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FBAnewsletterFall 2008 Federal Bar Association - Eastern District of Michigan Chapter - 51 years of service to our Federal Bench and Bar Rakow Awards/Court Historical Society Luncheon President’s November 18th Column Barbara L. McQuade Once again, the Chapter looks forward to co-hosting our annual Rakow Awards luncheon with the Court His- Key Contributors torical Society at the Atheneum Hotel in Greektown. The reception begins at 11:30 a.m. with the luncheon starting at Throughout the year, this column will focus on noon. Tickets are $25.00 for Chapter members, $30.00 for members whose work has made a significant non-members. impact on our Chapter. One of our Chapter’s key contributors is Tom Continuing another proud tradition, our Chapter will McNeill. As Program Chair, Tom leads the plan- present scholarships financed by our Foundation to one de- ning of our quarterly luncheon series and other serving student from each of our six Michigan law schools. programming areas. Quality programming is Rakow scholarships are given annually in honor of one of one of the Chapter’s top goals this year, and the our energetic Chapter founders, Ed Rakow. reason for that priority can be credited to Tom For its part, the Historical Society has planned yet as well. another compelling program. The Historical Society has The Chapter saw unprec- engaged Greg Stohr, the Bloomberg News Supreme Court edented growth last year reporter and author of “A Black and White Case: How Af- with Tom as Chair of the firmative Action Survived Its Greatest Challenge,” the first Membership Committee. At book to examine the 2003 U.S. Supreme Court decisions in the behest of Past President the landmark University of Michigan cases. At the conclu- Judge Mark Goldsmith, Tom and his Committee launched sion of the luncheon, Mr. Stohr will be available for a book a membership drive that at- signing (for your convenience, books will be available for tracted 300 new members. purchase at a special low price). The Chapter seeks to retain For more information about this luncheon or the lun- all of these new members by Tom McNeill cheon series, please contact Thomas G. McNeill, Chapter providing high quality pro- Program Chair, at (313) 223-3632 or by email at tmcneill@ gramming, educational seminars, and networking dickinson-wright.com. Information is also available on the opportunities. So Tom’s success last year has Chapter’s website at www.fbamich.org. given him new challenges this year, and he has met them with typical aplomb. Programs in the works include a seminar on Inside this issue Sentencing presenting financial proofs in court, a brownbag New Lawyers Seminar pg.2-3 panel discussion on sentencing advocacy, a Advocacy Courthouse tours orientation breakfast, and the Tidbits & Trivia pg.3-5 Seminar Rakow Awards Luncheon. In addition to offering programs to our mem- State of the Court pg. 5-6 November bers, we want to engage them as active partici- Dave Weaver pg.6 12th pants in committees. Committee chairs attended an August orientation session, at which they Featured Member T h e C r i m i n a l were encouraged to invite to committee meet- L. Michael Wicks pg.6-7 Practice Committee ings all new members who indicated a preference for Annual Meeting pg.7-8 will present a panel discussion entitled a particular committee WINNER Supreme Court “How to Improve on their application form. 6 YEARS If you are interested in Preview pg. 8-9 Sentencing Advocacy: National FBA serving on a committee, Outstanding Remembering The View from the a list can be found on the N e w s l e t t e r Judge Brody pg. 9-10 Bench and the Proba- chapter’s website at A w a r d tion Department,” at Calendar of Events pg.12 (continued on page 2) (continued on page 2) 1 Advocacy Seminar (from page 1) President’s Column (continued) noon on Wednesday, November 12th in Room 115 of the Courthouse. www.fbamich.org or by sending an There is no charge for the presentation, and those attending should email to Executive Director Brian Figot feel free to bring a brown bag lunch. The panel members will include at [email protected]. Judge Robert Cleland, Judge Victoria Roberts, and Phil Miller, Chief Other goals for the year relate to our Probation Officer. diversity and pro The goal of the presentation is to give defense attorneys and bono efforts. Presi- prosecutors alike practical advice for enhancing the quality of their dent-Elect Elisa An- geli Palizzi leads sentencing presentations. The judges on the panel will describe the our Diversity Task sentencing councils used by many judges in this District and the types Force, co-chaired of arguments that the councils have found most persuasive. They will by Judge George also address the role that letters from crime victims and from supporters Caram Steeh and of the defendant play in the sentencing process and how to make such Assistant U.S. At- letters more relevant and persuasive. Finally, the judges will offer tips torney Elizabeth on how to present sentencing arguments in the most effective format. Stafford. The Di- Elisa Angeli Palizzi Phil Miller will explain how defense attorneys and prosecutors can versity Task Force maximize their input into the Probation Department’s consideration of has been asked to each case and shape the sentencing posture of the case before it even develop specific recommendations to reaches the judge’s desk. improve the diversity of our Chapter For more information, contact Matthew Leitman at 248-267-3294 in all forms. Judge Goldsmith serves as officer or Daniel Hurley at 313-226-9780. liaison to our Pro Bono Committee, chaired by Rick New Lawyers Seminar Haberman of Dickin- December 2nd and 3rd son Wright, Patrice Arend of Jaffe Raitt Heuer & Weiss and The nationally acclaimed (and copied) annual New Lawyers Semi- John Nussbaumer, nar will be held on Tuesday and Wednesday, December 2-3, 2008, start- Associate Dean at ing in Room 115 at the Courthouse. Register your associates early, Cooley Law School as the capacity is limited. at Auburn Hills. The Mark Goldsmith The Seminar utilizes a “nuts and bolts” how-to-do-it approach Chapter’s Pro Bono which is designed to assist recent graduates in understanding certain Committee works areas of substantive practice and the fundamental procedures followed with the Court’s Pro Bono Committee in the Court and also in the State courts in Wayne, Oakland and Macomb to best support the pro bono needs counties, featuring a faculty of judges, court personnel and practicing of our district. Attorneys performing attorneys. pro bono service were honored at the The first day of the Seminar, December 2nd, is “Federal Day,” State of the Court Luncheon on Sept. with intensive focus on the practicalities of federal practice, followed 23. We’ll hear more about the work of these and other key contributors in the by a swearing-in ceremony which will be coordinated by the Clerk’s coming months. Office. (Separate registration with, and payment to, the Clerk’s Of- But, back to Tom McNeill. Tom fice is required for the swearing-in.) The latest information regarding practices at Dickinson Wright in the the swearing-in ceremony is on the Court’s website, at www.mied. areas of commercial litigation, securi- uscourts.gov/. ties and corporate governance. He The second day, December 3rd, is “State Day” and leads the un- also lectures extensively on electronic initiated through the vagaries of the tri-county court systems, with a data and E-discovery. As Membership luncheon at the historic Detroit Club, usually addressed by the Chief Chair last year, Tom showed his cre- Judge of the Wayne County Circuit Court. ativity, challenging lawyers to bring in Additionally, for each subject covered, there is an accompanying new members and offering the winner outline and/or substantive article, conveniently formatted for word lunch with author Scott Turow at the searching on a CD-ROM. Chapter’s Gilman Luncheon in April. We look forward to reaping the benefit Over the years, this Seminar has been copied, first nationally by of Tom’s energy and creativity in the other FBA Chapters and more recently by local bar associations and law years to come. firms. However, it remains unparalleled both in content and in pricing. The two-day Seminar, luncheon and Seminar materials are all provided

2 for only $65.00 to members of the national FBA; $95.00 to non-members. A special A Message from the price of $140.00 includes the seminar plus Pro Bono Committee one year of membership in both the national FBA and the Chapter. Co-chairs for the Seminar are Brian Dear Chapter member: Akkashian, Christine Dowhan-Bailey, Brian Figot, Grant Gilezan, Geneva Halliday and Representatives of the FBA Pro Bono Committee met with Judge Cathrine Wenger. Denise Page Hood, Judge Victoria Roberts, Court Administrator David Reservation checks should be made Weaver, and Deputy Court Administrator Libby Smith. The foreclo- payable to the Federal Bar Association, and sure crisis has made its way into federal court in the form of pro se mailed to New Lawyers Seminar, 30100 cases filed by plaintiffs seeking to set aside a sheriff’s sale and have Telegraph, Ste. 428, Bingham Farms MI title restored, and we need your help. 48025-4564. We are in the process of putting together a training program for Online registration with secure payment volunteer lawyers willing to help handle these cases that we hope to by credit card is available at www.fbamich. present in late October, and we are reaching out to you to ask you to org. volunteer your time to help address this pressing need. If you have any questions, email the FBA In the past, many of the FBA’s pro bono cases have focused on at [email protected] or call Brian Figot practice areas that some of you felt were outside your comfort zone. at (248) 358-0870 x11. This may be an opportunity for those of you who have wanted to get involved, but did not feel comfortable doing so. Judge Roberts has provided us with a summary of the kinds of cases that are being filed in federal court as diversity actions and as Tidbits & original jurisdiction actions. Federal statutes sometimes cited are the Trivia Fair Debt Collections Practices Act, the Truth in Lending Act, the By Brian D. Racketeering and Influenced Corrupt Organizations Act, and the Real Figot Estate Settlement Procedures Act. Plaintiffs also rely on the Fifth and Fourteenth Amendments. Michigan statutes cited include Foreclosure by Advertisement, Looking the Michigan Consumer Mortgage Protection Act, and the Michigan Back at an Mortgage Brokers Lenders and Servicing Lending Act. Common law Historical actions cited include fraud, fraudulent inducement, quiet title, and Blog breach of contract. Plaintiffs sometimes challenge the notice provi- sions that allow foreclosure by advertisement and make a due process An historical blog? Outrageous! The argument from that. word “blog” did not even exist until less than If you are interested in volunteering, please contact Administra- a decade ago and the medium in which blogs tive Assistant Sabrina Wescott at Cooley Law School’s Auburn Hills are published is a creation of the modern era. campus. She can be reached at [email protected] or at 248 751- However, while the word is new, the medium 7800 Ext. 7778. This contact will not commit you to taking a case. is recent and the use has proliferated (nearly Before you are asked to accept a case, you will have the opportunity everyone seems to have one), the concept to review the case file to determine if you want to accept it. is ancient. Please seriously consider joining us in this worthwhile effort. As defined in the online Merriman-Web- ster dictionary, a blog is nothing more than Sincerely, a noun whose etymology is a shortening of the term “Weblog,” dating back to 1999, Eastern District Judges Pro Bono Committee defined as: Judge Denise Page Hood a Web site that contains an online per- Judge Thomas L. Ludington sonal journal with reflections, comments, and Judge Victoria A. Roberts often hyperlinks provided by the writer; also Judge Arthur J. Tarnow : the contents of such a site FBA Pro Bono Committee We used to call a journal with reflection, Patrice Arend (Jaffe Raitt) comments and other integrated materials a Richard Haberman (Dickinson Wright) “diary” or “scrapbook” if maintained infor- John Nussbaumer (Cooley-Auburn Hills) (continued on page 4) 3 Tidbits & Trivia (from page 3) ‘That cannot be accomplished through reliance on any remote and bureaucratic centralization of power . . . ‘ mally and/or individually. When maintained officially or . . . organizationally, we call such journals “minute books” or “annals.” “Speaking shortly after Senator Sherman Minton, Without the relative permanence of cyberspace, the Democrat, of Indiana had advocated that a 7-to-2 vote by old “blogs” are (regrettably or not) more prone to disap- the Supreme Court be required to declare a law unconsti- pearance. Destruction of one copy may endanger the tutional, Ransom maintained it is vitally necessary that the species, where destruction of one hard drive or one server powers of the courts be unabridged ‘in enforcing compli- is usually insignificant (as the forensic discovery experts ance to the fundamental law * * * ‘ will confirm). “’Unless the most sacred of human liberties are to be We are fortunate therefore to have had access to the destroyed in America as they are being destroyed in other scrapbook maintained by E.A. Karu, the FBA historian lands,’ he said ‘we must be sure that no steps are taken who more than a generation ago put aside little tidbits of which will take away the powers of our courts, to defend information from the 1930s, 1940s, and 1950s, ranging and protect the rights and liberties of the people.’” from the crucial to the trivial and including select min- An excerpt from the Minutes of the April 21, 1936, utes from meetings held during the period, some printed Executive Committee meeting indicates a then-insignificant programs from the FBA’s annual anniversary dinners and event, action on the membership application of Alger Hiss. some odds and ends. Years later, Hiss would be at the center of the “Communists For example, the binder for the 1930s contains an in the State Department” controversy that propelled a young August 9, 1933 letter to the membership from FBA presi- Congressman, Richard M. Nixon, to the national stage and dent William A. Roberts, correspondence which contains which signaled the birth of another era in American history, a contemporaneous and vivid account of the depths of the “McCarthyism.” Great Depression and the birth of the New Deal: Minutes from the meeting of September 22, 1936, note “Dear Fellow Members: the acceptance to membership of various attorneys from “It does not require a letter from me to let you know a then-proposed Chapter in Philadelphia, whose govern- that the past few months have been the supreme trial to ment affiliations would have seemed obscure for more than the lawyer in Government service and to the Federal Bar seventy years, but whose employment now provides a re- Association. Financial stringency, lack of security, and sponsive chord: Of the 44 attorneys: three were employed unsettling rumors have been prevalent at a time when by the Reconstruction Finance Corporation, a government our every nerve was strained to place in effect swiftly the agency that made loans to banks, railroads, farm mortgage most revolutionary and thrilling -- and the most complex associations, and other businesses, and another 18 were program in the legislative and administrative history of “Foreclosure Attorneys” employed by an until recently the country. obscure government agency known by its Rooseveltian “. . . .The Association, like the Nation, will and must initials: HOLC. continue regardless of changes in the men who constitute Sometimes it takes generations for trivia to emerge each. Now, however, things are brighter. We have our new from obscurity. From the September 25, 2008, Op-Ed arti- office here in the Earle Building [at 13th and E Sts., N.W.], cle by Senator Hillary Clinton, published in the “Wall Street our financial program has been overhauled on a basis of Journal” and since then cited in numerous “blogs”: rigid economy and a clearing in the banking situation is “This is not just a financial crisis; it’s an economic enabling us to regain our equilibrium and to pay off in part crisis. Therefore, the solutions we pursue cannot simply our accrued obligation.” stabilize the markets. . . . First, we must address the sky- Also retained was a “link” to a March 5, 1936, article rocketing rates of mortgage defaults and foreclosures that from the Washington Star, headlined “LOCAL RULE have buffeted the economy and ignited the credit crisis. HELD SLIPPING IN U.S.,” subtitled “Federal Bar Hears . . . Ransom Defend People Control and Independence” and “I’ve proposed a new Home Owners’ Loan Corporation providing in part: (HOLC), to launch a national effort to help homeowners “‘The independence of American local self-govern- refinance their mortgages. The original HOLC, launched ment is being destroyed,’ William L. Ransom of New York, in 1933, bought mortgages from failed banks and modified president of the American Bar Association, charged last the terms so families could make affordable payments while night in an address at the 16th annual dinner of the Federal keeping their homes. The original HOLC returned a profit Bar Association held at the Mayflower Hotel. to the Treasury and saved one million homes. We can save “’The American people are entitled to be well governed, roughly three times that many today.” and they are entitled to have Government kept close to the Finally [for purposes of this column], the scrapbook people and close to local needs and wishes,’ he declared. also contains something of a far less serious nature -- hand- 4 written correspondence from Justice Louis Brandeis, who warm since illness had prevented him from speaking a wrote to FBA President William Morell, in response to an year ago. He thanked Judge Gerald E. Rosen for standing October, 1939, invitation to honorary membership: in for him on that occasion and on many other occasions “Re yours of 8th. as well. He thanked the Chapter for “A self-denying ordinance joining his name with that of of long standing forecloses my Judge Julian Abele Cook, Jr. in accepting membership, as you establishing the new Julian Abele so courteously suggest. Cook, Jr.-Bernard A. Friedman Fortunately, Mr. Morell also FBA Civility Award. received acceptances from Jus- He introduced the newest tices Hughes, Frankfurter, Black, District Judge, Steven J. Mur- Douglas, Stone, Roberts, Suther- phy, III, and acknowledged the land, and Reed, thus revealing presence of still-relatively-new an 8–1 split in the FBA’s favor. Flint Magistrate Judge Michael Even under the constitutional Hluchanuik. majority that Senator Minton He noted that it was a year would have required, the FBA since the death of Judge George would have prevailed. E. Woods “who will always be Judge Denise Page Hood presents certificates of remembered as a great judge appreciation from the Court. Photo by John Meiu, and a wonderful colleague and State of the courtesy of Detroit Legal News. friend.” Court Luncheon Held He introduced the Court’s ombudsman George Bedro- sian as “the person to interface with when there is no insti- tutional solution to a problem” and stressed the confidential The Chapter’s popular luncheon series returned from nature of communications with Mr. Bedrosian. summer hiatus on September 23rd with the State of the Chief Judge Friedman went on to recall the State of the Court address. Court address given by then Chief Judge James P. Churchill The program began with a welcome from Chapter in 1989. Among several subjects, Judge Churchill voiced President-Elect Elisa Angeli Palizzi, who was pinch-hit- his “suspicion” that the grand jury served as the “rubber ting for Chapter President stamp of the prosecution.” Barb McQuade. Judge Friedman described In keeping with tradi- in detail how the grand tion, attorneys who pro- jury works, in secret with vide pro bono service to the prosecutor present but the Court were honored. no defense bar present. He Judge Denise Page Hood, came to the same conclu- Chair of the Court’s pro sion that Judge Churchill bono committee, present- closed with: “It [the grand ed certificates of appre- jury] works not because ciation from the Court to of the inherent safeguards several deserving practi- but because of the integrity tioners and thanked them of the people that make it for their dedicated service work.” to the public. Judge Hood As he has done in the also noted that this year past, Chief Judge Fried- attorneys will be asked to man devoted a substantial volunteer their services Chief Judge Bernard A. Friedman, Elisa Angeli Palizzi portion of his time to the not just on criminal and and Thomas G. McNeill. Photo by John Meiu, human side of the Court civil rights cases, but on courtesy of Detroit Legal News. by comparing it to a law cases involving foreclo- firm. His firm has 32 partners (judicial officers) and 70 sures, which the Court has seen a substantial increase in associates (law clerks). The annual payroll for associates pro se filings given the state of the economy. is $6,414,254, or an average per associate of $91,632, with Following recognition of the pro bono attorneys, Chief salaries ranging from $58,996 to $149,000. The associates Judge Bernard A. Friedman gave the annual State of the attended 27 law schools in 12 states, with the University Court address to the Chapter. His welcome was especially (continued page 6) 5 State of the Court (from page 5) cost overruns, a recent LA Times article confirmed that the LA courthouse project will run in excess of one billion of Michigan leading the way and Wayne State University dollars (yes, billion) to complete. a close second. Although we are pursuing every avenue for funding, be He went on to compare aspects of the Court today to it for a renovation to the Theodore Levin U.S. Courthouse what it was in 1988. During those 20 years, the pending or a new court facility, until the LA matter is resolved it is caseload has diminished from 6,800 to 5,500. The Clerk’s unlikely we will see any progress on our situation in Detroit, Office staff has only increased from 110 to 115, however absent direct Congressional intervention. within that total the IT (information technology) staff has On a happier note, U.S. District Judge Stephen J. Mur- grown from 3 to 16. Many fewer staff members are in- phy III has joined our Bench. Judge Murphy will sit in volved in handling records and making docket entries. the Theodore Levin U.S. Courthouse. He has been added Echoing Judge Rosen from last year, he commented on to the civil case assignment system, but because he came our aging Courthouse. He characterized it has having “an to the court directly following service as U.S.Attorney he infrastructure that is old and worn out and beyond repair. . will have to wait one year before being assigned criminal . . We are working on a fix and will keep you posted.” cases. He closed, saying: “ We are in the forefront of courts in The Court has also begun accepting sealed civil fil- our country, thanks to a wonderful bench, you an engaged ings in CM/ECF. So far this new capability has gone bar, and our dedicated staff. I can assure you that we will smoothly. Please be sure to review all Local Rules and continue to deliver service to the bar and community at the CM/ECF procedures when filing such matters under seal. highest levels. It is my pleasure to be your Chief.” I reported in my last article that the Court now requires all new civil cases be initiated online in CM/ECF. The number of new complaints being filed electronically in the From Court Eastern District of Michigan is currently the fourth highest Administrator in the country. Dave Weaver

The FBA State of the Court Focus on an FBA Member luncheon was this week at which Chief Judge Friedman L. Michael was the keynote speaker. In his speech he mentioned the Wicks facilities problems we have in the Theodore Levin United Retiree After 33 Years States Courthouse. Remembering this was a topic Judge of Service to the Rosen covered in his speech at last year’s FBA State of U.S. Attorney’s Office the Court luncheon, I thought I would provide you with an update. By Michael J. The Theodore Levin U.S. Courthouse is both stunning Riordan* and historic. Unfortunately, it requires complete replace- A continuing feature of the ment of its critical infrastructure - plumbing, electrical and Newsletter is the periodic pro- HVAC. Our landlord, the General Services Administration filing of a FBA member. This L. Michael Wicks (GSA) has informed us the renovation would cost between is the fourth of such profiles. $300 and $400 million (yes, million) to complete and would require the Court to relocate for as many as 3 to 4 On January 1, 2008, after thirty-three years as an As- years. Unfortunately, they have told us they can’t afford sistant United States Attorney, L. Michael Wicks retired the renovation. from Federal Service and began his new career as a retiree The Judicial Conference Committee on Space and Fa- and adjunct professor at the University of Michigan Law cilities is currently implementing a new program to review School teaching a course on Immigration law. For twenty- space and facilities needs throughout the country. Our three of his years at the USAO, Mike served as Chief of the facilities, including the Theodore Levin U.S. Courthouse, Civil Division. He also served as First Assistant to former have been reviewed and our problems acknowledged, but U.S. Attorney Saul Green in 1999 and 2000. the prospect of being prioritized for renovation funding or A native of Dearborn, Michigan, Mike graduated for a new courthouse is, well, remote. Frankly, any new from Dearborn High School in 1967. Like his mother and funding is unlikely due to problems with the project for brother before him, Mike then continued his education at a new federal courthouse in Los Angeles, California for the University of Michigan in Ann Arbor. He graduated which $400 million has already been approved. Due to 6 Phi Beta Kappa in 1971 with a B.A. in political science. ment also has allowed him more time to visit his mom and He then graduated from the University of Michigan Law brother, a doctor, in Arizona, to work on his house and yard School in 1974. and to do more long distance running. Mike describes it Mike said that his years of matriculation in Ann Arbor as, “a nice retirement after a very privileged career.” were an “interesting time. The United States was undergo- He concluded that “working in the U.S. Attorney’s ing a bit of a social upheaval and Ann Arbor was kind of a Office and having the opportunity to associate with the microcosm of that.” Wicks said that “there was a lot going Federal Court family is the best thing that ever happened on with demonstrations and other acts of civil disobedience to me.” like the Hash Bash.” Even in that tumultuous climate, Mike *Michael J. Riordan is an Assistant United States At- was able to nurture his lifelong love of U of M athletics. torney and the Chapter Treasurer. “I was at Michigan Stadium in 1969,” Wicks said, “when first- year U of M football coach Bo FBA Annual Schembechler and his unher- Meeting alded Wolverines knocked off the number one ranked Ohio State and Convention Buckeyes and Woody Hayes. It was quite exciting.” The FBA held its Annual Meet- Mike said the luckiest break ing and Convention in Huntsville, of his legal career came the sum- Alabama from September 18-20, mer between his second and third 2008. Attendees engaged in a vari- years of law school when he was ety of opportunities, including CLE selected to work as an intern at classes, training and board meetings. the U.S. Attorney’s Office. “Then The weekend was not all academic, U.S. Attorney Ralph Guy told me however, as there were several social after my internship that if there events, including receptions at the was an opening in the office when Huntsville Botanical Gardens and the I passed the bar exam, he would Dennis Clark and Christina Farinola, U.S. Space & Rocket Center. hire me as a full-time AUSA.” Chapter delegates at the FBA National Of the many opportunities af- True to his word, Guy hired Mike Convention in Huntsville, Alabama. forded to attendees, there were a in October 1975. “I cannot think few of particular significance to our of a better way to spend a legal career than in the Civil Chapter. The “Chapter Education Program,” which was Division of the U.S. Attorney’s Office,” Wicks said. facilitated by the Vice Presidents of the Circuits, is an event At the U.S. Attorney’s Office, Wicks defended the which was initiated by former Chapter President Geneva United States in all types of tort claims and in immigra- Halliday. Attendees learned from FBA Executive Director tion cases. He also handled affirmative civil enforcement Jack Lockridge about some technological initiatives we cases to recover money wrongfully appropriated from the can expect from the FBA. However, the majority of this United States. For the last fifteen years of his service, Mike meeting was a group discussion between Chapter represen- spent the bulk of his time representing the United States tatives, organized by circuit, at which individual chapter in immigration matters. “I worked with some wonderful representatives shared ideas which were then shared with people. There never was a dull day.” the entire room. Known for his quiet, unassuming personality and great The Chapter was front and center at the 2008 Awards sense of humor, after joining the office, Mike quickly Program, during which the E. D. Mich. received several gained the respect of the bench and bar. In 1984, then U.S. Chapter Activity Awards, including a Presidential Excel- Attorney Lenny Gilman tapped him to be the Chief of the lence Award and Presidential Citation Awards for the Civil Division. In addition to his regular case load, Mike Bench-Bar Conference Starring Clarence Darrow and had supervisory responsibility for twenty attorneys and a Featuring Helen Thomas; the FBA Mentoring/Newer At- support staff of twenty-five. torney Trial Practice Program; and the Julian Abele Cook In 2007, Mike married his long-time Civil Division co- Jr-Bernard A. Friedman FBA Civility Award. In addition, worker, Liz Larin. After Mike’s retirement, Liz succeeded the Chapter received an Outstanding Newsletter Recogni- him as Chief of the Civil Division. “Things have kind of tion Award for the sixth consecutive year. come full circle for me,” said Wicks. “After we were mar- Following the FBA Awards Luncheon, Dennis Clark ried, Liz and I bought a house in Ann Arbor. Not only am and Christina Farinola were Chapter delegates at the Na- I back at U of M Law School, but retirement gives me the tional Council Meeting, which included a report from the chance to follow the U of M teams, especially nonrevenue sports like volleyball and softball, more closely.” Retire- (continued on page 8) 7 National Convention (from page 7) In its habeas cases this Term, the Court will consider FBA’s ABA delegate, Alan Harnisch - a former president two cases addressing of the Chapter and of National FBA. There was also an • what “clearly established law” under the habeas introduction to the 2009 Annual Meeting and Convention, statute requires with respect to jury instructions in the which will take place in Oklahoma City, Oklahoma from context of accomplice witness instructions (Waddington September 10th-12th. v. Sarausad, No. 07-772) The convention concluded • and jury unanimity in- with a reception at the Von structions (Chrones v. Pulido, Braun Center, during which No. 07-544). Juanita Sales Lee was installed as the FBA’s President. She In addition, the Court will captivated the guests with her consider a number of proce- remarks and her acceptance dural issues relating to habeas of this office was celebrated corpus, including: in style. Juanita is a vibrant, • whether a claim may be energetic, and approachable procedurally defaulted because individual who promises to give it is presented to the state courts the FBA a great year. a second time (Cone v. Bell, No. 07-1114); • whether the statute of Supreme Court limitations begins to run anew when a state supreme court Preview - Dennis Clark; Juanita Sales Lee, the new FBA places a petitioner back to his Criminal Cases** President, and Christina Farinola. original position on direct re- by M Bryan view (Jimenez v. Quarterman, Schneider* No. 07-6984); • the standard to be applied under the habeas statute The upcoming Supreme Court term promises to when a claim is not adjudicated on the merits in the state once again provide a host of decisions impacting federal court (Bell v. Kelly, No. 07-1223); practitioners. As of the opening of the Court’s October • and whether the statute regarding appointment of 2008 Term, the Court had granted certiorari in 58 cases, a counsel in a capital habeas case permits federally-funded significant increase over the 47 cert. grants that had been habeas counsel to represent the petitioner in a state clem- issued by the start of the 2007 Term. ency proceeding (Harbison v. Bell, No. 07-8521). For criminal practitioners, Fourth Amendment and The Court will also consider three confession issues: habeas corpus issues again predominate the Court’s docket. • the admissibility of a defendant’s statement taken In the Fourth Amendment context, the Court will consider without a waiver of the right to counsel for purposes of a range of issues, including: impeachment (Kansas v. Ventris, No. 07-1356), • whether an officer may conduct a pat-down search • the admissibility of a statement taken as a result of in the context of a traffic stop where there is a reasonable a delay between arrest and presentment before a magistrate basis to believe the passenger might be armed, but no reason (Corley v. United States, No. 07-10441), to believe he has committed a crime (Arizona v. Johnson, • and whether an indigent defendant must affirma- No. 07-1122); tively accept appointment of counsel to preclude further • the validity of the “consent once removed doc- police interrogation in the absence of counsel (Montejo v. trine,” which authorizes police entry into a home without Louisiana, No. 07-1529). a warrant immediately after an undercover officers buys In other criminal cases, the Court will consider: drugs inside (Pearson v. Callahan, No. 07-751); • whether a forensic laboratory report is “testimo- • whether police must demonstrate a threat to safety nial” evidence subject to the Confrontation Clause (Me- or need for preservation of evidence before searching a lendez-Diaz v. Massachusetts, No. 07-591); vehicle incident to arrest (Arizona v. Gant, No. 07-542); • whether the Apprendi rule prohibits the imposition • and whether suppression is required for evidence of consecutive sentences based on judicial fact-finding seized incident to arrest by an officer acting in reliance (Oregon v. Ice, No. 07-901); on facially credible but ultimately erroneous information • and issues of statutory interpretation involving the provided by another officer (Herring v. United States, No. RICO, Armed Career Criminal Act, and firearm possession 07-513).

8 statutes (Boyle v. United States, No. 07-1309; Chambers v. Others saw a different Judge Brody, a judge who was United States, No. 06-11206; United States v. Hayes, No. challenged by his changing role from referee to judge and 07-608). from administrator to decision-maker. But he was always *Bryan Schneider is a career law clerk to Magistrate powerfully motivated by a steadfast and deep commitment Judge Paul J. Komives. to the rule of law and the necessity of equity and fairness **A preview of civil cases before the Supreme Court to parties above all. While it is true that those challenges will appear in the Winter edition. sometimes created problems for attorneys, especially on issues of attorney fees, most would agree that he in turn challenged them to become better, and better prepared, Remembering The Honorable lawyers. And they would also agree that he taught them George Brody much about the law and the practice of law. Judge Brody was known as a very bright judge. His By Judge Steven W. Rhodes* opinions were well-respected around the country and were rarely reversed. He Judge George Brody served the published sixty-four opinions beginning in United States District Court for the 1979, when West began publishing bank- Eastern District of Michigan from April ruptcy judges’ opinions in the Bankruptcy 14, 1960 to April 13, 1988, first as a Reporter. Some of his more significant bankruptcy referee and then as a bank- opinions include In re Diamond Mort- ruptcy judge.¹ Before that, he taught at gage Corp., 77 B.R. 597 (1987) (holding the University of Toledo Law School that a professional seeking nunc pro tunc and served as a law clerk for District court approval of employment must show Judge Theodore J. Levin, for whom our exceptional circumstances); In re Troy Detroit federal courthouse is named. Indus. Catering Service, 2 B.R. 521 (1980) He graduated second in his class from (holding that the State of Michigan must the Michigan Law School in 1947² and return to a chapter 11 debtor any prop- earned an LLM degree in tax from NYU erty that it seized prepetition, foreseeing Law School. Judge Brody passed away United States v. Whiting Pools, Inc., 462 on March 6, 2008. U.S. 198 (1983)); In re Nikron, Inc., 27 The job of a bankruptcy referee was B.R. 773 (1983) ( holding that a bank- very different for the first several years Judge George Brody, Judge Ray ruptcy judge has the power to convert a of Judge Brody’s service. Unlike bank- Reynolds Graves and case from chapter 11 to chapter 7 even in ruptcy judges today, referees presided at Stuart A. Gold in 1984. the absence of a motion by a party); and all meetings of creditors. They held dis- In re Matto’s, Inc., 9 B.R. 89 (1981) (a charge hearings in all cases. There was debtor’s liquor license is property of the no prohibition against ex parte communications and so it bankruptcy estate and Article 9 of the UCC applies to a was a common practice. Referees did not wear robes. They security interests in a liquor license). These holdings now signed all of the debtor’s disbursement checks in chapter seem straightforward and well-accepted, but they were 11 cases. They were paid from the proceeds of the cases. hotly contested at the time. They held hearings on all motions, whether contested or Only two of his major published decisions were re- not. They were required to post a bond. versed. In re Crowe & Associates, Inc., 16 B.R. 271 (1981) Over time, and especially toward the end of Judge (holding that a bankruptcy court has the power to enjoin a Brody’s service, these practices changed. With the adop- union strike to collect a prepetition debt), rev’d, 713 F.2d tion of the Federal Rules of Bankruptcy Procedure in 1973, 211 (6th Cir 1983); In re Bell, 8 B.R. 549 (1981) (holding referees were officially denominated bankruptcy judges. that a chapter 7 debtor who is current in his payments is Major changes were instituted with the repeal of the Bank- not required to redeem or reaffirm on a secured debt to ruptcy Act of 1898 and the enactment of the Bankruptcy avoid the creditor’s repossession), rev’d, 700 B.R. 1053 Code, effective in October of 1979. (6th Cir. 1983). I knew Judge Brody after I became a bankruptcy judge A generation ago, there was a brief time of turmoil and 1985. We worked together for 3 years until his retirement scandal in our bankruptcy court.³ In that moment, Judge in 1988. The Judge Brody that I knew was always kind Brody’s depth of character remained a source of stability and patient with me. As a new bankruptcy judge with no and strength for our bankruptcy court. But more than that, bankruptcy experience, I often sought his advice on issues Judge Brody’s constancy of character empowered those of of law and procedure, and he always made time for me and us on the bench and in our bar since then to reconstruct I appreciated it. and rebuild our institution to the distinguished place it is (continued on page 10) 9 Honorable George Brody (from page 9) Officers 2008-2009 today. Judge Brody was the bridge that carried us over President those muddy waters. Barbara L. McQuade 1 Judge Brody succeeded Hon. Walter I. McKenzie, who served from March Assistant United States Attorney 1, 1943, until March 31, 1960. He was succeeded by Hon. Walter J. Shapero, who 211 West Fort Street, Suite 2001 retired in April of 2002 and is still serving on the court as a recalled bankruptcy Detroit MI 48226-3269 judge. Following Judge Brody’s retirement from our court, he served as a recalled Phone: (313) 226-9725 bankruptcy judge in the Southern District of California for several years. [email protected] 2 While a student, he published an article in the Michigan Law Review, Constitutional Law - Impairment of Obligation of Contract, 44 Mich.L.Rev. President Elect 652 (1946). Elisa Angeli Palizzi 3 See United States v. August, 745 F.2d 400 (6th Cir. 1984). Miller, Canfield, Paddock & Stone PLC * Judge Rhodes is the Chief Judge of the Bankruptcy 150 W Jefferson Ave., #2500 Court for the Eastern District of Michigan. Detroit MI 48226-4415 Phone: (313) 496-7635 Sustaining Members [email protected] Vice President We gratefully acknowledge the additional support Barbara J. Rom provided to our Chapter by the following individuals, who Pepper Hamilton LLP opted during the fiscal year ended July 31, 2008, and in 100 Renaissance Center first part of fiscal year 2008-2009, to renew their Member- 36th Floor ship at the Sustaining Member level of $100. We thank Detroit MI 48243-1157 each of you for contributing to our ability to fund essential Phone: (313) 393-7351 programming. Brian M. Legghio [email protected] Stephen Alexi Michael K. Lee Secretary Christopher A. Andreoff Robert J. Lenihan II Dennis M. Barnes Matthew Lund Laurie J. Michelson Jacquelyn E. Bayley Richard M. Lustig Butzel Long PC Michael Brady Dan Manville 150 West Jefferson #100 Dennis J. Clark John P. Mayer Detroit MI 48226-4450 Norton J. Cohen Barbara L. McQuade Phone: (313) 983-7463 Jessica Cooper Thomas McNeill [email protected] Thomas W. Cranmer Hon. Fred M. Mester Andrew S. Doctoroff Mayer Morganroth Treasurer Christine Dowhan-Bailey E. Michael Morris Michael J. Riordan Eugene Driker Kristin L. Murphy Assistant United States Attorney Cameron J. Evans Kenneth A. Nathan 211 W Fort St. #2001 Susan J. Evans John R. Nussbaumer Detroit MI 48226 John Freeman Garik Osipyants Phone: (313) 226-9602 William Frey Rick Paige [email protected] Lawrence S. Gadd Elisa Angeli Palizzi Grant P. Gilezan Thomas R. Paxton Program Chair Hon. Mark A. Goldsmith Arvin J. Pearlman Thomas G. McNeill David Grand Julia Caroff Pidgeon Dickinson Wright, PLLC Harold Z. Gurewitz James A. Plemmons Alan Harnisch Margaret Sind Raben 500 Woodward Ave Ste 4000 Donald J. Harrington Ralph Terrance Rader Detroit, MI 48226-5403 Robert S. Harrison James K. Robinson Phone: 313.223.3500 John P. Jacobs Barbara J. Rom [email protected] Paul H. Johnson, Jr. Ralph S. Rumsey Philip J. Kessler Jeffrey A. Sadowski Immediate Past President Karen Smith Kienbaum Mark Satawa Hon. Mark A. Goldsmith Gene R. Kohut Richard Tarnas Oakland County Circuit Judge Michael A. Komorn James Thomas 1200 North Telegraph Road Robert S. Krause Jonathan Walton Pontiac MI 48341-0404 William N. Kritselis I.W. Winsten Phone: 248-858-0339 Daniel J. LaCombe Rodger D. Young [email protected] 10 New Law Clerks Judge Ludington The Chapter welcomes the following new law clerks Gwendolyn Ostrosky - Northwestern University for the Eastern District and the Sixth Circuit: School of Law

Judge Feikens Judge Cox Jill Russell – University of Michigan Law School Sean M. Cowley -University of Detroit Mercy David Hobstetter – University of Michigan Law School School of Law

Judge Cook Judge Murphy Zoraida Najarro - University of Michigan Law School Nicholas Nelson – University of Notre Dame Law School Judge Cohn Susan M. McNeill - Villanova School of Law Patsy L. Holmes - Ave Maria School of Law Judge Kennedy Judge Zatkoff Walter Chen - University of Michigan Law School Michael Dittenber - Michigan State University Katie Wales - University of Michigan Law School College of Law Judge Keith Judge Duggan Monya Bunch – Howard University School of Law Leslie D. Robinson - Ave Maria School of Law Irfan Murtuza – Georgetown University Law Center Alanna Buchanan – Harvard Law School Judge Cleland Laura Davis - University of Michigan Law School Judge Clay Ethan White – Northwestern University School of Law Justin Sommers - Duke Law School Amanda Parker - Minnesota Law School Judge Edmunds Kevin McCulloch - Yale Law School Jessica Wolland - Stanford Law School Melissa Martin Salinas - University of Michigan Law School Judge Borman Jessica Sprovtsoff - American University, Judge Kethledge Washington College of Law Lauren London - University of Wisconsin Law School Matthew R. VanWasshnova - Case Western Reserve Eric M. Goldstein - Washington University University School of Law School of Law Paul Hudson - Georgetown University Law Center Judge Hood Gregory Lake Kau - University of Pennsylvania Guylando Moreno - Ohio State University Moritz Law School School of Law Kelly J. Rimmer - Wayne State University Law School Judge White Martha Seijas - George Washington University National Judge Tarnow Law Center Debra L. Conry - Roger Williams University Joshua Kobrin – New York University School of Law School of Law. Joshua Levine – University of California Berkeley School of Law (Boalt Hall) Judge Roberts Sara Woodward - University of Michigan Law School Tryonda Curry - Wayne State University Law School Gregoire Sauter - Northeastern Law School

Judge Battani Matthew Chowning – University of Michigan Law School

Judge Lawson Irina Nikolayevna Kashcheyeva - Michigan State University College of Law

11 Calendar of Events Newsletter Committee: Nov 12 “How To Improve Sentencing Advocacy: Kimberly G. Altman, The View From The Bench and the Co-Editor in Chief Probation Department” Career Law Clerk to Hon. Avern Cohn Theodore Levin U.S. Courthouse, (313) 234-5160 Room 115 Noon; Bring your own lunch Christina Farinola, Panelists: Judge Robert Cleland, Co-Editor in Chief Career Law Clerk to Judge Victoria Roberts, and Phil Miller, Hon. Paul J. Komives Chief Probation Officer (313) 234-5200

Nov 18 Rakow Scholarship Awards/Historical Michael J. Riordan Assistant United States Attorney Society Luncheon (313) 226-9602 Speaker: Greg Stohr, Bloomberg News Service Christine M. Dowhan-Bailey Author: A Black and White Case: How U.S. Army Corps of Engineers (313) 226-6822 Affirmative Action Survived Its Greatest Legal Challenge” John P. Mayer Atheneum Hotel, Greektown Management Consultant 11:30 A.M. Reception (734) 558-5593 12:00 P.M. Luncheon Dennis J. Levasseur Bodman LLP Dec 2-3 New Lawyers Seminar (313) 393-7596 Theodore Levin U.S. Courthouse, Thomas D. Esordi Room 115 Kitch Drutchas Wagner Valitutti & 8:00 A.M. Registration Sherbrook (313) 965-7446 Dec 2 Chapter Gala Holiday Reception Detroit Club 4:30 P.M. Hold the Date: Further Details to Follow Executive Director: Brian D. Figot Updates and further developments at Stephen M. Landau PC www.fbamich.org (248) 358-0870 See “Hot News” and “Events & Activities” [email protected]

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