Were We Too Stern? The Parallel Narratives of Bankruptcy and Popular Culture

So too does the legacy of Anna Nicole Smith, Stern’s most notorious litigant, evolve. Alongside a number of other women considered to have been the literal and figurative causalities of an insatiable cultural appetite for drama (see Tonya Harding, Anita Hill, Monica Lewinsky, Britney Spears), Smith has reentered popular consciousness as an icon of beauty, tragedy, and vindication—a far cry from the persona she was once associated with. Smith and Stern share this common thread of evolution: that with time can come clarity. In endeavoring to explore that thread, this article first reviews the events that precipitated the filing of Stern v. Marshall and summarizes the relevant early claims and court rulings. Then, following a brief explanation of relevant bankruptcy law, it explores the parties’ lives during the protracted battle, how the media continued to influence Smith’s narrative, and the significance and reception of the U.S. Supreme Court’s ruling in Stern. Finally, this article examines Stern and Smith in the context of the current cultural moment to conclude that with subsequent case law and changing perceptions of media and celebrity, the legacy of each has diverted from what was initially predicted.

The Parties

If you stood in line near a grocery store magazine rack during the mid-aughts, you know the parties: Smith (born Vickie Lynn Hogan), the 20-something single mother, small-town Texan-turned-Playboy model, and widow to the octogenarian oil billionaire J. Howard Marshall; and Smith’s stepson, E. Pierce Marshall, nearly three decades her senior and the beneficiary of his father’s estimated $1.6 billion estate. Smith and J. Howard had met in October 1991 at a strip club in Houston where J. Howard, divorcee and soon-to-be a widower, was instantly smitten with Smith, then a dancer. J. Howard courted Smith for years, but despite his lavish gifts, she rejected several of his marriage proposals to focus on her financial independence and modeling career. “I want to be the new Marilyn Monroe,” she famously quipped. And so she would be. In 1993, Smith was named Playboy magazine’s Playmate of the Year, and soon after became a model for Guess? jeans and began in earnest her acting career; only then did she agree to J. Howard’s proposal, and the two married in 1994. The relationship was a goldmine for tabloid scandal, which, in turn, boosted Smith’s notoriety. “The bride wore cleavage,” began a cheeky People magazine article about the wedding, “[and, like J. Howard, Smith] has shown some success at leveraging her assets.”

J. Howard’s son Pierce was wary of his father’s new wife. He hired private detectives to trail the couple and presented his father with documents allowing Pierce to take control of his father’s estate; as J. Howard’s health declined, Pierce assumed guardianship of his father, began to forward Smith bills for her expenses, and hired guards to physically keep the couple separated. In response to Pierce’s gambit, Smith filed suit in a Texas probate court, alleging that Pierce had induced his father to sign a living trust that excluded her under false pretenses, and she made attempts to tape-record J. Howard expressing his wish to leave her an inheritance; however, Smith was unable to do so before J. Howard’s death in 1995.

Journey to Stern

After J. Howard’s death, Smith filed again, this time for Chapter 11 bankruptcy in the Central District of California. In that proceeding, Pierce filed a complaint against Smith for defamation, which prompted a counterclaim by Smith for tortious interference with the gift she had expected to receive from J. Howard. As the Texas probate court prepared for trial, the bankruptcy proceedings in California were decided in Smith’s favor and she was awarded more than $425 million in damages; Pierce sought review of this decision by the district court, arguing that the bankruptcy court did not have the jurisdiction to render a final decision on Smith’s counterclaim because it was not a requisite “core proceeding” as defined in 28 U.S.C. § 157(b)(2)(C).

The nature of Pierce’s challenge was not altogether uncommon. As the Supreme Court had made clear in Northern Pipeline Construction v. Marathon Pipe Line Co., bankruptcy courts, as non–Article III courts, lack the constitutional authority to decide claims too tangentially related to a bankruptcy proceeding. At the time of Pierce’s challenge, the controlling Bankruptcy Amendments and Federal Judgeship Act of 1984 dictated that bankruptcy courts had the power to enter final judgment only on “core proceedings”—those “arising under title 11, or arising in a case under title 11”—and that for “non-core proceedings,” bankruptcy courts could issue only proposed findings of fact and conclusions of law for review by a federal district court. The question here was whether Smith’s claim was “core” enough for the bankruptcy court to determine its outcome.

The reviewing district court agreed with Pierce that Smith’s counterclaim was not core and therefore not within the bankruptcy court’s jurisdiction but, after conducting its own de novo review, found in favor of Smith on the basis that Pierce had “acted fraudulently” and “conspired to suppress or destroy” J. Howard’s efforts to leave a gift to Smith; the court awarded her $88 million in damages. Pierce appealed to the Ninth Circuit, which reversed the district court on unrelated grounds, and thereafter the case made its first trip to the Supreme Court in Marshall v. Marshall, where the justices remanded to the Ninth Circuit. Smith, sitting dutifully in the courtroom across from the justices, would live just long enough to learn of the Court’s decision, and to know that there was still a chance she could win.

Reality Sets In

Outside the courtroom, Smith’s life had continued on. Two days before the Ninth Circuit held its first round of argument in the case, Smith’s E! reality series, The Anna Nicole Show, aired its final episode. The series offered an intimate look into Smith’s life, and the view it presented was unsettling. Smith, who had struggled to find work in the years after J. Howard’s death, had become progressively isolated from her family and increasingly dependent on prescription drugs supplied by her lawyer and psychiatrist (and that were prescribed, in part, to treat back pain caused by the breast implants that were part of her iconic look). By the time her show was on the air, the stress of the legal battle was taking its toll; “[Smith’s] ongoing troubles were painfully visible . . . [i]n one episode, she goes to the dentist to have her teeth capped with [twenty] crowns, since the stress of Marshall v. Marshall ha[d] caused her to begin grinding her teeth, leading to lasting nerve damage.” Her distress was plainly visible to the public in the tabloids, the news, and her show: “you may find yourself wondering [ ] how anyone—her friends, her colleagues, the media—let her into the public eye in that condition.”

Judgment

Meanwhile, on remand from the Supreme Court, the Ninth Circuit took its cue from Northern Pipeline. It determined that Smith’s tortious interference counterclaim was not, in fact, a core proceeding, a decision which again prompted the Supreme Court’s grant of certiorari. In the Court’s 2011 decision in Stern, the Court determined that the Constitution required that Smith’s claim be adjudicated by an Article III judge. The effect was that the California District Court, which had proper jurisdiction to consider Smith’s claim and had done so de novo, was the first judgment to enter in the California bankruptcy court proceedings, and not the decision of the bankruptcy court. The nearly simultaneous Texas probate court proceedings—that ended in favor of Pierce—had concluded after the bankruptcy court judgment, but before the California District Court judgment. Thus, with the judgment stripped from the bankruptcy court, the Texas probate decision became the first final judgment to enter and, as a result, was afforded preclusive effect. With the Texas proceeding the final judgment, Smith would receive nothing.

Reception

The majority in Stern was explicit that, as a “practical matter,” its holding was narrow, but the dissenting justices “doubt[ed] that [was] so.” They feared that because counterclaims like Smith’s “arise in bankruptcy court with some frequency,” this “game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering.” Legal commentators too were skeptical of the majority’s promise. In addition to those concerns raised by the dissenters, the scope of this “enigmatic” decision was unclear; “the Court’s opinion rests on a rationale that, carried to its logical conclusion, could have broad implications for the exercise of bankruptcy jurisdiction.” By its nature, the decision called into question the bankruptcy court’s “right to enter final judgments in typical [claims].”

The decision also resonated with the public. Ever a muse for ridicule, Smith had been grossly mocked even immediately after her death. In a 2007 year-end “Fond Farewell,” Time magazine wrote that “[Smith] circumnavigated the life cycle of celebrity as quickly as others lose and gain weight (which she also did). . . . Everything [at first] seemed to come too easily—but then, like her men, never stay long.” “In the end, she was a stripper again. . . . She spilled out of her tops, she spilled into the tabloids, she was a mess,” printed the Washington Post. Even attempts at retrospection found room for insult, like in The Guardian: “[h]owever trashy she seemed, Anna Nicole Smith appeared to say something. But what?” Pundits jumped at the chance to gloat once Stern was decided. Even though the Court’s reasoning had not been based in morality, it appeared to be. Smith, long accused of marrying for a quick buck, had seemingly been told by the highest court that she was not deserving.

Not only did the justification in Stern not rely on the morality of the parties, but by the time of its holding, it was no longer even for the parties, as both Smith and Pierce had died suddenly during litigation. Smith’s estate had continued the fight on behalf of her then infant daughter, as Smith’s 20-year-old son had died unexpectedly just days after his sister’s birth and from the same cause—an accidental drug overdose—that would claim his mother’s life a mere five months later. The soprano who played Smith in the (unexpectedly successful) London Royal Opera’s Anna Nicole lamented that “[t]he only real love [Smith] ever had was for her son and when he died, that was it for her. That killed her.” Predicting that with her death she would fade to obscurity, Leonard Pitts Jr. of the Miami Herald wrote that “Smith’s crash will produce no redemption narrative. Hers was the big crash, the final one.”

Stern’s impact, on the other hand, was ramping up. Of paramount concern was whether any of the other claims designated by Congress as core in 28 U.S.C. § 157(b)(2)(C) were, in fact, not constitutionally able to be adjudicated by a bankruptcy court (so-called Stern claims). Knowing only the course for treatment of claims that were either core or noncore, it was unclear how courts should treat those claims designated as core to the bankruptcy proceeding but required by the Constitution to be adjudicated by Article III judges. In 2014, the Supreme Court endeavored to resolve the question.

In Executive Benefits Insurance Agency v. Arkison, the Court held that a claim for fraudulent conveyance was, indeed, a Stern claim, and that when faced with a Stern claim, bankruptcy courts could—as they did for noncore claims—issue proposed findings of fact and conclusions of law for de novo review by a district court, thereby lessening the changes implicated by Stern. The next year, in Wellness International Network v. Sharif, a unanimous Court answered calls for further clarity and determined that Article III is satisfied by a party’s consent to bankruptcy court jurisdiction, even when that consent is implicit, so long as it is knowing and voluntary. With this third and final chapter in the Supreme Court’s bankruptcy trilogy, the most major “bombshell” concerns—those that would strip the bankruptcy of swaths of jurisdiction or require a total restructuring of the bankruptcy court system—were largely avoided.

Aftermath

Two years after Wellness, on the 10th anniversary of Smith’s death, journalist Sarah Marshall (no relation) published How Anna Nicole Smith Became America’s Punchline in Buzzfeed News. Stepping back from the tired trope of Smith as a gold-digging, drug-abusing, loose cannon, she highlighted an opinion that had previously been largely drowned out: that Smith’s humanity, pushed aside by a tabloid culture that treated her like a character to watch, was due a cultural reimagining. Marshall focused on Smith’s most human experiences and qualities: a difficult childhood, the ambition to escape her small town, her adoration for her son, the immense scrutiny she faced. Though human and imperfect, this holistic Smith is more realistic, at once both sympathetic and empowered. Victim or vixen? Maybe both. Maybe neither.

And there is an appetite for it. “[Smith’s] legacy as America’s OG bimbo is being reclaimed by Gen Z as a lifestyle, a state of mind and a feminist fashion statement,” writes Zoe Kendall for Vice Media’s i-D. Capitalizing on the moment, even Guess? launched the “Guess Originals x Anna Nicole Smith collection” in 2018 to “honor[] one of its most acclaimed models of the ’90s.’” This lens, however, is not without critique. The “redemption arc” to “‘reframe’ and ‘reconsider’ famous, beautiful, usually white and always misunderstood women from our semirecent pasts,” writes Jessica Bennett in the New York Times, is just another opportunity to consume “spectacle.” Why look back when we need only look to now for “examples of imperfect women whose lives are currently being picked over by our culture, in real time?,” she asks.

To be sure, waiting for the TV drama or biopic of Smith’s life to rewatch her life unfold feels neither honorable nor useful; for proof, look no further than (but do not watch) the Pam & Tommy series. There is a distinction, though, between readjusting a poorly told narrative and criticizing the storytellers, and exploiting that narrative for profit and consumption. Perhaps a continued discussion of Smith—as a person, not an idol, not a villain—is a way to set the precedent for a more nuanced and meaningful discussion as her cultural narrative continues to evolve. Backing away from an endorsement of celebrity obsession is beneficial for more than just the potential stars at the center; as we well know, the media’s hyperfocus can and does have important social and political consequences, from which even the judiciary is not immune.

Conclusion

Like Smith, Stern entered with a controversial bang, but looking back, we see how Stern’s sharpest edges were blunted. Although the Constitution does limit the authority of bankruptcy courts over some of the claims Congress considered “core,” based on later Supreme Court holdings, bankruptcy courts may still render final judgment on those claims if the parties consent and may offer their proposed findings and conclusions if the parties do not. Similarly, Smith, once the “bimbo,” is on the cusp of a new legacy herself: one where she is shown overdue respect and dignity.

Because this article is written by and for law practitioners, Smith’s own voice is conspicuously missing—and for that matter, so is J. Howard’s. Here, though, Smith, will get the final word. While she spoke on more topics than only her marriage, because it so influenced her narrative and the law, it feels appropriate to conclude with her thoughts on how this all started. To co-opt the already-perfect ending to Sarah Marshall’s meaningful piece:

. . . perhaps [ ] most surprising is that [Smith] continued to speak fondly of [J. Howard] long after his death, after their marriage had made her career a joke, after his family had helped send her into bankruptcy, and after Marshall v. Marshall had made her life a living hell. Called on to describe their marriage, and what their relationship held for her, Anna described not the diamonds or the ranch or the shopping sprees, but something that may have seemed even more foreign to her than the money J. Howard Marshall threw at her feet. “He cared about me,” Anna said. “He never looked down at me.”