Analysis: Vermont in trouble, Vickie Lynn in clover?
on Feb 28, 2006 at 12:39 pm
The Supreme Court devoted a lively two-hour session Tuesday to money in politics and money in family feuds, giving strong hints along the way that Vermont may not succeed in arguing that its politicians are being corrupted, and that a woman best known as a topless dancer may soon be considerably wealthier. There was nothing in common between the two cases the Justices heard, except that the onetime Playmate of the Year with flowing blonde hair — Vickie Lynn Marshall — listened to both hearings in the midst of an audience, many of whose members looked expectantly for a glimpse. (Fashion note: she wore a black dress, with a modest opening at the throat.)
Reduced to the legal essentials, and that is what both Justices and attorneys tried to do, the Vermont case turned out to be a test of how low a state may go in setting limits on campaign donations, and Ms. Marshall’s case became a thoroughly arcane exploration of wills and estates, bankruptcy, trusts and probate.
If there was a surprise in the Vermont case, it was how little interest the Justices showed in the core question of whether the Court is ready to change its mind about denying states the authority to regulate campaign spending (as opposed to campaign donations). And, if there was a surprise in the estate lawsuit, it was how close to unanimity the Court appeared to be against curbing the power of bankruptcy courts to dispose of assets that are linked to an estate.
Six attorneys appeared in the two cases (three in each), but the worst time was had by Vermont’s state attorney general, William B. Sorrell. He is the chief legal officer of a state with a reputation for bucolic innocence and Yankee integrity, but he sought with considerable enthusiasm — and little success — to portray Vermont as suffused with dirty money buying influence with state legislators and other officeholders. With more than a little skepticism in his voice, Chief Justice John G. Roberts, Jr., asked Sorrell very early: “How many prosecutions have you had for political corruption in Vermont?” (None, was the answer.) And then: “Is political corruption a problem in Vermont?” (70 percent of the citizens think so.) And then: “Would you describe your state as clean or corrupt?” (No one has gone to jail, but “the threat of corruption in Vermont is far from illusory.”) That was perhaps the high point of Sorrell’s presentation.
Sorrell missed a seemingly promising opening created for him by a lackluster and diffuse argument by his adversary, James Bopp, Jr., of Terre Haute, Ind., representing the challengers to the state law.
All of the Court’s members except Justice Clarence Thomas put questions in the cases of Randall v. Sorrell (04-1528), Vermont Republican State Committee v. Sorrell (04-1530), and Sorrell v. Randall (04-1697), although new Justice Samual A. Alito, Jr.’s participation was limited to two questions. The common concern among the members of the Court who spoke up appeared to be that Vermont had set its contribution levels so low that it might threaten to cut off any chance of a contender to unseat an incumbent, or that it might threaten to make a race in a competitive district a slam-dunk for the incumbent. Justice Stephen G. Breyer put the question bluntly, seeming to reflect the mood of the Court as a whole: “At what point does a limit become so low that you cuff off the possibility of a challenge?”
Vermont’s contribution curbs are the lowest in the nation. A donor supporting a candidate for governor, for example, can give only $400 in a two-year election cycle. Sorrell insisted that candidates can and do win elections within such modest financial parameters, partly because the state’s population is so small, and partly because there is such a short time between the September primary and the November general elections. But his argument about the smallness of the state was turned against him by the Chief Justice, who suggested that “it doesn’t take an arms race” if politicians need only go door to door to seek voter support.
The Vermont cases came to the Court, and have been watched closely mostly because of this, as the first serious test in the last quarter-century or more of whether the Constitution forbids states to put any significant curbs on campaign spending, because that has been treated as a form of political speech. Although considerable skepticism has developed within the Court about its past view that spending limits are invalid, there was no sign on Tuesday that the Court is ready to reconsider. In fact, the spending curbs question did not even come up until late in the argument, when Justice Breyer commented: “There is a case — Buckley [v. Valeo] — that says that expenditure limits are not constitutional. Am I not bound by that? Why am I not bound by that, whether I may not agree with it?” He put the question to Brenda Wright, representing the Vermont Public Interest Research Group. She insisted — but did not appear to be convincing in doing so — that the record in the Buckley case did not really test that issue.
For all the media fascination with the second case argued Tuesday, Marshall v. Marshall (04-1544), the actual argument was a treat mainly for experts in civil procedure and the laws of bankruptcy and inheritance. The case involves what Judge Richard Posner once described as “one of the most mysterious and esoteric branches of the law of federal jurisdiction.”
The single aspect of that issue that the Court was reviewing is whether the so-called “probate exception” to federal court jurisdiction bars federal bankruptcy courts from deciding a case that might implicate an estate that is simultaneously being administered in a state probate court. The tone was set for the argument when Vickie Lynn Marshall’s attorney, Kent L. Richland of Los Angeles, began his presentation this way: “This is a bankruptcy case.”
Vickie Lynn (who made fame under her performing name Anna Nicole Smith) was married for 14 months to billionaire Texan J. Howard Marshall. She has been seeking in federal bankruptcy court to recover more than $88.5 million in damages awarded her, against Marshall’s son, Pierce. That sum is to compensate her for the son’s attempt to undermine — allegedly by fraud — her claims that her husband intended to give her, while he was alive, a substantial gift.
Richland ultimately seemed to have most if not all of the Court with him, after overcoming a somewhat shaky start when he argued excessively that bankruptcy law allows no exceptions whatsoever for estate probate matters when those involves a disputed asset — here, Vickie Lynn’s recovery in her tort lawsuit against Pierce. (Texas probate courts would later award Vickie Lynn nothing from the estate itself.)
Justice Antonin Scalia bluntly suggested that Richland back off of such a sweeping claim, and other Justices joined in. Essentially, Richland did. “It is not necessary to our case,” he conceded. “Obviously, this case is miles away from probate…This case has nothing to do with probate jurisdiction.” The attorney was not rigorously challenged after that, as the Justices explored the interrelationship between bankruptcy law and Texas probate law, seemingly inclined to favor the former.
Richland picked up some support from Deanne E. Maynard, an assistant to the U.S. solicitor general, who urged the Court to clear up the confusion among lower courts on the “probate exception” but to do so by giving it a very narrow scope, so that it applied only when specifically interpreting a will would be at stake. Justice Scalia, however, suggested that Maynard may have suggested taking away too much of a bankruptcy court’s jurisdiction if will interpretation were completely beyond its reach.
A Yale law professor, G. Eric Brunstad, Jr., of New Haven, Conn., representing Pierce Marshall, made a thoroughly competent argument that Texas probate law should prevail — but it was an argument that attracted no significant support from the bench. His plea essentially boiled down to a claim that Vickie Lynn could bring her claim based on the tort verdict only by undermining the entire “estate plan” that had been probated in Texas court. “It is never appropriate,” he argued, “for a federal court to invalidae a will or an estate plan,” and that is what Vickie Lynn would have to do to prevail, he said.
Justice David H. Souter made an effort to cut through the technicalities by suggesting at one point that her claim simply was “I just want some money from this guy…Just give me that money.” Brunstad, of course, would not accept that it was that simple: “Under Texas law, she can’t prove expectancy [to recover anything from the estate]. If her claim is not in the estate plan, all expectancy is foreclosed.”
Several of the Justices countered, however, that Vickie Lynn’s claim was not an assertion that she had a specific claim on the estate, but only to recover the damages she was awarded for the tort. It was a point that Richland neatly summed up in his rebuttal: “The cause of action here is very common…She does not seek to invalidate any documents, any estate plan.”
