Court of Appeals Rules on Anna Nicole

This is a partial transcript from "On the Record," February 28, 2007, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: Tonight, a "tipsy coachman"? That's what the court of appeals judges in the court right behind us called Judge Seidlin, a "tipsy coachman." What does that mean? Why did they say that about the judge? And what did the court of appeals say about Anna Nicole's body?


MARILYN BEUTTENMULLER, 4TH DISTRICT COURT OF APPEAL: In the case of Virgie Arthur versus Richard Milstein and Howard Stern, 4D07-715, the court has entered an order lifting the stay and is issuing an opinion the effect of which will allow the remains of Anna Nicole Smith to be delivered to the guardian ad litem for burial in the Bahamas.


VAN SUSTEREN: Is the battle for Anna Nicole's body over, or will her mother up the ante and take this fight even further? Joining, Virgie's lawyer, Roberta Mandel. Roberta, you were the appellate lawyer, so let me put the question straight to you. Court of appeals didn't agree with your client today. The Florida supreme court — you going to go further?


VAN SUSTEREN: That's it.

MANDEL: That's it. It's over.

VAN SUSTEREN: So the body has permission to leave and leave the state of Florida and head to the Bahamas for burial.

MANDEL: It is going to a foreign country, yes. A U.S. citizen is going to be buried in a foreign country.

VAN SUSTEREN: Now, I detect sadness. And you've handled over 500 appeals, which is an immense number. We've all won cases, we've all lost cases. This one you take a bit harder.

MANDEL: This one is probably the most disappointing loss I've ever had. As a mother, I really felt for my client. She lost her daughter. She lost her grandson. And now it's going to be very difficult to even visit the burial place for her daughter and her grandson.

VAN SUSTEREN: Did you make the call to her when the decision came out?

MANDEL: I spoke to her, and she was very, very sad and was crying.

VAN SUSTEREN: The decision — the decision is almost — and I'm an outsider lawyer — bizarre, in the sense that the court of appeals said that the statute you relied on was not the correct statute to rely on, the statute Judge Seidlin relied on in ruling against your client below (ph) wasn't the right statute, but they said there was — this was a "tipsy coachman." Even though the judge was wrong in how he got there, it was wrong analysis, wrong statute because he, in essence, sort of guessed right, that they're going to uphold it. Called him a "tipsy coachman." Ever see anything like that.

MANDEL: Actually, he didn't really call the judge a "tipsy coachman." It was, the theory is right for the wrong reason. I love that expression.

VAN SUSTEREN: Well, of course, you're a good lawyer, and you would never insult a judge, and neither would I. But it says here in the opinion, "the tipsy coachman doctrine" — so technically, you're right. But he's the one who executed the decision, so he's...

MANDEL: Exactly.

VAN SUSTEREN: ... he's our "tipsy coachman" for the night.

MANDEL: I still practice law here, so I'm not going to — it's the doctrine. The doctrine states that, you know, the trial court came to the right decision but for the wrong reasons. We, of course, don't think that he came to the right decision.

VAN SUSTEREN: All right. But so the court of appeals basically admired him for his decision at the end. They just have a question about how he got there.

MANDEL: I'm not quite sure about the admiration for it, but they agreed with...


VAN SUSTEREN: They upheld it. They said it was the right decision.


VAN SUSTEREN: OK. All right, and obviously, you disagree. You're an advocate and you wanted something different for your client. All right. Here is the question I don't get. The guardian who represents the child, in the court below (ph), the guardian steps into the shoes of the infant and (INAUDIBLE) not what the mother's intent is, in theory, but what's in the best interests of the child. Is that true under Florida law?

MANDEL: That is true. Of course, we questioned the appointment of guardianship in the first place...

VAN SUSTEREN: All right...

MANDEL: ... when we had a grandmother there.

VAN SUSTEREN: Is it your position, or have you taken your position or do you have a position on whether it's the best interests for the child not for that guardian to look for the right father to make the decision, and instead, makes the decision himself, almost as a stranger, or as a stranger?

MANDEL: Well, that was our argument all along, that a complete stranger should not be making that decision.

VAN SUSTEREN: Is there no way that the supreme court of Florida would ever sort of — you know, I guess the issue can't get before them, that whole issue of the guardianship?

MANDEL: Unfortunately not. There was nothing in this opinion that I would have the right to go to the Florida supreme court. It's got to be express and direct conflict under Florida law, and we couldn't — we couldn't I wish we could get to it.

VAN SUSTEREN: Do you know — and this may be beyond sort of your relationship with your client. Do you know if she intends to attend the funeral in the Bahamas?

MANDEL: I really don't know.

VAN SUSTEREN: No idea? Never discussed it with her.


VAN SUSTEREN: Give the viewers a little bit of background because you're the appellate lawyer. You're the emergency lawyer. You came in at the end. When did you come into this case?

MANDEL: I got the phone call last Thursday evening.

VAN SUSTEREN: And that was right after the decision?


VAN SUSTEREN: And so you basically have to get — you have to get rolling fast.

MANDEL: Pretty much.

VAN SUSTEREN: Drop everything.

MANDEL: Absolutely.

VAN SUSTEREN: And it's wall-to-wall.


VAN SUSTEREN: How many hours a day getting this thing cranked out? Because usually, appeals — and the viewers may know this — appeals usually go on for months and months and months.

MANDEL: Right.

VAN SUSTEREN: You get long briefing periods. You just cranked it out over the weekend.

MANDEL: I haven't had a lot of sleep.

VAN SUSTEREN: This bench here, did it surprise you the way they ruled, or could you tell by the questions they were posing to you?

MANDEL: You know, it surprised me in the sense that it was very unusual to get oral arguments, so I was very optimistic, and I guess I shouldn't have been that optimistic. The questions in the beginning were very heated. I was still surprised at the end result.

VAN SUSTEREN: I was surprised that one of the appellate judges said to one of the lawyers on your team, who had passed out in the courtroom last week, that he had seen him, meaning the appellate judges were watching this on TV last week, or at least one.

MANDEL: Yes. I've never seen that happen before.

VAN SUSTEREN: All right. Well, at least we know one was watching it on TV. Anyway, Roberta, thank you very much for joining us.

MANDEL: Thank you very much.

VAN SUSTEREN: What does Howard K. Stern think about the decision that came down just hours ago from the appeals court right behind us? Joining us, Howard K. Stern's appellate lawyer, June Hoffman. June, did you make the phone call to your client telling him of the decision?


VAN SUSTEREN: Tell me what'd you say — how did you present it to him, and what was his initial reaction?

HOFFMAN: At the time I called him, I knew that we had a ruling in our favor but had not reviewed the opinion. It was coming over the fax. And I just said, Howard, we won. Anna's coming home. And he just said, Thank you. He was tremendously relieved and obviously very, very gratified by the result.

VAN SUSTEREN: So I asked a question of Virgie Arthur's lawyers. Let me ask this of you. When did you get the call you were in on this case?

HOFFMAN: I've actually been involved from the very beginning, since Thursday, the 16th. I've been doing trial support on the case with Krista. We knew that this was a case that could easily go up. There were severe time constraints, and there would not be sufficient time to have an appellate lawyer come in at the last minute and be familiar with all the evidentiary proceedings.

VAN SUSTEREN: So when did you — so the appeal — the notice of appeal was actually filed — at least, you knew it was going to be filed on Friday. I think it was formally filed on Monday. So when did you get sort of rolling on writing your response brief?

HOFFMAN: I was actually writing it during the course of the trial because we expected that in the event that Ms. Arthur did not prevail at the trial court level, that we would need to brief on a very expedited basis. I was involved in a similar case several years ago, and I know how fast these issues would be addressed. And these were very complex legal issues.

VAN SUSTEREN: You know, I — as an outsider, I think what's peculiar to me reading this opinion by the court behind me is they say that the — that Virgie Arthur's position — they wanted to apply the wrong statute, that the judge in ruling that the guardian make the decision — that he applied the wrong statute. They instead, the court appeals, said they should have — that the court should have gone to what's called common law. And so they said that the judge got the right decision but got there the wrong way and called it a "tipsy coachman." I thought that was unusual. Your thought on that?

HOFFMAN: Well, it's actually — it may be unusual to the general public, but for appellate practitioners, that's the standard terminology for the doctrine which is right for the wrong reasons or "tipsy coachman," whereby you know, you have a coach driver who gets to the end, but he's a little tipsy along the way. So it's — the language was not employed, in my view, to disparage Judge Seidlin in any manner. It's a standard term of art in the appellate arena.

VAN SUSTEREN: All right. So let me ask you about the right — doing the right thing, the right decision. The guardian's job for that — for Dannielynn was to do — was to step into her shoes and take action in her best interests. Do you agree with that?

HOFFMAN: In the typical guardianship — or guardian appointment situation, the guardian will be guided by the best interests of the child. In my view, what the court was struggling with was the application of these statutes and a best interests standard, when for the past half century, Florida common law has been very clear that the wishes of a decedent are paramount with respect to what you ultimately want to do.

VAN SUSTEREN: But (INAUDIBLE) merges the issue. It gets a little — the — what the judge — what the judge did is, the judge deferred to the guardian, who said that Anna Nicole's intent was where she would be buried. But in terms of the best wishes (ph), the decision, should it not have been made by the natural father of the baby, rather than a stranger, a lawyer for the baby?

HOFFMAN: No because, ultimately, under Florida law, the next of kin makes that determination. And just because you have a biological father who's not married to the decedent, that doesn't necessarily mean that that person would know the decedent's intent. In this case, it was easy because the record was absolutely uncontradicted as to what Ms. Smith wanted to do with respect to her final resting place.

VAN SUSTEREN: You don't think that most parents would be appalled at the thought that the parent is sitting in the courtroom, one of the parents, whether it's Howard K. Stern or Larry Birkhead, and just appalled by the fact that a strange lawyer is making that decision, rather than doing something like going to his own client. The guardian could have gone to his own client, gotten the swab, had the DNA, had the father determined on the spot, and let the father then make this decision for that baby on where the mother should be buried?

HOFFMAN: Well, I think perhaps it would be troubling to parents. But you know, we didn't have the luxury of time to do that. And I think what's interesting is that the media generally comments about, You just need a swab to take a DNA sample. It takes a long time to run those tests to be definitive. We did not have the luxury of that time here. And Judge Seidlin had a very difficult set of circumstances to address.

I think, frankly, what was appalling in this case is the fact that you had people debating over what to do with Ms. Smith's body, when it was absolutely crystal clear what she wanted to do. And I'm very thankful that the 4th district court of appeal honored those wishes.

VAN SUSTEREN: June, thank you very much. I can just assure you that, you know, it's always crystal clear to the advocates on either side, but sometimes these things are a little muddied, and of course, emotion always makes it even more difficult sometimes. June, thank you.

HOFFMAN: Thank you.

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