Although the trustee has initiated this case as a party to this action, it appears that he is in no sense a necessary party, or a party needed for a just adjudication, or in any way even a party of interest. It does not appear that the estate's rights, which are admittedly inferior to those of all the defendants, can in any way be affected by the judgment in this action — except that, as the trustee himself contends, he needs to have the adjudication made in order to make the hotel property saleable or, in the event he decides to propose a plan of reorganization, to know the priority according to which payment must be made. See Matter of Hamilton, Civil Action No. 83-6070-CV-SJ (W.D.Mo. May 14, 1984), which has been analyzed in Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 539, n. 31 (Bkrtcy.W.D.Mo. 1984). Even in the heyday of bankruptcy court jurisdiction under former Section 1471(b), (c), Title 28, United States Code, the bankruptcy court did not have jurisdiction over an action between strangers to the estate which has no effect on estate property.
Such action identifies the duties of the reviewed court as distinctly "judicial," as opposed to "administrative" or "executive," the assignment of which, according to past constitutional decisions, may be sufficient — even without reappointment of the court's sub-Article III judges — to cause a court to "mature" into an Article III court. See Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Kalaris v. Donovan, supra; Matter of Richardson, 52 B.R. 527, 535 (Bkrtcy.W.D.Mo. 1985); Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 538-39 (Bkrtcy.W.D.Mo. 1984); 1 Moore's Federal Practice, Paragraph 0.4[1], et seq., 0.4[4], p. 79. In its past decisions, this court has eschewed action which could be interpreted as attempting to classify the bankruptcy court as an Article III court. See, e.g., Matter of Richardson, supra, at 533 ("[T]he bankruptcy court must be circumspect in interpreting the law delegating powers to it lest it be accused of arrogating Article III powers to itself."
When reference of the action to the district court for decision would defeat the federal jurisdiction which must be exercised if the goals of the Bankruptcy statutes are to be maintained, the bankruptcy court may exercise jurisdiction, even if it means exercising Article III powers in an isolated case. Matter of Burstein-Applebee Company, 63 B.R. 1011 (Bkrtcy.W.D.Mo. 1986); Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 539 (Bkrtcy.W.D.Mo. 1984). And see Matter of Phillips House, Inc., 64 B.R. 912 (Bkrtcy.W.D.Mo. 1986), to the effect that "[w]hatever the rationale for this court's assuming and exercising jurisdiction of this case . . . it is imperative that this court proceed to a determination of it."
And when the jurisdictional infirmity existed in tandem with the assertion of absence of power of the sitting bankruptcy judges, the problem was compounded, giving forth the prospect of the issuance of a void judgment which might give rise only to a series of successive litigations challenging the power and jurisdiction of the bankruptcy court. See Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 536, n. 16 (Bkrtcy.W.D.Mo. 1984), and authorities there cited. Very recently, however, three district courts have held the current tenure of the bankruptcy judges to be lawful and constitutional.
, In re Weaver. 632 F.2d 461, 462 n. 6 (5th Cir. 1980) (holding that the standing requirement applies in bankruptcy disputes); Fred Reuping Leather Co. v. Fort Greene National Bank of Brooklyn. 102 F.2d 372 (3d Cir. 1939) (standing); In re Family Health Services. Inc., 130 B.R. 314 (B.A.P. 9th Cir. 1991) (recognizing that advisory opinions are prohibited); In re Verrazano Holding Corp., 86 B.R. 755 (Bankr. E.D.N.Y. 1988) (applying the "case or controversy" requirement); Matter of Transport Clearings-Midwest. Inc., 41 B.R. 528, 539 (Bankr. W.D. Mo. 1984) (same); In re Burckardt, 8 B.R. 327 (Bankr. D.P.R. 1980) (same).
See, e.g., In re Weaver, 632 F.2d 461, 462 n. 6 (5th Cir. 1980) (standing requirement applies in bankruptcy disputes); Fred Reuping Leather Co. v. Fort Greene Nat. Bank of Brooklyn, 102 F.2d 372 (3d Cir. 1939) (standing);In re Family Health Services, Inc., 130 B.R. 314 (9th Cir. BAP 1991) (advisory opinions are prohibited); In re Verrazano Holding Corp., 86 B.R. 755 (Bankr.E.D.N.Y. 1988) (case or controversy); Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 539 (Bankr.W.D.Mo. 1984) (case or controversy); In re Burckardt, 8 B.R. 327 (Bankr.D.P.R. 1980) (case or controversy). In addition to prudential concerns, since bankruptcy jurisdiction resides in the district court (an Article III court,see 28 U.S.C. § 1334) which then refers cases and proceedings to the bankruptcy court, 28 U.S.C. § 157, any limits on court power to decide disputes applicable to district courts must also transferred to bankruptcy courts, as the referral agent of the district court.
As the plant out of which the Debtor operated was originally built and owned by Windolph or its predecessors and was occupied by the Debtor from its completion to the date of the filing of the petition, Windolph has an unsecured, nonpriority claim for damages caused by debtor during that period. See also Shapiro v. D.H. Overmyer Co., Inc. (Texas) (In re D.H. Overmyer Co., Inc. (Texas)), 12 B.R. 777 (Bankr.S.D.N Y 1981), aff'd, 30 B.R. 823 (S.D.N.Y. 1983); H.T. Poindexter Sons Merchandising Co. v. Small (In re Transport Clearings-Midwest, Inc.), 41 B.R. 528 (Bankr.W.D.Mo. 1984); International Coins Currency, Inc. v. Barmar Corporation (In re International Coins Currency, Inc.), 18 B.R. 335 (Bankr.D.Vt. 1982). 3. Negligence
Kalaris v. Donovan, 697 F.2d 376, 386 (D.C. Cir. 1983). See the authorities cited in Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 538, n. 28 (Bkrtcy.W.D.Mo. 1984). "Congress and the higher courts ha(ve) to be circumscript in delegating powers to the bankruptcy court lest they by indirection confer Article III powers on the bankruptcy court.
When reference of the action to the district court for decision would defeat the federal jurisdiction which must be exercised if the goals of the bankruptcy statutes are to be maintained, the bankruptcy court may exercise jurisdiction, even if it means exercising Article III powers in an isolated case. Matter of Burstein-Applebee Company, 63 B.R. 1011 (Bkrtcy.W.D.Mo. 1986); Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 539 (Bkrtcy.W.D.Mo. 1984). And see Matter of Phillips House, Inc., 64 B.R. 912 (Bkrtcy.W.D.Mo. 1986), to the effect that '(w)hatever the rationale for this court's assuming and exercising jurisdiction of this case . . . it is imperative that this court proceed to a determination of it.
But, even if this absence of any limiting principle which the plurality opinion found to be vital and necessary in Marathon, supra, should require a court having the attributes of an Article III court to decide this action, then it must be mentioned that the federal district and appellate courts regularly assign such attributes to the bankruptcy court. Needless to say, time restrictions permit the mention of only a few of these attributions in this opinion. But they include a ruling that the bankruptcy courts, like Article III courts and unlike non-Article-III courts, may not issue advisory opinions, Matter of Hamilton, Civil Action No. 83-6070-CV-SJ (W.D.Mo. May 14, 1984); see also Matter of Transport Clearings-Midwest, Inc., 41 B.R. 528, 539 (Bkrtcy.W.D.Mo. 1984); a ruling that the bankruptcy court, rather than the district court, should initially determine a claim based on agency principles arising under state law, Matter of Walker, 726 F.2d 452 (8th Cir. 1984); a ruling that the bankruptcy court occupies the position of the initial trial court in the hierarchy of the federal judiciary and, under statutes governing bankruptcy appeals, an appeal from a district court decision to the appellate court cannot be taken unless there was an initial appeal of the same issue from a bankruptcy court decision, In re Benny, 791 F.2d 712, 716 (9th Cir. 1986); a ruling that the "clearly erroneous" standard of review implies that the bankruptcy court has powers greater than those possessed by pure Article I courts, In re AOV Industries, Inc., 792 F.2d 1140 (D.C. Cir. 1986); and a recognition that the applicable statutory scheme of the Bankruptcy Amendments and Federal Judgeship Act of 1984 grants the bankruptcy court the sole power to enjoin state court act