from The New York Sun Archives

May 2, 2006:

It looks like an octogenarian billionaire Texas oilman, J. Howard Marshall II, may well have married Anna Nicole Smith for her brains. She certainly appears to be having her way with the best lawyers and jurists in the country, all in her quest to win a portion of the now-deceased Marshall’s estate from his son, E. Pierce Marshall. The decision in her case from the United States Supreme Court was remarkable not only for being unanimous but also for opening up, at her behest, huge swatches of probate law to future questioning. Not bad for a former Playboy bunny.

Anna Nicole, whose real name is Vickie Lynn Marshall and who is referred to in the ruling as Vickie to distinguish her from Pierce, launched a two-front battle for a half-a-billion-dollar inheritance after J. Howard died in 1995. She has claimed that he intended to split his money between her and his son, although J. Howard never actually noted this intention in writing anywhere and Pierce denies that it was so. She claimed that Pierce obstructed her efforts to communicate with J. Howard, making it impossible for the elderly man to clarify his wishes.

The first front was in a probate court in Texas, where Vickie challenged enforcement of the will that excluded her. That case seemed less likely to go her way. Probate courts are nothing if not expert at sorting out a dead man’s contested estate, and although Vickie’s appearance in the pages of Playboy in the early 1990s lent this case a certain amount of infamy, the underlying situation isn’t exactly unique in the annals of probate history. In the event, she was routed in the Texas probate court.

Before that ruling was final, however, Vickie and her lawyers opened a second front with a bankruptcy filing in California, with help from a sexual harassment suit filed by a personal assistant. The assistant sued her, Vickie opted not to fight it, and the assistant won a default judgment that just happened to be large enough for Vickie not to be able to pay. Oh, and by the way, she told the bankruptcy court, one of the reasons couldn’t pay her bills is that Pierce had denied her the inheritance she expected to receive by, among other things, blocking her access to her husband, an action which, if it happened, just happened to satisfy the legal definition of a tort.

Thus she managed to convert a probate case into both a bankruptcy and a tort. It was a brilliant strategy. She ultimately secured from the bankruptcy court a ruling against Pierce that would have guaranteed her the portion of the inheritance she sought because if she didn’t win the money in probate court, she’d get it in the form of compensatory and punitive damages from Pierce. Pierce appealed, winning from judges who ride the notorious Ninth Circuit a ruling that federal courts had no business settling what was essentially a probate claim.

The Supreme Court didn’t actually take up the merits of Vickie’s underlying probate claim. Instead, they took up an even more important issue – where should federal courts draw the line in respect of keeping their hands off probate cases when those probate cases turn complicated and the parties end up in parallel federal litigation? The nine, in a ruling written by Justice Ginsburg, have left us in for an era in which the federal courts may increasingly get into an area that has long been left to the states, leading to what one scholar, Ronald A. Cass, warned in the Wall Street Journal in January would be an open door to aggressive forum shopping and endless litigation.

Why didn’t the justices see that lurking danger? Mr. Cass suspects it’s because no one warned them. Listening to the oral arguments, Mr. Cass tells us, he noted that Pierce’s lawyer focused more on the specifics of this case and less on the broader implications of a potential ruling in Vickie’s favor. Thus the sages, some of whom were not even born when last the Supreme Court considered jurisdiction in probate cases 60 years ago and none of whom had handled probate law as a judge recently, if ever, may not have realized how thin the ice was.

Vickie has a long way to go yet before getting her hands on the $500 million or so she says she was promised. Justice Ginsburg almost seemed hopeful that the lower courts would reconsider the case in light of several more mundane issues the Supreme Court did not address in this ruling. But the way this drama has gone it may be that all bets are off and that the real lesson of this case is not to underestimate the sagacity of Anna Nicole Smith. Whatever the other adjectives one might use to describe her, dumb isn’t one of them.