The 9th Circuit U.S. Court of Appeals could be undergoing a further shift towards the center, a far cry from its century and a half tradition of judicial liberalism. The largest of 13 appellate courts, it sees cases emanating from 9 western U.S. states ranging in topic from civil law, criminal law, immigration to the death penalty, and bankruptcy. The most notable of the latter is a case which I have (and will) continue to cover with intense scrutiny, namely the J. Howard Marshall/Anna Nicole Smith estate feud. As would be expected, this trend is not without its detractors and supporters. Those opposed fear that the court will lose its signature element of jurisprudence rooted in empathy and human emotion, a facet that attempts to steer clear of rote, by-the-book, procedural-based decision-making. Those in favor argue that the leftist leanings have historically created deformities in the justice system, such as “forum shopping” by plaintiff, and frequently use the Marshall/Smith case as an example. Some vacant judicial openings are forthcoming, and the first challenge could be the most important of their lives.

June 26, 2009, could be a watershed date. This date is when the aforementioned ponderously overanalyzed case from the Supreme Court, handed back to the 9th, will be revisited for further articulation. Oral argument will be conducted in Seattle at the William Kenzo Nakamura United States Courthouse. The parties shall address, at a minimum, the following issues: (1) whether Vickie Lynn Marshall’s (“Vickie”) claim was a “core” bankruptcy proceeding; (2) if Vickie’s claim was not a “core” bankruptcy proceeding, whether the Texas probate court’s judgment precludes Vickie’s claim, in whole or in part; (3) whether the statute of frauds affects Vickie’s ability to establish her claim; (4) whether the discovery sanctions ordered by the district court were reasonable; and (5) if Vickie’s surviving child is a real party in interest and has no guardian ad litem, whether the court should appoint a guardian ad litem and, if so, who the guardian ad litem should be and what provisions should be made for the guardian ad litem’s compensation.

The 9th should uphold the Texas ruling and this conundrum can finally be laid to rest, as so many deceased parties akin to this matter have been. Should the Smith-Stern ship of fools end up winning, it sets a dangerous precedent by granting influence to federal law intervening in state probate matters. Interestingly, J. Howard Marshall was a Yale law professor who taught, of all things, wills and trusts. If a wills and trusts professor can’t protect his own estate, then who can.