In Re Donald MacNeil in Re Sharlee MacNeil Debtors. American State Bank Cit Financial Services, Inc. v. Thomas G. Marks

dissenting:

I respectfully dissent from the majority’s conclusion that there is a constitutional impediment to our resolution of this case.

I conclude that the advisory opinion doctrine is narrower than the majority intimates. A case does not become nonjusticiable simply because it involves the assumption of underlying factual or legal matters. As we pointed out in Chadha v. INS, 634 F.2d 408 (9th Cir.1980), aff 'd, 462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983), courts often “adjudicate disputes in which legal or factual matters are conceded.” Id. at 419. Indeed, courts frequently assume without deciding a predicate legal question and simply move on to a subsidiary inquiry which resolves the dispute. See, e.g., Edelman v. Western Airlines, 892 F.2d 839 (9th Cir.1989) (declining to address whether airline employee had property right in her continued employment and deciding that even if she did, she had received all the process she was due).

In this case, there is a clear controversy concerning whether CIT and ASB’s Chapter 11 claims have priority status over Chapter 7 administrative expenses. Although the resolution of this issue has two subparts — whether their Chapter…

On August 11, 1989 the Bankruptcy Appellate Panel for the Ninth Circuit (“BAP”) affirmed a decision of the United States Bankruptcy Court for the District of Oregon (“Bankruptcy Court”) holding that under 11 U.S.C. § 726 (b), Chapter 7 administrative expenses are entitled to priority over Chapter 11 claims granted superpriority status under 11 U.S.C. § 507 (b). American State Bank v. Marks (In re MacNeil), 102 B.R. 766, 768 (9th Cir. BAP 1989) (per curiam). In reaching that conclusion, both the Bankruptcy Court and the BAP declined to address the underlying factual dispute whether the claims of secured creditors American State Bank (“ASB”) and CIT Financial Services (“CIT”) were entitled to section 507(b) superpriority.

Had the Bankruptcy Court determined that neither ASB nor CIT were entitled to superpriority for the above claims we would not now be asked to resolve the legal question whether such a superpriority is subordinate to Chapter 7 administrative claims. In the absence of such a factual determination, any expression by this court concerning the hierarchy of these claims would constitute the rendering of an advisory opinion, i.e., “an opinion advising what the law would…

907 F.2d 903 23 Collier Bankr.Cas.2d 513 In re Donald MacNEIL; In re Sharlee MacNeil, Debtors. AMERICAN STATE BANK; CIT Financial Services, Inc., Appellants, v. Thomas G. MARKS, Appellee. No. 89-35620. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 1990. Decided July 3, 1990. John M. Berman, Beaverton, Or., for appellant American State Bank. Lee M. Hess, Becker, Hunt & Hess, Portland, Or., for appellant CIT Financial Services, Inc. James Call and James W. Waggoner, Waggoner, Farleigh, Wada, Bogrand & Georgeff, Portland, Or., for appellee, Thomas G. Marks, Trustee. On Appeal from the Ninth Circuit Bankruptcy Appellate Panel. Before WALLACE, SKOPIL and BRUNETTI, Circuit Judges. PER CURIAM: 1 On August 11, 1989 the Bankruptcy Appellate Panel for the Ninth Circuit ("BAP") affirmed a decision of the United States Bankruptcy Court for the District of Oregon ("Bankruptcy Court") holding that under 11 U.S.C. Sec. 726 (b), Chapter 7 administrative expenses are entitled to priority over Chapter 11 claims granted superpriority status under 11 U.S.C. Sec. 507 (b). American State Bank v. Marks (In re MacNeil), 102 B.R. 766, 768 (9th Cir. BAP 1989) (per…