COUTTS

( Considerations of legal comsistency ut

ldichal CcoMOMY support he propate ee

TABLE OF CONTENTS — Continued

ABSENCE OF JURISDICTION FOR MAI

TERS SPECIALLY GIVEN TO STATE

PROBATE COURTS IS CONSISTENT

WITH OTHER DOCTRINES ......0000.00

1D.

BANKRUPICY

Federal jurisdiction ts limited and does not

extend to all possible causes 000.0000...

Doctrines require courts to avoid unneces-

sary interference with state proceedings......

*. Aspects of state law often affect the scope

of federal rights and federal jurisdiction......

Even under the narrowest construction of

the probate exception. federal jurtsdiction

iti,

JURISDICTION = DOES

NOT IMPOSE A DIFFERENT RULE FROM

DIVERSITY JURISDICTION 0.0.

NO SPECIAL CIRCUMSTANCE COLN-

SELLING LIMITATION ON THE PROBATE

blog) i 5) |. | re

I Ne taiicinsncitestnasiten Ahiieceticttteantivieeniniicsabinenen

Pape

ill

TABLE OF AUTHORITIES

Cuses:

Page

Ankenbrandt v. Richards, 504 U.S. 689 (1992)... 1X. 30)

Ashton v. Josephine Bay & C. Michael Paul

feound., Inc., 918 F.2d 1065 (2d Cir. 1990)....... 29

Bank of the United States v. Deveaux, 5 Cranch

FF SRR eae Cn aC 25

Blakeney v. Blakeney, 664 F.2d 433 (Sth Cir.

aN a is eaciiacinenerieniadabadsiabaniiilciat hii hetininesbaiestcdenaiitionisn i ae bs)

Breaux v. Dilsaver, 254 F.3d 533 (Sth Cir. 2001)... 14

Broderick’ s Will, In re, 88 U.S. (21 Wall.) S03

Pay a iiccecninsessicaascciinisesteibestiasenniisidaueatnhidaaiidtdaetenee 8, 22

Casual Male Corp. In re, 317) B.R. 472

ES ee n 27

Colorado River Water Conservation Dist. \

United States, 424 U.S, 800 (1976) oo... 2|

District of Columbia Court of Appeals v. beld.

Ge rs Oe Ce Rcrissisctcctentnctcsccscinccesncne I

Dragan v. Miller, 679 F.2d 712 (7th Cir. 1982).

cert. denied, 459 U.S. 1017 (1982).......... 12. 18. dk 29

Ellis v. Davis, VO9 ULS. 485 (1883) 22

Farrell vy. O' Brien, 199 U.S. 89 (N98) ooo. cccceeeone- 8

Georges v. Glick, 856 F.2d 97) (7th Cir, 1988).

cert. denied, 489 U.S. 1097 (1989). 14

Glickstein vo Sun Bank Miami, 922 F.2d 666

i | RTE ED Yee <n Oe 14. 29

Goere v. Paruneao, 844 F.2d 1562 (lith Cir.

1988), cert. denied, 488 US. 1034 (1989)..0...... 28

Golden ex rel. Golden v. Golden, 382 3d 348

SR is. MI clilesisecicacdacdasdddinnicinliassechinimesasebades 14.21.24

Harris v. Zion Savings Bank & Trust Co. 317

Bh as SU TE Sonsiinniteidesnestbidiincrtsditassscniciaiees $.6.8,9, 25

Iless v. Reynolds, (113 U.S. 73 CIBBS) 2s

Mickey v. Duffy, 827 F.2d 234 (7th Cir. 1987)... as

TABLE OF AUTHORITIES — Continued

Page

fepard ». NBD Bank, 384 F.3d 232 c6th Cir.

BOE sccisniniceotaneniestinastaitaiiaiadedlionalnanmeagaiiieainaiia 14. 18

Luzineer. In re, 322 B.R. 108 (8th Cir, BAP

SED ie Rinikinisésindorbinbabeniniiiisvathdadabedataemelatioe 26

Vangiert v. Mangieri, 226 F.3d 1 (ist Cir. 2000),

cert. denied. 531 U.S. L080 (2001)... 4

Marbury v. Madison. § U.S. (1 Cranch) 137

Sei scenceatoimntsnsiivetesettidtnsididiinediipits lemme 20

Markham vy. Allen, 326 U.S. 490 (1946)... passim

McCardle. kx Parte. 74 U.S. (7 Wally S06

Pe Ricracensestntsnicensnnennnasiatiimmnsepiinastisanidigimapadiiadés 20

McKibben vo Chubb, 840 F.2d 1525 ClOth Cir,

IN ccicccsntcntinncctasnstternnnsntiasinmuindpeiidiidialidaiaieciicciee: 13

Moon, In re, 211 B.R. 483 (S.D.N.Y. 1997) 0000... 2%

Moore v. Graybeal, 843 F.2d 706 (3d Cir. LO8S).. 2

Voser v. Pollin, 294 F.3d 335 (2d Cir. 2002) ...13. 14. 29

Railroad Comm'n of Texas v. Pullman Co.. 312

CE, GA ED seacitessnivcecpesectetincnadicthisiiatinitiniitiaas et

Rienhardt v. Kelly, \@4 F.3d 1296 (10th Cir.

Fe ccsndsecnabapsdancitictensipienisatceonrnnes suabtinginianieaiasien 14.15

Rooker v. Fidelity Trust Co. 203 US. 413

| (eT TENT 2I

Siamss v. Jensen, 294 F.3d 994 (8th Cir, 20024000... 14

Stary v. Rupp. 421 F.2d 999 (6th Cir. 1970)... 18

Storm v. Storm, 328 F.3d 941 (7th Cir. 2003) 000... 12.14

Sutton v. Enelish, 246 U.S. 199 CLOT). %. 22. 24

thompson v. Deloitte & Touche, 9O2 S.W.2d 13

CECH. FD. FID acicecnnettersnescerensnnrsacntsoctttpetiiniass 17

lent vy. Petropoulous, 056 F.2d 212 (oth Cir.

FD cicciserncsonssswvmansabbniiastagpesisninsacatbeeadedddbiaedunideenteines 26

lurja vy. Lara, V8 3d 1006 (4th Cir, 1997) TE 14. 1S

TABLE OF AUTHORITIES- —Continued

Statutes:

Trading with the Enemy Act, 50 U.S.C. App. § |

GB SIDED, .ccossensecessnsesenstinmnimnsieuinianiadiaittonietadateqnnisiets

GE WEA. BAe ccemnnnscserntciasitaitidanincaanitsdnliiatininiintin

SOU BA. Bei cccncssecsnenttiniattaentncsiiiiidiians

BRU BG. & Tee icctsiniittincsiniainraceabaiiananien

SB U.S. © USBBNOD cccccrecssescsess Seamnnsnosnniaidesiitetenlaal

Be UK. | Tipe sccctnstssstnsiciiiiniaeiannsieiianeneitiai

Be UE. G Tee cicccccsintinnsanninnuaniniteiintenaind

2B USA. F TD nccmteuninninncinnsnsien

SS UBE-. © GUe secicsttnicccistnctaiinatinanisidimiiagatids

Mich. Comp. L. Ann, $700.1 302 .....ccccceeeees

COD. CEE, Gree nunesnicieteticiscrinisennieinstacebigasmtmasiitineieiads

Wen. Foe. Ci 6 Bi ccciiniensmionsnedmmaninndn

Miscellaneous:

William L. Norton, Jr., Norton Bankruptcy Law

ht fe

Note. A Prudential Exercise: Abstention and the

Probate Exception to Federal Diversity Juris.

diction, 104 Mich. L. Rev. 134 (2005)

eee ee eee

rupe

ée

”)

INTEREST OF AMICUS |

The Philanthropy Roundtable is a non-profit organization

of 500 philanthropic foundations and individual donors. The

Philanthropy Roundtable is committed to preserving donor

iment and to helping philanthropists ensure that their inten-

tions are followed. Members of The Philanthropy Round-

table are affected by legal rules that govern the ability of

donors to direct (and of charitable foundations to receive)

charitable gifts and bequests. Amicus has a substantial stake

in promoting legal rules that enhance the security of char-

table gifts and bequests, that reduce opportunities for litiga-

tion over such gifts in multiple fora, that reduce the costs

associated with litigation over gifts and bequests, and that

allow donors to know the law that will govern disposition of

charitable gifts.

The question before this court) when federal courts will

find jurisdiction over matters that are at the core of probate

determinations—-affects these interests. Expanding tederal

jurisdiction in the manner advocated by Petitioner would

increase the probability of multiple suits respecting charitable

bequests, of forum-shopping by parties seeking to contest

such bequests, and of extended delays in finalizing bequests.

It also would reduce the certainty of the liw governing

charitable bequests. Amicus and the philanthropic founda

tions and donors it represents support continuation of this

Court's traditional respect for state probate determmations.

STATEMENT

Stripped to its essentials, this case ts a simple will contest.

The questions that were central to the resolution of the clams

The parties to this case have filed with the Clerk of this Court written

letters giving blanket consent to the tiling of amicus bricts. Ehis brict was

not authored in whole or in part by Counsel for any party. and monetar

support for the preparation and submassion of thes briet has heen prox ided

entirely by aencus curiae, ts Members, and tts Counsel

’

presented in federal court were virtually identical to those

pres nted in state probate court: Was there a valid will? Did

the decedent Wave the requisite Capacity to cxceute the estate

planning documents? Was there fraud in the creation or

alteration of these documents? Whose signature was on the

documents? Was an enforceable promise made to the survis

ing spouse that should have been the basis for a transter of

property to her from the decedent's estate? Both the state and

federal claims turn on the answers to these questions.

Resolution of the legal issue before this Court, thus. must

be rooted in understanding that, after all ts said and done

(and. during more than a decade of litigation, a great deal has

heen said and done), this is at its core a straightlorward

contest over the will of J. Howard Marshall IJ. Howard),

Petitioner. Vickie Lynn Marshall (better known by her stage

name. Anna Nicole Smith). seeks to invalidate J. Howard's

will which left his substantial estate to several relatives and to

selected charities, but not to Vickic. his wife tor the last

fourteen months of his life. Pet. App. 3. 11. 30. Respondent,

|. Prerce Marshall (Pierce), J. Howardes son and principal

hem, secks to uphold the will. Pet. App. EL. The issues in the

case all revolve around this contest.

The case is complicated by three facts. First. J. Howard's

will was not the sole indeed, not the primary — estate plan

ning document. A living trust was the principal vehicle tor

disposing of his assets following his death. Pet. App. 4

Second. mm addition to challenging the will and associated

ust directly. Vickie has styled some of her complatits as tort

actions for interference with an expected gift. Jt App. 28;

Pet. App. 12-13, 31-33.) These chams are directed against

Pierce. who ts both the primary heir to J. Howard's estate and

also the executor of the estate, and cannot be resolved without

addressing the same questions Vickie raises in challenging

the will and trust directly. Pet. App. 10-13.

Third, after Vickie filed actions in state probate court in

Texas (as a resident of Harris County, Texas) to contest J.

Howard's estate plan, Jt. App. 26; Pet. App. 11. 41. 150. she

also filed a voluntary bankruptcy petition in California,

claiming to be a resident of that state. Pet. App. 2. 12. Her

asserted reasons for filing were the need to satisty a default

judgment obtained by her own personal assistant: and her

failure to inherit from J. Howard's estate. Pet. App. 41¢n.3).

1S0-151(n.3), 202. The primary debt that Vickie claimed

required the bankruptcy filing later was settled for an amount

that made the proceeding unnecessary. Pet. App. 41(n.3).

150-15 1(n.3), 202(n.3).

Pierce did, however, ask the bankruptcy court to declare

that bankruptcy would not discharge obligations that might

wise from potential defamation claims against Vickie. and

Vickie then asserted a panoply of claims against Pierce

mirroring those made in the Texas probate litigation. Pet.

App. 12. 42-43, 152. These included assertions that Pierce

held J. Howard against his will. forged J. Howard's signature.

altered testamentary documents, and generally interfered with

Vickie’s expectancy that J. Howard would execute a new

provision for transferring monies to her to take cflect on his

death. Jt. App. 23-24; Pet. App. 5. 12-13. State and tederal

courts gave directly conflicting answers to the questions

raised in both proceedings. Pet. App. 2.

The Texas probate court. after a five-month trial betore a

jury. concluded that J. Howard's wall was valid. that the trust

amendment was valid, that the signatures were valid and not

lorged, that J. Howard had intended to dispose of his assets 1m

accord with the terms of the trust and will, and that he did not

intend to give a gift or bequest to Vickie beyond the roughly

$6 million transferred to her. through a signed document

executed by J. Howard, as consideration for her marrying

him. Jt. App. 54-62, 93, 125-26, 129-30; Pet. App. 5-6, 18-

21. These conclusions were based on a unanimous jury

verdict, including specific findings of fact. Jt. App. Lis; Pet.

App 19. Prior to the entry of judgment in the probate case,

the bankruptey court had reached opposite conclusions on

virtually every point. Pet. App. 15-17, 43-44. 153-55. The

bankruptcy court’s conclusions were based largely on adverse

inferences drawn from its determination that Pierce had

not complied with discovery orders. Jt. App. 240-45; Pet,

App. I4, 44. 46, 153. Pierce was not permitted to intro-

duce contrary evidence on these points. Pet. App. 14-15, 44

46, 153.

The district court for the Central District-of Califormia,

taking up these matters after the Texas probate court decision,

determined that the matters in controversy between Vickie

and Pierce were not part of the core bankruptcy proceeding.

Pet. App. 171-173, 186. The district judge vacated the

bankruptey court’s judgment (Pet. App. 186) and treated the

bankruptcy judge's decision as stating merely proposed

findings of tact and conclusions of law. conducting the

proceeding before the district court de nove. Pet. App.

130n.42). 156. The judge made his own review of evidence

also mtroduced in the tar lengthier probate court trial, made

his own findings respecting Plerce’s actions and their effect

on the validity of the testamentary documents at issue in the

probate proceeding, and rendered his own conclusions

respecting issues such as the validity of J. Howard's will and

J. Howard's intentions respecting further gifts to Vickie. Pet.

App. 6, 22-23, 46, 123-27, 128 n.d). 129. 136. Those

lindings and conclusions were directly at odds with the

lindings and conclusions that had been reached by the Texas

probate court, Jt, App. 54-62. 93, 119, 124: Pet. App. 5-6.

cera Se-53.

Pierce moved tor dismissal on the ground that the matters

in controversy were within the jurisdiction of the Texas

probate court and outside the scope of the district court's

jurisdiction, Pet. App. 21. In the alternative. Pierce urged the

district court to find that the matters had been disposed of by

the Texas court in a proceeding in which the petitioner

participated fully and decisions from that court were res

judicata on the matters before the district court. Pet. App. 21.

45. The district court denied those motions. Pet. App. 22.

45, 159.

On appeal, the U.S. Court of Appeals tor the Ninth Circuit

reversed, concluding that the tissues involved im the

controversy between Pierce and Vickie are integrally related

to the probate proceeding in Texas and only tangentially

related, if at all, to the bankruptcy proceeding. Pet. App. 35.

The court specifically noted that the district court's judg-

ment rested on conclusions, essential to its decision, that the

amended testamentary trust which the Texas court had en

tered into probate was forged and fraudulent — and, therctore,

necessarily invalid--all “in direct and trreconcilable contlict

with the Texas probate court's judgment.” Pet. App. 30. See

also Jt. App. 119, 124. The court of appeals held that the case

fell within the “probate exception” to federal jurisdiction.

The court did not reach arguments respecting tissue preclu-

sion, claim) preclusion, abstention, and other matters that

might independently support the result below. Pet. App. 37.

SUMMARY OF ARGUMENT

The decision that this action is barred by the probate

exception to federal jurisdiction is consistent with decisions

of this Court. The Court has, for more than a century,

recognized an exception to federal jurisdiction for matters

within the special competence Of state probate courts. The

matters at issue in this case are squarely within the ambit of

those held previously to be excepted from federal purtsdiction.

See. ev., Markham vy. Allen, 326 U.S. 490, 494 (1946);

Harris vy. Zion Savines Bank & Trust Co... 347 US. 447.

450 (1943),

The decision below is also consistent with considerations

of judicial economy and consistency that support the probate

exception to federal jurisdiction, Contests over the assets of

decedents generate special problems. In part becaise the

critical evidence of the intention of the decedent cannot be

had through live tesimony, spurious claims against the assets

of decedents are common, Further, many different parties in

many jurisdicuons potentially can advance chums against a

decedent's estate.

ber those reasons, contests over decedents” estates gener-

ally have been required to be brought within the exclusive

jurisdiction of probate courts. ‘Those courts have developed

specktl expertise in dealing with the tysues presented in these

contests. Committing the contests to a single forum serves to

promote consistency as well as judicial economy. Although

mdi idual claimants in particular cases will preter a different

forum. as a class donors, charities, and other beneticiaries of

ettts and bequests are best served by continued recognition of

the exclusive jurisdrction of probate courts.

That exclusive jurisdiction extends to clams that are

dratted im language intended to avoid the appearance of

contesting a will ay well as to more directly pled will contests.

It extends equally to claims that are brought into tederal court

under federal diversity jurisdiction and those that are

appended to other federal claims. See Harris, supra. at 450,

In this case, all of the controverted Claims are state law claims

that are within the exclusive jurisdiction of the state's pro

bate courts.

Recognition of the priority of state probate court juris.

diction over chums such as those at issue here does not in any

Wad infringe tederal sovereignty. Congress consistently has

chosen not to extend federal judicial jurmsdiction to the full

extent permitted by the Constitution, In interpreting tederal

Statutory grants of jurisdiction, this Court is giving effect to

federal interests. H Congress chooses to draw the lines around

federal judicial jurisdiction differently, it is free to do so.

Congress has not, however, expressed a decision to overturn

the long-standing judicial construction of an exception to

federal yunsdiction for matters within the exclusive domain of

state probate courts. Enactment of legislation conferring

federal jurisdiction over bankruptcy matters does not direct a

contrary result,

The decision below is consistent with decisions of other

circuits of the court of appeals. Despite slight variations case

to case, the decision below finds support in decisions of the

first. second, third, fourth, fifth, sixth, seventh, eighth, tenth,

and eleventh circuits. The circuit courts have held that pro-

hate contests over testamentary trusts are treated no

differently from contests over wills. They have said. as well,

that labeling an action as a suit in tort, rather than a direct

attack on a testamentary document, does not alter the analysis

of the scope of probate court and federal court jurisdiction,

No circuit has held that federal jurisdiction extends to core

probate matters. One circuit has held that such matters lie

outside the scope of a civil rights law. One circuit's bank-

ruptcy appeals pane) has held that matters committed to state

probate courts are outside federal bankruptcy jurisdiction.

Only one circu decision, from the eleventh circuit. would

confict with the result here, and the conflict: with that

decision is entirely with dicta, not with the court's holding.

Concerns about the scope of the exception as it was

articulated by the court below are not relevant to disposition

of this case. This case does not involve claims of the United

States. It does not involve claims that are within the core

competence of bankruptey courts. Instead. it involves a

controversy within the core competence of state probate

courts and on which the probate court in Texas had rendered

decision prior to the decision ot the federal district court.

ARGUMENT

1. CONGRESS DID NOT EXTEND FEDERAL

JURISDICTION TO MATTERS WITHIN THE

SPECIAL COMPETENCE OF STATE PRO-

BATE COURTS.

A. Precedents recognize the absence of federal

jurisdiction over matters specially given to state

probate courts.

This Court for more than a century has held that federal

judicial jurisdiction does not extend to matters that are’ within

the special competence of state probate courts and are

committed by the state exclusively to those courts. See. ¢.x..

Sutton v. English, 246 U.S. 199, 205, 207-08 (LOTS): barred!

v O'Brien, 199 U.S. 89, 110-11 C1905). In re Broderick ’s

Will, 88 ULS. (21 Wally 503, 511-12 (1875) This Court's

decisions draw a distinction between matters that a state

commits exclusively to its probate courts (including matters

ancillary to probate) and matters that a state authorizes to be

brought within the general law or equily jurisdiction of courts

not specifically limited to probate and probate-related mat-

ters. Sutton vo English. supra, 246 U.S. at 208: Farrell \

O Brien, supra, V99 US... at LO. Actions not required under

State law to be brought under the exclusive jurisdiction of

probate courts, and which would not interfere with the

essential functions of probate, are within federal jurisdiction

even if they involve similar matters. See. ee. Sutten \

Lnelish. supra, 246 U.S., at 205-08,

The form of the claim, however, ts not dispositive. Claims

are not within federal purisdiction if their disposition turns on

adjudicauion of matiers within the exclusive competence of

State probate courts, even if they are in the form of suits in

tort, bankrupicy, or other causes. See. ey. Harris. Zion

Savmes Bank & Trust Co, 317 US. 447, 480-83 (1943).

The (Wo most recent decisions of this Court addressing the

relationship between federal purisdichion and state probate law

iNustrate the distinction. /larris vo Zion Savines Bank &

Trust Co., supra, began as a bankruptcy case. Anna Harris,

farmer, filed for bankruptcy, asked for a composition of

debts, then died while the bankruptcy petition was pending.

After her death, the bankruptcy court stayed its proceedings.

and the Zion Savings Bank later foreclosed on property

owned by her. The administrator of her estate sought to

revive the bankruptcy proceeding, but the state courts in her

home state, Utah, held that her administrator did not have the

authority under Utah probate law to petition the bankruptcy

court to revive its proceedings.

A provision in federal bankruptcy law (then Section 75 of

the Bankruptcy Act), however, specifically stated that repre-

sentatives of deceased farmers could petition for a compo-

sition on behalf of the decedent. Mrs. Harris’ administrator

asked the federal courts to rule that this provision governed

his capacity to make such a filing.

This Court held that the provision did not, contrary to the

most direct reading of its terms, confer authority on the

administrator that was denied by state probate law. The

Court observed that the federal courts historically had read

federal law to prevent conflicts or potential contlicts with

State probate:

{T}he federal courts have no probate jurisdiction and

have sedulously refrained, even in diversity Cases, from

interfering with the operations of state tribunals invested

with that jurisdiction. . . .

dd, at 451. The Court then explained that a potential conflict

between federal bankruptcy law and state probate law existed.

Bankruptcy’s object is to discharge debts. while probate's

object is to distribute proceeds of an estate to nightiul clam

ants. These objects at times might run at cross purposes. The

best reading of the federal law. then, as with construction of

federal jurisdiction, was one that would prevent a conthiet

between federal bankruptcy law and state probate law. Jd. at

452-53. The Court read the bankruptes law as mnplicitly

requiring approval from state probate court for the admin-

istrator of an estate to petition the bankruptcy court to revive

4 proceeding. fi this way. the potential tor conflict was

eliminated.

Varkham v. Allen, supra, presented a very different situa-

tion. Under the federal Trading with the Enemy Act, 50

U.S.C. App. §1 et seq.. the Alien Property Custodian claimed

the right to stand in the place of German citizens who were

legatees of a decedent resident of California, Other pros-

pective heirs claimed that German citizens were not eligible

the question presented was a straight-forward question of

federal law that could be decided without interference with

the operation of the state probate court. The federal courts

could determine the rights of the Alien Property Custodian

under the federal statute, irrespective of California law.

In contrast to the present case and other cases held to fall

outside federal jurisdiction, Markham did not involve ques-

tions of will validity or estate administration within the

exclusive province of the state probate courts. Nor was there

a finding that the issue brought into court by the Custodian

presented a conflict with essential determmations of the

probate courts.

The test articulated in Markham was that tederal courts

could adjudicate rights in suits between parties so long as the

federal court proceeding “does not interfere with the probate

proceedings or assume general jurisdicuion of the probate or

control of the property in the custody of the state cour.”

326 ULS.. at 494. The eritical part of this test rs the inter-

ference prong.

This part of the Markham test distingutshes that case trom

the majority Of cases that come betore the federal courts and

trom the mstant case. The question in Markham respecting

the Custodian’s mght to clam the property bequeathed to

German heirs could be decided without conflicting with state

probate court proceedings. That is not the case where claims,

such as assertions of interference with an expected gill,

require courts to assess core issues of probate law. And, as

the Ninth Circuit concluded below, it is manifestly not so in

the instant case.

Here. Petitioner Vickie Marshall asked the federal court to

find the testamentary documents fraudulent and hence

invalid, as essential parts of her claim that Pierce tortiously

imerfered with her expectancy. Pet. App. 42-43. Although

decision on that issue is not tantamount to administering the

probate estate. and so often will be referred to as a decision

that is “ancillary” to the “pure probate” function, it goes to

core determinations made by state probate courts. Core

probate questions include whether a will was signed by the

testator and whether the testator was of sound mental capacity

or was subject to undue influence when executing the

document(s) being entered into probate.” Vickie’s claim put

these very questions in issue. See. e.y.. Jt. App. 119.

Looking past the labels, the test for interference ts whether

claims require adjudication of issues that lie within’ the

special competence of state probate courts. As Vickie’s

claims require adjudication of each of the issues noted here as

essential determinations of state probate court, her claims tall

outside tederal jurisdiction under the Markham test.

B. Circuit court precedents also support the ab-

sence of federal court jurisdiction over matters

specially given to state probate courts.

Perhaps uncharacteristically. the Ninth Circuit ts in quite

good company with its sister circuits in its construction of the

* Rejecting similar claims, the Fourth Circuit observed. “we have not

located, a single case in which a federal court has found jurisdiction to

mvahdate a will due to lack of testamentary capacity or undue mtlucnee

Turja es Tarja, 118 bd 1006, 1009 cath Cir, 1997)

‘3

scope of federal jurisdiction in this case. In assessing

whether a federal proceeding would interfere with probate

proceedings, the circuits of the court of appeals, in keeping

with the approach taken below, have not given primacy to the

form of the claim. Instead. they have asked whether the

claim in tederal court would require the court to address

issues that are within the special competence of state probate

courts, Whether those issues are labeled “ancillary.” “pure.”

or something else. As the circuit decisions cited in this

section make plain, clams requiring resolution of issues, such

as will validity, that are within the special competence of

State probate Courts are not within federal jurisdiction.

In Dragan vo Miller, 679 F.2d 712 (7th Cir. 1982). cert.

denied, 459 U.S. 1017 (1982), tor example. the Seventh

Circuit held that diversity jurisdiction did not extend to a suit

for the tort of mtentional interterence with an expectancy of a

bequest because the arguments necessary to success on such a

chum inevitably would implicate issues (such as whether

defendant had exercised undue influence over the testator)

that are within the special competence of the Hlinois probate

courts. Ad. al 715-17.

Fhe Seventh Circuit again addressed the question of federal

jurisdiction over probate-related matters in Storm... Storm,

328 F.3d Y41 (7th Cir. 2003). The claim in Storm was that

defendant tortiously interfered with plantifs mbheritance

expectines by exercising undue influence over the decedent,

persuading her to amend an inter vivos trust. The court,

consistent with the decisions of other federal courts, rejected

plantfs contention that because a trust rather than a will

Was im issue, the case was not strictly a matier for state

probate courts. fd. 328 F.3d at 947 (causes of action

involving trusts are treated under the probate exception in the

same Way as actions involving wills”) The court also

rebulted plamutfs argument that a suit for tortious inter-

ference with an inheritance capectaney was not strictly a

matter for stale probate courts. Jd... 328 bd at 945-47,

In Moser v. Pollin, the Second Circuit held that diversity

jurisdiction did not extend to tort claims of fraudulent

concealment and constructive fraud. even though there as

no exclusive jurisdiction in the New York state court that

commonly administered probate, because the claims were “in

substance nothing more than a thinly veiled will contest.”

294 F.3d 335, 340-41 (2d Cir. 2002). The conclusions that

would support the claim there would also have had the effect

of undermining the validity of the will. Because that issue

was being contested in the state court charged with probate of

the will, construing federal jurisdiction as extending to the

equivalent clam would impermissibly interfere with the state

court’s proceeding. Even if in form the stage probate court

could retain jurtsdiction over the pomaie + the estate, it

would not decide a critical matter normally adjudicated in

probate court, According to the circuit court, turning “a state

probate court proceeding into a rubber-stampimg enterprise

exemplifies the kind of jurisdictional conflict that is to be

avoided by means of the interference prong of the probate

exception.” Jd. at 342-43 (lootnote omitted).

In the case before this Court, as in the Mover case. supra.

the validity of testamentary documents ts at issue in both the

lederal court proceeding and state probate court proceeding.

The claims that the district court here thought tell within its

competence could not be resolved without findings that go

directly to the issue of document validity. which ts also a core

clement of the state probate proceeding. See Pet. App. 30.

See also Blakeney v. Blakeney, 664 F.2d 433. 434 Sth Cir.

1981) (clam that testator “lacked capacity to make a will

goes to the validity of the wall itself). WMeArhhen vy Chibh,

840 F.2d 1525, 1530 (10th Cir, 1988) Cowhen a claim ts

brought charging undue influence or fraud im the execution of

a will, that action is ancillary to the challenge of the will

and belongs in the Kansas probate proceedings. mot in ted

eral court”).

The findings of the district court are in clear conflict with

the findings of the state probate court. The risk of such

conflict is present whenever a federal court endeavors to

answer questions that are within the core Competence of state

probate courts and inevitably will be decided in that context.

The Ninth Circuit's dectsion here is consistent with other

circuit court decisions, establishing: that actions challenging

mattiers Within the special competence of state probate courts

are outside federal jurisdiction, even if the suit is cast as a tort

action, Lepard v. NBD Bank, 384 F.3d 232, 237-38 (6th Cir.

04): Golden ev rel. Golden v. Golden, 382 F.3d 348, 359-

63 (3d Cir, JOOS Storm, supra, 328 F.3d. at 945-47:

Rienhardt v. Kelly, 164 F.3d 1296, 1300-01 10th Cir. 1999):

Turia v. lurja, V8 F.3d 1006, 1009-10 (4th Cir, 1997): that

the interference prong of Markham is to be interpreted with

an eve to practical notions of interference rather than a

narrow, technical view of probate administration, Lepard.

yupra. 384 F.3d. at 237-38; Golden, supra, 382 F.3d, at 357-

60: Sianis v. Jenven, 294 F.3d 994, 998-99 (Sth Cir, 2002):

Vover. supra, 294 F.3d. at 341243: Breau vo Dilsaver, 254

Fo3d 933. 935-37 Sth Cir, 200Lh Maneiert v. Manerers, 226

odd}. 2-3 cist Cir, 2000), cent. demed, 531 U.S. 1080

(2001 Ghokstem vo Sun Bank’ Miam, 922 F.2d 666, 673

(1) ith Cir, 1997), and that the use of trusts rather than wills as

the instrument for distribution of estate assets does not render

a suit subject to federal jurisdiction. Lepard, supra, 384 F.3d,

at 237: Golden, supra, 382 F.3d. at 389-63; Storm. supra, 328

todd. at 947: Georges vo Glick, 886 F.2d 971. 974 7th Cir.

1988). cert. demed, 489 U.S. 1097 (1989),

These courts all have been quite clear that the matters ex

cluded trom federal jurisdiction are not merely the mechan-

ical aspects of probate administration but all decisions on

matters within the special competence of the state probate

courts that implicate core issues such as will validity, even if

the challenge is presented in a form designed to mask that

relation. The circuit courts also have declared that tederal

jurisdiction does not attach to such matiers, whether the

probate action is pending or is completed. where the federal

claim amounts to either a substitute for or a collateral attack

on determinations critical to the validity issues committed to

state probate courts. See, ¢.¢., Rienhardi v. Kelly. supra, \64

F.3d, at 1301; Tarja v. Tarja, supra, 118 F.3d, at 1008-10;

Blakeney v. Blakeney, supra, 664 F.2d, at 434; Starr v. Rupp,

421 F.2d 999, 1003-07 (6th Cir. 1970).

Hl. PARTICULAR CONCERNS WITH MATTERS

SPECIALLY GIVEN TO STATE PROBATE

COURTS SUPPORT DECISION THAT THERE

IS NO FEDERAL JURISDICTION.

A. Special concerns attach to disposition of de-

cedents’ assets.

Particular concerns affecting the matters within the ex-

clusive jurisdiction of state probate courts counsel against

construing federal jurisdiction to reach these matters. Probate

matters generally concern the intention of one who is

deceased and, thus, cannot clear up any questions concerning

his intention. This fact may account tor the trequency of

comests over the estates of decedents.

A second complication arises trom the tact that planning

tor disposition of one’s assets on death almost inevitably

occurs well in advance of the time of death. The plan. thus,

must be made in the understanding that many untoreseen

events could alter the effect of the plan. Although estate

planning documents are drafted and executed with that under

SMunding, the passage of time inevitably provides additional

grist tor arguments over the meaning of those documents.

Third, the set of persons who have close connections to

decedent and who might hope for some tangible recognition

of that connection in the estate plan often will be large and

encompass individuals living in many different jurisdictions

Often potential claimants will be found in foreign nations as

well as in many different states within the United States.

Individuals who are planning for the disposition of their

assets and wish dg have that disposition carried out in accor:

dance with their intentions— whether they are persons of

ereat wealth or of modest means— are concerned with giving

eflect to thei intent. Those concerns are central to the

creation and operation of amicus,

B. Interests in legal consistency and judicial econ-

omy support special jurisdiction of state pro-

bate courts.

The special problems attached to the disposition of assets

at death help explain the survival of special legal forms and

tribunals for addressing probate related matters. In order to

provide greater certainty and finality to the disposition of

decedents” assets, states commonly provide for a single pro-

ceeding to bring into court decedents’ assets and to dispose of

all claims to those assets. Without such a proceeding.

questions respecting the disposition of a decedent's assets

could stretch over many years in many disparate locales.

By centralizing a'l claims in a single court and providing a

specialized body of judges to dispose of the clams, states

accomplish threg goals.

+ ..

first. StatesadGnes a measure of judicial economy. Issues

that will have to be addressed im contests over the disposition

of probate assets can be handled by judges who develop

expertise in these matters. These include not merely the

mechanical and administrative aspects of probate. but more

importantly the wsues related to contests over the disposition

of the assets. So, for example, states commonly require that

clams relating to trust instruments designed to take effect on

the death of the grantor and claims relating to allegedly

tortious conduct interfering with the realization of expec-

tancies for gifts or bequests must be brought in probate court,

See, ¢.g.. Tex. Prob. Code §5A. States do not allow such

claims tobe used in collateral attacks on probate judgments.

See, ¢.g.. Thompson v. Deloitte & Touche, 902 S.W.2d 13

(Tex. App. 1995).

Second, states provide greater assurance of consistency in

the law. The commitment of matters to a select set of judges

who deal with the same issues repeatedly accomplishes

that end.

Third, states also provide greater assurance that decedent's

wishes will be given effect. This is accomplished both by

increasing the consistency of decisions and by bringing all

matters before a set of tribunals that have expertise in the

relevamt legal issues of the particular jurisdiction whose haw

should govern disposition of a given decedent's estate.

Individuals plan the disposition of their assets in reliance

on provisions in a particular state's law. The ability to plan is

advanced when the individuals and those who draft

documents for them can know which state law will apply to

questions respecting the disposition and know as well that the

judges most familiar with the particular body of law will be

interpreting and applying tl.

These considerations support the states’ decisions to vest

exclusive jurisdiction over issues critical to probate in the

specialized probate couas. See. ¢.y.. Mich. Comp. L. Ann,

§$700.1302; Oh. R.C. §2101.21; Tex. Prob. Code §SA. The

considerations also explain why states routinely require that

matters such as claims of tortious interference with an

inheritance expectancy must be brought in probate court, The

requirement avoids the conflicts, delays. and inconsistencies

that are more likely to attend litigation of matters in different

courts, even within a single state.

(. Considerations of legal consistency and judicial

economy support the probate exception to

federal jurisdiction.

the very same considerations support the lustoric inter

pretation of federal jurisdiction as excluding matters within

the exclusive province of state probate courts. For example.

Judge Posner, writing tor the Seventh Circuit, after ques-

tioning the hestoricist explanation for exclusion ef probate

matters from federal jurisdiction, even in’ diversity cases

where some fear of bias against non-resident parties might

attach. explains that considerations of judicial economy and

consistency support the excluston. Dragan v. Miller. supra.

679 F.2d. at 714-16. See also Lepard v. NBD Bank, supra.

118 b.3d. at 237. Indeed. the Seventh Circuit in Dragan

thought that these arguments against the exercise of federal

jurisdiction were powerful enough to support the exclusion of

core probate matters from federal jurisdiction even where the

state did not have separate. specialized probate courts.” Jd. at

715-97.

An alternative approach to the protection of interests in

consistency and judicial economy invocaion of doctrines of

claim preclusion, issue preclusion, and res judicata—tails to

provide the same protection of these interests, Respondent in

the instant case, Pierce Marshall, raised these doctrines in the

alternative, and the doctrines do, indeed, provide some pro-

tection to interests in consistency and economy. Application

of these doctrines, however, frequently raises difficult issues,

and parties cannot rely with certainty on these doctrines

adequately to protect mterests in consistency and economy,

Beyond that poi, there ts a more serious problem with

this approach. By making the first determination on the

lhes Court semlarty tound that Considerations of pudicial economy

supported the judicial construction of a “domestic relations” eXception to

federal purssdiction. See Vihenbrandt + Ru hards, S04 1S. 689, TOR

(]O92)

merits dispositive, reliance on these doctrines encourages the

sort of forum-shopping and race-to-judgment that undermines

certainty and predictability critical to meaningful planning ter

disposition of estates,

The risk of forum-shopping is illustrated by the instant

cause. Vickie filed claims in Texas as a Texas resident only a

lew months before filing a bankruptcy petition in California

as a California resident. Jt. App. 26; Pet. App. 11-12, 41.

The bankruptcy petition on its face states that the filing ts

prompted by her failure to inherit from J. Howard and by a

debt that was not contested by her prior to the bankruptcy

petition but that was subsequently settled between the parties

after invoking bankruptcy jurisdiction. These facts together

give the proceeding the clear appearance of manipulating

bankruptcy in an effort to find a friendly forum for a second

chance at contesting core probate issues.

It bears repeating that the probate setting presents special

reasons for concern. The individual who is planning the

disposition knows he will be unable to testify in person dur

ing any contest over his disposition. He will be unable alter a

contest to revise his legal instruments to give ectfect to his

intentions or otherwise to adjust to possible misinterpretations

of his intent. In these circumstances, predictability and cer-

laity are especially important concerns. The commitment of

matters to a particular, specialized forum uniquely sateguards

the interests of the testator.

The construction of federal jurisdiction as excluding

matters within the special competence of state probate courts

protects these interests. ft harmonizes tederal and state

interests in accord with the historic understanding of the role

courts in each jurisdiction have properly performed. Amicus

is especially concerned that this Court preserve a construction

of law that allows donors to plan with some certainty the

disposition of their assets.

Wt. ABSENCE OF JURISDICTION FOR MATTERS

SPECIALLY GIVEN TO STATE PROBATE

COURTS IS) CONSISTENT WITH OTHER

DOCTRINES.

\. Federal jurisdiction is limited and does not

extend to all possible causes.

har trom being an extraordinary construction of federal

jurisdiction, this Court's cases respecting probate issues are in

keeping with other decisions respecting jurisdiction, the

exercise of federal judicial power, and the exercise of other

federal powers. Arguments that begin with the assumption

that federal judicial jurisdiction must, absent the clearest

instruction to the contrary, be imterpreted to extend to its

fullest possible reach misstate the law, To be sure. this Court

has determined that the Congress cannot constitutionally con

strict the exercise of the Court's original jurisdiction, but the

remamder of the tederal court’s jurisdiction lies within the

power of the political branches to authorize or withhold, See.

vou. Marbury vo Madison, 5 US. Ol Craneh) 137, 174-78

(ENO ha Parte MeCardle, 74 U.S. (7 Wally S06, 514-15

(TXO9),

\hhough Congress historically has granted federal courts

authority over substantial portions of the potential tederal

judicial jurisdiction, it has never granted full authority over

that jurisdiction, The decision not to grant tederal courts

jwrisdiction aver the tull extent of potential federal cases is

Mustrated by the courts” diversity jpursdiction. which trom

the Judiciary Act of 1789 to the present has been restricted to

cases with a given dollar amount in controversy. See. ee 28

S.C. $b 332000.

B. Doctrines require courts to avoid unnecessary

interference with state proceedings.

Not any is the scope of federal judicial power constramned,

tals ts not mandatory that courts exercise the tull extent of

their statutorily granted jurisdiction. Even when jurisdiction

clearly exists, this Court has found that prudential con

siderations counsel withholding decision. Notwithstanding

occasional dicta to the contrary, numerous holdings of this

Court direct the federal courts to stay their hand, temporarily

or permanently, because proceedings implicate matiers within

the special competence of state courts. Under various absten

tion doctrines, for example, federal courts withhold decision

on matters that might unduly intringe on decisions of state

courts Or might unnecessarily draw federal courts into

constitulional questions. See, e.g. Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817-20

(1976); District of Columbia Court of Appeals v. beldman.

460 U.S. 462 (1983): Railroad Comm'n of lexas vo Pullman

Co... 312 U.S. 496 (1941); Rooker v. bidelity Trust Co.. 263

U.S. 413 (1923).

The abstention doctrines reveal this Court's concerns tor

both judicial economy and the consistency of the iw. Those

concerns justly withholding the exercise of tederal juris

diction that is conceded to exist in order to reduce the

potential costs of multiple proceedings.he potential contlicts

between tribunals considering duplicative claims. and the

potential inconsistencies in legal rulings that might attach to

disposition of matters within the core competence of state

courts by federal courts. The same considerations support the

construction of federal jurisdiction as not reaching matters

within the special competence of state probate courts. as

discussed above in Part Hof this Argument. Similarty,

concerns of federalism and comity counsel leaving mations

within the special competence of state probate courts to those

iribunals, just as those considerations argue tor abstention i

the cases noted above. See. c.v.. Golden ev rel Golden 3

Golden, supra, 382 F.2d. at 358 nO Moore 0 Gravheal,

843 f.2d 706. 710 (3d Cir, 1988).

_ >

-—-

(. Aspects of state law often affect the scope of

federal rights and federal jurisdiction.

The Soheitor General. mn his amicus brict in this case.

vugvested that the decision of the Ninth Cricut below ts

meoonsistent with the law because it would make the scope of

federal jurisdiction turn in part on state law. Brief for United

Yrates as Annes Curtae Supporting Petitioner, at 12-13. Whe

exact pedigree of this complaint it ts not clear,

As a starting point, it cannot be disputed that federal law

often makes the effective scope of federal mehts and obli

gations turn on aspects of state law. To take one example,

lederal tax law allows deductions for certain state tax

payments. See. e.g. 26 U.S.C. $8 164i), L640b). The value

of the deduction obviously varies according to the level and

nature of state tax payments, matters catirely within’ the

control of the states. This fact has never been deemed to ratse

any question of sovereignty, as the decision to allow state law

to alfeet what is paid to the federal government is a decision

of federal haw.

There is no reason to view the decision to withhold federal

jurisdiction from disposition Of core issues committed to the

special competence of state probate courts any more than

the decrien to allow decisions of state tax law to affect

federal tax payments as a threat to federal sovereignty. See.

e.. Sutton a. bnylish, supra, 246 LS... at 205-06, 207-0:

I Ilis Davis, 109 US. 488. 494, 499 CISK3i In re

Broderick ’s Will, supra, 88 US. at SEL-12. The same should

he said of the abstention doctrines noted above. and Indeed

the United States admits that these doctrines properly pre

clude federal courts from taking certain actions thar would

undermine the operation of state probate court jurisdiction.

Beret ter € mited States, supra, at 15-16.

The decision of the federal government to allow matters to

he decided in state Courts When interests in judicial economy

and consistency support withholding federal purtsdiction is in

ho way at odds with the supremacy of national law. National

supremacy is NO More in issue when jurisdiction is withheld

as a matter of interpretation of the scope of a statutory grant

of jurisdiction than where the decision rests on prudential

considerations within the discretion of a court. in cither case.

although showing respect tor state law. the decision ts one of

the national government.

The states could not, of course, constrict federal judicial

jurisdichion by overriding a federal law. State grants of

exclusive jurisdiction to the probate courts would not, inde

pendent of the construction of tederal law. constrain the

judicial power of the federal courts. See. e.g. Hess 3

Reynolds, 113 U.S. 73, 77 (1885). However. the tact that a

state's decisions — including decisions on the scope of matters

committed to the special jurisdiction of its probate courts

atlect the ambit of federal pudicial purisdiction as a matter of

federal law does not provide any reason to question. the

decision below.

DD. Even under the narrowest construction of the

probate exception, federal jurisdiction would

not attach in this case.

Although the test for federal jurisdiction over probate

matiers advocated by (he Solictior General ts narrower than

the test adopted by this Court) and narrower than the test

used in any circum court the decision im the instant case

actuall. fits within the ambit of cases the United States agrees

fall outside a proper exercise of federal purtsdiction. The state

probate proceeding m this case was concluded belore the

decision of the district court was rendeted.” and the district

The district court vacated the pudyment of the bankrupts comet

following the Conclusion of the probate court proccedimy im Lexus. Pet

App. bse. The tinal pudgment in probate Court was December 7 2001

Por App 106-400 The federal district court did not coter tts tinal pudy omen

until Man 7, 2002. Pet. App. 144-42.

court's decision here like the decisions addressed in cases

such as Sutton v. English, supra— was clearly in contlict with

the already rendered judgment of the state probate court and

would have the effect of invalidating the vers instruments

that the state court declared valid. Pet. App. 30. As eleven

circuits of the court of appeals have recognized. in such

instances the proper understanding is that Congress has

decided not to authorize the exercise of federal jurisdiction.

See cases cited, supra, in Part Lb,

IN. BANKRUPTCY JURISDICTION DOES NOT IM-

POSE A DIFFERENT RULE FROM DIVERSITY

JURISDICTION,

The considerations that support this Court's — and all of the

cireurt courts’ — construction of federal yurisdiction as exwlad

ing matters within the special competence of state probate

courts apply equally to federal diversity jurisdiction and other

sources of federal jurisdiction. The overwhelming majority

of cases raising the issue of the relation of federal jurisdiction

and state probate jurisdiction are diversity cases. Courts and

commentators, henee, often refer to the absence of federal

jurisdiction as “the probate exception to diversity jurisdic:

tion.” See. e-e.. Gulden ex re. Gelden v. Golden, supra, 82

b3d. at 357: Dragan v. Miller, supra, 679 F.2d. at 714: Note.

1 Pradennal Exercise: Abstention and the Probate bycep

tom te bederal Diversity Jurisdichon, OA Mich. 1. Rev.

134 62005).

However. nothing in the nature of the exception or im the

considerations of legal consistency and judicial economy that

support the exception is limited to the exercise of diversity

junschenien. — bederal court determinations on core probate

Ihe district court found three pages ef the probated trust to be

traudulent. including the signature page ter the trust. Pet) \pp. 126

ludge Prank Fasterbrook. writmg tor the Seventh Circuit, reached a

vemlar Conclusren respecting appheation ot the demestic relatrons

’

matiers such as the validity of a will, whether made under

diversity jurisdiction, bankruptcy jurisdiction, or general

federal question jurisdiction, work the same interference with

interests in consistency and judicial economy.

On the rare occasions when matiers within the special

competence of state probate courts have come forward under

bases for federal jurisdiction other than diversity, the courts

have recognized that federal law should be interpreted to

avoid conflict with the state probate determinations. /arrrs

1. Zion Savines Bank, suprG, quite clearly evidences this

recognition. This Court expressly interpreted bankruptey law

to avoid conflict with state probate court determinations,

despite the fact that the bankruptcy filing anmtedated the

probate filing and a specific provision in the bankruptey law

addressed the very matter in issue, 317 US.. at 451-53.

When this Court declared that federal courts “have sedu-

lously refrained, even in diversity cases, (rom intertering with

the operations of state tribunals invested with” probate

jurisdiction, id.. at 451 (emphasis added), it clearly signaled

that the same considerations apply outside the diversity

context. Indeed, the implication in that statement is that the

considerations apply more outside the diversity Comte xt. ats

diversity jurisdiction is justified in large measure by concerns

about local court bias, concerns that do not similarly support

other bases of federal jurisdiction. See. e.g. Bank of te

United States v. Deveaur, S Cranch (9 U.S.) 61.87 C1809),

Ii there was any question about the conclusion that the

Court was deciding that probate jurisdiction did and Dank

ruptey jurisdicuion did not --obtain te determing matters

exception to cases arising under federal question jurisdiction. See Hi ke

» Duffy, $27 bd 244. 238 89 eT th Cr PORT While the scope ot that

exception ditters trom the scope of the probate exception. sumibar con

siderations support the conclusion that the exclusien trom federal panes

dhotion does not apply solely to diversity jurisdiction

within the special competence of the probate tribunal. the

Court put that to rest when it added:

“The probate court, not the bankruptes court. is. the

appropriate forum for weighing the respective benefits

or detriments to those who share in the equity of the

decedent's estate,

17 US. at 482.

Similarly, in enti v. Petropoulous, 656 F.2d 212 coth Cir.

JOST), the court of appeals for the Sixth Circuit held that it

lacked jurisdiction over claims respecting probate matters that

were committed to and had been resolved in the probate court

of Ohio, The basis for jurisdiction claimed in Tont was

federal, question jurisdiction over clams of civil rights

Violtions, brought under 42 U.S.C. $1983.) Phaintilt alleged

fraud, collusion, and denial of fair trial rights due to state

judges’ bras. The circuit’ court declared that, under the

precedents of this Court and the circuit’ courts, probate

matters are not within federal jurisdiction, /d.. 656 F.2d,

at 218. The court's flatly stated conclusion applies the

same rule to federal question junsdiction as to diversity

jurisdiction,

The bankruptey appeals panel for the Eighth Circunt. on dy

he Latzimeer, 322 B.R. 108 (th Cir. BAP (Mo.) 2005), raised

the issue of its jurisdichion sua sponte, In doing this. the

Panel determined that the probate exception apphed to

bankruptcy proceedings just as it does to proceedings based

on other provisions for federal jurisdiction. Holding that the

Markham test applic to bankruptcy proceedings betore it

atthout qualification, the court remanded the case to the

bankruptcy court with instructions to vacate its order and

consider the application of the interference prong ot

Varkham, 322 BR. at 116-17. The waite of decedent's

tephew had tiled for bankruptey while probate proceedings

sere pending. The Appeals Panel found that a critical

wedicate for the bankruptey court order was determination of

ownership of certain assets. Depending on the outcome of

that determination, these assets might be meluded within the

decedent's probate estate or excluded trom it. 322 BLR., at

117. The Panel theretore held that the bankruptey court

needed to determine if decision of the controversy before i

would impermissibly interfere with state probate proceedings.

If so, that matier was outside the jurisdiction of the bank

ruptey court. Jd.

The application of this Court's Markham test to bankruptes

proceedings is consistent with the Court's precedents and also

with the concepts that underlie those precedents. See. ee.

William L. Norton, Jr., Norton Bankruptey Law and Practu«

2d §4:71 (2006). Construction of federal jurisdiction as

excluding matters that go to essential aspects of probate

law - 10 matters that are committed exclusively to probate

courts or that functionally are placed within thew special

competence—promotes legal consistency and judicial econ:

omy just as much when bankruptey jurisdiction ts at issue as

when diversity jurisdiction ts at issue.

Nothing in the bankruptcy law is to the contrary. The bank

ruptcy code includes an express provision for abstention to

allow resolution of issues related to bankruptcy im state court

proceedings, 28 U.S.C. §1334(c), That provision does not

speak to probate proceedings directly or in amy way signal a

design to alter the rule that federal jurisdiction does not atiacl

to claims within the spectal jurisdiction of state probate

courts. The abstention provision of $1 8440c) addresses a

broad range of possible state court actions that might better be

resolved apart trom bankruptcy and allows destrict courts to

determine whether abstention would be “in the mterest of

Justice, or in the interest of comity with State courts or respect

for State law.” 28 U.S.C. §1334te7 1). See abso I8 LSC.

§$1334(e2). So, for example, abstention might be requested

tO allow a contract dispute between parties to be resolved in

State court, see, e.e.. /n re Casual Male Corp. 347 BR. 472

(S.D.N.Y. 2004), or to allow prosecution of contempt

proceedings arising out of a domestic relations dixpute, see,

ev. ln re Moon, 211) BR. 483 (S.D.NLY. 1997). This

provision indicates Congressional concern over matters

related to comity and federalism, and arguably is supported

by the sort of concerns with consistency and judicial

economy that support exclusion of issues within the special

competence of probate courts from federal jurisdiction,

the abstention provision in the Bankruptcy Code, how -

ever, does not reverse that exclusion. It solely addresses

circumstances in which there is admitted federal jurisdiction

over a cham. ft does not discuss the historic construction of

federal jurisdiction as excluding matters within the special

competence of probate courts and does not suggest a design

to supersede probate court determinations of core probate

issues, such as the validity of testamentary documents. Hf the

law's drafters had mtended that result, it is reasonable to

expect that they would have san so directly. In. short,

nothing m the Bankruptcy Code itsell provides sufficient

ground to overcome the long-standing construction of federal

jursdichon as excluding such matiers.

The one case that expresses a contrary conclusion is Goery

v. Parungao, 844 F.2d 1562. 1505 Cllth Cir, 1988), cert.

denied, 488 U.S. 1034 (1989). This case does not, on in

spection, provide any basis for that conclusion. The Goer

case is a contest not between US. bankruptey and probate

jurisdiction, but between foreign and US. jurisdiction. The

question in Goerg was whether the trustee of a foreign citizen

was a “debtor” within the meaning of Section 304 of the US.

Bankruptcy Code. FE U.S.C. $304. 4 provision dealing with

disposition of assets related to a foreign bankruptcy pro

ceeding. Goerg, the German bankruptey trustee. sought to

enjoin U.S. proceedings and to include decedent's assets in

the German proceeding. fn passing. the Eleventh Circuit

stated that the probate exception atteets only the scope of

diversity jurisdiction, fd. 844 F.2d at 1865. The issue was

not essential to the decesion of the case. Tt was not the ground

on which the bankruptcy court had ruled that tt lacked

authority to issue the injunction sought by Goerg. The

dictum in Goerg is in conthet with authority of this Court,

with other lower court decisions,’ and with the legal concepts

that underlie this Court's interpretation of the scope of federal

jurisdiction.

Vv. NO SPECIAL CIRCUMSTANCE COUNSELING

LIMITATION ON THE PROBATE EXCEPTION

IS IN ISSUE.

The brief of the Solicitor General argues that there ts a

special circumstance when claims of the United States, or

claims against the United States, are in issue and special

reasons to allow a federal forum for such claims. Concerns

respecting forum-shopping (and related conduct designed to

divert matiers from a potentially unfavorable state probate

venue) seem to apply solely to private parties and not to the

United States. That observation would seem to support a

different rule at least for claims by the United States. That

issue, however, need not be addressed, as this cause does nol

involve either claims by the United States or against the

United States.

Although the Solicitor General questions the provenance

and historic scope of the probate exclusion trom tederal

jurisdiction, even judges who have shared those concerns

have concluded that “it is too well established 4 feature of our

federal system to be lightly discarded.” Dragan «Miller,

supra, 679 F.2d, at 713. See also Meser v. Pollin, supra, 294

Found... Inc, 918 F.2d 1065, 1072 (2d Cir, 1990). Congress

The epimen ale conthet, with the blescath Circuit's doetien on

ws to a RICO action. trading that there would be ne umtertotence bec ate

there Was no psue of will interpretation er will \aladity and me prospect ot

mitertennye with probate proceedings. 92) bold. 678

(CONCLUSION

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.