The Empire Strikes Back: Pierce Marshall and His Amici File Fiery Responses to Anna Nicole Smith's Claim to a Big Chunk of Her Erstwhile Hubby's Trust

With Bingham McCutcheon's Eric Brunstad and SCOTUSblog's Tom Goldstein the lead attorneys on a 50 page brief filed on behalf of E. Pierce Marshall, the son of Anna Nicole Smith's former hubby, J. Howard Marshall, you can bet that Anna Nicole's legal team will be burning the midnight oil through oral argument on February 28.

More on Pierce's arguments later, but suffice it to say for now that Anna Nicole's not exactly being portrayed as a modern-day Jane Eyre. The brief begins with the following bit of contextual background:

J. Howard met Vickie in 1991 at a club where she danced. They were married in 1994, when he was eighty-nine and she was twenty-six. The marriage lasted fourteen months, ending with J. Howard's death on August 4, 1995.

One unanticipated wrinkle here that the Respondent didn't have a chance to consider or address, but which clearly affects the dynamic of the entire case, is the Court's opinion (issued the next business day after the Respondent's brief was filed) in Central Virginia Comm. College v. Katz (discussed here). One has to wonder whether the Court will look at Anna Nicole's tortious interference claim as one being "asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy court." Since a tortious interference claim probably does not fit that bill, and since (as the Respondent notes) "Congress has not seen fit to displace" (or abrogate) the long-standing judicially established "probate exception" to federal bankruptcy jurisdiction (which bars the exercise of bankruptcy jurisdiction over a decedent's property), then perhaps the Court will agree with the Respondent that "there is no basis for abandoning the probate exception that Congress has not seen fit to displace" (or abrogate).

Maybe Anna Nicole's not going to have such a good year after all!

Thanks to Tom Goldstein and his staff at SCOTUSblog for providing us with early access to the briefs filed by and in support of the petitioner and the respondent.

Previous posts on this case of Marshall v. Marshall can be found here, here, and here.

Pierce's lengthy "Summary of Argument" follows:

As this Court has long recognized, the States have the power and the duty to establish probate systems to facilitate the final disposition of a decedent's assets. Like other States, Texas has discharged this responsibility by vesting its probate courts with exclusive jurisdiction over (1) the decedent's probate estate; (2) the appointment and supervision of administrators of the estate; (3) the determination of the validity of the decedent's estate plan (or that the decedent died intestate); and (4) the resolution of all claims and controversies necessary to the performance of these core probate functions. Like other States, Texas has also proscribed rules that protect the exclusivity and finality of probate proceedings and judgments in its courts. Review of these protections demonstrates that they are critical to the sound functioning of the Texas probate system.


For nearly two centuries, this Court's probate exception doctrine has served to protect the administration of state probate proceedings by sheltering from federal interference the exclusive jurisdiction of state probate courts to perform their core probate responsibilities. As this case demonstrates, the exercise of federal jurisdiction over controversies and issues that probate courts ordinarily resolve in performing their core probate functions invites only confusion, diseconomy, and conflict among state and federal courts at the expense of the sound administration of probate proceedings and the harmonious relations among state and federal tribunals. This is perhaps most vividly illustrated in this case by the fact that, following the Bankruptcy Court's entry of its later vacated judgment, the Bankruptcy Court enjoined ongoing probate proceedings in the middle of the Probate Court's jury trial.

This Court's precedents make plain that the touchstone for application of the probate exception is interference with probate proceedings. The Court's precedents further establish that interference exists, and that a federal court lacks jurisdiction over a claim otherwise within its jurisdiction, if the adjudication of the claim in federal court would require the federal court to (1) exercise the core probate functions of a probate court, such as administering an estate or determining the validity of an estate planning instrument; (2) disregard or set aside a probate court's probate judgment; or (3) resolve critical questions of law or fact that, in the performance of its core probate functions, a probate court must decide. In this case, the adjudication in federal court of Vickie's claim for "tortious interference" with an "expectancy of a gift" involves all three types of interference.

First, the adjudication of Vickie's claim in federal court involves the exercise of core probate functions because it necessarily requires the determination that J. Howard intended to give Vickie a gift from his assets in the form of a separate "catchall" trust in competition with his written Trust governing the disposition of all of his property. Unless J. Howard actually intended to establish this catch-all trust, Vickie can have no claim. Yet establishing that a decedent truly intended to create an instrument disposing of his assets in competition with his written estate plan lies within the core probate functions of a Texas probate court, and the exercise of federal court jurisdiction over such claims negates the exclusive jurisdiction of the probate court over the same matter.

Second, the adjudication of Vickie's claim in federal court requires the federal court to disregard the Probate Court's Probate Judgment. Under Texas law, the Probate Court's decision validating J. Howard's Estate Plan extinguished Vickie's claim as a matter of well-established state law. The District Court's adjudication of Vickie's tort claim is also completely inconsistent with the Probate Court's prior findings and conclusions, made in connection with its validation of the Estate Plan, that J. Howard never intended to give Vickie the gift that she claims, and that his Estate Plan is not tainted by misconduct. It is also wholly inconsistent with the Probate Court's in rem determination quieting title to J. Howard's assets in Pierce and determining that Pierce is entitled to his inheritance free and clear of any claim by Vickie. Moreover, Texas law provides that probate judgments are binding against the world, except as applicable state procedures permit them to be set aside, and the adjudication of Vickie's claim in federal court impermissibly circumvents this salutary rule.

Third, the adjudication of Vickie's claim in federal court requires the resolution of critical questions of law or fact that the Texas Probate Court typically decides in performing its core probate functions, and actually did decide in this case, including the determination of J. Howard's intent regarding the disposition of his assets, and any misconduct surrounding his Estate Plan, each of which are core elements of Vickie's claim. It also requires the determination that J. Howard's Estate Plan was invalid because Vickie cannot establish a legitimate expectancy of a gift without demonstrating that the Estate Plan is invalid. Here, the Probate Court, in determining that J. Howard's Estate Plan is valid, resolved all of these issues against Vickie in its Probate Judgment, and no clearer case of interference can be shown than the District Court's assumption of jurisdiction over precisely the same issues.

Although Vickie attempts to exclude her tort claim from the scope of the probate exception by artful pleading, her claim is, in substance, a challenge to J. Howard's Estate Plan. Similarly, Vickie's contention that the probate exception does not apply in bankruptcy is also unsound. The probate exception is best conceived as a presumption that, when Congress establishes a font of federal jurisdiction, it does not intend that jurisdiction to be exercised in ways that would interfere with probate proceedings. The evils that the probate exception seeks to avoid arise no less in the exercise of bankruptcy jurisdiction than in other areas, and there is no reason to believe that Congress intended bankruptcy courts to exercise greater probate jurisdiction than federal district courts sitting in diversity.

Finally, there is no merit to Vickie's contention that the probate exception should be subsumed within available abstention doctrines. Apart from the fact that this Court flatly rejected the same invitation in construing the analogous domestic relations exception in its decision in Ankenbrandt v. Richards, 504 U.S. 689, 706 n.8 (1992), the policies underlying the probate exception clearly would be ill-served by re-characterizing a nearly two hundred-year-old jurisdictional doctrine into a largely discretionary abstention concept. For all of these reasons, the decision of the court of appeals should be affirmed.

These arguments are developed in the main part of the brief under the following sub-headings:

A. Probate Courts Perform Specialized Functions That Require Exclusive Jurisdiction (p.17)


B. Federal Courts Lack Jurisdiction To Interfere With State Probate Proceedings (p.23)

1. There is no basis for abandoning the probate exception that Congress has not seen fit to displace (p.24)


2. The scope of the probate exception (p.26)

C. The Probate Exception Extends To Vickie's Tortious Interference Claim (p.32)

1. The adjudication of Vickie's claim in federal court caused a foreseeable and irreconcilable conflict of jurisdictions and judgments (p.32)


2. Vickie's claims are barred by the probate exception (p.35)

3. Vickie's attempts to remove her claims from the scope of the probate exception (p.38)

D. The Probate Exception Applies To A Bankruptcy Court's Adjudication Of A State Law Claim "Related To" A Bankruptcy Case (p.42)

CONCLUSION (p.50)

© Steve Jakubowski 2006

Written By:Terence Nunan On February 17, 2006 12:57 AM

There is a discussion about probate jurisdiction and the federal courts in #83 of the Federalist Papers. It gives you a fairly good idea what Hamilton and the other founding fathers had in mind on this issue.

Written By:Bob Benitez On February 28, 2006 4:48 PM

All legal technicalities aside, has Mashall's alleged destruction of documents related to Smith's arrangements with her late husband prejudiced his standing? Are there plausible accusations that he destroyed or altered wills or trusts that favored Smith? If so, would that not justify his being cut out of the inheritance entirely? Furthermore, seeing how money talks in Texas, could not Smith's loss there be argued as a loss of civil or equal rights before the law, necessitating federal intervention?