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April 1986Vol. 20. No.2 La

ARKANSAS

rOFFICERS

Don M. Schnipper. PresidentRichard F. Hatfield. President-ElectAnnabelle D. Clinton. Sec.·TreasurerPhilip E. Dixon. Council Chair

Wm. A. Martin. Executive DirectorJudith Gray. Assistant Executive

Director

EXECUTiVE COUNCIL

Jack A. McNultyBobby E. ShepherdGary NutterWilliam Russ Meeks IIIRobert R. Wright IIITom OverbeyRobert S. HargravesJohn D. Eldridge IIIJoe ReedDavid SolomonStephen M. ReasonerDovid K. Harp

EX-OFFICIO

Don M. SchnipperRichard F. HatfieldWilliam R. Wilson. Jr.Annabelle D. ClintonRichard L. RamsayPhilip E. Dixon

EDITOR

Ruth M. Williams

47 The President's Report

48 Point of View/Letters

51 Law, Literature & Laughter

Giving Your Appeal...More52by Bart F. Virden

Generations in the Law: TheImpact of Good Lawyering -

54The Barrett·Deacon Family,by Brooks Landen

A Judicial Maze. Bankruptcy:An Overview of 1984

Jurisdictional Amendments,59by Judge Robert Fussell

Measuring DWL66by David H. Williams

Supreme Court Committee

113on Professional Conduct.Disciplinary Actions

116 In MemoriamThe Deficit Reduction Act,Use of the Company Car. 119by Joseph Erwin

121Bulletin: Statute Revisionin Arkansas

123 Executive Director's Report

124Arkansas Bar FoundationReport

125 In-House News

The Arkansas Lawyer (USPS 546-040) ispublished quarterly by the ArkansasBar Association. 400 West Markham.Little Rock. Arkansas 72201. Secondclass postage paId at Little Rock. Ar­kansas. Subscription price to non­members of the Arkansas Bar Associa­tion $15.00 per year and to members$10.00 per year included in annualdues. Any opinion expressed herein isthat of the author. and not necessarilythat of the Arkansas Bar Association. orThe Arkansas Lawyer. Contributions toThe Arkansas Lawyer aTe welcome andshould be sent in two copies to the AI·kansas Bar Center. 400 West Markham.Little Rock. Arkansas 72201.

All inquiries regarding advertisingshould be sent to The Arkansas Lawyerat the above address.

ON THE COVER:In "Measuring OWl in Arkansas," David H.

Williams. of Lillie Rock. examines the vor­ious devices used to determine blood alco­hol content <BAC) in the body. Since passageof Act 549 of 1983, he concludes, a defen­dant's BAC has become the crime itself in aDriving While Intoxicated charge, making itabsolutely necessary lor defense counsel tobe familiar with breath testing devices. "De­fense counsel must be prepared to educatethe judge and jury about these machines inorder to lay the groundwork for fairer OWltrials. Unless we are willing to do our home­work we might as well do as one judge sug­gested - place a black robe over the breathtesting machine and do away with the judgeand jury," Williams suggests.

April 1986/Arkansas Lawyer/45

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46/Arkansas Lawyer/April 1986

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Improving OurPublic Image

By Don M. Schnipper

The Arkansas Bar Associationconducted its first Long-RangePlanning Conference in theSpring of 1978, giving the mem­bership an opportunity to designthe legal profession's future andthe bar's role in it. But. while man­datory continuing legal educationand the interest on lawyers' trustaccounts program were being dis­cussed, a black cloud was form­ing that would have shocked ourbrethren 25 years ago.

We were inundated with numer­ous developments of commercial­ism - lawyer advertising and theuse of public relations firms to in­crease lawyer visibility had be­come commonplace. Members ofthe profession seemed more in­terested in enhancing their in­come than in providing legal ser­vices to the public. And bar asso­ciations and their leaders readilyadapted to these changes with anincreasing number of seminarsdirected toward law office man­agement and other economictopics. Our professionalism andthe services we provided to the

public were not addressed, and,our public image dwindled.

Lawyers were referred to ashustlers, crooks, shysters, charla­tans, etc. Quite frankly, it was theopinion of many that the practiceof law had become little morethan a business in the eyes ofsome practitioners and the public.

The pendulum, however, is tak­ing a swing.

We now recognize that the prac­tice of law requires individuallawyers to consider their practiceas not a business or commercialenterprise, but as a profession, tobe conducted honorably. And,while we may deserve some of thebad image we currently hold inthe public's eye, I do not think weshould take all the blame. Thequestion is what, if anything, canbe done to improve our professionfrom within and the image of theprofession among the public?

In February 1985, American BarAssociation President JohnShepherd appointed a Commis­sion on Professionalism to studythis question and offer solutionswhich will restore the practice oflaw as a profession rather than asa business. We are privileged tohave William H. Allen, of LittleRock, appointed to this commis­sion.

And, the Arkansas Bar Associa­tion is becoming more concernedwith what the public thinks of theprofession and what can be doneto improve our public image.

"Professionalism" will be the

theme of the Association's Long­Range Planning Conference onMay I to 2, 1986, at the SheratonLakeshore Resort in Hot Springs.Chair David M. "Mac" Glover hasworked diligently and promisedall attendees some eye-openingdiscussions and an opportunity todevelop ideas and programs forthe Association and our indi­vidual members. No doubt thesediscussions will be the basis forthe Association's programs andprojects in the years to come.

All members of the ExecutiveCouncil and House of Delegatesand committee chairs have beeninvited and urged to attend thisconference. I too strongly urgetheir attendance and participa­tion, as well as the attendanceand participation of any othermembers as concerned about thissubject as I am.

I am convinced the legal profes­sion in Arkansas can at least im­prove and possibly totally changethe public's perception of ourwork, but only when each lawyerbecomes aware of the problemand agrees to cooperate in itscure.

Our staff, officers, governingbodies, sections and committeesare equipped for this endeavor. Icall on each member to meet thechallenge as well.

Just as in 1978, the long-rangeplanning conference of 1986 willbe the most important meeting ofthe past few years and in theyears to come. 0

Apnl 1986/Arkansas Lawyer/47

POINT OF VIEWILEITERS

Insurance Industry Driving WedgeBetween Doctors, Lawyers

By Winslow Drummond

Physicians and attorneys servethe public through their respec­tive disciplines, and to this extenttheir mutual interests and con­cerns, rather than their differ­ences, deserve repeated em­phasis.

In two significant respects therecan be no interprofessional dis­agreement. First, the professionalliability premiums being paid bymedical care providers are sohigh as to merit legislation requir­ing investigation and disclosurebeyond a submission and cursoryreview of a carrier's "filings" withthe insurance commissioner. Andsecond. there are too many non­meritorious suits being filedagainst physicians.

The wedge between doctors andlawyers is being driven by the in­surance industry. A doctor's re­quest of a carrier for an explana­tion about increased liability pre­miums will evoke a responseidentifying lawyers and lawsuitsas the cause. Even the 95 plus per­cent of lawyers who have nevercontemplated the filing of amedical malpractice claim find apurely social encounter with doc­tors to be guarded. Anyone famil-

Editor's Note:Winslow Drummond, of Little

Rock, a member of the McMathlaw firm, is president of theArkansas Trial Lawyers Associa­tion, chair of the Arkansas Su­preme Court's Committee on Jurylnstructions, Civil and a memberof the Arkansas Bar Association'sHouse of Delegates. He is a diplo­mate in the American Board ofTrial Advocates, a fellow in theAmerican College of Trial Law­yers and specializes in medicalmalpractice, products liabilityand general torts.48/Arkansas Lawyer/April 1986

iar with the liability insurance in­dustry is aware of the games thatcan be played with reserves inorder to affect tax liabilities orpremium rates or both. Legisla­tion permitting the insurancecommissioner to conduct full­scale investigations of rating pro­cedures is the only means ofestablishing whether the legalprofession is indeed a culprit de­serving of the medical profes­sion's anger and whether currentpremium rates are indeed justi­fied.

No doubt physicians would bedelighted to learn that profession­al liability insurance premiumrates for lawyers are escalating atan unprecedented rate. The groupcarrier for the Arkansas Bar Asso­ciation increased premiumscharged to attorneys by 78 percenton October I. 1985. Another carrierincreased its rates by 295 percentin 1985. Why? Lawyers have morerecently shown little reluctance torepresent clients who have sus­tained damage by reason of thenegligence of an attorney. Just asdoctors know that medical mal­practice occurs, we lawyers knowthat we too are not free from error.Trained in knowledge of thelitigation process, we are betterable to accept with some degreeof understanding the filing of anaction against one of our own. (Idoubt that physicians will ever beable to treat service of a summonsas anything less than the descentof the guillotine blade.)

As lawyers, we do not respondto the increasing number of suitsagainst us by attempting to legis­late away the aggrieved client'sright of recovery or the amount ofrecovery. That approach merelyshifts responsibility for profes­sional wrongdomg to the personwho has suffered harm at thehands of the wrongdoer. Andthat's not professional. If lawyers

are concerned about their liabilitypremiums, they should see thattheir profession is cleansed of in­competency and must be willing,if necessary, to provide experttestimony against professionalcolleagues who have failed tomeet acceptable standards ofpractice. Legal malpractice suitsin Arkansas are frequently settledand, when tried, do not requireexpert testimony by an out-of­state attorney. If necessary, weare willing to go to bat againstone of our own, motivated by a de­sire to see justice done and profes­sional standards preserved. In­variably the defendant attorneybears no ill will toward the expertwitness testifying for the plaintiffclient.

I would urge that Arkansasphysicians attempt to emulate theapproach taken by lawyers to le­gal malpractice litigation. Specif­ically, I would like to see doctorsin this state manifest a willing­ness to consult candidly withlawyers about the merits of claimsand to testify. if necessary, even iftheir opinions may be adverse to aprofessional colleague. Admitted­ly, this may be difficult in terms ofcontinuing professional rela­tionships. But. on the other hand.even the expression on the part ofa physician that he may be will­ing to do this could lead to realis­tic settlement discussions prior tothe filing of any lawsuit and. mostimportantly. could enhance stan­dards of medical practice. Toooften lawyers can elicit an "off therecord" medical opinion that aparticular doctor may have beennegligent, only to find that thatopinion is ultimately useless be­cause the physician renderingthat opinion does not want to "getinvolved." Lawyers on both sidesof the table respect thecourageous physician who is will­ing to take the unpopular position

in criticizing a professional col­league while supporting a claimof a patient of that colleague.

A malpractice claim or suitagainst any professional- physi­cian. lawyer. accountant. en­gineer, etc. - cannot be prose­cuted if baseless. A "bad result"in a legal matter does not estab­lish actionable negligence on thepart of the lawyer on the short endof the stick. And yet, there are stilltoo many of us ready and willingto haul off and sue a doctor be­cause of a patient's dissatisfac­tion with a medical result or thedoctor's "attitude" As lawyerswe can evaluate a legal malprac­tice claim. As lawyers, we need tolearn again and again that onlythe opinion of a medical expert isdeterminative of the validity of amedical malpractice claim. Evenwhen negligence may be appar­ent, a medical opinion may beessential to establish proximatecausation. It behooves all of us toproceed cautiously, taking thatlong, hard look at every case be­fore embarking on the prosecutionof a non-meritorious claim or suit.

Many claims are generated by

little more than a breakdown incommunications between doctorand patient. I personally receivean average of five inquiries aweek about medical malpracticematters and, at most, will find onein 20 worthy of even preliminaryscreening. And of those subjectedto more careful scrutiny, only onein two will prove worth pursuingfurther. All too often, the com­plaining patient or his referringlawyer can only point to a break­down in communications betweenthe physician and the patient orthe patient's family. A simple ex­pression of personal concern oreven an apology (not an admis­sion of legal liability) by the doc­tor would result in fewer phonecalls and personal visits tolawyers' offices.

A doctor's patient is a lawyer'sclient. The patient and the clientdeserve competent, professionalservice. Whether patient, client,or customer, a member of the pub­lic is entitled to non-negligenthandling of his affairs and to com­pensation if he suffers damagedue to negligent wrongdoing.While self-interest dictates that

we mitigate the cost of our liabil­ity insurance. we cannot denyremedies to our victims in order tosatisfy that self-interest. As pro­fessionals, we must share the bur­dens imposed by reasons of ourparticular professional standardsand common credentials, seekingas nearly as possible to assure thepublic whom we serve that ourprofessions are peopled by com­petents and that the disciplinaryand compensatory responsibilityfor occasional imperfections willbe jointly discharged by ourpeers. D

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Law, Literature & Laughter

"American lawyers are undeni­ably the best in the world at whatthey do." wrote John J. Fialka in aDecember 1985 issue 01 the WallStreet Journal. Himself an attor­ney. the author suggested thatU.S. attorneys could be "the mostellective product to counter the$37 billion trade deficit withJapan."

He pointed out that Americanlawyers are a logical commodityto export. We have them "inabundance." he said. They are "01high quality." And they are"something that can overcomebureaucratic opposition like theRefrigerator does opposing linesin football." Also. whereas wehave one lawyer for every 355 peo­ple. the Japanese ratio is 1:9000.

We should introduce theJapanese to such things as ouranti-trust laws and "imaginativeand flamboyant" personal injurytheories. Fialka contended. Japanthen would develop a need to im­port hundreds more attorneys todefend the thousands of lawsuitsthat would be filed.

"After the imported lawyershave done their work for awhile."Fialka concluded. "the entiretrade deficit will simply havewithered away."

While reading the Fialka piece.I was nipping on eggnog in frontof a Christmasy blaze in the fire­place. I closed my eyes lor a mo­ment.

TOKYO HARBOR. 2005 - Howdid I get here? Looking around. ISee several familiar laces: deputyprosecutors. assistant attorneysgeneral. lellow business lawyersand many P.I. types. It is verycrowded. I am puzzled.

I did not sign up for a CLE semi­nar in the Far East. What is thistag on my arm? It reads. "Grade21A - Foreclosures. Lease Dis­putes. Contracts - Inspected byNo. 17."

All the people around me alsohave tags on their arms. Have I

By Vic Fleming

been drugged? Slowly now.things are coming back to me.

First there was the legislation:the Attorney Export Act 01 1999.also known as the "Falwell­Robertson Amendment." sonamed lor the President and Vice­President who fostered the leg­islation in Congress. Then therewas the competency test. The top25 percent and the bottom 25 per­cent stayed at home. The other 50percent were designated for ex­port.

Then there was the inevitablechallenge by class action. It is un­constitutional. we argued, to send50 percent 01 the country's lawyersoverseas. Our opponents argued

that 90 percent should be ex­ported. The big surprise to thepublic was the Supreme Court'sdenial 01 certiorari.

It should not have been such asurprise. Federal judges were ex­empt from the competency test.The justices knew il they over­turned the legislation. a new lawwould remove the exemption.

So. here we are. I can see signsover doors on the dock: "SecuritiesRegulation - Quality Control;""Torts - Quality Control;" "Wills.Estates & Trusts - Quality Con­trol." They are screening the ar­riving shipment lor defectiveproduct.

In the distance I hear a voice,with a heavy Japanese accent.saying. "Tell me Chief JusticeMarshall's reasoning in Marburyv. Madison. okay?" From anotherdirection: "Define 'Ioreseeable' asper the doctrine 01 Hadley v. Bax­endale." And from still anotherarea: "Plea bargain. you fool! Pleabargain!"

[ am now in line. awaiting myturn with the examiner. He is a250-pound Samurai warrior. aswell as a real estate attorney (anda licensed broker). The rumor isthat upon lailure 01 the one­question test, one either is sum­marily executed or shipped to aLegal Aid office atop Mount Fuji. Ihope lor an easy question.

It is now my turn. The intimidat­ing examiner says to me. "Youlandlord. I tenant. Month to monthlease. How much notice you giveme to vacate premises?"

Automatically I respond."Twenty-one years lrom the death01 the last life in being as 01 crea­tion of the interest in question."

His narrow eyes grow large assaucers. With a bloodcurdlingscream, he withdraws his sword.

I awoke from my slumber in acold sweat. I tossed the WallStreet Journal into the fireplace.D

©1985 by Vic Fleming

April 19B6/Arkansas Lawyer/51

..--.,,,

Giving YourAppeal ... More

BY BART F. VIRDEN

52/Arkansas Lawyer/April 1986

1 _

j

One couldn't begin to listthe many mistakesmade in briefs beforethe Arkansas Supreme

Court. Of recent fame, one brieftermed "num-chucks" - two clubsconnected by a chain - a maritalarts weapon rather than a martialarts weapon.

Eleven months of head­scratching, chortles and occasion­al groans over errors of this naturehave resulted in this article. Youwill, hopefully, gain a few ideasto help if you are subject to thetrial by fire we call an appeal.

Regardless of a judge's andclerk's efforts to remain impartial.a sloppy brief may make a sub­liminal statement to them aboutthe case. Proof-reading easilycleans up most problems.

Take for example these recenterrors:

"The Appellant was charged. alongwith three alleged accomplishes ...""This co-defendant was to testifyagainst the other co-defendants,and was to be granted ammunity.""The prosecutory didn't make thestatement available to the defen­dant."

In one case, the appellant ob­jected to being forced to use apreinventory challenge. Inanother, the appellant com­plained that the trial court "erredwhen it reused the appellant'smotion to suppress." In the samebrief. "... the state, according tothe appellant, moved the court toinstruct the appellant's counselnot to mention or bring before thejury the feat he represented one ofthe defendants earlier ..."

You have to sympathize withthe landowner's attorney whostated that they refused to sign anoil and gas division order thatwas "one-sided and unilateral."I'm not sure, but that may be "re­petitively redundant."

While many problems are sty­listic and do not violate anyappellate rules or Rules of theSupreme Court and Court ofAppeals, some errors and omis­sions simply are not in com·pliance. Here's a few you mightlook up and keep in mind:

RECENT APPLICATIONS OFAPPELLANT RULES 4 AND 5. If youmake a new trial motion, it is upto you to see that within 30 daysthere appears on the record one ofthe following: an order setting a

hearing date; a statement by theCourt that the motion is underadvisement; or. a ruling on themotion.

The motion is denied if one ofthese does not appear on the rec­ord within 30 days. You then have10 days to file a Notice of Appeal.After this, the clerk will not acceptyour appeaL nor will the Courtorder it to be accepted.

If yours is a criminal case, theCourt will accept the late filingupon an admission of error by theattorney. A letter is sent to theCourt's Committee on Profession­al Conduct and you will probablyget a Letter of Reprimand from theCommittee.

RULE 29 AND 9(F) OF THE SU­PREME COURT AND COURT OFAPPEALS, Under Rule 29, you arerequired to include a jurisdiction­al statement at the beginning ofyour brief. It is not helpful to state,"This appeal is taken pursuant torule 29."

Rule 9(F) requires you to givethe official citation to a case. Theofficial cite is the cite to ArkansasReports, This is required becausethe judges and clerks have Arkan­sas Reports and not SouthwesternReporter,

Other helpful hints, somequasi-official and in no particularorder. are:

• When numbering arguments. theappellee is required 10 make his argu­ments correspond to those of the appel­lant.

• Avoid the word "clear" or any varia­tion. (If the matter is clear then there is noneed for an appeal.)

• Don't sling mud at the other side, In arecent case, a large insurance defensefirm stated, "Even in 'Roe vs. Joe,' relied onso heavily by the appellants, the judiciallyactivist New Jersey Supreme Court .. ," Inanother case, the appellee commented onthe appellant's refusal to settle beforetrial. "The plaintiffs made no effort to dothis and neither they, nor more likely, theirattorney, should be allowed to profit bytheir own breach of the agreement."

• Remember, nothing is too obvious torequire authority to support it. There aremany cases on the books in which theCourt has stated that without authority tosupport it, they may ignore the issue com­pletely.

• If you refer to testimony or evidence, areference to the record is not helpful tothose reading your brief without the onecopy of the record. Cite to the abstract. IIit's not in the abstract, only in the record,you have not properly abstracted the case,If you read the cases annotated in Rule 9,you will see that the Court won't explorethe record to lind the references. In fact, itis quite possible that the judgment will be

summarily affirmed.• Don't cite only "Act 148 of 1959," for

example. Include the cite to Ark. Stat. Ann.66-2216. Locate Volume 8 of the ArkansasStatutes. The cross· reference tables willgive you the statute as codified.

• Don't abstract matters which have norelevance to the issues raised on appeal.Conversely, don't be too frugal. For in­stance, if a complaint was dismissed on a12(bX6) motion, put enough in the abstractfor the Court to review it. Again, there isonly one copy of the record on hand.

• I might be chastised for suggestingthis, but a well-written reply brief isalmost always helplul. It means morereading but it does direct the researcher toissues raised by the appellee's response.

ORAL ARGUMENTSThe Court does listen to oral

arguments. They do not have theirminds made up when they sit atthe bench on Monday mornings.They do, however, have questionsin their minds. Here's a few thingsyou can do in oral arguments tohelp your case.

Firsl, you already have anadvantage of the eight or ninecases being reviewed since theCourt is devoting extra time toyour case at your request.

II the case is complicated withmany issues, use the time to clearup difficult questions. Neverassume the Court needs a longrecitation of the facts.

Focus on your strongest pointfirst. The Court may have ques­tions. If you don't get to all of yourprepared text (which I don't rec­ommend) it won't matter much.

There is really no way to guesswhat the Court will find importantor dispositive of your case. There­fore, you should try to control theirfocus as much as possible andstill fully respond to the ques­tions.

One final note regarding abrief. A lesson in geographymight be in order for the attorneywho wrote. "Two witnesses identi­fied the defendant's van atthe Oklahoma crime scene inArkansas." 0

Editor's Note:Bart F. Virden is associated with

the Loh, Massey and Yates lawfirm of Morrilton. Virden receiveda B.A. in journalism from the Uni­versity of Arkansas at Fayettevilleand is a graduate of the U of A atFayetteville School of Law. He is aformer law clerk for Arkansas Su­preme Court Associate JusticeDavid Newbern.

April 19861Arkansas Lawyer/53

(from left) Rush, Jack and Barry Deacon with photograph of Joe Barrett in background

The Impactof Good Lawyering

THE BARRETT-DEACON FAMILY

ByBrooksLandon

541Arkansas Lawyer/April 1986

When John C. Deacon waselected president of theNational Conference of Com­

missioners on Uniform State Laws in1979, he became only the second Arkan­san to be so honored, the first havingbeen Joe C. Barrett in 1954. That JackDeacon was Joe Barrett's law partner inthe lonesboro firm of Barrett, Wheatley,Smith & Deacon, and his son-in-law,suggests the remarkable axis ofachievement outlined by their legalcareers. In fact. it is hard to imaginehow these two Jonesboro "country"lawyers could have so consistently andso effectively contributed to the develop-

ment of state, national and internationalprofessional concerns.

An entry in the September 1972 issueof The Arkansas Lawyer marveled that"Jack Deacon seems more like Joe Bar­rett's sOn than his son-in-law," explain­ing "lawyers with talent like theirs comealong about one in a thousand."

Between them, Joe Barrett and JackEditor's Note:

Brooks Landon is an associate profes­sor in the Department of English of theUniversity of Iowa. He has studied theBarrett/Deacon family for the last 13years, instructed in great part by hiswife, Marie, Jack Deacon's daughter.

,

had met at First Baptist Church in Fay­etteville. and they were married in 1923.They had one daughter, Dorine, whomJack Deacon was to marry in 1947.

'Jack Deacon seems morelike Joe Barrett's son

than his son-in-law ..lawyers like theirs come

Deacon have been elected to more pre­stigious legal positions, having receivedmore honors from their peers, have beenmore involved in legal public serviceand community activities and have hada greater impact on the formulation ofstate, national and international lawthan can possibly be detailed in thebrief space of this mticle, However, evena partial record of their activities andhonors suggests the extraordinary im­pression these two men have made intheir pursuit of excellence in the law.

Before he died in 1980. having devoted56 of his 83 years to the practice of law,Joe Barrett had established himself asone of America's most esteemed and in­fluential architects of the law.

In 1953, Barrett became the first Arkan­sas lawyer to be awarded an honoraryLL.D. from the University of Arkansas; in1960, the first recipient of the Outstand­ing Lawyer Award of the Arkansas BarAssociation/Arkansas Bar Foundation;and. in 1977. recipient of the Hatton W.Sumners Award from the SouthwesternLegal Foundation for his outstandingcontribution to the improvement of theadministration of justice in the south­western states. Perhaps the capstone tohis career came when he received in1979 the prestigious Fellows Fifty-YearAward of the Fellows of the AmericanBar Foundation, a presentation greetedby a standing ovation of more than 1000persons at the Foundation's 23rd AnnualMeeting. One of Barrett's Arkansas col­leagues has observed that he had "prob­ably done more throughout the yearsthan any other member of the ArkansasBar to enhance the image of the legalprofession nationally and international­ly." And Professor Robert A. Leflar, anationally renowned legal scholar anddis tinguished professor of law at theUniversity of Arkansas at FayettevilleSchool of Law, was fond of repeating hisbelief that there were "few lawyers inAmerica. and none in Arkansas, moreloved and respected than Joe Barrett."

Born near Bono. Arkansas in 1897, oneof 10 children in a farm family, Barrettreceived his B.A. from the U of A in 1920.where he was editor of both the Razor­back and the student newspaper, andhis LL.B. with honors from GeorgeWashington University in 1924. He was arepresentative of the United States De­partment of Agriculture in Rome, Italy,from 1922 to 1923. While overseas he re­newed his acquaintance with anotherArkansan. Bertha Campbell. whom he

Barrett returned to Jonesboro to be­gin a small law practice. an "ev­erything practice." centering on

commercial work for banks and localbusinesses, estate planning and taxwork. He was elected president of theArkansas Bar Association in 1943-44.having been a member since 1922. and.following his appointment by GovernorAdkins as a commissioner from Arkan­sas to the National Conference of Com­missioners on Uniform State Laws. be­came chairman of the Arkansas commis­sion. John P. Frank, of Phoenix and a le­gal scholar, notes that Arkansas "cameto have what was probably the foremosttrinity of Uniform Law commissioners inAmerica." referring to Barrett. Ed Wright(later president of the American BarAssociation) and Prof::e::ss::o::r:...L::e:.f::l::a:.;r.:...- _

Barrett servedon many nationaldrafting commit­tees, most signifi­cantly the onethat drafted theUniform Com­mercial Code.Professor Leflar

wrote of Barrett's along one in a thousand'servIce that:

"He was quickly recognized as one of thebest draftsmen in the Conference. Hisfacility for wise analysis of the probableconsequences, both legal and politicaL ofproposed new laws. caused other commis­sioners to consult him constantly. And hisconstant effort to seek out and developnew forms of law. not for the sake ofchange as such but to strengthen the legaland social order in America generally.made him a major contributor to the con­tinuing work of the Conference."For 31 years. Barrett never missed an

annual meeting of the Conference andhis leadership was recognized by hisselection first as chairman of the Execu­tive Committee and later as president.In 1959 he became a life member of theConference. He also became a memberof the permanent editorial board of theUniform Commercial Code and servedon the Committee to Review Article IX ofthe Code. Noting that Barrett's accom­plishments as a commissioner benefitedin part from his friendship and workwith William Schnader of the Philade1-

Generations in the Law: A SeriesApril 1986/Arkansas Lawyer/55

Joe C, Barrett

56/Arkansas Lawyer/April 1986

phia law firm of Schnader. Harrison.Segal & Lewis. Frank concluded:

"Sales. Commercial paper. Bank Depositsand Collection. Leiters of Credit, BulkTransfers. Warehouse Receipts, Bills ofLading. Investm.ent Securities, SecuredTransactions and a host of lesser subjects:most of the commercial transactions of thegeneral run of mankind in the 50 states ofthis union are governed by the UniformCommercial Code. and Joe Barrett ofJonesboro. Arkansas did as much as anyother man in America to build it ... This isan astonishing monument. Most of uslawyers write on water. We make a littleripple and we are gone. Nobody in Amer­ica for the rest of this century is going tobe doing commercial business as hewould have done it if Joe Barrett had notlived. None of our hundreds of thousandsof law students will learn the law as theywould have learned it but for Joe Barrett."Barrett spearheaded the U.S.'s efforts

to unify private international law aswell, a pioneering concern which led tohis serving as a U.S. delegate to seveninternational law conferences. He was amember of the U.S, Observer Delegationto the 8th and 9th Hague Conferences onPrivate International law in 1956 and

1960, and in 1964, when the U.S. be­came a member of the Hague Con­ference, he served as a member ofthe U.S. delegation. He attended aspecial session in 1966. Barrett wasalso a 1964 member of the U.S. de­legation in Rome at the DiplomaticConference on Uniform Law on theInternational Sale of Goods, amember from 1964 to 1967 of the De­partment of State's Advisory Com­mittee on Private International Lawand became a member in 1967 ofthe Department's Advisory Panelon Public International Law deal­ing with problems affecting U.S,foreign policy. He was a member ofthe Advisory Committee to the U.S.Commission on International Rulesof ludicial Procedures and in 1967was elected chairman of the ABA'sInternational and ComparativeLaw Section, As Professor Leflar

observed, "few, if any other countrylawyers without an international lawpractice, with expertise derived solelyfrom intellectual interest, have everbeen so recognized."

The depth of that intellectual interestis also attested to by Barrett's havinglectured widely at law schools and byhis several articles in such publicationsas the American Bar Association Jour­nal. International Lawyer, and theArkansas Law Review, In 1981, Volume35, Number I of the Arkansas Law Re­view was dedicated as the loe C. Barrett

Symposium. "Ioe Barrett." wrote RobertBraucher, associate justice of the Su­preme ludicial Court of Massachusettsin the personal tribute which openedthat issue, "personified the flow of thestream of the common law, working it­self pure,"

Barrett always gave unselfishly ofhis time and talent to the bar aswell as to his community. He was

the delegate from the Arkansas BarAssociation to the ABA's House of Dele­gates from 1946 to 1955, was one of theoriginal Fellows of the American BarFoundation and served on many ABAcommittees through the years. He waschairman of the Scope and CorrelationCommittee in 1958 and chairman of theSpecial Committee on Unification of Pri­vate International Law from 1957 to 1961.His community and civic service in­cluded three years as chairman of theDemocratic State Committee for Arkan­sas, five years as a member of the lones­boro School Board, 12 years as chairmanof the Board of Trustees of the lonesboroPublic Library, president of the U of AAlumni Association and director of theMercantile Bank of lonesboro for 25years.

In the last years of his life, Barrett re­mained fascinated by the legal implica­tions of technological advance, mostnotably the need for a law of outer spaceand for new laws concerning electronicbanking. For him, every era was stir­ring, the challenges to intelligence andingenuity ever new. Hailed by Frank as"that unusual figure, the master of thetelescope and the microscope," Barrettnever failed to meet those challenges,

Following in the footsteps of alegend must be one of the mostdifficult tasks there is, but lack

Deacon is well on his way to forging areputation legendary in its Own right,having long since joined Barrett as oneof the best known and most respectedmembers of the American bar. It hasbeen said that he "leads every organiza­tion he joins," and even a brief glance ata resume in which every other wordseems to be "president." "chairman" or"director" supports that observation.

Deacon's election as president of theNational Conference of Commissionerson Uniform State Laws in 1979, for exam­ple, marked the 14th time in his careerthat his peers had entrusted him withthe direction of a professional organiza­tion. In 1970-71. he had been president ofthe Arkansas Bar Association; in 1974-75,

president of the American Counsel Asso­ciation; in 1977-79, chairman of theNational College of Defense Lawyers;from 1971-79, chairman of the EminentDomain Code Committee of theNCCUSL; from 1975-77, chairman of itsScope and Program Committee and thelist goes on and on, prompting the writerof a profile in The Arkansas Lawyer towonder. "When does he sleep?"

"Jack can keep more balls in the air atone time than anyone I have everknown," says Judge Henry Woods, whowas chairman of the Association's Ex­ecutive Committee the year Deacon waspresident. The real significance of thatremark begins to emerge when one con­siders that Deacon's public service hasencompassed everything from beingpresident of the Arkansas AmateurAthletic Union, to being on the Board ofDirectors of the Arkansas Conference ofChristians and Jews, to serving the last28 years as president of the AdvisoryBoard of St. Bernard's Regional MedicalCenter in Jonesboro. Throw in the presi­dencies over the years of the JonesboroChamber of Commerce, the JonesboroRotary Club (also serving as district gov­ernor of Rotary International DistrictGIS). eight years as president of theUnited Fund of Jonesboro and mem­berships and fellowships in countlessother civic and professional organiza­tions - not to mention a highly success­ful legal practice, four children and 11grandchildren - and the profile of anunbelievably full life is clear.

Phillip CarrolL now Arkansas' thirdpresident of the Conference, has gone sofar as to suggest that if Deacon's "abilityto use a 24 hour day could be bottled intoan elixir (Deacon's liniment) and thensold in a drug store, the entire economycould go on the two-day work week."

Deacon was born in Newport. Arkan­sas, in 1920, the son of John Campbelland Marie Brennan Deacon. He grew upin Little Rock, attended Little Rock JuniorCollege and then the U of A, receivinghis B.A. in 1941. During World War II heserved as an officer in Military Intelli­gence. Following the war, he marriedDorine Barrett and received his LL.B.from Arkansas in 1948. Initially practic­ing alone in Little Rock, he became anassociate with Rose, Meek, House, Bar­rOn & Nash, remaining there until 1951when he was recalled to active duty dur­ing the Korean War and assigned to thePentagon. When he was discharged as amajor in 1952, he and his family, nowincluding a daughter, Marie, and sonsBarry and John, returned to Jonesborowhere he joined Barrett, Archer Wheat-

ley and Berl S. Smith in the practice oflaw. Soon thereafter a fourth child,Rush, was born.

DeacoD's involvement with profes­sional organizations immediate­ly intensified, as he became

chairman of the Association's YoungLawyers' Section in 1954 and director ofthe ABA's Junior Bar Conference in 1955.After moving back to Jonesboro, it tookDeacon all of three years before his ded­ication and enthusiasm won him theaward as Outstanding Young Man ofJonesboro in 1955.

In 1979, one of Deacon's colleaguesfound an even better way to recognizehis place in the community. In present­ing an award honoring Deacon's 25years of continuous board service to theUnited Way, John Phelps identified himas "0 'representative man' in Emerson'sphrase, One who embodies the con­sciousness of a community and who per­ceives things in fresh lights and withnew conceptions." Significantly, Phelpsalso recalled an early conversationwhere Deacon had expressed his convic­tion that Jonesboro was a com­munity shaped and defined bythe hearts and civic virtue ofits citizens rather than' bystrategic location for com­merce. Most would assent tosuch a civic-minded proposi­tion, but the record ofDeacon's life reveals his un­wavering commitment to it.

Deacon's work with civicorganizations such as the Un­ited Fund of Jonesboro, theJonesboro Jaycees, the Craig­head County Red Cross, St.Bernard's Hospital and theCraighead County Libraryoffers clear evidence of hisleadership skills as well ashis public spirit. Carroll hasexplained those skills in termsof flexibility, enthusiasm andcommunication:

"He can follow traditionalpaths when he knows wherethey lead. and he can alsostrike out on totally unchartedcourses. Conservatives andliberals both claim him astheir champion. He has the ex­

traordinary power to enlist the Joe Barrett at Internationalefforts of persons whom he .stimulates. and then he draws Conference In Rome, Italyfrom them effort that is a surprise to every-one except Jack. Part of his success formu-

Law

April 1986/Arkansas Lawyer/57

Jack Deacon

10 in his enthusiasm. It is as infectious asa virus. Above all else. Jack communi·cates.'

In recent years. Deacon has served asa member of the ABA's Board of Gov­ernor's from the Eleventh District (Arkan­sas, Texas and Oklahoma), as a memberof the Board of Directors of the Interna­tional Academy of Trial Lawyers and aschairman of the Research Fellows of theSouthwestern Legal Foundation, Amember of the American Bar Commis­sion on Medical Professional Liabilityfrom 1975 to 1980 and a member of theAmerican Academy of Hospital Attor­neys, Deacon has developed noteworthyexpertise in healthcare law. Although

~~~~~~===~~~~jh~ecalls himself a general practitioner,representing a broad spectrum of

clients, in the last 15 to 20 years hehas spent a large portion of his time inthe defense of medical malpracticecases. Indeed, he has been on the cut­ting edge of many of the significantArkansas appellate decisions in heal­thcare law during the last decade. To­day, the busy law practice and workfor his community and profession con­tinue. This year, he will have served20 consecutive years in the ABA'sHouse of Delegates. He also serves aschairman of the prestigious SteeringCommittee of the ABA's Public Educa­tion Division, planning and coordinat­ing all the ABA's activities for the 1987Bicentennial of the U.S. Constitution,along with other ABA public educa­tion programs.

Two of Deacon's sons have followedtheir father and grandfather into thelaw, first Barry in 1975, then Rush in1978 - both continuing many of theinterests and involvements long

associated with their family and bothhaving added activities and developedspecialties of their own.

Joseph Barrett Deacon (Barry) wasborn in 1950 and raised in Jonesborowhere he distinguished himself as achampion swimmer, holding many staterecords. He attended the U of A on aswimming scholarship. At Arkansas. hewas a member of Sigma Chi fraternity,as had been his father, and served as itspresident. Barry was named to OmicronDelta Kappa honorary fraternity beforehe graduated in 1972 with a degree inBusiness and Finance. In 1975, he gradu­ated from the U of A School of Law andjoined the Barrett, Wheatley, Smith &Deacon law firm where he is now a part­ner.

SS/Arkansas Lawyer/April 1986

Barry has served as president of theBoard of Blessed Sacramen tSchool in Jonesboro and is cur­

rently serving a second term as presi­dent of the Board of Cottage of Hope, aschool for children with developmentaldisabilities. He has also chaired varioussections of United Way and has servedon the Board of Directors of the Jones­boro Rotary Club. He is a member of theABA's Litigation and General PracticeSections and is active in the Associa­tion, where he has served on variouscommittees and the YLS' ExecutiveCouncil.

Rush Brennan Deacon was born in1953 and raised in Jonesboro, where healso became a champion swimmer. Af­ter attending Hendrix College for oneyear, he graduated from the U of A in1975 with a B.S.B.A. degree in Account­ing. At Arkansas, Rush like his fatherand two brothers before him, became aSigma Chi. and like Barry, was electedpresident. After graduating from the U ofA School of Law in 1978, Rush workedwith Price Waterhouse & Co. in Houston,Texas, as a stall accountant in the inter­national division of its tax department.Alter one year in Houston, he moved toLondon, England, for a one year assign­ment in Price Waterhouse's internation­al headquarters.

Leaving Price Waterhouse to return toschool. Rush earned a Master of LawsDegree in Taxation from SouthernMethodist University Law School in 1981.He worked for two years with the NorthLittle Rock law firm of Wallace, Hilburn,Clayton, Calhoun & Forster before join­ing Stephens, Inc. of Little Rock in June1983. He is currently vice president­Finance at United Pacific Trading, Inc.,an international trading companyformed in 1983 by Stephens and the Lip­pa Group of Indonesia. Rush is on theBoard of Directors of the Mid-South Inter­national Trade Association, is a certifiedpublic accountant and a registeredsecurities representative licensed bothfederally and in Arkansas.

Chief Justice Vincent L, McKusick ofMaine once praised Joe Barrett as a manwho "showed the way to all of us whocome from smaller states and smallercommunities the impact that a goodlawyer can have." Jack Deacon's ellortson behalf of his profession and of hiscommunity dramatically underscore andadd to that lesson. And now Rush andBarry represent a third generation ofBarrett/Deacon lawyers, insuring thatthe family tradition of excellence andservice will continue to have an impact- on Arkansas and beyond. 0

A JudicialMaze

Bankruptcy: An Overview of the 1984 Jurisdictional Amendments'

By Judge Robert Fussell

The judicial code provisions' contained in the Bank­ruptcy Amendments and Federal Judgeship Act of19843 have created a maze for attorneys practicing in

United States bankruptcy courts, U.S. district courts andstate courts. This article will briefly review the jurisdictionalgrants made to U.S. district judges and bankruptcy judgesby 28 U.S.C. §1471, enacted by the Bankruptcy Reform Act of1978'; the U.S. Supreme Court's decision in Northern PipelineConstruction Co. v. Marathon Pipe Line Co.'; the InterimGeneral Orders of the District Court after Marathon'; the 1984Bankruptcy Amendments (1984 act)'; and "core," "non-core"and "related" proceedings under the 1984 amendments.'This article will further present and discuss. through the useof a hypotheticaL various motions under the 1984 amend­ments. including references of cases and proceedings by thedistrict court to the bankruptcy judges, motions to withdrawthe references and motions to abstain from jurisdiction.Section 147l of 1978 Act I / / / / / / / / / / / / /

In the Bankruptcy Reform Act of / / / / / / / / / / / / / /1978. Congress extended a broad than the district courts. the dis-grant of jurisdiction to the bank- trict courts shall have originalruptcy court. The purpose was to but not exclusive jurisdiction ofhave one forurp. where all the all civil proceedings arisinglitigation affecting the bankrupt's under title II or arising in or re-estate could be adjudicated. Sec- lated to cases under title II ..lion 1471 of that act provided: (c) The bankruptcy court for the dls-

(0) Except as provided in 5ubsec- tn~t In which a case under h.tlehon (b) of this section. the dis- II IS com~e~ce~ s.hall exerCisetrict court shall have original all of. the JU~lsdlchon con~err~dand exclusive jurisdiction of all by this sechon on the dIstnctcases under title II. courts.

(b) Notwithstanding any act of Con- The Marathon Decisiongress that infers exclusive juris- The U.S. Supreme Court, in itsdiction on a court or courts other plurality opinion. held that

April t986/Arkansas Lawyer/59

.... .: .... _.r

1////////////////////////////////////////////II§147I(c) of the 1978 act, which con- ceedings filed by the debtor's of property where not arising fromferred jurisdiction in the hank- estate against parties who have proceedings resultmg fro~ clQIms

" .. 'I d I' 'th d bt brought by the estate agaInst par-ruptcy court to adjudIcate all CIvil not h e a c Olm agamst e e - 'h h t f'l d I ', " h h· ties w 0 ave no I e calms

procee.dings ~elated tc? cases or.s estate and In WhlC t e achon against the estate; and similar mat-under tItle ll, vIOlated ArtIcle 1lI of anses under state or federal non- ters, A proceeding is not a relatedthe U.S. Constitution. The Su- bankruptcy laws.! proceeding merely because the out-preme Court reasoned that the The Interim General Orders come will be affected by state law,conferred jurisdiction amounted After the Marathon decision the Thus, the bankruptcy judgesto an unlawful delegation of Arti- bankruptcy judicial system was in were authorized in "related" pro-cle 1lI judicial powers upon judges disarray, Interim General Orders ceedings to hear and make recom-who lack life tenure and protec- were enacted by each of the U,S, mended findings of fact and con-tion against salary diminution, district courts until Congress clusions of law to the U,S, district

The factual situation presented could enact remedial legislation, court, unless the parties in thein Marathon was one where The District Court for the East- proceedings consented to entry ofNorthern Pipeline filed a petition ern and Western Districts of the judgment or order by the bank-for chapter II reorganization in Arkansas adopted General ruptcy judge, Under Generalbankruptcy court. Northern Pipe- Orders No, 24 and No, 28 which set Order 24, bankruptcy courts couldline then filed in bankruptcy court forth the jurisdictional basis of the hear and enter final orders anda complaint against Marathon operation of the bankruptcy courts judgments in proceedings whichseeking damages for an alleged until Congress enacted remedial were not classified as "related"breach of contract and warranty, legislation," Under General Order proceedings, The General Orderas well as for misrepresentation. 28 "related proceedings" were de- did not allow bankruptcy courts tocoercion and duress, The defen- fined as follows: conduct jury trials,dant Marathon had not filed a (T)hose civil proceedings, that, in 1984 Bankruptcy (Jurisdictional)claim against the debtor's estate the absence of a petItion m ban~. Amendmentsllat the time the complaint was ruptcy" could have been brought In Th 1984 'urisdictional amend-

d M th th f'l d a dIstrIct court or a state courl. Re- e) "commence, ara on en leI d d" I d b t ments relevant to thiS artIcle are, d" f I k f ate procee Ings inC u e, Ua mohon to Ism ISS or ac 0 tl' 't d t I' (b ht set forth in the Appendix". . . - . were no Iml e 0, c QIms roug .subject molter JunsdlctIon of the by the estate) against parties who "Core" and "Non-Core"bankruptcy court. have not filed claims against the es- Proceedings"

I~ essence, the Supreme. Court tate. (That outlines the facts under Prior to the Marathon decision,deCIded that bankruptcy Judges the Marathon case,) Related pro- the terms "core" and "non-core"who do not have life tenure as ceedings do not include: contested h f' t P oceedl'ngs... w en re erring a rArtIcle 1lI Judges cannot enter h- and uncontested matters concern- 'th' b k t d'd t

d ' d' ' th d ' 't t' f th t t ' WI m a an rup cy case, I nonol or ers or JU groents In pro- mg e a mlms ra Ion 0 e es a e, . H f h- , allowance of and objection to a eXlsl. owever, a ter t e

EdItor s Note: . claim against the estate; counter. Marathon court outlined the newJudge Robert fussell.. of LaUe claims by the estate in whatever jurisdictional limitations for non-

Rock, U,S, bankruptcy Judge lor amount against persons filing life tenured bankruptcy judges,the Eastern and Western Dlstncts claims against the estate; orders in the terms became important. Theof Arkansas, is a former chief respect to obtaining credit; orders core/non-core labels are used toassistant and assista~t U.S. atto.r- to turn o.ver property of.the estate; separate proceedings in whichney, and former speCial master ln proceedmgs to set aSide prefer- bankruptcy judges may enter finalthe U,S, District Court for the East- ences and fraudulent conveyances; orders and judgments subject onlyern District of Arkansas He is also proceedings m respect to hftmg of t d't' 1 11 t ', , 'd' to ra Ilona appe a e reVIewa former attorney for the National the automatic stay, procee mgs to ( ) f h ' h' h b k

. object to the discharge; proceed- core rom t ose In w IC an·Labor RelatIOns Board and a for- " t t th f' t' ruptcy )'udges may enter only. mgs In respec 0 e con ama iOnmer lecturer on tnal advocacy at of plans; orders approving the sale proposed findings and conclu-the UALR School of Law,60/Arkansas Lawyer/Apri) 1986

sions subject to de novo review bythe district court, unless all par­ties consent to a decision by thebankuptcy judge (non-core). Whilethere is no formal legislative his­tory in the form of committee re­ports to hint a congressional in­tent as to which proceedings weremeant to fall into which category,there is guidance found in the lan­guage of the 1984 amendmentsthemselves. 14

Contained in 28 U.S.C. §157(b)(2)is a non-inclusive list of core pro­ceedings. However, two defini­tions in the list (located in§157(b)(2)(A) and (0)) seem to en­compass every proceeding im­aginable by including as core pro­ceedings: "matters concerning theadministration of the estate" and"other proceedings affecting theliquidation of the assets of theestate or the adjustment of the debt­or-<:reditor ... relationship ...""

There is no specific statutorylanguage defining a "non-core" or"related to" proceeding. At best,the 1984 amendments provideguidance to the meaning of thoseterms in §157(c)(l) which state: "Abankruptcy judge may hear a pro­ceeding that is not a core proceed­ing but is otherwise related to acase under title 11." That is, ofcourse, all-encompassing lan­guage like the statutory languagedefining certain core proceedingsin 28 U.S.C. §157(b)(2)(A) and (D).

Therefore, determining whatconstitutes core and non-core pro­ceedings can be troublesome. De­cisions are already in conflict asto what proceedings constitute"core" and "non-core." Examplesof how certain actions have beenclassified include:

(1) Collection of accounts receiv­able for promissory note by debtor inpossession. Compare BaldwinUnited-Corp.. 52 B.H. 541 (8krtcy. S.C.Ohio 1985) (core) and In re American ofAshburn, Inc.. 49 B.H. 926 (Bkrtcy, N.D.Ga. 1985) with In re Atlas Automation.Inc, 42 B.H. 246 (Bkrtcy. E.D. Mich.1984) and In re Arnold, 54 B.H. 562(Bkrtcy. D. Mass. 1985) (non-core).

(2) Motions to reject executory con­tracts and turnover of property seizedpost-petition. Compare In re Turbo­wind, Inc.. 42 B.H. 579 (Bkrtcy. S.D.Cal. 1984) (core) with In re Bell & Beck­with, 54 B.H. 303 (Bkrtcy. N.D. Ohio1985) (trustee sought contract reds­sion: related non-core).

(3) Actions to recover property of

HYPOTHETICALA locallarm implement dealer sells

farm equipment to a farmer forS3OO.ooo. The farmer executes a prom­issory note and security agreement inlavor of the dealer. The farmer'smother co-signs the promissory note.The farmer defaults on the promissorynote and the dealer files a foreclosurecomplaint in Pulaski County Chan­cery Court. naming the farmer and hismother. who co-signed the promissorynote. as defendants and seeking a de­ficiency judgment. Both the farmer

the estate and preference actionsunder 547 and actions to recover prop­erty conveyed with specific intent tohinder. delay and defraud creditors.In re DeLorean Motor Co.. 49 B.H. 900(Bkrtcy. E. D. Mich. 1985) (core).

(4) Actions to enjoin debtor's use oftrade name which is property of theestate. In re Nettie Lee Shops of Bris­tol, Inc.. 49 B,ft, 946 (Bkrtcy, W, D, Va.1985) (core).

(5) Proceeding seeking insuranceproceeds. In re Pied Piper Casuals,Inc.. 50 B.H. 549 (Bkrtcy. S.D.N.Y. 1985)(core).

(6) Debtor's motion to reject twolicenses. In re Chipwich, Inc.. 54 B.R.427 (Bkrtcy. S.D.N. Y. 1985) (core).

(7) State law contract claim seekinginjunctive relief in which debtor suedlessor for breach of lease. In re Pierce,44 B.H. 601 (Dist. Ct. D. Col. 1984) (non­core).

(8) Action by debtor against sup­plier for breach of warranty. MohawkIndustries. Inc .. v. Robinson Indus~

tries. Inc.. 46 B.ft. 464 (Dist. Ct. D.Mass. 1985) (non-core).

WORKING THROUGHTHE MAZE

Question One: What Law AppliesOnce Bankruptcy is Filed?

Once the farmer files his bank­ruptcy petition, the federal bank­ruptcy law becomes applicable.See 28 U.S.C. §1334(a)(b)(Appendix). Also, at the momentthe bankruptcy petition is filed,the civil suit of foreclosure inchancery court is automaticallystayed as to the farmer under IIU.S.C. §362(a).". When the farmerfiles his motion for removal of thestate case to district court pur­suant to 28 U.S.C. §1452, an orderfor removal will be entered by thedistrict court." Once removed, thematter is then automatically re­ferred to the bankruptcy judgepursuant to 28 U.S.C. §157(a) andU.S.D.C. Local Rule 32." The state

and his mother file answers denyingthe allegations in the complaint, aUir·matively pleading usury as defense.

The day before the trial in chancerycourt, the farmer files a chapter 11business reorganization petition inU.S. bankruptcy court. The bankrupt­cy case is automatically referenced toa bankruptcy judge. The larmer thenfiles a motion in bankruptcy courtseeking an order to extend its protec­tion to his mother during the proceed·ings in order to stop the dealer fromproceeding against her in the dealer'sstate court suit.

The farmer files a petition in U.S.district court to remove the state chan­cery court proceedings to U.S. districtcourt. The district judge then entersan order of removal to district courtand the suit is automatically referredto the bankruptcy judge assigned thedebtor's case and is assigned anadversary proceeding number.

Next, the farmer files a third-partycomplaint in the adversary proceed­ing against an out~of·state manufac·turer of farm equipment lor $200,000,alleging breach of warranties. Healso files in the adversary proceedinga counterclaim against the dealer for$200,000, alleging misrepresentationand breach of warranties in connec­tion with the sale of farm equipment.

Both the dealer and the larm equip­ment manufacturer file motions in dis­trict court to withdraw the reference ofthe adversary proceeding from thebankruptcy judge. They also file indistrict court motions for the court toabstain from jurisdiction. The dealerfiles in bankruptcy court a Motion forHelief from Stay to proceed with hissuit in state court and files an objec­tion to the farmer's motion for an ex­tension of the stay to his mother.Then, the dealer and the out-ai-statefarm equipment manufacturer, whilereserving their jurisdictional motionsin district court. file answers in bank~

ruptcy court in the adversary pro­ceeding demanding a jury trial.

What is the likely outcome?IS

court foreclosure suit is desig­nated an adversary proceedingunder Bankruptcy Rule 7001.'"

The farmer's counterclaimalleging a breach of warrantiesand misrepresentation based onthe contract of sale of the farmequipment to him would also be apart of that adversary proceeding,as would the farmer's third-partycomplaint against the farm equip­ment manufacturer, alleging abreach of warranties. Appropriatestate law would govern the inter-

April 1986/Arkansas Lawyer/61

pretation of the contract issueswithin the adversary proceeding.Question Two: Are the Proceed­ings in the Hypothetical "Core" or"Non-Core?"21

I. The Dealer v. the FarmerThe suit filed by the dealer in

chancery court against the farmerseeking foreclosure and a judg­ment against the farmer is basedon the farmer's default on a prom­issory note. Once the farmer filedhis chapter II petition, the U.S.district court, under 28 U.S.C.§1334(a), became vested with orig­inal and exclusive jurisdiction ofhis case under title II, and the dis­trict court became vested withjurisdiction over all his propertyand property of the bankruptcyestate pursuant of II U.S.C.§1334(d).

The dealer's suit against thefarmer, once removed to the bank­ruptcy court under 28 U.S.C.§1452, can be interpreted as a"claim" against the debtor'sestate because the dealer is seek­ing a right to payment by thefarmer under the contract. 11U.S.C. §101(4XA) (" 'claim' means- (A) right to payment, whether ornot such right is ... contingent..."). Under 28 U.S.C §157(bX2XB)core proceedings include "allow­ance or disallowance of claimsagainst the estate." Thus, thedealer's claim against the farmerwould be classified as a "core"proceeding. Furthermore, thebankruptcy court would have todecide whether the usury defenseto the contract raised by the farm­er would be categorized as a"core" or "non-core" issue, inaccordance with II U.S.C.§157(bX3).

2. The Farmer's CounterclaimAgainst the Dealer

The farmer's counterclaim inthe adversary proceeding basedon alleged breach of warrantiesand misrepresentation under thecontract of sale could be inter­preted as falling within the speci­fic language of Section157(bX2XC): "counterclaims by theestate against persons filingclaims against the estate." Thus,the counterclaim would fall with­in the classification of a "core pro­ceeding."

3. The Farmer's Third PartyClaim Against the Farm Equip­621Arkansas Lawyer/April 1986

ment ManufacturerThe farmer's third party com­

plaint. based on a breach of war­ranties against the farm equip­ment manufacturer who has notfiled a claim against the farmer'sestate, could be interpreted as anon-core proceeding that is other­wise related to a bankruptcy case.See §157(c)(l) (Appendix). In thisregard, the facts fall squarelywithin the facts of Marathon, i.e.,a cause of action based upon statelaw by the debtor's estate againsta non-debtor who has not filed aclaim against the debtor's estate.See Mohawk Industries v. Robin­son Industries, Inc.. 46 B.H. 464(Dist. Ct. D. Mass. 1985) (an actionby the debtor against a supplierfor breach of warranties).

4. The Dealer's Claim Againstthe Farmer's Mother

The dealer's suit against thefarmer's mother, co-signer of herson's note, seeking damages fordefault on the promissory note, isa state cause of action by a non­debtor against a non-debtor. Thisproceeding, at best, would be onthe outer edge of (or beyond) the"non-core" or "related to" categor­ies of proceedings which can beheard by the bankruptcy judge.This matter will be examinedfurther under the discussion re­garding the dealer's motion to ab­stain and the farmer's motion toextend the stay to the mother.Question Three: Should the JuryTrial Demands be Granted?

Whether or not the parties areentitled to a jury trial in the bank­ruptcy forum under 28 U.S.C. §1411is an issue which will ultimatelybe resolved by the U.S. SupremeCourt. There are cases whichhave reached different conclu­sions on the issue. Compare In reChase & Sanborn Corp.. 54 B.H. 43(Bkrtcy. S.D. Fla. 1985) (defendantnot entitled to jury trial in actionto avoid preference) and In re BestPack Seafood. Inc .• 45 B.R. 194(Bkrtcy. D. Me. 1984) (defendantnot entitled to jury trial in actionto avoid preference) with In reArnett Oil, Inc.. 44 B.H. 603 (Dist.C\. N.D. Ind. 1984) (defendanthas right to trial to recover pref­erential transfer) (decision basedupon Bankruptcy Reform Act of

1978) and In re McCrary's FarmSupply, Inc., No. AP 84-149M, caseno. LR 81-666M (Bkrtcy. W.D. Ark.November 12, 1985) (jury trial heldin a preference action).

If a proceeding is determined tobe a non-core or "related to" pro­ceeding, the bankruptcy courtcannot enter final orders andjudgments. Consequently, the useof a jury in bankruptcy courtwould be inefficient and imprac­tical. In re L.A, Clarke & Son, Inc..51 B.R. 31 (Bkrtcy. D. D.C. 1985); Inre Morse, 47 B.H. 234 (Bkrtcy. N.D.Ind. 1985). Therefore, the bank­ruptcy court would likely certifythe jury trial to the district court in"non-core" or "related to" proceed­ings in which parties are entitledto a jury trial. Under the hypothe­tical. the farm equipment manu­facturer's demand for a jury trialon the third party complaint. if in­terpreted to be a non-core pro­ceeding, would be such an occa­sion in which the bankruptcycourt would likely certify the issueto district court.

It should be noted, however,that under 28 U.S.C. §157(cX2) in anon-core proceeding, if the partiesand the district court consent tothe bankruptcy judge's enteringfinal orders, the bankruptcy forumcould be the proper forum for thejury trial.

As to the dealer's demand for ajury trial on the counterclaim, if itis interpreted to be a core pro­ceeding in which a right to jurytrial exists, then the bankruptcycourt could conduct the jury trialand enter final orders and judg­ments, with consent of the districtcourt. pursuant to U.S. D.C. LocalRule 32 III(e).Question Four: Should the Mo­tions for the District Court to Ab­stain from Jurisdiction beGranted?

The dealer and farm equipmentmanufacturer filed motions for thedistrict court to abstain from tak­ing jurisdictions over the adver­sary proceeding filed in bankrupt­cy court. In order to predict thedistrict court's decision, it is help­ful to have an understanding ofthe two subsections of 28 U.S.C.§1334 governing abstention:§1334(c)(l), the discretionary ab­stention provision and §1334(c)(2),the mandatory ahstention provi-

sian.Under the mandatory absten­

tion provision, the district courtwill not be required to abstain un­less all of the following factors arepresent:

a. a timely motion is made;b. the proceeding is based

upon a state law claim orstate law cause of action;

c. the proceeding is related to acase under title II;

d. the proceeding does notarise under title II;

e. the proceeding does notarise in a case under title 11;

f. the action could not havebeen commenced in a courtof the United States absentjurisdiction under 28 U.S.C.§1334; and

g. an action is commenced andcan be timely adjudicated ina state forum of appropriatejurisdiction.

A decision to abstain under themandatory provision is not re­viewable by appeal or otherwise.28 U.S.C. §1334(c)(2).

Assuming lor purposes of thehypothetical that the state courtaction can be "timely adjudi­cated" in state court. all sevenfactors for mandatory abstentionwould be present in regard to thecomplaint of the non-debtor deal­er against the non-debtor mother,the farmer's co-signer. Therefore,the district court would abstain inthat action.

The mandatory abstention pro­vision would not apply to core pro­ceedings because core proceed­ings either arise under title II orin a case under title II. Thus. fac­tor "c" or "d" would be missing.Therefore. mandatory abstentionwould not be applicable to thedealer's complaint against thefarmer or the farmer's counter­claim against the dealer, bothcore proceedings. As to the far­mer's third party complaintagainst the farm equipmentmanufacturer, mandatory absten­tion would not apply since there isno pending state lawsuit and,therefore, factor "g" is missing.

Discretionary abstention pow­ers are found in §1334(c)(I) of title28 which provides that a districtcourt may abstain from hearing a"particular proceeding" arisingunder title 11 or arising in or re-

lated to a case under ti tle I!.District courts may be likely to

use their discretionary abstentionpowers in proceedings in which anovel issue is raised involvingstate law or in which the decisionwill involve interpretation of statecase law on complex issues.Accord, In re Chase & SanbornCorp" 54 B.R. 43 (Bkrtcy. S.D. Fla.1985) (abstaining in interest ofcomity); In re Sweeney. 49 B.R.1008 (Bkrtcy. N.D. Ill. 1985) (ab­staining because usury involved).But see, In re Arnold Print Works,Inc.. 54 B.R. 562 (Bkrtcy. D. Mass.1985).

The decision on discretionaryabstention will be made by dis­trict courts on a motion-by-motionbasis.Question Five: Should the Deal­er's and Manufacturer's Motionsto Withdraw Reference from Bank­ruptcy Court be Granted?

Motions to withdraw referenceare filed in district court. The dis­trict judges will adjudicate thesemotions. II U.S.C. §157(a).

The district court has originaland exclusive jurisdiction over allcases under title II and original,but not exclusive, jurisdictionover all proceedings arising in orunder a case in chapter II. Pur­suant to 28 U.S.C. §157(a) andU.S.D.C. Local Rule 32, the districtcourt has referenced to the bank­ruptcy judges all cases under title11 and all proceedings arising inor related to a case under title II.Therefore, the district court is notlikely to grant motions to with­draw the reference.

There are at least two situationsin which district courts wouldwithdraw the references: (l) non­core or related to proceedings inwhich the parties have requested,and are entitled to, a jury trial.and in which all of the parties andthe district judge have not con­sented to the bankruptcy judge'sentering final orders or judg­ments; (2) core proceedings inwhich the parties have requestedand are entitled to a jury trial andthe district court has not con­sented to the bankruptcy judge'sconducting the jury trial. SeeU.S. D.C. Local Rule 32.Question Six: Should the Dealer'sMotion for Relief from the Stay beGranted?

The simplest procedure thedealer could invoke if he wantedto pursue the state foreclosure suitwould be to file in bankruptcycourt a motion for relief from thestay in accordance with II U.S.C.§362(d)." Because of the spacelimitations of this article, thehypothetical does not set forthsufficient facts to decide this mo­tion. However, the bankruptcyjudge, in deciding whether themotion for relief from stay shouldbe granted would take into con­sideration the following: (a)whether the farmer had any equi­ty in the farming equipment sub­ject to the sale; (b) whether suchproperty would be necessary to aneffective reorganization of thefarmer's farming business; (c)whether the farmer can provideadequate protection to the dealerduring the bankruptcy pro­ceedings; or (d) whether there ex­ists other cause which would war­rant relief.Question Seven: Should the Farm­er's Motion to Extend Protection ofAutomatic Stay to His Mother beGranted?

The farmer filed a motion to ex­tend the automatic stay of thestate court proceedings providedby II U.S.C. §362(a) to his mother,the co-signer of the promissorynote. This motion would be heardand determined by the bankrupt­cy court. The farmer's argumentwould probably be that he cannothave a successful chapter II busi­ness reorganization without thestay extending to the mother. Theprevailing view is that the protec­tion of the stay should not be ex­tended to a non-debtor. In reKalispell Feed and Grain Supply,Inc., 55 B.R. 627 (Bkrtcy. D. Mont.1985) (stay not applicable to co­debtors); In re Johnson, 51 B.H. 439(Bkrtcy. E.D. Pa. 1985) (stay not ap­plicable). Contra, Federal LileIns. Co. (Mut.l v. First FinancialGroup 01 Texas, Inc.. 3 B.R. 375(Bkrtcy. S.D. Tx. 1980) (stay doesapply to co-defendants) (opinioncriticized).

ConclusionIn summary, the 1984 amend­

ments to the judicial code undertitle 28: (I) vest final judicial au­thority in the U.S. district courts;(2) provide that in core proceed­ings under II U.S.C. §157(b)(21

April 19861Arkansas Lawyerl63

bankruptcy judges will enter finalorders and judgments; and (3) pro­vide that in non-core or relaled toproce'edings under II U.S.C.§ IS7(c)(l) bankruptcy judges willsubmit proposed findings of factsand conclusions of law to the dis­trict judges who will review themde novo. As a practical molter.almost all proceedings will stillbe heard in the bankruptcy forum.District judges will seldom exer­cise their powers to abstain fromjurisdiclion or to withdraw theirreference to bankruptcy judges.

There will be no sure answers tomany of the issues raised by theenactments of the 1984 amend­ments to lhe judicial code until theU.S. Supreme Court ultimately reosolves these issues. 23

FOOTNOTESI Because of time and space limitations.

this article is by no means an in-depthanalysis or treatment 01 the jurisdiction­al statutes and procedural issues raisedby the 1984 Amendments. It is writtenwith the intent to acquaint the readerswith jurisdictional problem~ and issuesthey are likely to encounter ID bankrupt-cy practice. . . .

2 The judicial code prOVISions apphc.ableto bankruptcy practice are enacted 10 28U.S.C. §151·152. 157·158, 1334. 1408-1412and 1452.

, Pub. L. 98-353. 98 Stot. 333 (July 10. 1984).4 Pub. L. 95-598. generally elfectlve Octo­

ber I. 1979.• 458 U.S. 50, 102 S. Ct. 2858, 73 L.Ed. 2d 598

(982).'General Order No. 24 became effective

on October I. 1982 and amendmentsthereto were entered. on October 5. 1982;December 20. 1982: and April 2. 1984.General Order No. 28 became effectiveon August 24. 1984.

1 See n.3, supra.• See II U.S.C_ §157 set forth in relevant

part ID the Appendix., Everyone seems to have an opinio~ a~ to

the applicability of the scope and hmlta·tion of the Marathon decision. However.the uncertainty will remain until theSupreme Court lurther addresses the ap­plication of its holding.

10 See n.6, supra.II The 1984 jurisdictional statutes became

effective on July 10. 1984 but ~re not <;IP­plicable to cases or proceedmgs whichwere pending on the date of enactment.The substantive provisions becameeffective 00 days after enactment (Octo­ber 01 1984).

11 Jurisdictional statutes 28 U.S.C. §§1409 and1410 pertaining to district court v~Due arenot applicable to the hypothelical e?C­amined in this article and are DOt set out 10

this article.IJ For a brief discussion of the core/non­

core dichotomy, read Norton Bankr. L.Advsr..No. I. p. I (January 1985). See alsoIn re Yagow. 53 B.R. 737 (Bkrtcr' D. N.D.1985); Zweygardt v. Col. Nat' Bonk ofDenver. 52 B.R. 229 (Bkrtcy. D. Cal. 1985)(discussing "core." "non-core," "related.to" proceedings.)

14 See n. 8 Supra." Because 28 U.S.C. §157(bX2KAl and (0)

contain such all-encompassinq lan­64JArkansas Lawyer/April 1986

guage. they are con~tit~tic:n~llysuspect,having the broad Jutlsdlchonal grantwhich the United States Supreme Courtheld defective in Marathon.

I' Even Iimmy-the-Greek wouldn't giveodds on the outcome of this hypothetical.

17 II U.S.C. §362(a) provides. in port, thatthe filing of a bankruptcy petition ?~r­

ates as a stay. applicable to all enhtles.01-

the commencement or continuation... 01 a judicial. administrative or otheraction or proceeding against the debtorthat was or could have been com­menced belore the commencement ofthe case under title 11 ".

The automatic stay is olten one of themost sought-after protections provided.by the bankruptcy forum. ..

I' Under the hypothetical. after the dlstnctcourt has entered. the order for removal.the dealer could object to the order.asking the district court to rema..r;td theaction to state court on eqUitablegrounds. pursuant to 28 U.S.C. §1452(b).See Appendix 8.

It U.S.D.C. Local Rule 32 provides tha.t allbankruptcy petitions and proceedmgsbrought under 28 U.S.C. §§I334. 1412and1452 are automatically referred to bank­ruptcy judges serving in this district inaccordance with 28 U.S.C. §157(a). TheRule became effective on July I. 1985.General Order No. 28 was rescinded onthat date.

III In essence. Rule 7001 defines "adversaryproceeding" as a proceeding in bank·ru ptcy court -

( I) to recover money or i?r?perty ~ .( 2) to determine the valid1ty, pnonty.

or extent of a lien or other interestin property, .

( 3) to obtain approval tor sale of m­lerest of the estate and of a co-owner in property. .

( 4) to object to or revoke a discharge,( 5) to revoke an order of confirmation

of a chapter II or c~apter 13 pl~~,( 6) to determine the dlschargeablhty

of a debt.7) to obtain an injunction or other

equitable relief. .8) to subordinate any allowed clOim

or interest.( 9) to obtain a declaratory judgment.

or(10) to determine a claim or cause of ac­

tion removed. to a bankruptcy court.11 Under §157(b)(3) and U.S.D.C. Local Rule

32, the bankruptcy judge wH.1 ini~ially de­termine whether a proceedmg 1S a coreproceeding or non·core proceeding onthe judge's motion or on the timely mo­tion of a party.

12 11 U.S.C. §362(d) provides in relevantpart:

On request of a party in interest andafter notice and a hearing. the courtshall grant relief from the st~y .... suchas by termination. annullIng. mod­ifying or conditioning such stay

(1) for cause. including the lack ofadequate protection of .a~ interest inproperty of such party m mterest; or(2) with respect to a stay of ~n actagainst property under subsection (a)of this section if -

(A) the debtor does nol have equityin such property; and(8) such property is n?t n~essary toan effective reorgamzatlon.

13 This article was sent to the printer in ear­ly January. 1986. Many of the decisionscited herein may have been appealedand either affirmed or reversed. Thereader, should research for the !'Tl:0st re­cent decisions regarding the Issuesraised.

APPENDIX28 U.S.C. §151: Designation of bankruptcy

courtsIn each judicial distri~. the ~ruptcyjudges in regular act.lve .servlce constl·tute a unit of the dlstnct court to beknown as the bankruptcy court o.odeach bankruptcy judge shall exercisethe authority conferred by 28 ~.S.C.§lSl at seq. with respect to any achon or

8roceeding.28 .S.C. 1157(0): Reference to Bankruptcy

JudgesEach district court may provide that allcases and all proceedings arisingunder title II or arising in or related to acase under title 11 shall be referred tothe bankruptcr judges for the district.

28 U.S.C. §157{bX ): Core Proceedings"Bankruptcy judges may .hear and de­termine aU cases under htle 11 and aUcore proceedings oTising und:er title 11.or arising in a case under htle 11. re­ferred under subsection (0) of this sec­tion. and may enter appropriate ordersand judgments. :"~ject"to review undersection 158 of thiS htle.

28 U.S.C. §157(bX2): Stotutory Delinition ofCore Proceedings

"Core proceedings include. but are notlimited to-

"(A) matters concerning the adminis­tration of the estate;

"(B) allowance or disaJlowanc~ ofclaims against the estate or exemphonsfrom property of the estate. and estima­tion of claims or interest for the pur­poses of confirming a plan unde.r c~ap­ter II or 13 of title II but not the hquld~­tion or estimation of contingent or unh­quidated personal injury tort or wrong­ful death claims against the estate forpurposes of distribution in a case undertitle 11;

"(C) counterclaims by the estateagainst persons filing claims againstthe estate;

"(D) orders in respect to obtainingcredit;

"(E) orders to tum over property of theestate; _

"(F) proceedings to determine. avoid.or recover preferences;

"(G) motions to terminate. annul ormodify the automatic stay; .

"(H) proceedings to determine.avoid. or recover fraudulent con­vexances;

• (I) determinations as to the dis­chargeabilily of particular debts;

"(J) objections to discharges; .."(K) determinations of the vahdlty.

extent. or priority of liens;"(L) confirmations of plans;"(M) orders approving the use or

lease of property. including the use ofcash collateral;

"(N) orders approving the sale ofproperty other than property resultingfrom claims brought by the estateagainst persons who have not filedclaims against the estate; and

"(0) other proceedings affecting theliquidation of the assets of the estate orthe adjustment of the debtor-er~itor.orthe equity security holder relallonshlp.except pe.rson.?l injury tort or wrongfuldeath claims.

28 U.S.C. §157(b)(3): Determination of Coreor Related To

"The bankruptcy judge shall determine.on the judge's own motion or on timelymotion of a party. whether a proceed­ing is a core proceedin~under t.his sub­section or is a proceedmg that IS other­wise related to a case under title 11. Adetermination that a proceeding is nota core proceeding shall not be made

I

G.

E.

F.

under Title 11;The proceeding does not arise ina case under Title II;The action could not have beencommenced in a court of theUnited States absent jurisdictionunder 28 U.S.C. §1334; andAn action is commended and canbe timely adjudicated in a stateforum of appropriate jurisdiction.

28 U.S.C. §1334(d): Jurisdiction of Debtor'sEstate

The district court has exclusive jurisdic·tion over all of the property, whereverlocated, of the debtor as of commence·ment of the case, and of the estate.

28 U.S.C. §1411, Ju,\, T,ials"(0) Except as provided in subsection(b) of this section. this chapter and titleII do not affect anr right to trial by jurythat an individua has under applica·ble nonbankruptcy law with regard to apersonal injury or wrongful death tortclaim."(b) The district court may order theissues arising under section 303 of title11 to be tried without a jUry:'

28 U.S.C. §1452: Removal of claim relatedto bankruptcy case

Generally, a party may remove anyclaim or cause of action in a civil actionto the district court for the district wheresuch civil action is pending. if such dis­trict court has jurisdiction of such claimor cause of action under section 1334.

C.

D.

The district judge may withdraw a caseor proceeding on its own motion or onmotion of any party.

28 U.S.C. §1334(0): Original Jurisdiction"Except as provided in subsection (b) ofthis section. the district courts shallhave original and exclusive jurisdictionof all cases under title 11:'

[The language of this provision is identical'0 .hat 0128 U.S.C. §147I(a) ol.he 1978 Act!28 U.S.C. §1334(b): Original - not exclu-

sive - jurisdiction"[DUstnct courts shall have original butnol exclusive jurisdiction of all civilproceedings arising under title II orarising or related to cases under titleII."

[The language of this provision is identical'0 .hal of 28 U.S.C. §147I(b) 01 the 1978 Act!28 U.S.C. §1334(c}(l): Discretionary Absten-

tionA district court may abstain from hear·ing a particulcrr proceeding in the in­terest of justice or in the interest of com­ity with state courts or respect for statelaw.

28 U.S.C. §1334(c)(2): Mandatory AbstentionA district court shall abstain if -A. A timely motion is made;B. The proceeding is based upon a

state law claim or state lowcause of action;The proceeding is related to acase under Title II;The proceeding does not arise

solely on the basis that its resolutionmay be aHected by State low."

28 U.S.C. §lS7(bXS), Pe,sonal Inju,\, Tort!Wrongful DeathClaims

The district court shall lry personal in­jury tort and wrongful death claimsarising in pending bankruptcy cases.

28 U.S.C. S157(c)(I): Proposed Findings inRelatedProceedings

"A bankruptcy judge may hear a pro­ceeding that is not a core proceedingbut that is otherwise related to a caseunder title 11. In such proceeding. thebankruptcy judge shall submit pro­posed findings of foct and conclusionsof law to the district court. ond any finalorder or judgment shall be entered bythe district judge after considering thebankruptcy judge's proposed findingsand conclusions and after reviewing denovo those matters to which any partyhas timely and specifically objected:'

28 U.S.C. §157(c)(2}: Consent of Parties forBankruptcy Judges toHear and DetermineNon-Core and Relatedto Proceedings

"[Tlhe district court, with the consentof all the parties to the proceeding, mayrefer a proceeding related to a caseunder title 11 to a bankruptcy judge tohear and determine and to enterappropriate orders and judgments ... "

28 U.S.C. §157(d): Withdrawal of Reference

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