Supreme Court justice named our Woman of the Year

Michigan Supreme Court Justice Marilyn Kelly was named as Michigan Lawyers Weekly’s Woman of the Year at our 2012 Women in the Law luncheon on Sept. 27.

Michigan Supreme Court Justice Marilyn Kelly holds her award after being named Michigan Lawyers Weekly’s 2012 Woman of the Year at the Detroit Marriott, Troy. (Photo by Mark Bialek)

Kelly has accomplished a lot in her career, including public service spanning the last 48 years.

As noted in her Women in the Law profile (see our Sept. 10, 2012, edition), Kelly was the first woman elected to State Board of Education in 1964, and was re-elected in 1968 and 1972.

While still on the board, she enrolled at Wayne State University Law School and graduated with honors in 1971. She was elected to the Court of Appeals in 1988, and re-elected in 1994. In 1996, she was elected to the Supreme Court for the first of her two terms. She was the Court’s chief justice from 2009-11.

Her push to make courts more accessible has resulted in last month’s launch of a new legal self-help website, Michigan Legal Help.

Kelly also was a loud and unwavering voice in the call for more comprehensive and fair indigent representation. She surely is gratified with HB 5804, to create the Michigan Indigent Defense Commission, going to the full House with strong bipartisan support.

That Commission would set standards, attempt to stabilize funding and promote best practices.

And, as Kelly told MiLW writer Ed Wesoloski for her Women in the Law profile, she counts G. Mennen Williams — Michigan’s 41st governor and a Supreme Court justice — among her heroes and mentors. She recalls him as a charismatic man, who was forever extending his arm to “give a warm, firm handshake.”

She also mentioned that she is a SCUBA diving enthusiast, and to this day still actively participates in the sport. In addition, she confessed to Ed the guilty pleasure of reading spy novels.

Kelly started a Limited English Proficiency Program to assist non-English speakers navigate their way through the legal system.

Her most visible effort, without question, was her work on the Michigan Judicial Selection Task Force on which she served as co-chair with Senior Circuit Judge James Ryan, of the 6th U.S. Circuit Court of Appeals.

They brought together a group of lawyers, non-lawyers, businesspeople and campaigners and researched the judicial selection process.

The task force released a comprehensive report calling for more transparency in the selection and campaign process and offered sensible solutions and alternatives that would make the judicial selection process more effective and transparent.

Those recommendations are still being considered.

Injured Bernstein files suit against New York

Disability rights advocate Richard Bernstein filed suit against the city of New York for “dangerous inaccessibility of Central Park for blind pedestrians and others.”

He filed suit today to “stop the City of New York and New York City Department of Transportation from discriminating against blind, visually impaired and other disabled individuals by denying them equal access to Manhattan’s Central Park.”

Bernstein has been in Mt. Sinai hospital for a month because of a fractured pelvis and hip and severe facial injuries caused by a bicyclist going 35 miles per hour. Bernstein was walking and was hit in the back by the cyclist, who was looking at his rear tire — the cyclist admitted fault.

According to his suit, Central Park is surrounded by a boundary created by East and West Drives, enclosing the majority of the park. He says the defendants have refused to enforce rules mandating bicyclists to stop at red lights and stop signs and allow cyclists to pass pedestrian crosswalks without stopping, denying visitors safe entry to the public park.

Bernstein is not asking for monetary damages, and said he only wants an order requiring the defendants to stop violating federal law and discriminating against blind, visually impaired or other disabled individuals by denying them equal access to Central Park.

Bernstein is blind, and has successfully represented the disabled in numerous cases, including the Detroit Department of Transportation for bus accessibility, the University of Michigan for stadium accessibility and Detroit Metro Airport for better disabled access.

Women in the Law 2012 honorees exemplify state’s breadth, depth of legal talent

 It is with great pleasure and an honor to announce the 20 awardees of Michigan Lawyers Weekly’s Women in the Law 2012.

These women were chosen from a large number of nominees from across the state and from all areas of the law — big law firms and small, as well as those in public service.

As part of the group that had the opportunity to peruse all of the submissions, I must say I am again amazed and the breadth and depth of talent Michigan’s women lawyers bring to the table each and every day.

It was difficult to choose only 20 out of so many submissions, but that was our task and we have made our choices.

Given the high caliber of nominations, our selections are truly the cream of the crop in Michigan’s legal profession.

This isn’t just about being a success in your firm, but a balance that includes giving back to the profession, giving back to the community and also having some semblance of a real life, too. Because that’s what it’s all about isn’t it — balance?

These honorees have shown all these traits in abundance, and deserve to be singled out as exemplary examples of what is so great about the profession.

We will publish a special section with bios of each — so you can see what makes them tick — on Sept. 10.

Michigan Lawyers Weekly will host a luncheon at noon Sept. 27 at the Detroit Marriott Troy to honor these women, so you can celebrate their accomplishments. It is there where we’ll also announce our Woman of the Year.

And without further ado, here are the 2012 Michigan Lawyers Weekly Women in the Law:

Hon. Louise Alderson — 54A District Court

Hon. Susan Dobrich — Cass County Probate Court

Audrey Forbush — Plunkett Cooney PC

Julie Gafkay — Gafkay & Gardner PLC

Denise Glassmeyer — Young Basile Hanlon & MacFarlane PC

Cynthia Haffey — Butzel Long

Hon. Marilyn Kelly — Michigan Supreme Court

Monica Labe — Dickinson Wright PLLC

Marilyn Lankfer — Varnum LLP

Marla Linderman — Linderman Law PC

Anna Maiuri — Miller, Canfield, Paddock and Stone PLC

Cary McGehee — Pitt, McGehee, Palmer, Rivers & Golden PC

Valerie Newman — State Appellate Defender Office

Rosalind Rochkind — Garan Lucow Miller PC

Carol Rosati — Johnson, Rosati, Schultz, & Joppich PC

Sangeeta Shah — Brooks Kushman PC

Amy Timmer — The Thomas M. Cooley Law School

Ann Marie Uetz — Foley & Lardner LLP

Rebecca Walsh — Reiter & Walsh PC

Linda Wasserman — Honigman Miller Schwartz and Cohn LLP

Vermont takes symbolic stand with first fracking ban

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

If the much-hyped dream of U.S. energy independence must involve hydraulic fracturing (also known as fracking) to extract natural gas from shale deposits deep underneath the surface of the earth, the State ofVermont wants no part of it.

Vermont Gov. Peter Shumlin signed a law May 16 banning fracking, a practice that involves injecting water, sand and chemicals deep underground for energy production. The move makes Vermont the first state in the nation with such a ban, establishing a model that anti-fracking activists hope will be followed by other states.

For Vermont, the new law is largely symbolic. No energy company in the state engages in fracking, according to the Burlington Free Press, and none has been proposed because there are no known exploitable shale deposits available within the state’s jurisdiction.Vermont lies a few hundred miles east of the northeastern edge of the vast Marcellus Shale, much of which lies under the neighboring state of New York.

Gov. Shumlin conceded that it was easier to pass such a ban in a state where the energy industry has no apparent stake in the outcome.

“We don’t know that we don’t have natural gas inVermont,” Shumlin said. “This bill will ensure we do not inject chemicals into groundwater in a desperate pursuit for energy.” 

The U.S. Environmental Protection Agency continues to study whether fracking is, in fact, a threat to groundwater supplies. A recent study by the Energy Institute at theUniversity ofAustin found that fracking had “no direct link” to groundwater contamination, mostly due to the fact that groundwater aquifers tend to be found closer to the surface than shale deposits. Groundwater is threatened by energy development, the study said, due to the potential for surface spills of onsite chemicals, but that threat could be mitigated by tighter industry controls and better state regulation.

American’s Natural Gas Alliance objected to the newVermont law, calling it “poor policy that ignores fact, science and technology.” The American Petroleum Institute said Vermont was following an “irresponsible path that ignores three major needs: jobs, government revenue and energy security.” 

Industry’s main concern with Vermont’s law appears to be whether it will inspire similar legislation in states with significant natural gas resources, including the state of New York. Paul Burns, executive director of the Vermont Public Interest Research Group, which favored the ban, said that state’s action had encouraged fracking opponents, who were rallying in Albany, N.Y. on May 16.

Will Court amputate parts of health care law?

By Kimberly Atkins, Esq.

WASHINGTON– On the last of three days of oral arguments on the constitutionality of the federal health care reform law, the justices of the U.S. Supreme Court pondered whether they should act as virtual surgeons, taking a scalpel to the statute to excise constitutionally problematic portions while leaving the rest in place.

But the justices seemed stuck on a central issue during Wednesday’s arguments: whether the law can function without its heart, which is the individual minimum coverage mandate.

On that issue of severability, the justices – as on Tuesday when they considered the mandate’s constitutionality – seemed split.

“It’s a choice between a wrecking operation, which is what you are requesting, or a salvage job,” Justice Ruth Bader Ginsburg said to Paul Clement, a partner in theWashington office of Bancroft, who represents business groups seeking to strike down the law entirely. “And the more conservative approach would be salvage rather than throwing out everything.”

But Justice Anthony M. Kennedy, seen as a potentially crucial vote in the case, later asked Deputy Solicitor General Edwin S. Kneedler if severing parts of the law, thereby creating a statute different than the one passed by Congress, was not “an awesome exercise of judicial power” leaving the Court unsure of “what the consequences might be.”

 ‘A hollowed-out shell?’

Clement, urging the Court on the businesses’ behalf to rule that the entire law must fall if the individual mandate is ruled unconstitutional, focused on the complexity of the law, and the difficult task the Court would have trying to dissect it.

“The provisions that have constitutional difficulties [are] the very heart of this Act,” Clement. “And … they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid.”

But Chief Justice John G. Roberts, Jr., pointed out that several stand-alone provisions were also included in the measure.

“[The government] cited the Black Lung Benefits Act and [measures that] have nothing to do with any of the things we are talking about,” Roberts said.

Clement said that such measures could find another legislative vehicle, but keeping the law without the mandate would render it “a hollowed-out shell.”

 “But I’m still not sure what is the test,” Kennedy said. “I need to know what standard you are asking me to apply.”

“I’m a big believer in objective tests, Justice Kennedy,” Clement said.

“And that objective test is what?” Kennedy asked.

That test is “whether the statute can operate in the manner that Congress intended,” Clement replied.

 ‘Extreme exercise of judicial power?’

Kneedler walked a fine line in his argument for the government: He had to simultaneously urge the Court to uphold the mandate provision while also arguing that the rest of the law should stand in the event the mandate is struck down.

When Kennedy expressed concerns about the limits of the Court’s power, Justice Antonin Scalia jumped in, addressing Kneedler but really responding to Kennedy.

“Don’t you think it’s unrealistic to say, ‘Leave it to Congress [to] consider it dispassionately?” Scalia asked. “[There] is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider” the whole thing?

“We think as a matter of judicial restraint,” Kneedler replied.

Several justices jumped in simultaneously to follow up on that comment. Kennedy won.

“We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “[W]e would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike” the entire law.

H. Bartow Farr III, a partner in the Washington office of Farr & Taranto, was appointed by the Court to defend the 11th Circuit’s ruling that the individual mandate, which it found to be unconstitutional, could be severed from the rest of the law.

“Even though the system is not going to work precisely as Congress wanted [without the mandate] it would certainly serve central goals that Congress had of expanding coverage for people who were unable to get coverage or unable to get it at affordable prices,” Farr argued.

The Court also heard arguments on Wednesday in the states’ challenge to the Medicaid provision of the bill, which requires states to expand coverage in exchange for federal Medicaid funding.

Rulings on the application of the Anti-Injunction Act, the Medicaid requirement, the individual mandate’s constitutionality and, if necessary, the severability issue will be rendered before the Court’s term ends in June.

Kimberly Atkins is staff writer for Lawyers USA, which, like Michigan Lawyers Weekly, is a Dolan Company newspaper.


Supreme Court takes up health care challenge

By Kimberly Atkins, Esq.

WASHINGTON – The U.S. Supreme Court began its historic three-day examination of the challenge to the federal health care law by taking up an issue that could stop the case in its tracks: whether the Anti-Injunction Act bars courts from considering challenges to the law before it is fully implemented in 2015.

There are two questions: Is the penalty for not obtaining health care coverage a tax? And if so, is the AIA a jurisdictional bar preventing courts from hearing challenges at all, or merely a defense that the government can raise?

 Government switches sides

There was already an odd twist to this part of the case before arguments began. The administration raised the AIA issue early in the litigation, but it has since abandoned that argument and is now urging the Court to find that the insurance penalty is not a tax and allow the challenge go forward instead of waiting until 2015.

“Congress has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put [the individual mandate] into the Internal Revenue Code,” Solicitor General Donald Verrilli, Jr., argued to the justices on Monday.

But Justice Samuel A. Alito, Jr., asked whether that stance could backfire on the government once the Court takes up the constitutionality of the individual mandate on Tuesday. On that issue, the government’s chief argument is that Congress had the power to pass such a measure under its taxing powers.

“Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” Alito said. “Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

Verrilli said that the nature of the inquiry in each case was different.

“Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis,” Verrilli said. “Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.”

Gregory G. Katsas, a partner in theWashingtonoffice of Jones Day who represented the states challenging the law, argued that the health care law isn’t about imposing monetary fees.

“The purpose of this lawsuit is to challenge a federal requirement to buy health insurance,” Katsas said. “That requirement itself is not a tax. And for that reason alone, we think the Anti-Injunction Act doesn’t apply.”

Chief Justice John G. Roberts, Jr., wasn’t so sure.

“The whole point of the suit [is] to prevent the collection of taxes,” Roberts said. “The idea that the mandate is something separate … just doesn’t seem to make much sense.”

 Lawyer appointed for orphaned issue

Both the federal government and the states challenging the law are largely on the same side of the AIA issue. As a result, the Supreme Court had to appoint an attorney to defend a 4th Circuit ruling holding that the Act barred courts from hearing challenges by plaintiffs until they had incurred the penalty for non-compliance, since that penalty is a tax. In its certiorari petition the federal government requested that the Court consider the Anti-Injunction Act issue in the current 11th Circuit case.

Robert A. Long, a partner in theWashingtonoffice of Covington & Burling who was appointed to argue the case, said that Congress intentionally set a high jurisdictional bar for appealing tax matters in court.

“First … you have to pay the tax or the penalty first and then litigate later,” Long said. Second, you have to exhaust administrative remedies, even after you pay the tax you can’t immediately go to court. [Third,] even in the very carefully defined situations in which Congress has permitted a challenge to a tax or a penalty before it’s paid, the Secretary [of the Treasury] has to make the first move [by sending] a notice of deficiency to start the process.”

Justice Stephen Breyer said that wasn’t the tough issue.

“I’m probably leaning in your favor on jurisdiction,” Breyer said. “But where I see the problem is in the second part, because the [AIA] says ‘restraining the assessment or collection of any tax.’ Now [in the health care law] Congress has nowhere used the word ‘tax.’ What it says is penalty.”

“You don’t have to determine that this is a tax in order to find that the Anti-Injunction Act applies, because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it’s a tax penalty and not a tax,” Long said.

The balance of the issues in this case, HHS v. Florida, as well as the other cases challenging the law, will be considered by the Court Tuesday and Wednesday.

A ruling is expected before the Court’s term ends in June.

Kimberly Atkins is a staff writer for Lawyers USA which, like Michigan Lawyers Weekly is a Dolan Company newspaper

Realtors hope $25B foreclosure settlement will spark housing revival

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

With the residential real estate industry shell-shocked from years of a moribund market, its spokespeople can be forgiven for taking a cautious attitude toward this week’s announcement of a $25 billion settlement with five of the nation’s biggest mortgage lenders over flawed and fraudulent foreclosure practices.

The money in the settlement will mostly go to borrowers and homeowners who are underwater. According to the Washington Post, the settlement “will force lenders to revamp how they interact with troubled homeowners and bar them from trying to foreclose on borrowers while simultaneously negotiating mortgage modifications.”

But could the settlement help get the residential market moving again, even in the face of historic low interest rates and plummeting prices?

“We do hope that the resolution will help more lenders with the certainty they need to kick loose more loans,” said Walter Molony, a spokesman for the National Association of Realtors inWashington,D.C. He cautioned, however, that the impact will be limited because the settlement doesn’t help the millions of borrowers with loans owned by Fannie Mae or Freddie Mac.

Eric Berman, communications director for the Massachusetts Association of Realtors, was pleased that the settlement was designed to help more homeowners stay in their homes because that kind of stability slows the ongoing descent of home values in many markets – though the market isn’t as bad, he hastened to add, inMassachusetts as it is in many other areas.

But even there, he said, “Distress sales impact values of homes of people who are not in a distress situation.”

Realtors also hope the settlement “can give lenders the confidence to start up with loan modifications, short sales and principal write-downs,” Berman said. “We’re going to have to wait and see. From our members’ point of view, short sales take forever. The only thing short about a short sale is the definition.”

While realtors continue to ruminate, the blogosphere reacted quickly:


  • Financial blogger Yves Smith at Naked Capitalism gives “The Top Twelve Reasons Why You Should Hate the Mortgage Settlement.”  She is scathing. “We’ve now set a price for forgeries and fabricating documents: It’s $2,000 per loan,” which, as she points out, for an average loan is “less than the price of the title insurance that banks failed to get when they transferred the loans to the trust.”
  • Writing at the Huffington Post, financial reform activist Dennis Kelleher calls the deal a “criminal sell-out,” because the $20 billion in loan forgiveness, though impressive at first blush, only adds up to $20,000 per 1 million homes. According to a Zillow report in November, some 14.6 million home borrowers have fallen into a negative equity position.
  • Reuters’ financial blogger Felix Salmon likes the deal because the attorneys general didn’t give up too much and the banks didn’t get too much. Banks only got immunity from suits over the practice of robosigning, but can still be sued over a range of other alleged misdeeds that contributed to the mortgage default crisis.


– John Stodder


Will fracking be banned?

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

The spectacle of protesters descending on New York’s capitol to pressure Gov. Andrew Cuomo to support a ban on fracking earlier this week has prompted various interested parties to revisit the question of what lies ahead for the controversial natural gas drilling technique.

The stakes are high. If fracking – the process of injecting a mixture of water, sand and chemicals to fracture deep deposits of shale, allowing trapped gases to be released and drilled – is an acceptable way to extract natural gas, then the U.S. and much of the world will have a bounty of fuel for generating electricity, heating and perhaps transportation, for generations.

But environmentalists fear that precious groundwater aquifers could be destroyed by fracking fluids and collateral releases of methane. In response, industry leaders say such fears are based on misinformation.

New York Times environmental blogger Andrew Revkin sees the “quieter corners” of what the environmental community is seeking. Instead of a ban on fracking, they say they are looking for regulations that will “give the greatest social and economic benefits with the least risk of environmental regrets.”  However, rhetoric at the rally suggests that people at the grassroots don’t want compromise.

Fracking has significance far beyond the borders of New YorkState. According to the U.S. Energy Information Administration, there are 5,760 trillion cubic feet of “technically recoverable” shale gas resources in 32 foreign countries, about 15 percent of which is in the U.S. There are immense deposits in a Northeastern belt running fromOhio throughPennsylvania to upstateNew York, inTexas,Oklahoma,Arkansas andLouisiana, inMichigan and in theRocky Mountains.

The reason many environmental organizations stop short of calling for a fracking ban is the nature of the end product, natural gas. Per BTU, the Environmental Protection Agency says natural gas has just over half the carbon dioxide emissions of coal, which it is increasingly displacing to produce electricity. With the stubbornly high costs of renewable power, some environmental leaders embrace natural gas as a transitional fuel to reduce CO2 emissions and slow the effects on climate.

But such concessions tend to be abandoned in the immediate vicinity of proposed fracking projects, as demonstrated by Monday’s rally, during which New York State Sen. Tony Avella, author of the fracking ban, shouted “Shame on you!” to environment groups that didn’t support him on the issue.

In the U.S., there are temporary fracking bans in New Jerseyand New York, but no permanent prohibitions. Bulgariahas voted to ban fracking and revoked a fracking permit it had granted to Chevron.France has also banned fracking despite its wealth of shale gas deposits.

In his account of a recent Duke University workshop on fracking, “the Green Grok,” a.k.a. Bill Chameides, dean of Duke’sNicholasSchool of the Environment, posed the key question for environmentalists: “Does fracking undermine drinking water?” His answer: “This is a huge question with only a tiny bit of data – enough to raise some questions, but not enough to provide definitive answers.”  

Meanwhile, the EPA began a study of the impact of fracking on drinking water in 2010. That study is still underway. The agency’s final word won’t necessarily be definitive and certainly won’t persuade everyone, but the matter will likely remain in a holding pattern until the study is finished.

Michigan Lawyers Weekly wins three awards

 Michigan lawyers Weekly has won two first-place awards and one second-place award in its category in the 2011 Michigan Press Association (MPA) Better Newspaper Awards.

The paper won first place in the design category; with acknowledgment to production manager Maria Trejo and graphic designer Dawn Davis who design and build the paper.

First and second place were awarded in the Special Sections category for the 2010 Leaders in the Law and 2010 Up & Coming Lawyers sections, respectively. The entire staff was recognized for their various contributions to the sections.

“We at Michigan Lawyers Weekly are elated that the MPA has recognized our work in both graphic design and special sections,” said publisher Don Stemmermann. “This is the result of a combination of teamwork and the efforts of some very talented people. It is also part of a larger commitment to our readers to make sure they enjoy a top-quality product each and every week. “

Members of Colorado Newspaper Association reviewed 2,542 entries submitted by 102 Michigan newspapers.

COA reverses itself, allows videographer

After much wrangling and apparent confusion, the Michigan Court of Appeals has reversed itself and will allow a journalist to videotape oral arguments in a pot case.

After initially denying Eric VanDussen’s request to tape the proceedings in People v. Anderson, the COA finally came to the realzation that he actually IS a journalist.

Or maybe it was the State Supreme Court telling the COA that its excuse explanation that “fair administration of justice requires such action,” wasn’t good enough.

Or maybe it was Justice Markman’s comments on a different COA denial questioning that  same rationale — noting that every single Supreme Court oral argument is “accessible to the public on Michigan Government Television.”

Or maybe it ‘s the fact that an administrative file has been opened concerning the continued workability of Administrative Order 1989-1 — which allows courts to use excuses  give explanations like “fair administration of justice requires such action,” to deny access.

A big question is why the COA would deny media access in such a hotly debated issue as the medical marijuana law, which is in great need of scruitny and closely followed by all quarters.

Well, the smoke has been cleared from the room — at least for now.