- The Washington Times - Monday, March 16, 2009




Attorneys representing Anna Nicole Smith’s estate requested that the U.S. Supreme Court intervene in the decade-old case against the estate of her late husband, oil tycoon J. Howard Marshall. The case, known as Marshall v. Marshall, has been under review by federal judges on the Ninth Circuit since 2006.

Frustrated with the 9th Circuit’s deliberative pace, the Smith team has once again turned to the Supreme Court to keep its litigation alive. Marshall v. Marshall is a landmark case, if for no other reason than that it was heard by the Supreme Court in 2006. To some, the case is a Hollywood tale of decadence involving a Playboy centerfold and her octogenarian, wheelchair-bound prince charming.

To those in the legal arena, this case is evidence that an audaciously crafted legal scheme targeted at an estate plan could succeed in diverting millions away from its intended heirs.

Here’s a quick refresher on how this case began:

At the time of her husband’s death, 14 months into their marriage, Anna Nicole Smith discovered that she was left out of her husband’s carefully written estate plan. After consulting with attorneys (including legal Svengali and erstwhile boyfriend Howard K. Stern) she challenged the estate in a Texas probate court.

Her claim: J. Howard Marshall, unbeknownst to anyone else, told her that he’d leave her a sizeable portion of his estate.

After a probate trial lasting nearly six months, complete with numerous witness testimonies, and extensive documentary evidence from Marshall’s memos and hand- written notes, the jury ultimately ruled against her. Then Smith’s legal team decided to try to subvert the legal system. Rather than accept the judgment of the probate court, they planned a way to get a second bite at the apple.

While the Texas probate proceeding was ongoing, they leaped to a Federal Bankruptcy Court in California and were able to convince a judge to let them, in essence, re-litigate the probate case in bankruptcy court. This time they were able to prevent the witnesses and other documentary evidence from being introduced, and were able to get their biggest win — a staggering $447 million jackpot — an award which essentially nullified the decision of the probate court in Texas.

The path of the case has been tumultuous since then. The first appeal to the Federal District Court in California reduced the award by nearly three-quarters. Next, the case went to the 9th Circuit Court of Appeals, which decided the federal bankruptcy courts did not have jurisdiction to hear probate matters and thereby struck the award altogether.

In a last-minute stroke of luck for the Smith legal team, the U.S. Supreme Court agreed to hear the case. Its ruling caught most court watchers off guard. The high court said that the 9th Circuit had been overly broad in assuming that this dispute could only be heard in probate court in the state of Texas and they sent it back for further review to the 9th Circuit in California, which is where it remains today.

Unsatisfied with this outcome, Smith’s legal team submitted an 85-page application to U. S. Supreme Court Associate Justice Anthony Kennedy, who has administrative oversight of the 9th Circuit.

Smith’s legal team is seeking an order to overturn two court orders put in place by the 9th Circuit panel reviewing the case.

Such an order, if granted, would constitute yet another bite at the litigation apple. Despite the novelty of the case, it is highly unlikely that Justice Kennedy or the Supreme Court will intervene because of the dangerous precedent it would set.

Steep burdens must be met to justify such uncommon action. The litigants must show likelihood that, if allowed to proceed, they would succeed on the merits of the case — a claim which they’ve been unsuccessful at proving in two states and three trials so far.

Win, lose or draw, this case is an exemplar of litigation abuse. Over ten years, it has crowded the court docket and racked up millions in legal fees. More frighteningly, it has set an attractive precedent for future abuse, destabilizing the estate plans of ordinary Americans who want to pass wealth to their children. Tragically, the Anna Nicole Smith legal saga is yet another example of how the American judicial system encourages creativity and legal mayhem at the expense of justice.

Horace Cooper is a legal commentator and an adjunct fellow with the Institute for Liberty.

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