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In an appeal that attracted a great deal of attention simply because one of the parties is a flashy former Playboy model from Texas, the U.S. Supreme Court issued an opinion that narrows the reach of the probate exception to federal jurisdiction. The May 1 high court opinion gives former stripper Anna Nicole Smith, a Lone Star State native, the right to continue to fight for a share of her late husband’s estate. [ See the opinion.] Smith’s husband, Texan J. Howard Marshall II, died in 1995 at age 90. Since then, Smith and Marshall’s sons have been fighting over proceeds of his estate. In Marshall v. Marshall, an opinion written by Justice Ruth Bader Ginsburg, the Supreme Court reversed and remanded a 2004 9th U.S. Circuit Court of Appeals ruling in favor of E. Pierce Marshall, a son of Smith’s late husband. The 9th Circuit ruling vacated a judgment awarding Smith $88.6 million from her husband’s estate and found no federal subject matter jurisdiction under the probate exception. Ginsburg noted that courts have long recognized limitations on otherwise properly exercised federal jurisdiction for probate and domestic relations matters, but that neither exception “is compelled by the text of the Constitution or federal statute.” The Supreme Court opinion finds the 9th Circuit had no authority from Congress or from Supreme Court opinions for its “sweeping extension” of the probate exception to federal jurisdiction. The issue in the appeal was whether federal courts have jurisdiction in state probate matters. Smith contended they do, but Marshall’s son E. Pierce Marshall contended they don’t. Smith obtained a federal district court judgment awarding her millions from her husband’s estate, after Marshall procured a Texas probate court judgment that gave the money to him. While the appeal was on a narrow issue of state/federal jurisdiction, Smith’s fame brought considerable attention to the Supreme Court proceeding, with serious and tabloid publications alike covering the celebrity’s appearance at oral arguments in February. Smith, who is also known as Vickie Lynn Marshall, married Marshall in 1994 when she was 26. He was 89 and worth an estimated $1.6 billion. After Marshall’s death in 1995, Smith sought money from his estate on two fronts: in probate court in Texas and in bankruptcy court in California. Smith alleged throughout the litigation that Marshal promised to leave her half of his property if she would marry him. [ See "Jurisdiction at Issue in Anna Nicole Smith Bankruptcy-Probate Case,"Texas Lawyer , Feb. 27, 2006, page 1.] The Supreme Court’s decision, which kicks the dispute back to the 9th Circuit, means Smith’s courtroom battle for an inheritance from her late husband may continue for years. Nevertheless, her attorney is encouraged by the decision.
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Kent Richland, a partner in Greines, Martin, Stein & Richland in Los Angeles, who argued Smith’s appeal before the Supreme Court, says, “We couldn’t be more pleased about the fact we got a ruling from the court on the jurisdictional issue.” Richland notes the court’s opinion takes a “cautious” view of the probate exception. “The court limited the probate exception, so now it will be much clearer when the federal court has to deal with it,” he says. Because it is fact-specific, the opinion is fairly narrow, says Nancy Rapoport, the dean of the University of Houston Law Center who is among a group of bankruptcy professors who filed an amicus curiae brief in support of Smith. “This is the beginning of some Supreme Court jurisprudence that sorts out who wins in a tiebreaker,” Rapoport says, noting that the issue in Marshall v. Marshall probably will not arise very often. The amicus brief Rapoport signed was one of three filed in the appeal supporting Smith. Seven others supported respondent Marshall. In a written statement on May 1, E. Pierce Marshall says he will “continue to fight for my father’s will and trust.” Marshall said the Supreme Court ruling May 1 was on a technicality. He notes the judgment entered by Harris County Probate Court No. 2 Judge Mike Wood, which finds him the heir to his father’s estate, still stands. G. Eric Brunstad Jr., a partner in Bingham McCutchen in Hartford, Conn., who represents E. Pierce Marshall, is optimistic the 9th Circuit will decide in his client’s favor when it considers other issues still on appeal before it. In particular, Brunstad is hopeful the 9th Circuit will rule that the Texas probate court judgment in Pierce Marshall’s favor should prevail, because it was entered before the bankruptcy judgment in Smith’s favor. “We think a five-and-a-half month jury trial [in Texas] . . . should have been the end of the matter,” Brunstad says. Appellate lawyer Gregory Coleman, a partner in Weil, Gotshal & Manges in Austin, says that argument has merit. Coleman says, “The [9th Circuit] court will have to re-evaluate that argument. I don’t see how they can avoid it. The Texas court answered the questions that are before the California court.”

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