table of contents president’s letteraugust 2013 bar & bench 4 investiture speech continued...

President’s Letter

Vol 26, No.2 August 2013

Table of Contents

Jennifer L. McManus, PresidentFederal Bar Association, W.D. Michigan

President’s Letter .............................1

Celebration of the 150th Anniversary of the Western District of Michigan:

March 12, 2013 ..........................3

Former Western District and Sixth Circuit Judge Albert Engel Dies .......................11

Remembering Judge Albert Engel... 12

Former U.S. Attorney and Michgian Court of Appeals Judge Robert Danhoff Dies at 87 .....................14

Hesitating to Act on the Duty to Educate Jurors: Improving the Sixth Circuit’s Reasonable Doubt Jury Instruction ...............15

What Federal Court Practitioners Need to Know about the N.L.R.B. Decision in D.R. Horton and How it Impacts Class Action Waivers Contained in Arbitration Agreements...a Postscript ..................................20

FBA Leadership Voices Concerns Over Impact of Sequestration on Federal Courts......................21

News from the Clerk ......................25

Announcements .............................27

Happy Summer!What a special year this has been, the year in which we have cel-

ebrated the 150th anniversary of the appointment of the first federal judge for the Western District of Michigan. In March, the FBA was proud to participate as the lead sponsor of the Historical Society’s amazing event celebrating this milestone at the Amway Hotel, site of the former federal courthouse. The address by author-historian Rich-ard Norton Smith, period costuming and entertainment, and docu-mentary film and photographs were enjoyed by all.

We hope you’ve had a chance to stop by one of the many programs the FBA has offered this year. In February, Harry Schneider, one of the attorneys who represented Salim Hamdan (Osama bin Laden’s driver) presented a fascinating program on Hamdan’s trial, the first war crime trial of a Guantanamo detainee. Also in February, Chief Judge Malo-ney reported on the state of the District. Due to the federal budget sequester, it has been a difficult time for the federal courts and other branches of the federal government (see note about the closing of the Federal Defender’s Northern Division Office later in this newsletter). It was helpful to hear about the sequester’s impact on our court directly from the Chief Judge. On behalf of the FBA, Chapter President-Elect Ron DeWaard sent letters to all members of Congress serving our Dis-trict urging them to consider the impact of the sequester on the federal courts (a copy of the letter sent to Senator Levin, and the Senator’s response, are included in this newsletter).

The FBA also sponsored a program featuring U.S. Attorney Pat Miles, the annual Supreme Court in Review program, a program on oral advocacy in the United States Supreme Court, and a program on

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August 2013 Bar & Bench 2

President Jennifer McManus

President-Elect

Vice-President/Operations Sarah Riley Howard

Vice-President/Programs Bryan G. Walters

Secretary D. Andrew Portinga

Treasurer Ronald M. Stella

Newsletter EditorJoseph A. Kuiper

Hillman Steering Committee Chairman Ronald G. DeWaard

National Delegate Ray Kent

Immediate Past President Scott Brinkmeyer

Ex Officios Honorable Hugh Brenneman, Jr.Honorable Joseph Scoville

Your Western Michigan Chapter Federal Bar Associationwww.wdfba.org

President’s Letter

Continued form page 1

criminal asset forfeiture. Thanks to Andy Portinga, FBA V.P. of Programs for lining up a fantastic set of programs this year!

Kudos also to Clare Freeman, FBA Treasurer for getting our new Younger Lawyers Division off the ground! Led by co-chairs Sean Tilton and Anna Rapa, the YLD set up a Facebook page, sponsored a well-re-ceived social gathering at 616 Restaurant, and is planning a fall program geared toward the younger lawyer. Younger lawyers also recently attended an program on appellate advocacy with Sixth Circuit Judge David McK-eague, along with summer associates. At the same time we look back at the founding of our district, we are looking forward to its future—our young lawyers!

Finally, our FBA book club got off to a great start—in May, we gath-ered at the federal courthouse and discussed Incognito: The Secret Lives of the Brain, with the author, David Eagleman, who attended by videoconference. Looking ahead, we will be reading Defending Jacob, by William Landay, and My Beloved World, a memoir by Justice Sotomayor. Both books are well-reviewed and great summer reading! Look for an e-mail announce-ment of the book club meeting dates.

Looking ahead, we are putting together a great program for the annual meeting this fall, and work is already under way on our next bench-bar conference, to be held in Fall 2011. We will send you save-the-date e-mails soon for both events. Until then, have a safe and enjoyable summer!

Jennifer L. McManus, President

Book cover photos from Amazon.com



The Historical Society of the Western District of Michigan, with the strong support of the members of the legal community led by the Federal Bar Association, hosted the March 12, 2013 gala event celebrating the 150th anniversary of Abraham Lincoln’s nomination of Solomon Withey as the First District Judge for the newly-created Western District of Michigan. To the best of our knowledge, this celebration was the first ever to honor the formation of our district.

Judge Withey’s appointment came at the mid-point of the Civil War, during perhaps the most perilous year in American history. By March 12, 1863, the Union’s prospects for victory were at a low point. Two difficult years of war remained. At the time it seemed as if the end might never come, and it was far from clear that the Union would even survive.

The events surrounding the appointment were his-torical. The appointment occurred just before the start of the spring campaigns; two months before the Con-federate victory at Chancellorsville; four months before Gettysburg and the surrender of Vicksburg; six months after the bloodiest day of the Civil War at Antietam; eight months before President Lincoln delivered the Gettysburg Address; nine days after the Union draft was

signed into law; and ten weeks after the effective date of the Emancipation Proclamation.

To put it in a broader historical perspective, the 50th anniversary of Judge Withey’s appointment would have occurred one year after the Titanic sank; and the 100th anniversary would have taken place during the last year of John Kennedy’s presidency. In fact, President Kennedy was invited to speak at the Centennial of the Gettysburg Address, on November 19, 1963, but declined, saying that he had scheduled a trip to Texas to mend political fences. He was in Dal-las on November 22.

In another remarkable historical coincidence, the new federal courtroom, located where the Imperial Room of the Amway now stands, was opened on the first day of the Battle of Gettysburg. According to The Grand Rapids Daily Eagle, July 1, 1863:

U.S. Court Room. A large, convenient and well lighted room has just been finished, in splendid style, in Ball’s Block, for a U.S. court-room. The walls, doors, window frames, etc., have been painted and grained in the best style of the painter’s art. Tasty inside blinds, match-ing the walls in finish, have been put upon the windows, and a finely finished, elevated bench, for His Honor, Judge Withey, has been erected at one end of the hall, with a desk for the Clerk, to match in appearance, in front of it. To make the room complete in appearance and comfort, the floor has been covered with grass or hemp carpeting, and the room is to be provided with arm or office chairs. Altogether, this is one of the most convenient and tasty court rooms we ever saw, alike creditable to the man who planned the work and the artists who did it.

Celebration of the 150th Anniversary of the Western District of Michigan: March 12, 2013

By David J. Gass


Investiture SpeechContinued from page 3

The gala event, held in the Amway’s Ambassador Ballroom, was worthy of a grand celebration, and what a celebration it was. There were some 400 guests, including the presidents of other bar associations – the State Bar of Michigan (Bruce Courtade), the Western District Federal Bar Association (Jennifer McManus), and the Grand Rapids Bar Association (T.J. Ackert) – as well as numerous state and federal judges and other prominent members of the bar. Here are some high-lights of the evening:

• Fifth Michigan Regiment Band (http://www.mi5th.org) – The Fifth Michigan Regiment Band, originally formed in 1861 in Detroit (and reconstituted in 1974), treated the guests to authentic Civil War music. CDs are available on its website.

• History Remembered (http://www.historyremembered.org) and the Third Michigan Voluntary Infantry Company F – About 30 members, led by Bruce Butgereit, attended. These living historians, dressed

in Civil War-era attire, visited with guests and regaled them with stories from the period. Some of the soldiers formed the Color Guard and presented the Colors, after which the band played the Star Spangled Banner.

• Harold Becker – Mr. Becker, age 95, attended. His father, Charles Becker, fought (yes, fought!) in the Civil War. Harold was born when his father was 70 years old. Charles enlisted, on March 7, 1864 (149 years ago), as a private in Company H of the 128th Indiana Infantry. He was 17 at the time. Harold is the last known son of a Civil War soldier in Michi-gan. He was greeted with a standing ovation.

• Abraham Lincoln – President and Mrs. Lincoln at-tended, and Mr. Lincoln gave a few remarks re-counting the nomination of Solomon Withey.

• Historical Documentary – Chief United States Dis-trict Court Judge Paul Maloney introduced the historical mini-documentary, entitled “Thank God for Michigan,” that recounts the formation of the Western District of Michigan in 1863 and Grand Rapids during the Civil War. The documentary was narrated by Grand Rapids historian Gordon Olson, produced by Girbe Eefsting (Film Farm), and writ-ten by Barbara Roos (GVSU’s School of Communi-cations). It can be viewed at the Historical Society’s website, http://www.federalcourthistoricalwdmi.org

• A Grand Rapids Album 1850-1875 – A selection of photographs from Grand Rapids’ early decades was projected on two screens. Most of those images are


http://www.mi5th.org

http://www.historyremembered.org

http://www.historyremembered.org

http://www.federalcourthistoricalwdmi.org


from the splendid collection of historical photo-graphs from the local history department of the Grand Rapids Public Library. Over 200 images were selected for the slideshow, which can be viewed at The Historical Society’s website.

• Mark S. Gurley – Rev. Gurley gave the invocation. He is the great, great grandson of the Rev. Phineas D. Gurley, who was President Lincoln’s pastor at the New York Avenue Presbyterian Church, located just a few blocks from the White House. Rev. Phineas Gurley was present at President Lincoln’s death.

• Richard Norton Smith – The renowned presidential scholar gave the keynote address on Lincoln and the Law. He was introduced by Gleaves Whitney, Director of the Hauenstein Center for Presidential Studies and Historical Society trustee. Mr. Smith’s address has been reprinted in the latest Stereoscope.

• Grand Rapids Symphony Orchestra Musicians – Dur-ing dessert, guests were treated to Civil War music by GRSO violinist Diane McElfish Helle and GRSO pianist emeritus Nancy Mitchell Poltrock. They also played the haunting “Ashokan Farewell,” the theme song from Ken Burns’ acclaimed Civil War series.

• Challenge Coins – Thanks to the work of Don Da-vis, former U.S. Attorney for the Western District of Michigan, every guest received a challenge coin. Information about the challenge coins, as well as the means for ordering additional ones (at $15 per coin), can be found on The Historical Society’s website.

• Portraits of Justice – Mary Andrews, Librarian for the Albert J. Engel Library for the U.S. Courts, in con-junction with the U.S. Courts Library for the Sixth Circuit, published a booklet containing the portraits and biographies of every district judge appointed to the Western District of Michigan. A copy can be found at The Historical Society’s website.

• Battle Hymn of the Republic – The evening ended with President Emeritus James Mitchell and President Lincoln leading the guests in singing the Battle Hymn of the Republic. With that, the evening came to a rousing close.

The Historical Society thanks the following, whose generous financial contributions made this event possible:WDMI FBA $13,000

USDC Library Fund $10,000

Barnes & Thornburg $5,000

Miller Johnson $5,000

Smith Haughey Rice & Roegge $5,000

Varnum $5,000

Warner Norcross & Judd $5,000

Miller Canfield $2,500

Dykema Gossett $2,500

Dickinson Wright $2,500

Plunkett Cooney $2,500

Honigman Miller Schwartz & Cohn $2,500

Rhoades McKee $2,500

Historical Society $3,000

CelebrationContinued from page 4


http://www.federalcourthistoricalwdmi.org/uploads/V11_Iss_2.pdf



A DVD of the celebration will be available for pur-chase on the Historical Society’s website.

In the context of human history, just two lifetimes have passed since our district was formed. In 1864, the world celebrated the 300th anniversary of Shakespeare’s birth – Lincoln’s favorite playwright whom he loved to read and often quoted (Macbeth being his particular favorite). Next year, the world will celebrate the 450th anniversary of the birth of Shakespeare and the death of Michelangelo. Comparatively speaking, our district is young. But let’s not wait another 150 years to celebrate it again!

I leave you, for your reading pleasure, the following:

* * *

President Lincoln’s Annual Message to Con-gress, 1 Dec. 1862, 31/2 months before the Withey appointment

Fellow-citizens, we cannot escape history.

We of this Congress and this administration will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us.

The fiery trial through which we pass will light us down, in honor or dishonor, to the latest generation.

We say we are for the Union. The world will not forget that we say this.

We know how to save the Union. The world knows we do know how to save it.

We – even we here – hold the power and bear the responsibility. In giving freedom to the slave, we assure freedom to the free – honorable alike in what we give, and what we preserve.

We shall nobly save, or meanly lose, the last best, hope of earth.

THE GRAND RAPIDS DAILY EAGLE, NOVEMBER 30, 1863

President Lincoln’s Little Speech. —Of this speech—which we published a short time since—the Springfield (Mass.) Republican says:

“Surpassingly fine as Mr. Everett’s oration was in the Gettysburg consecration, the rhetori-cal honors of the occasion were won by President Lincoln. His little speech is a perfect gem; deep in feeling, compact in thought and expressed tasteful and elegant in every word and comma. Then it has the merit of unexpectedness in its verbal perfection and beauty. We had grown so accustomed to homely and imperfect phrase in his productions that we had come to think it was the law of his utterance. But this shows he can talk handsomely as well as act sensibly. Turn back and read it over—it will repay study as a model speech. Strong feelings and a large brain were its parents—a little painstaking it accoucheur.”

THE GRAND RAPIDS DAILY EAGLE, JUNE 3, 1865

The following remarks were made by His Hon. Judge S. L. Withey, on the preamble and resolutions, drawn up by a committee of mem-bers of the Bar, in the United States District Court, on the 31st ult., in honorable memory of




our late President Abraham Lincoln. In ordering them placed upon the Journal of the Court the Judge said:

Gentlemen of the Bar: I assure you, gentle-men of the Bar, of my entire concurrence in the sentiments you have uttered, and that it affords me great pleasure in ordering the preamble and resolutions you have presented recorded in the Journal of this Court, in memory of our mur-dered President. I desire to remember his virtues, and I would that all men, through all generations, remember and profit by the life and patriotism of Abraham Lincoln.

The atrocious act which deprived Mr. Lin-coln of life, is abhorred by all mankind. Enough has been said in the past month and a half to im-press upon every mind—not only the abhorant [sic] character of the deed, if there was need to do so much, but the execration in which it is held throughout the civilized world. It came upon the people of our country with paralyzing effect—as a blow aimed at our National life no less than at that of President Lincoln—and in this double purpose, produced a shock never before experi-enced by the people of our country.

All were plunged into profound grief—af-fliction rested on all—the fountain of every loyal heart was opened, and tears flowed from the eyes of a mourning people. So many tears of sincere sorrow were never shed for the death of any man as were shed for our murdered President. We mourned when the blow was but just given, when our hearts were first smitten; and again, we now feel to return to the grave of this great and good man and let our mourning break out afresh. It is sitting in this Court, which is a branch of the Federal Government for the administration of its laws, to give expression to our sorrow for the death of him who was chief of our Republic.

In every view I can take of the life and charac-ter of Mr. Lincoln, there is exhibited the highest style of man. I would imitate his upright char-

acter, and purity of life, and count it my chief honor always to be right rather than great—in which he was truly great.

Abraham Lincoln will live in history with perfect luster; his wise, patriotic and just deeds have adorned his noble life—advanced the wel-fare of mankind, and enshrined his memory in the hearts of his countrymen.

Let the preamble and resolutions be entered of record upon the journal of the District Court.

THE GRAND RAPIDS DAILY EAGLE, APRIL 28, 1886

Judge Withey is dead. Like a brave old oak that has withstood the storms of many years, the crash of whose fall in the silent woods is heard amid all the fields, one of the noblest and most honored citizens has fallen out of our ranks.

* * *Judge Withey was fitted, in an eminent de-

gree, for the position—Judge of this United States District Court—he so long filled with dis-tinguished ability and honor. He possessed the judicial instinct in a very marked degree. With a keen mind and large self-control, he was able to look at all questions from every standpoint, giving every fact due consideration, and reaching decisions without prejudice which were always as clear as the light. His impulses were quick and strong; but, under the control of an overmaster-ing will, they kindled only against wrong and meanness. He was as sensitive for the right as most men are for their honor. He looked upon all wrong as a crime, and was ready to defend the right with what power he possessed. He was kind and compassionate, but there was no more modern, sentimental gush in him than in a gran-ite rock.

He was a brave man. Fear was not in him. He dared stand alone, and could without trem-



bling. He was an incorruptible man. No one who knew him would sooner think of attempt-ing to bribe him than they would the law. He was affable and gentlemanly, but he was as hard as iron in his moral character. He hated shams from instinct.

No man lives in this city who is more justly honored and loved. He loved the people and was ready always, with open hand to help the needy. He was a model judge and a grand, good man.

The old settlers are rapidly dropping out of our ranks. Soon the leaders will be comparatively young men, the sons of those who have crossed over the river. But the lives of these old pioneers, hardened into pure character, are a richer legacy to the incoming generation than gold. Great truths and principles live in the lives of these old men, to be read and reread through all coming time. Character, the gnarled life of good men, is the beacon light of the ages.


Honorable Albert J. Engel, Jr.


The Honorable Albert J. Engel, Jr., 89, passed away on April 5, 2013. He is survived by his wife of 61 years, Eloise, four children, Albert J. Engel, III, Kate Engel, James Engel, and Mary Pineda, and six grand-children.

Albert was born in 1924 to Albert and Bertha Engel,

in Lake City, Michigan. After his father was elected to the U.S. Congress in 1934, Albert spent the summers of the Great Depression in his home town on the shores of Lake Missaukee and the rest of the year in Washing-ton, D.C. His love of the outdoors was a by-product of northern Michigan, and his love of music, politics, law, and history a by-product of a world view nurtured by family and opportunity.

Albert’s early education was obtained in the pub-lic schools of Lake City, Muskegon, and Washington, D.C. In September 1941, he attended the University of Maryland, but left in June of the next year to enroll at the University of Michigan.

When World War II arrived, Albert left school in 1943 and entered the United States Army as a private, serving first in infantry and then in the Ordnance De-partment. Albert completed officer’s school at Aberdeen Proving Ground in Maryland, where he was commis-sioned a Second Lieutenant. In 1944 and 1945, he commanded his own bomb disposal unit, tasked with disarming unexploded Allied and German ordinance and seeing action in England, France, Belgium, and Germany. He was discharged from the service in April 1946 after attaining the rank of Captain and earning five battle stars.

Following the war, Albert returned to the University of Michigan and received a bachelor’s degree in politi-cal science. In 1950, he earned his LL.B. degree from the University of Michigan Law School where he was a member of Phi Delta Phi and a senior judge in Law

School Court. He was admitted to the State Bar of Michigan in 1951. The next year, Albert met and mar-ried Eloise Ruth Bull, with whom he enjoyed 60 years of marriage before his death.

Albert made an unsuccessful try for the 9th U.S. congressional seat in west Michigan. He then spent a year in Washington, D.C., as Administrative Assistant to Congresswoman Ruth Thompson. After returning to Michigan, he opened a successful law practice with Ray Engle in Muskegon, called Engle & Engel. Throughout his career, he was an active member of numerous busi-ness and civic organizations in the Muskegon area and elsewhere.

During his adult years, Albert’s ties to Lake City re-mained. He helped his retired father build Engelwood Plantations, one of the first and largest commercial Christmas tree operations in northern Michigan.

In 1966, Albert won election to an open post on the Michigan Circuit Court in Muskegon County. In 1970, President Nixon nominated him for Federal Dis-trict Judge for the Western District of Michigan, and he was unanimously approved by the Senate in December of that year.

As a U.S. District judge in 1973, Engel presided over a lawsuit that sought integration of Grand Rapids Public Schools, nearly 20 years after Brown v. Board of Education. Although Grand Rapids schools were not segregated by law, in practice black students were con-centrated in a handful of schools in the southeast area. “I didn’t know what I was going to do,” Engel told the Press in 2004. “What you do is you suspend your judg-ment until the last word is in on it. I kept looking for reasons to do it (order busing), proof other than just the assumptions from the statistical data, which really didn’t tell you much.” In July 1973, Engel released a 102-page opinion, finding that the segregation was not the fault of the schools but a reflection of the city’s segregated housing patterns. He declined to order busing, but di-rected the school board to reassign some black teachers to white schools. The decision was upheld on appeal.

Former Western District and Sixth Circuit Judge Albert Engel Dies1


http://en.wikipedia.org/wiki/Muskegon,_Michigan

http://en.wikipedia.org/wiki/Washington,_D.C.

http://en.wikipedia.org/wiki/Washington,_D.C.

http://en.wikipedia.org/wiki/University_of_Maryland,_College_Park

http://en.wikipedia.org/wiki/University_of_Maryland,_College_Park

http://en.wikipedia.org/wiki/University_of_Michigan

http://en.wikipedia.org/wiki/United_States_Army

http://en.wikipedia.org/wiki/Aberdeen_Proving_Ground

http://en.wikipedia.org/wiki/Aberdeen_Proving_Ground

http://en.wikipedia.org/wiki/Maryland

http://en.wikipedia.org/wiki/England

http://en.wikipedia.org/wiki/France

http://en.wikipedia.org/wiki/Belgium

http://en.wikipedia.org/wiki/Germany

http://en.wikipedia.org/wiki/Battle_star

http://en.wikipedia.org/wiki/Bachelor%27s_degree

http://en.wikipedia.org/wiki/LL.B.

http://en.wikipedia.org/wiki/University_of_Michigan_Law_School

http://en.wikipedia.org/wiki/Phi_Delta_Phi

http://en.wikipedia.org/wiki/Ruth_Thompson


Judge Engel served as a District Judge for three years, until being elevated to the United States Court of Appeals for the Sixth Circuit in 1973. He served as Chief Judge from 1988-1989. He assumed senior status in 1989 and continued taking cases until his formal retirement in 2002, at age 78. The next year, the U.S. Courts Library in Grand Rapids was officially named the Albert J. Engel U. S. Courts Library.

One of Judge Engel’s most notable traits was his insatiable curiosity and love, if not awe, of human and mother nature. His wife and children were blessed as Albert’s inquisitive streak took them on spontaneous weekend “snooping trips” through the halls of Congress, snorkeling and diving along Cayman reefs, camping in the Rocky Mountains, cheering on Wolverine football, crabbing in Beaufort, canoeing on the Pere Marquette at the Fin & Feather, and into lively, family debates about anything and everything. Along the way Albert found time to share his love of storytelling, writing, fishing, cards, painting, and spontaneous family sing fests often guided by his gifted piano playing. His ready sense of humor found life and purpose in every aspect of his life, whether as a foil at a raucous Friday night family dinner or as a bridge for problem solving in the context of a dif-ficult piece of litigation. At the time of his death, Albert was still an avid reader of historical biographies, and to the end his curiosity remained an unfaltering trait.

Judge Engel possessed an unbending, personal in-tegrity he wove in to all aspects of his life. He expected the same from others, but also had an innate sense of fairness, compassion, and empathy for those who stood before him - whether it was a hardened criminal, an orphaned ward of the state, or one of his own children. He was an unfailing advocate for Christian values and the Golden Rule, yet frankly struggled with the intellec-tual challenge of reconciling faith with history and life experiences.

Judge Engel will be sorely missed by all who knew him, family, friends, judges, court staff, and law clerks. A service celebrating his life was held at St. Roberts Church in Ada on April 11, 2013. Those desiring to remember Judge Engel can make donations in lieu of flowers to the Land Conservancy of West Michigan or to the Friends of the Library for the Ardis Missaukee District Library of Lake City, Michigan.

Endnotes

1 Some of the material for this article was excerpted from The Grand Rapids Press and from Judge Engel’s biog-raphy on the Federal Judicial Center, History of the Federal Judiciary.

Judge Albert EngelContinued from page 11


Remembering Judge Albert Engel

Judge Engel served as a judge for over thirty years, first in the Michigan courts and then on the federal bench, rising to the position of Chief Judge of the Unit-ed States Court of Appeals for the Sixth Circuit. He had what is known as a great judicial temperament; he cared about his cases, the decisions he made, the people affected by those decisions, and even the attorneys who appeared before him.

Students sometimes ask me what it takes to become a judge. In Judge Engel’s case, he honed his tempera-

ment by commanding a bomb disposal unit in World War II, a career path most of us would rather avoid. At the other extreme, Judge Engel also worked with his father on the family Christmas tree farm in Lake City, MI, a workplace that was presumably far more peaceful than the European Theatre in World War II.

The Judge had many interests, but his foray into bomb disposal did not presage a life of thrill seeking. Instead he was a profoundly peaceful man. He and his

By Barrie Lawson Loeks, law clerk to Judge Engel, 1979-1980



adored wife Eloise liked nothing more during the time I served as clerk than to vacation in the Caribbean and snorkel in the beautiful waters. The Judge loved his house on the Thornapple River and all of the boating, fishing and other river activities. Most of all, he loved his family and took great pride in all his children. He never seemed happier than when sitting on his patio overlooking the river surrounded by family and friends. The Judge loved hosting reunions of his clerks at his house and took a genuine interest in all of their exploits.

When I met Judge Engel in 1978 as an applicant for a clerkship position, I knew nothing of his military or agricultural skills. The man I met seemed thought-ful and kind and genuinely interested in my very short resume. As I learned when I got to know the Judge better, he was the rare person who really loved what he did. He loved being a judge and being able to make a difference in the world. He loved our trips to Cincin-nati where the Court heard oral arguments and where he could spend time with all of the other judges on the court and their clerks. He always found the give and take among the judges to be energizing, even when he ended up as the dissenter. At the end of each session, he also relished coming home to Grand Rapids to a quieter month of research and writing.

The Judge took pride in writing his own opinions rather than simply directing his clerks on what to write. As clerks, we read the briefs, researched the issues and drafted a memorandum on each case. When Judge Engel was assigned an opinion following oral argument we discussed the case further and researched and wrote memoranda on the issues the Judge thought were impor-tant for the opinion. Judge Engel was more conservative than the clerks during my tenure, which seemed like the natural order of things at the time. However, he always listened patiently to our positions and arguments before making his decisions. There was no question who would make the ultimate decision on each case, but we felt free to argue a position that the Judge might not share. His conservatism was not rigid, and although we were un-doubtedly annoying at times, certain as only the young can be that we were “right,” he heard us out. Judge Engel

was appointed to the bench by a Republican president, none other than Richard Nixon. However, the Judge liked to explain that he wasn’t just appointed by Nixon, he was “disappointed by Nixon.”

Judge Engel taught his clerks to understand that the litigants in our cases were real people and to avoid the ivory tower syndrome that can take over in the appellate courts where the judges and clerks never actually see the parties in the case. This was especially true in the many black lung cases we reviewed under the Black Lung Benefits and Reform Act of 1977, enacted only two years before my clerkship began. The Judge insisted that we review each case carefully, not lumping them together despite the high volume of similar cases. We soon learned which district court judges were likely to have committed error and which judges generally had solid grounds for their decisions, but we could never take anything for granted.

Although Judge Engel was known for treating everyone before him with respect, he did have a sense of humor. At one of my first sessions of oral arguments in Cincinnati, I sat with the rest of the clerks to the side of the bench. A number of the judges had handwritten notes delivered from the bench to their clerks during the arguments. I wondered what important issues were being communicated and must have looked puzzled as I saw other clerks unfolding the notes from their judges. (This was of course in the dark ages preceding email.) Judge Engel must have noticed my puzzlement, and before long, I was the recipient of a folded note delivered from the bench. I opened the note with some trepidation, concerned that something in the argument (which was a very dull one) might have shown some flaw in the research or reasoning of the memorandum I had prepared on the case. The note was very straight-forward. It said: “where do you think we should have lunch when this is over?” I exhaled in relief that I hadn’t done anything stupid, and looked up and saw the Judge smiling at me.

Once he decided the reasoning for a decision, Judge Engel would usually let his clerks take a stab at what

Remembering Judge Albert EngelContinued from page 12

Judge Robert J. Danhof


Remembering Judge Albert EngelContinued from page 13

an opinion might look like. While he wrote his own opinions, we felt great pride when we got a sentence or even a paragraph from our efforts included in the final opinion. In one case, addressing the issue of design patents for grommets, he even adopted my term “Tolk-ienesque” in the opinion, after an entertaining discus-sion of Tolkien’s writing.

Judge Engel was a very good man and a very good judge. He often told his clerks that they “shouldn’t

hide their light under a bushel basket.” However, despite this advice to others, the Judge was not one to tout his own accomplishments. He did a great deal for a great many people and he exemplified the tempera-ment, respect and courtesy befitting a federal judge. We would all be better off if we could populate the federal bench with more judges like Judge Engel. He will be missed both on and off the court.

Judge (Ret.) Robert (Bob) J. Danhof of Holland, MI, age 87, passed away Friday, March 1, 2013.

He was born in Grand Rapids, Michigan on August 24, 1925 to Joan (Buter) and Nicholas Danhof. Bob graduated from Zeeland High School, Hope College and The University of Michi-

gan Law School. He married Marguerite (Peggy) Den Herder in 1947 in Holland, Michigan.

Mr. Danhoff was an assistant U.S. attorney for sev-eral years, then became the U.S. Attorney for the Western District of Michigan in 1960. He was elected as a del-egate to the Michigan Constitutional Convention, held in 1961-1962. Out of the committee he chaired, came the establishment of the Michigan Court of Appeals.

In 1962, Mr. Danhoff joined the staff of Governor George Romney as legal advisor. In 1969 he became a judge on the State Court of Appeals. He was Chief Judge from 1976–1992, when he retired.

Following his retirement, Judge Danhof was ap-pointed by Governor Engler to the Michigan Historical Commission, where he served 11 years as vice-chair-

man. He enjoyed sharing his extensive knowledge of Michigan political history with various groups and he was often consulted by government officials.

Judge Danhoff was a member of Hope Church in Holland and served on the board of Central Park Cha-pel. He was an avid UofM fan, which created interest-ing dynamics with family members who were Spartans. He enjoyed family dogs, Frank’s coffee group in Zee-land, and sharing his knowledge of state and local trivia.

Judge Danhoff is survived by his wife of 65 years, Peggy, their four children: William (Bill) Danhof and Nancy of East Lansing, Kenneth (Ken) Danhof and Judy of Muskegon, Carol Danhof of Grand Rapids and Linda Danhof of East Lansing, three grandchildren: An-gela Meyers (Michael) of Alexandria, VA, Brian Danhof (Karijn Nijhoff) of Den Haag, Netherlands and Michael Danhof of Muskegon. Funeral services were held on March 6, 2013, at Hope Church in Holland. In lieu of flowers, contributions can be made to Hope College Robert ’47 and Marguerite Danhof Scholarship Fund or Hope Church, Holland Michigan.

Endnotes

1 The information in this article is excerpted from The Grand Rapids Press.

Former U.S. Attorney and Michgian Court of Appeals Judge Robert Danhoff Dies at 871


We can and should be rejecting the Sixth Circuit’s pattern jury instruction in all criminal cases in this Dis-trict for the most important instruction: the meaning of the Government’s burden to put on proof beyond a reasonable doubt of the defendant’s guilt.

It is axiomatic that the due process right to criminal conviction only upon Government proof beyond a rea-sonable doubt is an essential element of the U.S. crimi-nal justice system, and is designed to reduce the risk of punishing those who do not deserve it.2 To enforce this right, juries are told of the standard of proof required for conviction,3 then left to determine whether the government has met its burden. If jurors do not under-stand their duty because the reasonable doubt instruc-tion is not sufficiently helpful, then defendants will not be afforded a fair trial.4

Unfortunately, studies around the country, using a variety of model jury instructions, have shown that what jurors are told about the reasonable doubt legal standard does not properly educate them for their task.5 One study in Florida found that 23 percent of instruct-ed jurors believed that, if the weight of circumstantial evidence was equally balanced between guilt and in-nocence, the defendant should be convicted.6 The same study found that only 50 percent of the instructed jurors understood that the defendant did not have to present any evidence of his innocence.7 These numbers are troubling, and courts around the country have ad-dressed the issue of juror instruction in different ways.8 This article will focus on the Sixth Circuit’s pattern jury instruction, and urge a permissible alternative.

The Sixth Circuit Uses the “Hesitate to Act” Reasonable Doubt Instruction.

The Sixth Circuit Court of Appeals Pattern Crimi-nal Jury Instructions provides a “reasonable doubt” jury instruction known as the “hesitate to act” explanation.9 It states:

The government must prove every element of the crime charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . Proof be-yond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important de-cisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not con-vinced, say so by returning a not guilty verdict.10

This instruction is often referred to as the “hesitate to act” reasonable doubt instruction. It is settled at least in the circuit courts that use of this instruction com-ports with constitutional due process. Although the “beyond a reasonable doubt” standard is a due process requirement, the Supreme Court has decided that “the Constitution neither prohibits trial courts from defin-ing reasonable doubt nor requires them to do so.”11 Further, “the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.”12 Nonetheless, the instructions still must “correctly convey the concept of reasonable doubt to the jury.”13

The “Hesitate to Act” Instruction Suffers from Many Serious Issues.

But the Sixth’s Circuit’s “hesitate to act” pattern in-struction is problematic for a number of reasons. First, as the Commentary to the Federal Judicial Center’s alternate model instruction points out, the “hesitate to act” language potentially trivializes the jury’s responsi-bility.14 For example, a juror may view a car or home purchase as one of the most important decisions in their lives.15 A juror might be willing to act with a higher probability of being wrong when making that kind of

Hesitating to Act on the Duty to Educate Jurors:Improving the Sixth Circuit’s Reasonable Doubt Jury Instruction

By Sarah Riley Howard and Kelechi Adibe1



important decision than due process requires for con-sideration of whether the Government met its burden of proof of guilt of a crime. If a juror believes the court wants her to apply the same sort of reasoning used in an important life decision to a criminal case, she may not see it as the serious matter it is.16 There are many “important” life decisions that are relatively trivial when held up against the decision to find guilt.

One assistant U.S. attorney in a trial in the East-ern District of Michigan pointed this out in rebuttal to defense counsel’s closing argument, discussing the “hesitate to act” language.17 The prosecutor argued, “If the standard was . . . would you hesitate at any time when making an important decision in your own personal life, who hasn’t hesitated before you bought a house, before you decided to marry somebody, before you decided to divorce somebody, before you bought an automobile, before you cross a street sometimes you hesitate. If that was the standard, ladies and gentlemen, then no jury in this country would ever convict any-body.”18 The court admonished this prosecutor in front of the jury – sort of. The trial court judge told the jury upon defense counsel’s objection to this characteriza-tion of the reasonable doubt standard that “[t]he judge will give the law in this case, counsel may argue from the principles of law.”19 That statement hardly clears up for a lay juror how the reasonable doubt standard should be applied. But that statement, combined with the typical instruction that what the judge says about the law controls, was enough for the Sixth Circuit to consider the error cured.20 This example demonstrates how the “hesitate to act” instruction is not only dan-gerously unclear, but it invites use of differing levels of consideration depending on an individual’s personal risk tolerance and experience with “important” decisions. Those personal experiences with other decisions which may be “important” to most people but fundamentally incomparable to the decision whether to convict should not be at all relevant to deciding guilt.

The defendant in United States v. Goodlett asserted this very point.21 He argued that “this subjective stan-dard might allow a defendant to be convicted on a mere preponderance of the evidence because some jurors

would not hesitate to rely on such lesser proof in their own important decisions; some people are just not as cautious as others.”22 The court rejected this argument, summarily stating that the instruction complied with due process.23

Second, commentators have also pointed out that the “hesitate to act” analogy also conflates a decision about future action with a decision regarding whether something did or did not happen.24 The former in-volves weighing factors to decide what course of action is best.25 The latter involves weighing facts, evidence and testimony to determine the truth.26 Due process certainly must prohibit jurors from deciding cases based upon what they believe would be the best outcome, instead of coming to a decision based on the facts of the case, but the “hesitate to act” instruction risks this result as well.

Accordingly, the “hesitate to act” pattern instruction might be adequate in that courts have held that it com-plies with due process, but other instructions are permis-sible and superior to something merely “adequate.” It is certainly imaginable, too, that there exist cases where the facts are such that the “hesitate to act” instruction would be so problematic as to implicate due process.

Some District Courts Have Used Other Language When Instructing Juries on the “Beyond a Reasonable Doubt” Burden of Proof.

The pattern instruction has the obvious advantage of pre-approval, at least presumably. Anything different admittedly carries slightly higher risk on appeal. But the risk is only slight to try an alternative. The Sixth Circuit Court of Appeals admitted it did not like one trial court’s use of the language “willing to act” in place of “hesitate to act,” but it did not reverse.27 In another case, the Court of Appeals also approved, but stated it did not like the use of the language “substantial doubt, a real doubt.”28 Other district courts in this Circuit have mixed in additional language it presumably be-lieves adds to the jury’s understanding of its duty. For example, the Sixth Circuit approved one district court’s

Hesitating to Act ...Continued from page 15



definition of reasonable doubt as “doubt based on rea-son and common sense . . . doubt that grows out of the evidence or the lack of evidence in a particular case. In other words, it’s not a flimsy, fanciful, fictitious doubt that you can raise about anything or everything, nor is it a doubt based upon sympathy, bias or prejudice.”29 The court then added even more to this alliterative pas-sage; it included the statement that the prosecution has met the “beyond a reasonable doubt” standard when the juror is firmly convinced of the defendant’s guilt.30 This “firmly convinced” language is the same used in the model “reasonable doubt” jury instruction from the Federal Judicial Center’s model “reasonable doubt” jury instruction.

The “Firmly Convinced” Instruction is Seen as an Improvement Over Other Instructions

In a concurrence, Justice Ginsburg advocated for use of the following “firmly convinced” instruction:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possi-bility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.31

Justice Ginsburg described this instruction as “clear, straightforward, and accurate.”32 It includes two ele-ments that make things easy for the jury: (1) it is rela-tively short, and (2) it uses the modern language “firmly convinced.”33 There is no extended inquiry into what a juror might or might not do, and there are no mis-placed analogies; instead, a juror need ask themselves only if they are “firmly convinced” - words that have ordinary meaning in today’s world.34 If a juror is still confused, there is the backup inquiry of whether that juror believes there is a “real possibility” that the defen-

dant is not guilty.35 Note, however, that this “real pos-sibility” language has been scrutinized in some courts, questioning whether it could lead jurors to believe that the defense has the burden of proving innocence.36 Despite that issue, the Federal Judicial Center model jury instruction is still superior to the “hesitate to act” instruction: it does not trivialize the issue before the jury, it does not falsely analogize, and it does some work in explaining to the jury what its task is.37

The “Firmly Convinced” Instruction Has Been Approved or Adopted in Nearly Every Circuit

The “firmly convinced” jury instruction is not unheard of either; all of the circuits – including the Sixth – permit use of it. There are several cases in this Circuit from Ohio (which, as a state, uses the “firmly convinced” language as its default instruction) that eventually made it up to the Sixth Circuit, which found no issue with the instruction.38 Therefore, the “firmly convinced” instruction is neither unknown nor disap-proved of in the Sixth Circuit, even if it is “not pre-ferred.”39 The Ninth Circuit has gone so far as to adopt the “firmly convinced” language in its Manual of Model Criminal Jury Instructions, Instruction 3.5.40

Use of a “firmly convinced” reasonable doubt instruction has also been affirmed in the First41, Sec-ond42, Third43 (pattern instruction uses “hesitate to act” language), Eighth44 (pattern instruction uses “hesitate to act” language), Tenth45 (pattern instruction uses “firmly convinced” language), and the D.C. Circuits.46 Even the Fourth Circuit, which has instructed district courts not to define “reasonable doubt” at all, has affirmed use of the instruction.47

Panels of the Seventh Circuit have expressed a pref-erence for no definition of reasonable doubt, although it too has permitted use of “firmly convinced” language:

The question whether the prosecution has proved the defendant guilty beyond a reasonable doubt is central to every criminal trial. Can it be that the term should never be defined? Is it a mysti-




cal term, a talisman, somehow tarnished by at-tempts at definition? Is a refusal to define key terms consistent with the search for truth? Re-cently a committee of the Federal Judicial Cen-ter that included our chief judge recommended the following instruction on reasonable doubt:

* * *

This is surely harmless, and if perhaps no more than slightly helpful, still a district judge who on the basis of his experience with juries and his observation of the particular jury thinks that such an instruction would help the ju-rors in their deliberations should be allowed to give it, especially if the jury requests further instruction on reasonable doubt. But ordinar-ily the district judge will be well advised to at-tempt no definition of reasonable doubt.48

With all due respect to the Seventh Circuit, and to our local juries, the no-definition approach seems like a poor solution. Reasonable doubt is a critical concept that can be easily misunderstood. Even a reminder of the standard for well-educated jurors seems prudent.

One district court in this Circuit combined “firmly convinced” language with the usual “hesitate to act” jury instruction: “Remember that reasonable doubt is present when after you carefully consider and compare all evidence, you cannot say you are firmly convinced of the truth of the charge . . . Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs.”49 The Sixth Circuit affirmed this version as well.

It is worth revisiting the language of the reasonable doubt instruction as a whole at either the Circuit or District level, or at least in individual cases. Although the Sixth Circuit has approved of the pattern instruc-tion, there are compelling reasons to call that instruc-tion only adequate, and not optimal, on perhaps the most critical element of due process in a criminal case. And we should strive for as close to optimal as possible in the conduct of criminal trials.

Endnotes

1 Sarah Riley Howard is the chairperson of Warner Norcross & Judd LLP’s white collar criminal defense practice group, which represents clients in a range of matters involving corporate legal compliance, federal litigation counseling, and criminal defense. Kelechi Adibe, a junior associate at Warner Norcross & Judd, contributed to the research and writing of this article, which is based on part of another article, Susan E. Brune & Laurie Edelstein, Jury Instructions: Key Topics in Federal White Collar Cases, The Champion, September/October 2012, (Magazine), at 26. This article relies on Brune & Edelstein’s argument as to the insufficiency of the pattern reasonable doubt instruction, and specifically looks at how the instruction and alternatives have been treated in the Sixth Circuit.

2 See Brune & Edelstein at 26 (citing In re Winship, 397 U.S. 358, 361 (1970)); Note, Reasonable Doubt: To Define, or Not to Define, 90 Colum. L. Rev. 1716, 1717 (1990).

3 Id. at 1719.

4 See Brune & Edelstein at 26.

5 See, e.g., David U. Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to Justice, 59 Judicature 478 (1976); Laurence J. Severance & Elizabeth F. Loftus, Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions, 17 Law & Soc’y Rev. 153, 172 (1982).

6 Strawn & Buchanan, supra, at 59.

7 Id.

8 See Brune & Edelstein, at 26.

9 Sixth Circuit Court of Appeals, Pattern Criminal Jury Instructions, Instr. No. 1.03 (2011).

10 Sixth Circuit Court of Appeals, Pattern Criminal Jury Instructions, Instr. No. 1.03 (2011); United States v. Stewart, 306 F.3d 295, 306 (6th Cir. 2001); Drew v. Tes-smer, 195 F. Supp. 2d 887, 891 (E.D. Mich. 2001).

11 Victor v. Nebraska, 511 U.S. 1, 5 (1994).

12 Id.

13 Id.



14 Federal Judicial Center, Pattern Criminal Jury Instruc-tions, Commentary to Instruction No. 21 (1987).

15 Id.

16 Id.

17 United States v. Bond, 22 F.3d 662, 669-70 (6th Cir. 1994).

18 Id.

19 Id. at 670.

20 Id.

21 United States v. Goodlett, 3 F.3d 976, 979 (6th Cir. 1993).

22 Id.

23 Id. at 979-80.

24 Robert C. Power, Comment, Reasonable and Other Doubts the Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 80 (1999).

25 See id.

26 Id.

27 United States v. Mars, 551 F.2d 711,716 (6th Cir. 1977).

28 Payne v. Smith, 667 F.2d 541, 547 (6th Cir. 1981).

29 United States v. Hawkins, No. 86-1646, 1987 WL 38037 (6th Cir. July 14, 1987).

30 Id.

31 Federal Judicial Center, Pattern Criminal Jury Instruc-tions, Instr. No. 21 (1987).

32 Victor, 511 U.S. at 26-27 (Ginsburg, J., concurring in part and concurring in the judgment).

33 See id. at 27.

34 Brune & Edelstein at 26.

35 See Victor, 511 U.S. at 27 (Ginsburg, J., concurring).

36 Brune & Edelstein at 26 (citing United States v. Reese, 33 F.3d 166, 172 (2d Cir. 1994); United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987)).

37 See Brune & Edelstein at 26.

38 See, e.g., Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000); Thomas v. Arn, 704 F.2d 865 (6th Cir. 1983).

39 United States v. Hawkins, No. 86-1646, 1987 WL 38037 (6th Cir. July 14, 1987).

40 Ninth Circuit Court of Appeals, Manual of Model Criminal Jury Instructions, Instr. No. 3.5 (2010).

41 United States v. Brand, 80 F.3d 560, 566 (1st. Cir. 1996).

42 United States v. McBride, 786 F.2d 45, 51 (2nd Cir. 1986) (but stating “hesitate to act” language was preferable).

43 United States v. Canals-Santos, 395 Fed. Appx. 860 (3d Cir. 2010).

44 Harris v. Bowersox, 184 F.3d 744, 751-52 (8th Cir. 1999).

45 United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995).

46 United States v. Mejia, 597 F.3d 1329, 1340-41 (D.C. Cir. 2010).

47 United States v. Mahabir, No. 95-5311, 114 F.3d 1178, at *5 (4th Cir. June 4, 1997).

48 United States v. Hall, 854 F.2d 1036, 1043-44 (7th Cir. 1988).

49 Coleman v. Mitchell, 268 F.3d 417, 436-37 (6th Cir. 2001).


In the last Bar and Bench newsletter, I discussed the impact of the National Labor Relations Board’s decision in D.R. Horton2 on class action waivers contained in ar-bitration agreements. Just after I wrote that article, the Eight Circuit issued its decision in Owen v. Bristol Care, becoming the first circuit to rule upon the NLRB’s argument in D.R. Horton. In its decision, the Eighth Circuit reversed the judgment of the District Court, which had held that the NLRB decision in D.R. Horton barred enforcement of class action waivers as applied to persons defined as employees under the National Labor Relations Act.3

The Owen court distinguished D.R. Horton on two grounds. The first is that the arbitration language at is-sue in the instant case did not bar class actions brought by federal agencies as opposed to barring all class actions in all circumstances. Second, the Owen Court noted that it owed no deference to the NLRB’s interpretation of the Federal Arbitration Act. With this later point in mind, the Court went on to recite the cases finding that class actions under the Fair Labor Standards Act could

be waived in arbitration agreements. It should be noted that only one of the cases cited addressed the NLRB’s reasoning in D.R. Horton.4

The NLRB’s decision in D.R. Horton remains pend-ing on appeal before the Fifth Circuit. Oral argument was held on February 6, 2013.

Endnotes

1 Nicholas M. Ohanesian is a United States Administra-tive Law Judge for the Social Security Administration in Grand Rapids, Michigan. Prior to his appointment he served as trial attorney and later as a supervisor for the National Labor Relations Board. The views expressed herein are solely those of the author and do not necessar-ily reflect those of the United States Government or the Social Security Administration.

2 357 N.L.R.B. No 157 (2011)

3 29 U.S.C. §152(3)

4 Delock v. Securitas Sec. Svcs. 2012 WL 3150391 (E.D. Ark. Aug. 1, 2012), at *3

What Federal Court Practitioners Need to Know about the N.L.R.B. Decision in D.R. Horton and How it Impacts Class Action Waivers Contained in Arbitration Agreements...a Postscript

By Nicholas M. Ohanesian1



Ron DeWaard Letter

March 21, 2013

The Honorable Carl Levin269 Russell Senate Office BuildingWashington, DC 20510

Dear Senator Levin:

I write again on behalf of the lawyers who belong to the Western District of MichiganChapter of the Federal Bar Association and practice in the Western District of Michigan. We write to bring to your attention our growing concern about the automatic budget cuts in process and to ask for your support for Congres-sional action that averts these cuts and delivers balanced deficit reduction. I raised these same concerns in a letter to you or your predecessor on November 14, 2012.

Our concern is that sequestration will have a crippling effect upon our federal courts and the administration of justice. These cuts undoubtedly will delay the delivery of justice, compromise public safety and cause harm to the fragile state of our nation’s economy.An eight percent cut to the Judicial Branch under sequestration, as forecast by theCongressional Budget Office, would likely cause major staffing reductions in all federal courts, including the federal courts in Grand Rapids, Kalamazoo, Lansing and Marquette. The impact of these cuts would likely include the following:• Hours of operation in the clerk offices in the federal courts would have to be sharply reduced. There would

be delays in processing all court filings and court administrative papers, including payments to jurors, thereby delaying court proceedings to the detriment of the litigants as well as the public as a whole.

• Due to reductions in the jury fees account, federal judges would have to suspend civil jury trials.• The federal courts would be unable to supervise properly thousands of persons under pretrial release and con-

victed felons released from federal prisons, thus compromising public safety in the community.• Payments to panel attorneys in Criminal Justice Act cases would have to be suspended. The impact could ex-

tend to panel attorneys in thousands of CJA cases. Dismissal of criminal trials could occur as many sole practi-tioners may be unable to accept appointments without compensation.

• Staffing cuts would extend to roughly 10 percent of the court security officers responsible for providing court-house security. Reductions of this magnitude could create security vulnerabilities throughout the federal court

FBA Leadership Voices Concerns Over Impact of Sequestration on Federal Courts

Your Western District FBA leadership has been in communications with elected officials to express concerns over the impact of the automatic budget cuts (so-called sequestration) that went into effect this year. Below is a copy of

a letter written by incoming FBA President Ron DeWaard to Senator Levin, along with the Senator’s response.


FBA Voices Concern ...Continued from page 21


system by impairing the ability of the Marshal Service to provide adequate security for court facilities, court personnel and the public.

• Improvements in court security would be considerably delayed, further compromising the adequate protection of federal courthouses and those with business in them. A significant reduction in court security personnel, coupled with a funding shortfall for systems and equipment, could necessitate the closing of some courthouse entrances that would result in long security screening lines for jurors, litigants, and the public and delays in court proceedings.

These actions will delay the delivery of justice, make our courthouses and communities less safe, and bring harm to litigants, the bar and our nation’s economy. Congress must find a way to overcome its partisan differences and agree on an appropriate approach to deficit reduction. We urge you to devote the effort necessary to arrive at balanced solutions.

Thank you for your consideration of our concerns.

Sincerely,Ronald G. DeWaardPresident ElectWestern District of Michigan

Senator Levin’s response

May 23, 2013

Mr. Ronald G. DeWaardWestern Michigan Chapter of the Federal Bar Association c/o 330 Ionia Avenue, Suite 501, NWGrand Rapids, MI 49503

Dear Mr. DeWaard:

Thank you for contacting me to reiterate your concern about the federal budget and changes to the federal tax code. I appreciate you taking the time to write, as well as the service you provide to your community.

In 2011, as part of a bipartisan compromise to prevent the United States from defaulting on its debt, Congress passed the Budget Control Act (BCA, P.L.112-25). This law ensured that the United States would continue to pay its debts and implemented a mechanism designed to reduce federal budget deficits in future years. The BCA cut federal spending by $917 billion over the next ten years. While we must continue to make difficult decisions to enact spending cuts, we will not solve our nation’s budget deficits by cuts alone.

To enforce the overall spending cuts agreed to in the BCA, the law caps federal discretionary spending over the




next ten years. Further, it established a special committee, which was tasked with trying to find agreement on $1.5 trillion in additional spending cuts and revenue increases over ten years. The special committee failed to reach an agreement, which triggered automatic, across-the-board spending cuts that were scheduled to take effect at the be-ginning of 2013. The large spending cuts are divided equally between defense and non-defense discretionary spend-ing. This process is referred to as sequestration.

Separately, the Bush tax cuts, which were signed into law in 2001 and 2003, were scheduled to expire at the end of 2012. At the beginning of 2013, tax rates on all Americans were scheduled to return to the levels of the 1990s. The Bush tax cuts have resulted in all Americans paying the lowest federal tax rates in generations, but also have resulted in trillions of dollars less in federal revenues. Historically, federal tax revenue has been about 19% to 20% of our economic output. Today, it is closer to 15%, which represents a 60-year low. Presidents Reagan, Bush and Clinton all reached deficit deals that achieved at least one-third of their deficit reduction from revenue.

The combination of large spending cuts occurring as a result of the sequestration and the expiration of the Bush tax cuts was often referred to as the “fiscal cliff.”

On January 1, 2013, the Senate passed the American Taxpayer Relief Act of 2012 (P.L.112-240), which perma-nently extended the Bush tax cuts for families earning less than $450,000 and put off sequestration until March 2013. This legislation prevented harmful cuts to Medicare reimbursements, maintained unemployment benefits for millions of Americans and permanently fixed the alternative minimum tax, a section of the tax code that had unintentionally threatened to hurt more and more middle class families each year. This bill was signed into law by the President on January 3, 2013.

It was essential that Congress avoid the highly damaging effects of going over the fiscal cliff. Inaction would have threatened to throw us back into a recession and that was clearly unacceptable. So while I would have preferred an agreement that better addressed our historical shortfall in revenues, passing an imperfect agreement was far better than the alternative of returning to recession.

But, this imperfect agreement, while preventing the fiscal cliff and delaying sequestration by two months, did not provide a long-term solution to stave off sequestration’s mindless, across-the-board cuts.

On February 28, 2013, I voted in favor of the American Family Economic Protection Act of 2013 (S.388), which offered a commonsense solution to the damaging cuts imposed by sequestration. Unfortunately, a minority of Senators blocked this bill, which would have replaced the sequester with a balanced combination of cuts and rev-enues, equally divided between sensible spending reductions and new revenues generated by closing tax loopholes and a provision to ensure that millionaires do not pay less in taxes than their secretaries. In the coming months, I will continue to seek a comprehensive, bipartisan approach to avoid the harmful effects of sequestration. Any com-promise to do so will require both prudent spending cuts and additional revenues, and it is imperative that we focus on the hundreds of billions of dollars lost to tax avoidance schemes to raise this much needed revenue.

One of the biggest contributors to our budgetary problem is that our tax code is full of loopholes that allow wealthy Americans and multinational corporations to avoid paying their taxes. Closing these loopholes would restore bil-lions of dollars in revenue. While the tax rate on corporate profits is 35%, the reality is that in 2011, corporations


Don’t forget to check the calendar portion of the wdfba website

at http://www.westmichiganfederalbar.org/Federal_Bar_Calendar.php

for upcoming seminars and other programs.

paid an average effective tax rate of just 12.1%, the lowest effective tax rate in generations. One study found that 30 of the largest U.S. companies, with combined profits over $160 billion, paid no income tax at all during the period 2008-2010. Many of the loopholes that multinational corporations used to achieve low or non-existent tax rates are not available to most domestic small businesses.

Among the corporate deductions that should be closed are tax loopholes that allow large, multinational corporations to use shell companies and accounting maneuvers to shift their profits offshore and avoid their US taxes. According to the U.S. Senate Permanent Subcommittee on Investigations, which I chair, three successful U.S. companies- Ap-ple, Google and Microsoft used these loopholes to avoid taxes on $80 billion in profits over just three years.

We should not only go after the shifting of income offshore to avoid paying taxes in the United States; we also should end tax code provisions that encourage the offshoring of American jobs. The tax code gives companies im-mediate deductions for the expenses of moving and building abroad while at the same time allowing those compa-nies to defer paying taxes on the income from those foreign operations.

In addition to offshore tax loopholes, other corporate tax loopholes that benefit a small percentage of corporations at the expense of others should be closed to simplify and increase the fairness of the tax code. For example, under cur-rent law, Facebook was able to take a $16 billion deduction based on the stock options it gave to its executives before its initial public offering (IPO) of stock. Not only did it get a half-billion dollar refund for the taxes it had paid in prior years, this profitable and successful company will be able to avoid paying federal taxes for up to 20 years be-cause it had lavishly rewarded its executives with multi-billion dollar stock options grants.

Closing these tax loopholes would not only produce significant revenue to help reduce the deficit and prevent se-questration, but it would strengthen tax fairness and remove perverse tax incentives for businesses to move jobs and profits offshore. We should continue adequate funding for our national defense, health care, education, and other critical national priorities through reforms that ensure that American families and small businesses do not bear a disproportionate share of the burden of federal spending cuts and revenue increases.

In the next few months, as Congress confronts our nation’s budget deficit and again faces sequestration, I will cer-tainly keep your views in mind. Thank you again for contacting me.

Sincerely,

Carl Levin


http://www.westmichiganfederalbar.org/Federal_Bar_Calendar.php


Greetings, all! By the time you read this, summer will surely have come once and for all. Rain or shine, warm or cold, though, work in your federal court con-tinues.

The Budget

Each of the court units continue to live with the new normal. Specifically, we are finding new ways of operating with fewer resources, and without compro-mising the quality and integrity of our service. Each court unit and business partner is separately managed and each receives funding by different mechanisms. As a result, the impacts to our operations vary. This year, for example, both the Bankruptcy Court and the Fed-eral Public Defender in the Western District of Michi-gan are having to furlough staff. The U.S. Attorney, Probation and Pretrial Services, and the District Court have been able to avoid this painful measure.

While avoiding furloughs this year, the District Court is holding open vacancies as they occur and we have moved funds around to meet the most acute needs. Our staff withstood furloughs last fiscal year; this year we are “pinching” ourselves in the areas of facilities maintenance and upgrades and in cyclical replacements of technology.

At the risk of sounding like a broken record, I do anticipate having to take additional painful measures next fiscal year (October 1 - September 30). We expect to start the year operating under a continuing resolution and our best guess is that funding will be set at current sequestration levels. In addition, the salary funding formulas for district courts nationally have been recon-figured in such a way as to likely result in additional reductions.

The overarching message for court staff, for our business partners, and for court patrons is this: we will continue to seek appropriate and adequate funding to sustain the judiciary; we will continue to manage our funding skillfully; the quality of service provided by our

people will not diminish; and we will get through this.

Court Records of Historical Significance

After two and a half years of discussions with the Administrative Office (AO) and the National Archives and Records Administration (NARA), our court has reached an acceptable resolution with the AO and NARA to the issue of records preservation. As you may recall, records in certain categories of cases were to be destroyed, largely because the storage space required to support the volume has become increasingly costly. Courts were asked to identify civil cases closed between 1970 and 1995 that we deemed to be of particular historical significance, and thus worthy of permanent retention. We sought your help in accomplishing this monumental task.

We continued to express our concern about any case records being destroyed fearing, among other things, that records worthy of retention might be destroyed in error. We have now reached an agreement that only limited categories of cases (student loan default cases, for example) will be destroyed and all others will be retained. There are many people to thank for assisting us in reaching this reasonable compromise, including so many of you who contributed ideas about cases that should be preserved. Our court extends its gratitude to representatives of the AO and NARA as well.

Clerk’s Office Year in Review

The hottest read in town, of course, is the “Clerk’s Office Year in Review.” This document reports on the activities of our office during calendar year 2012. A great deal of work goes on by our judges and by staff in the four divisional offices of which many court users are entirely unaware. Did you know, for example, that:• Our judges provided considerable service to the

judiciary beyond their duties as district judges for the Western District of Michigan? For example, Judge Maloney participated in meetings of the Sixth

News from the Clerk By Tracey Cordes, Clerk of Court, U.S. District Court, Western District of Michigan



Circuit Judicial Council and others by virtue of his service as our Chief Judge. Judge Bell continued his service as Chair of the Criminal Law Commit-tee. Judge Jonker participated as a member of the U.S. Judicial Conference Advisory Committee on Bankruptcy Rules. Finally, in addition to their own caseloads, some of our judges sat by designation as a visiting judge in district and circuit courts through-out the country, lending service wherever it was needed.

• While civil case filings were up slightly in 2012, criminal case filings were down significantly, thus bringing our overall case filings down for the year.

• Our judges presided over 32 naturalization ceremo-nies in which 2,041 new citizens from 120 countries were represented.

• We admitted 650 attorneys to practice in our dis-trict in 2012, bringing total admissions since 1863 to 21,920.

• Our Finance & Procurement Unit processed 10,620 payments last year.

• A total of 2,135 grand jurors convened in 2012 for 636 hours of service over 103 days. Our court had 1,265 petit jurors present and available for selection in 38 trials throughout the district.

You may access the entire Review at http://www.miwd.uscourts.gov/GENERAL/2012_Year_in_Review.pdfUntil next time, have a safe and enjoyable summer–and be sure to use your sunscreen!

News from the ClerkContinued from page 25

http://www.miwd.uscourts.gov/GENERAL/2012_Year_in_Review.pdf

http://www.miwd.uscourts.gov/GENERAL/2012_Year_in_Review.pdf


Federal Public Defender Office Feeling Impact of Sequestration

The effects of sequestration are being felt in the dis-trict. The Federal Public Defender’s office was forced to furlough all of its employees for nine days. It was unable to refill a vacant lawyer position and had to force five employees into part-time status. The office also surrendered its office space in the Northern Division. The three employees in Marquette will be working from their homes beginning September 1, 2013. Ray Kent, the Federal Public Defender, said, “There is no question that sequestration is impeding delivery of legal services to the indigent in West Michigan and interrupting equal access to justice for its citizens. We can only hope that, in fiscal 2014, Congress will appropriate and the Judicial Conference of the United States will allocate, sufficient resources so that we can complete our mission and continue to be an office that all the citizens of West Michigan can be proud of.”

US Attorney’s Office 2012 Year-in-Review Now Available

The U.S. Attorney’s Office’s Year-in-Review for 2012 is now available on its website, by following this link: http://www.justice.gov/usao/miw/about/Year_In_Re-view.pdf

Western District Bankruptcy Judge Vacancies

The Sixth Circuit Judicial Council is soliciting ap-plications from persons interested in appointment as United States Bankruptcy Judge for the Western Dis-trict of Michigan at Grand Rapids. Two positions will become vacant within the next six to twelve months. A person appointed as Bankruptcy Judge should have the character, ability and impartiality to qualify such person for service in the Federal Judiciary. The term of office is 14 years. The salary of the position is $160,080.

To be qualified for appointment as a bankruptcy judge, an applicant must:

• Be a member in good standing of the bar of the highest court of at least one state, the District of Columbia, or the Commonwealth of Puerto Rico,

and a member in good standing of every other bar of which the applicant is a member.

• Have engaged in the active practice of law for at least five years, with some substitutions authorized.

• Possess the following abilities or characteristics:• Competence to perform the duties of the office;• Integrity and good character;• Commitment to equal justice under the law;• Sound physical and mental health;• Outstanding legal ability and competence as evi-

denced by ability to deal with complex legal prob-lems, aptitude for legal scholarship and writing, and familiarity with courts and court processes;

• Demeanor, character and personality that would exhibit good judicial temperament.An applicant may not be related to a judge of the

appointing Court of Appeals or Judicial Council of the Circuit, or to a judge of the District Court to be served, by blood or marriage within the degree of first cousin.

An affirmative effort will be made to give due con-sideration to all qualified candidates, including women and members of minority groups.

Interested applicants may obtain a Bankruptcy Judge Application from the Circuit Executive’s Office, Office of the Clerk of the United States Court of Ap-peals for the Sixth Circuit, the Bankruptcy Court Clerk for the Western District of Michigan, or by accessing the United States Court of Appeals for the Sixth Circuit website at www.ca6.uscourts.gov. Applications should be sent to the Office of the Circuit Executive, 503 Pot-ter Stewart United States Courthouse, 100 East Fifth Street, Cincinnati, Ohio 45202. Applications must be received by August 8, 2013.

Bankruptcy Judges are appointed by the United States Court of Appeals pursuant to the Bankruptcy Amendments and Federal Judgeship Act of 1984, P.L. 98-353,98 Stat. 345, and regulations promulgated by the Judicial Conference of the United States. The Court of Appeals will make appointments to these vacancies from a list of at least three nominees submitted to it by the Sixth Circuit Judicial Council.

Announcements


http://www.justice.gov/usao/miw/about/Year_In_Review.pdf

http://www.justice.gov/usao/miw/about/Year_In_Review.pdf


Judge Thomas F. Hogan Named Director of Administrative Office1

Chief Justice John G. Roberts Jr. has announced the appointment of Senior U.S. District Judge Thomas F. Hogan as the director of the Administrative Office of the United States Courts.

Hogan has been a federal judge since 1982, when he was appointed to the U.S. District Court for the District of Columbia. He served as chief judge of that court from 2001 until 2008, when he assumed senior status. Hogan will serve a one-year term as director, beginning this fall.

Hogan succeeds James C. Duff, who served five years as the chief administrative officer of the federal courts. The Administrative Office’s director serves under the direction of the Judicial Conference of the United States, the principal policy-making body for the federal court system. The chief justice is the Confer-ence’s presiding officer.

In announcing Hogan’s appointment, Roberts said, “I am delighted that Judge Hogan has agreed to take on

this important responsibility. He is one of our nation’s most distinguished judges. Judge Hogan will bring extraordinary experience and insight to the position by virtue of his prior service to the judiciary.

“In addition to his tenure as chief judge of the district court that hears many issues of national impor-tance, he has served as a member of the Judicial Con-ference, chair of its executive committee, chair of the Conference’s courtroom technology subcommittee, and a board member of the Federal Judicial Center. I look forward to working closely with Tom on the many criti-cal issues facing the judiciary,.” the chief justice said.

Hogan will assume the leadership of about 1,000 Administrative Office employees who provide adminis-trative support to 2,250 judges and more than 34,000 federal court employees.

Endnote

1 This article reprinted with permission from The Third Branch News.

AnnouncementsContinued from page 27

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