This remarkable drama demonstrates the lasting power of a lawsuit that has outlasted the life and death of Anna Nicole Smith and her former husband, billionaire oil man J. Howard Marshall II. As the litigation against the estate of her former husband goes on without them both, the absurdity of the case grows clearer.

After more than a decade of legal machinations and courtroom schemes chasing the estate of deceased multi-millionaire J. Howard Marshall, Smith’s lawyers have little to show for their efforts. For the lawyers pushing this case, it truly has been a roller coaster ride. Here’s a quick refresher: The case started in a probate court in Texas within weeks of J. Howard Marshall II’s death in 1995. Anna Nicole Smith initially joined with Marshall’s eldest son J. Howard Marshall III claiming that even though they’d been left out of Marshall’s written will and estate plan, they each had been promised orally a portion of his estate. After a trial lasting nearly six months, the jury ultimately ruled against Anna Nicole Smith and Marshall’s first son.

But Smith’s legal team proved itself tenacious and willing to subvert the system. Just before the Texas verdict was issued, they leapfrogged to a federal bankruptcy court in California. There they were able to get their biggest win – nearly half a billion dollars – by convincing the bankruptcy judge to ignore the course of events and legal arguments covering probate matters in Texas. It’s been mostly downhill since then: the first appeal to the federal district court in California reduced the award by nearly three quarters.

Next the case went to the 9th Circuit. Here Anna Nicole would lose on every count. The court ruled as a matter of law that the entire dispute could be heard only by Texas. On appeal to the Supreme Court, the legal team would gain a narrow victory that kept the case on life support. In the 2006 opinion, the Supreme Court ruled that the 9th Circuit had been overly broad in assuming that this dispute could only be heard in Texas and they sent it back for further review in California, where it remains. Even after all this, most lawyers agree that the prospects for an actual win are meager at best.

But now the 9th Circuit has re-engaged and has agreed to hear oral arguments on the case in Courtroom One on the Eighth Floor of Seattle’s William Kenso Nakamura United States Courthouse. There are five questions that the hearing will be focused on:

(1) Whether Anna Nicole Smith initial claim on the estate of J. Howard Marshall II was a “core” bankruptcy proceeding.

(2) If Smith’s claim was not a “core” bankruptcy proceeding, whether the Texas probate court’s judgment which came first precludes the Federal Courts judgments in whole or in part.

(3) Whether the statute of frauds, which requires estate and wills to be put in writing, affects Smith’s ability to establish her claim.

(4) Whether the discovery sanctions ordered by the district court and the bankruptcy court were reasonable.

(5) If Dannielynn, Smith’s surviving child is a real party in interest and has no guardian ad litem, whether the court should appoint a guardian ad litem and, if so, who the guardian ad litem should be and what provisions should be made for the guardian ad litem’s compensation.

These are mostly the questions that the Supreme Court never addressed when it ruled on the case initially. But each question presents fairly devastating risks to Smith’s legal team. But a win by Smith’s legal team could prove devastating to property rights and estate planning.

In the movies even sequels are given a rest when the franchise no longer has resonance with the audience. Unfortunately this isn’t the case with lawsuits. They often continue regardless of their merit or intrinsic value.
In any event, whatever ultimately comes of this lawsuit, it should remind us all that the legal shenanigans over this half-billion-dollar estate aren’t simply a private matter for the parties involved. We are all impacted. Win or lose, the reckless and selfish actions of a few bad eggs cost the rest of us. Frivolous lawsuits clog our courts and prevent legal disputes with merit from being heard in a timely manner. In fact, according to a recent study by the Chamber of Commerce litigation costs add up to nearly $809 per year for every person in America today.

More frighteningly, this case sets an attractive precedent for future abuse and destabilizes the estate plans of ordinary Americans who want to pass wealth to their children. Tragically, the Anna Nicole Smith legal saga is yet another example of how the American judicial system encourages creativity and legal mayhem at the expense of justice

Horace Cooper is a writer and legal commentator (www.horacecooper.com)

David N. Bossie, President Citizens United

The movie in question is “Hillary the Movie” and as a low budget documentary it bills itself as providing the untold story of who Hillary Clinton is by presenting nearly “40 in-depth interviews with experts, opinion makers, and many of the people who personally locked horns with the Clintons.”  Regardless of one’s perspective on the electoral merits of Hillary Clinton’s candidacy, it should be seen by industry insiders as truly remarkable that such a movie is subject to federal government regulation.  

The case began when a conservative non-profit group, Citizens United, announced plans to show the movie at theaters and to make it available in households with TV-on-demand access on cable TV.  Rather than let consumers decide for themselves whether to bring this movie into their home the FEC declared that it was in violation of the BCRA. 

The legal issues in this case should have nothing to do with the movie’s political point of view because even though the movie includes a mix of facts and opinion regarding the actions and behavior of Senator Clinton throughout her political career, such presentations are constitutionally protected.  The question is therefore whether the government should be able to re-categorize the packaging of this visual product created by Citizens United, i.e. the movie, and declare that it is a campaign ad subject to regulation under the BRCA.  If so, what else could be subjected to this form of “neo-blacklisting?”    

Remember this is a documentary being sold to the public and not affiliated with any campaign.  Unfortunately it is the position of both the FEC and the Obama administration that the government does have the authority to regulate such videos and that they properly used it when the FEC prevented “Hillary the Movie” from being distributed by cable on demand. 

Either the BCRA is being misinterpreted or the act is facially unconstitutional.  Either way the decision by the FEC was a clear and direct unconstitutional restraint on free speech – speech that is protected by the First Amendment and speech that is the foundation for artistic freedom relished by every writer and director – nay all members of the artistic community. 

The movie never formally encourages anyone to vote for or against Hillary Clinton or any other candidate for that matter, but it certainly presents an unflattering perspective of the former First Lady.  But unless all political viewpoints – including unflattering ones – are going to considered campaign projects in the future the fact this one was “slanted” shouldn’t have raised an eyebrow.  In fact Citizens United has previously produced several movies focusing on controversies of the day including the War on Terror, the United Nations, and illegal immigration.  These other movies have been shown in movie theaters and the DVDs are sold by many retailers and Amazon.    

Unfortunately if the FEC standard is upheld by the Supreme Court any of these topics could potentially be subject to government regulation. Moreover why stop with Citizens United?  Neo-blacklisting could just as easily be used to silence Michael Moore or Oliver Stone – two individuals whose political agendas are readily apparent in their movies. Where does a movie cross the line from art to campaign advocacy?  Would Al Gore’s “Inconvenient Truth” pass the government’s campaign test – it is clearly advocacy as are many other films and documentaries.    

Instead of accepting Citizen United’s argument that the communication of its points of view on various topics – just like the communications by producers and directors all over the world – are a valuable contribution to the political process, the federal government and the FEC in particular believe that they can protect the American movie viewing public from the wrong kind of material.   

This isn’t just dangerous; the difficulties of such an approach are obvious.  In this very case, the government went so far as to argue that even the commercials promoting the movie, i.e. the movie trailer constituted “political electioneering.”  Follow this closely – since the movie is a “campaign ad.”  The ad for the “campaign ad” must also be considered a “campaign ad.”   Where does this stop? 

It is pretty apparent that the government has overreached.  In fact, political discourse is precisely the reason we have the First Amendment.  Regulating, delaying or preventing the outright distribution of political ideas is the very behavior of the government that the First Amendment was intended to prevent and just imagine what the movie industry would be like if this guarantee of freedom didn’t exist.  

If upheld this type of regulation will prove to be a double-edge sword.  Today its “Hillary the Movie” but tomorrow it will be Moore’s “9/11″ and Stone’s “W” or any number of movies that have a “political” bent.  Government should never have the power to decide for adults whether political commentary is too persuasive, caustic or unbalanced nor should it decide whether it can be viewed at home or at theaters.    

Horace Cooper is a legal commentator and an adjunct fellow with the Institute for Liberty. (www.horacecooper.com)