District Court Clerk's Corner

Geri Smith

Judge Dan Aaron Polster and Magistrate Judge Kenneth S. McHargh Interview Re: Court Reentry Program
On Friday, Dec. 2, Judges Polster and McHargh were interviewed by WOIO reporter Harry Boomer regarding Cleveland’s Successful Transitions-Accelerated Reentry (STAR) Program, which assists high risk offenders in reentering the Greater Cleveland Community. You may view the video at:

www.woio.com/Global/story.asp?S=16173330

Akron Courthouse Attorney Lounge
The U.S. District Court for the Northern District of Ohio is pleased to announce the opening of an Attorney Lounge located on the B-3 Level of the John F. Seiberling Federal Building and U.S. Courthouse, in Akron, Ohio. The Attorney Lounge is adjacent to the cafeteria. Amenities of the lounge include a conference area, wireless access to attorneys admitted to practice in the district, telephones, a printer, scanner and copier.

Amendment to Realtime Services Policy
At its September 2011 session, the Judicial Conference amended the maximum realtime transcript rate policy to eliminate the requirement that a litigant who orders realtime services must purchase a certified transcript (original or copy) of the same pages. Effective Jan. 1, 2012, Certified Realtime Reporters (CCR) may continue to charge a per page fee for a realtime unedited transcript transmitted via a realtime feed in the courtroom but they may no longer require a litigant to order a certified transcript of the same proceeding. Litigants may order a certified transcript, but they are not required to do so.

U.S. Courts Opinions
The Northern District of Ohio is participating in a pilot project through the Administrative Office of the United States Courts (AOUSC) and the U.S. Government Printing Office (GPO) through its Federal Digital System (FDsys), to provide public access to opinions from selected U.S. appellate, district and bankruptcy courts. The FDsys system has a robust search engine that can search across opinions and across courts. The content of this collection dates back to April 2004, though searchable electronic holdings for some courts may be incomplete for this earlier time period. Once an opinion is located, all associated opinions within the same case can be accessed.  The pilot will run for one year and will consist of no more than 12 courts. You may access the site at www.gpo.gov/fdsys/browse/collection.action?collectionCode=USCOURTS.

Electronic Courtroom Training
I am pleased to report that our semi-annual one CLE credit hour Electronic Courtroom Training was held throughout the district this past November with at total of 182 in attendance. Information to assist you with our courtroom technology may be found at www.ohnd.uscourts.gov/home/courtroom-support/courtroom-technology/.

Criminal Justice Act (CJA) National Policy and Procedure Training
CJA National Policy and Procedure training was offered by the Clerk’s Office to all CJA Panel attorneys in conjunction with the Office of Defender Services of the United States Courts and the Office of the Federal Public Defender for the Northern District of Ohio on the national Criminal Justice Act (CJA) policies and procedures. The 90 minute program reviewed the CJA process from initial appointment to final approval of a voucher with attention devoted to: the CJA Overview and Processes; Compensation and Expenses for Counsel; Authorization and Payment for Other Services; National Online Reference Tool; and CJA20 Calculating Spreadsheet. More information may be found on the Court’s website at:

www.ohnd.uscourts.gov/home/attorney-information/appointment-of-counsel-cja/

The training update incorporated action taken by the Judicial Conference of the United States, at its September 2011 session, approving policy guidance on billing practices of appointed counsel and investigative, expert, and other service providers and on the invoicing of interpreting services specifically under the CJA. The billing guidance specifically addressed: billing procedures for time spent and expenses incurred in common with more than one CJA representation; disclosure requirements for travel and other work that is done for both a CJA and non-CJA purpose; information on interpreter rates of compensation; and contemporaneous time records and record retention requirements for service providers:

Please refer to:

www.uscourts.gov/uscourts/cjaort/index.html

New PACER Services Offer Virtual Training and Mobile Case Locator
Two new offerings have been made available for the Judiciary’s Public Access to Court Electronic Records (PACER) service:

Free PACER Training Site
A free-of-charge website offers access to a training database through the PACER service. The site features data from real cases in the Western District of New York over a six-month period in 2007. The training site can be accessed under the Frequently Used section (PACER Training Site link) on the PACER website at: http://www.pacer.gov . No registration is required and a login and password are posted on the training site’s Welcome Page. Users can search the database to find cases to explore. As searches are conducted, a transaction receipt display will explain what charge would have been accrued on the PACER service. Reviewing the receipts will help users understand their PACER charges and improve their searching techniques to minimize charges.

Mobile PACER Case Locator
The Judiciary has launched a new mobile version of the PACER Case Locator. The PACER Case Locator allows searching for court records in all district, bankruptcy, and appellate courts. The Mobile PACER Case Locator is accessible using Apple devices, such as iPads, as well as Android devices version 2.2 or higher.
When using supported mobile devices, users will be redirected to the Mobile PACER Case Locator when visiting http://pcl.uscourts.gov to search for court records on-the-go. With nothing to install, the Mobile PACER Case Locator can be accessed directly by visiting http://pcl.uscourts.gov/searchmobile.

Electronic Public Access Fee Increase Effective April 1, 2012
At its September 2011 session, the Judicial Conference amended the Electronic Public Access Fee Schedule for the appellate, district, and bankruptcy courts, the United States Court of Federal Claims, and the Judicial Panel on Multidistrict Litigation. The AO will begin charging the new fee on April 1, 2012. The schedule was amended to increase fees from $.08 to $.10 per page for electronic public access to court records through the PACER service. To lessen the impact of the increase, the Conference raised the quarterly exemption from $10 to $15 and suspended implementation of the fee increase for local, state, and federal government agencies for three years.

Amendments to the Federal Rules of Practice and Procedure
Amendments to the Federal Rules of Appellate, Bankruptcy, Criminal Procedure, and Evidence took effect Dec. 1, 2011. Congress took no action after the changes were approved by Supreme Court more than seven months earlier. That means new amendments to these rules are now in effect:

• Appellate Rules 4 and 40.
• Bankruptcy Rules 2003, 2019, 3001, 4004, and 6003.
• Criminal Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and 49.
• Evidence Rules 101-1103.

In addition, new Bankruptcy Rules 1004.2 and 3002.1 are in effect, as well as new Criminal Rule 4.1. Detailed information on the Federal Rules is available at:

www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview.aspx

Geri M. Smith was appointed the Clerk of Court for the U.S. District Court Northern District of Ohio on July 1, 1991, having joined the court in 1982. She serves as the chief administrative officer of the court as well as the administrative assistant to the Chief Judge. Smith is a member of the FBA-NDOC Board of Directors.

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The Judge's Gavel: State of the Court

Solomon Oliver Jr., Chief Judge

Remarks by Chief Judge Solomon Oliver Jr. at the funeral services for retired Chief U.S. District Judge George Washington White on Nov. 19, 2011

It is with a heavy heart that I stand before you this morning. It is a great honor and a privilege to have this opportunity to briefly speak, on behalf of the judges of our court, about my friend and colleague—our friend and colleague—George Washington White. Judge White was appointed to the U.S. District Court for the Northern District of Ohio in 1980 by President Jimmy Carter on the recommendation of then Ohio Senator John Glenn. He served with distinction on the court for 19 years, retiring in 1999. During his last four years on the court, he served as our Chief Judge. Judge White was the first African-American to serve on the U.S. District Court for the Northern District of Ohio and its first African-American Chief Judge. As some of you may know, the U.S. District Court for the Northern District of Ohio covers more than the Cleveland area. It covers the top half of Ohio from the Indiana line on the west, to the Pennsylvania line on the east. There are approximately 6 million people within this territory. Currently, our court has 22 judicial officers: 10 active and 4 senior district judges, and 8 magistrate judges. Our court holds sessions, and has judges located in Cleveland, Akron, Toledo and Youngstown. I am pleased to announce that today our United States flag is being flown at half-mast at each of our court house locations in honor of this great American Judge, George Washington White.

Judge White took his oath seriously, “to do equal right to the rich and the poor.” He treated all who came before him fairly. It did not matter what your race or economic status, or whether you were the government or a corporation. He had a kind and friendly style reflecting his often quoted philosophy, that you can catch more flies with honey than vinegar. But despite his kind and gracious style, there was never any doubt that he was in control of his courtroom.

As Chief Judge, he was respectful of his colleagues and fostered and improved our collegial governing system. He offered steady and appropriate leadership, but was committed to the principle that all of our colleagues should be meaningfully involved and that our policies would be developed and administered based on what a majority of the judges decided. In some ways he was no-nonsense. He quickly proposed that we get rid of our once monthly all-day judges’ meetings in favor of having judges’ meetings every other month, with the intervening month being used for our committee meetings.  

Judge White’s people- and giving-oriented philosophy is reflected in his life beyond the court. He spent much of his life teaching young people to believe in themselves and in the necessity of giving back. In essence, he sought to teach them, as the late Dr. Benjamin Elijah Mays, the former president of Morehouse College, taught the students there, including Dr. Martin Luther King Jr., that “the tragedy in life doesn’t lie in not realizing your goal, the tragedy is having no goal to reach.”

His giving and can-do philosophy is also reflected in his community activities, including the founding of the United Black Fund, which became a United Way affiliate, to serve as an umbrella organization for other agencies serving the black community.

If you will indulge me, let me give a brief example of how he was helpful to me in my pursuit of being a judge on this court. Having heard that he preferred another or other candidates, I went to visit him to make sure he knew of my interest. Though I knew him somewhat, I had no expectation that he would affirmatively support me. He quickly assured me that he was not supporting anyone else. So much for rumors. He then offered to assist me by letting Senator Glenn, who had recommended him to the president for appointment, know that he thought I would be an excellent candidate. Before the afternoon had passed, an appropriate letter had been crafted and sent to Senator Glenn. Both Senators Metzenbaum and Glenn recommended me for the appointment, and I am sure George’s strong recommendation was of substantial assistance in my receiving the nomination and appointment to the court by President Clinton in 1994. I shall be forever grateful to him for what he did for me on that occasion as well as others.

I ask myself: what made George White tick? What caused him to become the great leader and public servant that he became under less than optimal circumstances? Consider that he was born in Duquesne, Pennsylvania in 1931 during the Great Depression. Things were bad generally, but more so for black people. But George’s parents, his father who was a minister and his mother who taught music lessons, named him George Washington. Though George was named after his father, like his father he was named for our first President. I think that name spoke volumes about his parents and the child they would raise. The name George Washington was a reminder to America of its promise, though not yet fulfilled, that in America anyone can become whatever he or she strives to achieve. To George, it was a statement by his parents that we believe in you and that you are somebody. After all, how can you not be somebody if your name is George Washington? It was also a statement to George that he should not accept anything less than the best of himself and of America. But his parents must have taught him that it was not all about himself. They must have said to him as the grandmother of the poet Maya Angelou said to her, “when you get give, when you learn teach.” And that is what George’s life was always about, getting and giving, learning and teaching, getting and giving, learning and teaching. . . .

So, farewell, dear friend. Rest easy and assured that your contributions to our court and society will not be soon forgotten.

Judge Oliver received his B.A. degree from the College of Wooster and his J.D. from New York University.  He was appointed to the U.S. District Court for the Northern District of Ohio in May of 1994.  Previously, he served as Associate Dean and Professor of Law at Cleveland-Marshall College of Law.

He also served as Chief of the Civil Division and Chief of Appellate Litigation in the U.S. Attorney’s Office in Cleveland.  Judge Oliver clerked for the late William H. Hastie of the U.S. Court of Appeals for the Third Circuit.  He served as Secretary to the Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar, and Co-chair of the Litigation Section’s Minority Trial Lawyer Committee.  He is a member of the American Law Institute, the Board of Trustees of the College of Wooster, and the Judicial Conference of the United States.

Judge Oliver received the Distinguished Alumni Award from the College of Wooster and from NYU’s Black, Latino, Asian Pacific American Law Alumni Association.  His most recent publication is a chapter on summary judgment in a six-volume treatise entitled, Business and Commercial Litigation in Federal Courts.

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Law School Corner

Case Western Reserve University School of Law
Case Western Reserve University School of Law hosted a special program entitled “The Disappearing Trial in Federal Court” on Monday, Nov. 7, 2011. Immediately prior to the program, NDOC President Diana Thimmig, addressed the primarily student audience concerning the benefits of student membership in our Chapter. Program speakers included: the Honorable Dan A. Polster, United States District Court, Northern District of Ohio; Jessie Hill, professor of law, CWRU; Kevin McMunigal, Professor of Law, CWRU and Cassandra Robertson, Professor of Law, CWRU. NDOC Board Member, Professor Jonathan Entin, CWRU School of Law and the NDOC CWRU Student Representative Brittney Bennett and NDOC CWRU Student Representative Mirela Turc organized the membership event.

Cleveland-Marshall College of Law
Cleveland-Marshall College of Law hosted an Orientation for its law students on Wednesday, Sept. 14, 2011 in the school’s atrium. At that time, various bar associations, student fraternities and organizations were provided an opportunity to meet students and talk about benefits of membership. Our Chapter was represented at the event by Chapter President Diana Thimmig and CSU Student Representatives George Ofori and Chang Nguyen. By the end of the evening and as a result of George and Chang’s outstanding efforts, our Chapter had 61 new CSU student members!

University of Toledo College of Law
On Oct. 21, law students at the University Of Toledo College of Law got the rare opportunity to not only listen to Federal Judges’ Katz and Knepp discuss the value of professionalism, but students were also able to ask questions of the Judges experiences on the bench. While the atmosphere was light and comical, students walked away gaining valuable insights into what types of actions by lawyers that the Judges appreciate, and even more important what types of actions to avoid.

The event was sponsored by the Federal Bar Association, Northern District of Ohio Chapter and the College of Law Office of Professional Development.

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Members in the News

Magistrate Vernelis K. Armstrong was honored as recipient of the 2011 Robert A. Kelb Distinguished Service Award by the Toledo Bar Association presented at its Holiday Luncheon on Dec. 9, 2011. The Kelb Award is given to persons who consistently devote time and talents in service to the Toledo Bar Association through work on its various committees. At this same event, Magistrate Judge Armstrong was also honored along with other lawyers for being a 50-year member of the legal profession.

Annette G. Butler became the newest judge on the Cuyahoga County Common Pleas Court bench when she took office on Dec. 12 after her appointment by Gov. John R. Kasich. Butler replaces former Judge Timothy McGinty, who resigned on Oct. 31. To serve out the remainder of McGinty’s term, which ends Jan. 1, 2017, Butler must run in the November 2012 general election. Butler is a past president and current board member of the Federal Bar Association’s Northern District of Ohio Chapter.

Mona Ma, a Cleveland-Marshall College of Law student representative serving on the FBA-NDOC Board from 2010-2011, was the recipient of the ABA-BNA Award for Excellence in the Study of Labor & Employment Law. In addition, Ma received the Suggs I. Garber Award for the Highest Grade Averages in Courses in Business Organizations and Taxation.

Chang Nguyen, FBA-NDOC Student representative from Cleveland-Marshall College of Law, will finish her third law of law school at Catholic University in Washington, D.C.  Chang will also serve as an extern for the House Oversight Committee. 

Sunny Nixon, a vice-chair of our New Lawyers Committee, was awarded the William A. Blair Memorial Service Before Self Award for outstanding service to the community. Nixon was also recognized by the OSBA, Labor and Employment Law Section for Outstanding Work in the Field of Labor & Employment Law.

James W. Satola, Federal Bar Association Sixth Circuit Vice President and FBA Northern District of Ohio Chapter Board Member (and Past Chapter President), announced his candidacy for Judge of the Cuyahoga County Court of Common Pleas, with the filing and certification of petitions for candidacy with the Cuyahoga County Board of Elections on December 7th.  Satola will appear on the Cuyahoga County Democratic Party ballot in the Primary Elections to be held on Tuesday, March 6, 2012.

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Omission Note from Editor

Photos published in the FBA Northern District of Ohio Chapter Joins in Memorial Tribute article in the June 2011 issue of Inter Alia are credited to the Cleveland Metropolitan Bar Association.

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Member opportunity for admission to the U.S. Supreme Court

The FBA Northern District of Ohio Chapter is pleased to host William K. Suter, Clerk of the U.S. Supreme Court, when he travels to the Northern District of Ohio to swear-in new members for admission to the nation’s highest court. This event will take place at a luncheon at the historic Toledo Club in downtown Toledo on Friday, April 20, 2012. Following the swearing-in and luncheon, the FBA-NDOC will also sponsor a CLE on appellate advocacy featuring judges and practitioners alike. A cocktail reception following the CLE will take place at the Toledo Club for those attending the CLE and other FBA-NDOC members.
           
Don’t miss this opportunity to be admitted to practice before the nation’s highest court without having to travel to Washington, D.C. If you are an attorney who has been admitted to practice for at least three years and are in good standing, you can add “Member of the Supreme Court Bar” to your list of achievements. You must be a FBA-NDOC member to be sworn-in at this event or become a member as part of your application. Requirements for admission are located at the Supreme Court’s website: www.supremecourt.gov/ and must be submitted to the FBA-NDOC no later than March 2, 2012. For questions, send an email to: admin@fba-ndohio.org. Watch for additional announcements regarding the luncheon and CLE.

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The Honorable George Washington White, 1931-2011

by Nancy A. Vecchiarelli, U.S. Magistrate Judge for the Northern District of Ohio

Born in Duquesne, Pa., George Washington White was the son of a Baptist minister and a music teacher. He called himself a “PK,” that is, a Preacher's Kid. He sang, played the piano and the violin, and was taught that the congregation was his family. This early environment was the foundation for Judge White’s faith, his sense of service to his community, his compassion for others, his gentle manner, his humility, his patience, his strong determination and belief in personal responsibility, and his joy for life. He exhibited these qualities not only in his courtroom, but in his daily life and service to the community. ¹

Judge White was inspired to become a lawyer when he met a lawyer and his wife while selling pots and pans door-to-door to help pay for his college education at Baldwin-Wallace. Although he did not sell them any pots and pans, the couple befriended him and encouraged him to go to law school. He later worked at the Federal Reserve Bank, as a coin handler and then as a teller, while he attended law school. He never forgot that $100 in pennies weighs 68 pounds and 8 ounces.

Judge White graduated from Cleveland-Marshall College of Law in 1955, went into private practice, and then investigated and refereed cases in the Domestic Relations Division of Cuyahoga County Common Pleas Court. In the early 1960s, he was elected to Cleveland City Council, where he represented the Lee-Harvard area for 5 years. In 1968, he ran for and won a seat on the Cuyahoga County Court of Common Pleas, where he served until he was appointed as a federal judge for the Northern District of Ohio in 1980 by President Jimmy Carter upon the recommendation of Senator John Glenn. He became Chief Judge for the Northern District of Ohio in 1995, where he helped shepherd the court into the electronic age and oversaw the construction of the new Carl B. Stokes U.S. Court House. Importing his experience as a legislator into his role as Chief Judge, he made his mark as a consensus builder and fostered collegiality in the federal court.

Judge White was a man of fierce determination, as he showed at the Federal Reserve when his immediate supervisor told him that he would never amount to anything and would never be more than a coin handler. Not surprisingly, Judge White soon achieved a promotion to a better job than his supervisor. He displayed this same determination (and achievement) years later when he was a common pleas judge and a senator told him he would never become a federal judge (because Judge White had supported the Senator's opponent in an election). “Can’t do” was never a phrase in Judge White’s vocabulary.

Judge White was a trail blazer in his judicial career: he was the first African-American to win a county-wide election in Cuyahoga County when he was elected to the Common Pleas Bench; he was the first African-American to be appointed a federal judge in the Northern District of Ohio; and he was the first African-American to be Chief Judge in the district.

His career on the federal bench involved many significant and high profile cases involving such people as Teamster’s President Jackie Presser, reputed pornography king Reuben Sturman, and Phar-Mor President Mickey Monus. Most significant, however, was the Cleveland Schools desegregation case. State and school officials had been operating under a school desegregation order for more than 20 years when Judge White became involved. In 1998, he ruled that the state and the school district had done all they could to comply with the order, dismissed two lawsuits that were preventing the city’s mayor from taking control of the schools, and freed the schools from court control effective July of 2000. Judge White’s actions have been described as “courageous,” as “‘the decisions by Judge White . . . were the first steps in removing politics and cronyism from public education’ . . . and led to safer, financially stable schools where children are achieving more.” ²

In his courtroom, Judge White’s personality and character shined. He had a quick wit, a huge smile, and an engaging laugh and sense of humor. He combined these qualities with intelligence, common sense, and street smarts. A strike force lawyer once commented that Judge White had the best “[truth]-meter” he had ever seen (expletive omitted). Judge White never lost his patience and had the rarest of abilities: he could be good natured, smile and still be in complete control of his courtroom. He had a steady and calm demeanor and an uncanny ability to manage contentious and stressful cases. The qualities of his character and his love of trials, engaging with the lawyers, and telling stories about the happenings in his courtroom are reflected in the lawyers’ own stories.
 
An assistant U.S. attorney prosecuting a large drug conspiracy case before Judge White recalled Judge White’s unflappable demeanor:
                                               
The big defendant was represented by a hot shot pain-in-the-butt Florida attorney who knew it all. The attorney wanted to prevent me from introducing co-conspirator testimony. I believe it was at trial that the hot shot approached Judge White and tried to ramrod the attorney’s interpretation of Bourjailly [a U.S. Supreme Court decision regarding the admission of co-conspirator statements] down the judge’s throat, completely mispronouncing and butchering the name of the Supreme Court’s case in an attempt to impress the court as to his deep knowledge of the law and his erudition. The judge patiently listened to the hot shot completely misconstrue the holding, smiled that smile of his, and responded something like: “Counselor, I was the judge who decided the facts in Bourjailly (pronouncing it correctly). The Sixth Circuit reversed me, but the Supreme Court decided I was right after all. Objection overruled. Naturally, you can take an appeal if you want.” I believe his client plead guilty in the middle of trial shortly thereafter.

Another lawyer recalled Judge White’s sound perspective of life:

We had a particularly tough day with hotly contested issues. At the end of the day, after the jury had retired, the judge called us to the sidebar, gave us a stern look, and said, “I just want to make sure that you all take the time to stop and smell the roses.” What a delightful and positive way of telling us that we had let things get a little out of hand.

A lawyer who prosecuted a fraud case before Judge White that involved a defendant who was a young, drug-addicted woman manipulated into the fraud scheme recalled Judge White’s compassion and discretion:

I was so shocked when Judge White gave her a prison term that tears welled up in my eyes as the Marshals took her away. While packing up my files, I received word the judge wanted to see me. When I walked into his chambers, Judge White said, “You seemed upset about that sentence.” I replied that I was surprised given her circumstances, her limited role in the scheme, her sobriety, her contrition, and her substantial cooperation in the trial. He said, “Don't worry. In an hour I am going to release her. I saw something positive in this young woman. I think she can make it. But I want to make sure she understands the importance of the second chance she is getting with probation.”

This was a technique Judge White used in many cases when he saw signs of hope and good character in a defendant. He used a similar tactic on lawyers who occasionally strayed out of line. If a contentious lawyer continued to challenge the Judge in the courtroom after several warnings, Judge White would call the lawyer to side bar and say “that will be $50.” When the lawyer tried to argue with him, Judge White would say, “that will be $100.” When the lawyer protested, Judge White would say “that will be $200,” and so on, until the lawyer got the message. Of course, he never docketed the order or made a formal finding of contempt, which would have been a very serious thing for the lawyer; rather, the Judge made his point and got the results he wanted.

Judge White had a firm respect for law and order tempered with a light heart. In a bank robbery prosecution, he had a defendant who spit and tried to bite a deputy marshal brought into the courtroom in arm and leg shackles with his mouth taped. The judge said: “Jurors take a dim view of defendants handcuffed to a chair with their mouths taped shut. I want you to get a fair trial, but I want you to know also that if you conduct yourself in such a way that you have to be taped and handcuffed to a chair, I don’t think any jury is going to give you a fair trial.” ³ The defendant represented himself through the trial. In his closing argument, the defendant told the jury that he was, in fact, a bank robber, and that based on his experience as a bank robber he could assure them he would never have robbed the bank in the manner that this bank was robbed. Judge White had to turn away from the jury so they could not see him laughing.

Anyone who knew Judge White heard about a case that was prosecuted before Judge White by then Assistant U.S. Attorneys Dan A. Polster and Kenneth S. McHargh. The case involved a notorious father and son duo who orchestrated a series of elaborate schemes that defrauded hundreds of individuals and businesses. These defendants were undaunted by having previously been convicted for similar conduct, and they attempted to use the same cunning and stealth that had enabled them to inveigle hundreds of thousands of dollars from unsuspecting victims to frustrate the court and mislead the jury. So confident in his persuasive abilities, the son chose to represent himself, while his father and co-defendants were represented by highly experienced defense counsel. During the proceedings, the defendants claimed they had diplomatic immunity as ambassadors from the Hutt River Kingdom located in Australia. They claimed that the Hutt River Kingdom was ruled by King Leonard and Queen Shirley, who were farmers that did not like the quota placed on their wheat production and, therefore, seceded from Australia and printed their own money and stamps. The defendants’ “kingdom” was not recognized by Australia or any other nation—nor was it recognized by Judge White or the Sixth Circuit.

During this same trial, the son had an argument with his advisory appointed counsel. Suddenly, the son ran up on the bench, hid behind the Judge, and shouted in dismay that his lawyer was going to hit him. The Judge, with a stern look on his face, commanded, “Get off my bench right now.” The defendant, frightened, went back to his seat. The Judge informed him that there were deputy marshals in the courtroom with guns, and that they get very nervous when defendants get too close to the judge. At the recess, everyone had a good laugh. Ultimately, the defendants were found guilty on all counts. But while the brash, bizarre, and implausible quality of the defendants’ conduct occasionally resulted in moments of levity, Judge White never lost sight of the harm caused to the victims. After allowing the defendants to have their “day in court,” he responded to their incorrigible conduct and past criminal history by sentencing them to 50 and 100 years of imprisonment—a sentence he later reduced to 20 or 30 years after the Sixth Circuit suggested the original sentence might be a bit excessive.

Judge White was not merely a lawyer and a jurist; he was a down-to-earth person, and any description of him must include his avid enthusiasm for the game of golf. He started The First Club of Cleveland, a nine hole golf course in Lodi owned and operated by a significant African-American membership. He not only played golf there, but he sometimes would mow the greens and fairways for fun. He also brought his golf into his chambers, as one lawyer reminisced:

As a young public defender, I remember trying cases before him in state court back in the early 1970s. One day I walked into Judge Frank Gorman’s chambers [next to and paired with Judge White’s] and saw the shaft of a golf club sticking out of one of the ceiling panels. I remember asking the Judge, “What is that all about?” Judge Gorman, laughing, responded, “George was practicing his golf swing.” You had to know these two judges, but I died laughing.

As Judge White would never have thrown a club, the only possible explanations are either that the club slipped out of his hand, or that it was caused by his rather unconventional and unique swing.

Even though he was a federal judge, and later the Chief Judge, Judge White never hesitated to meet with, counsel and mentor scores of young men and women. He never turned anyone away. He not only told them that they could accomplish anything they worked to achieve, but he also offered lessons in inspiration and humility. In 1990 he sent his message from the pulpit at Antioch Baptist Church on East 89th and Cedar when he was a guest speaker for Men’s Day. He challenged the audience to learn self-love, to take control of their destinies, and to make good choices on problems they could control. His devotion to his community included more than words and counseling. In 1981, Judge White founded the United Black Fund of Cleveland, a charitable umbrella organization serving more than 80 non-profit agencies annually to the benefit of thousands of children, families, and seniors; and in 1999 he left the bench to head the charity arm of the new Cleveland Browns, The Cleveland Browns Foundation. He had said, “I love my family, but I don’t love my community any less.”

Judge White imparted his lessons of confidence and humility with two of his own favorite stories. When Judge White was a new city councilman, a colleague approached him and asked him to support the effort to do something about “derbies on the lake.” The Judge had no idea what that meant and wondered if he had gotten in over his head. He gave a non-committal answer and said he would consider it. Then he saw the literature and realized his colleague was speaking of “debris on the lake.” From that point forward he had 100 percent confidence that he could do any job. But the Judge was aware of the dangers of becoming too confident. If someone was getting too big for his britches, the Judge would say, “If you think you are a big man, put your hand in a bucket of water. If you have left a hole in the water, then you are a big man.”
The Honorable George Washington White would have agreed that he, too, could not achieve so impossible a feat. But the quality of his character and the value of his person are clearly defined by a similar measure: the imprint he made in our hearts and minds and in our community that will never be filled.

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Getting What You Pay For: Judicial Compensation and Judicial Independence

By Jonathan L. Entin, Professor of Law and Political Science, Case Western Reserve University

This is an abridged version of an article that was published at 2011 Utah L. Rev. 25 and appears here with the permission of the Utah Law Review.

One vital way of assuring judicial independence is to guarantee that judges need not fear that their salaries will be reduced if they render unpopular or controversial decisions. The U.S. Constitution seeks to do this by providing that all federal judges “shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” As the Supreme Court explained in perhaps the leading case on the Compensation Clause, “[a] Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.”

The Compensation Clause does not forbid increases in judicial pay; it prohibits only reductions in judges’ salaries. This aspect of the clause undoubtedly reflects the notion that the prospect of a pay cut poses a greater threat to judicial independence than does a pay raise.

The apparent simplicity of the language of the federal Compensation Clause and its state counterparts conceals several troublesome issues: When does a judicial salary become vested? Does taxation of judicial salaries unconstitutionally diminish judicial compensation? Does withholding of cost-of-living increases impermissibly reduce judges’ pay? Apart from constitutional concerns, how much should judges be paid and how often should their salaries be increased?

Vesting of Judicial Salaries
The Supreme Court has established that judicial salaries vest for purposes of the Compensation Clause when they take effect. Proposed pay raises may be rescinded before their effective date, but once they have gone into effect any such raises may not be revoked. This is the lesson of United States v. Will, 449 U.S. 200 (1980). Congress may not lower judges’ salaries, but it has broad discretion to grant or withhold judicial pay raises before the beginning of the fiscal year.

Similar issues have arisen at the state level, where courts also have enforced judicial salary protections analogous to those in the federal Compensation Clause. A recent example comes from Pennsylvania. In Commonwealth v. Stilp, 905 A.2d 918 (Pa. 2006), the state supreme court rebuffed an effort to roll back a pay raise four months after it had gone into effect.

The Pennsylvania Constitution contains a clause providing that judges’ compensation “shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.” The court found that the repeal measure quite clearly “reduced [judicial] salaries during the judges’ terms of office.” Pennsylvania faced no “dire financial circumstances,” so the exception could not justify repeal of the judicial pay raise. Moreover, the repeal measure reduced only judicial and legislative pay, so it did not qualify under the constitutional exemption for general rollbacks in compensation.

While Stilp follows the analytical framework laid down in Will, some state courts have followed a more robust approach. For example, in Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004), the Supreme Court of Illinois found that the governor’s efforts to prevent judicial salary increases from taking effect before the start of the fiscal year violated the Compensation Clause of the state constitution.

Taxing Judicial Salaries
The Supreme Court struggled for more than 80 years with the question of whether imposing taxes on the salaries of federal judges violated the Compensation Clause. In Evans v. Gore, 253 U.S. 245 (1920), the Court held that Congress could not constitutionally extend the federal income tax to sitting judges. By requiring the plaintiff judge to remit the tax after receiving his pay, the government was reducing his salary: “Was he not placed in practically the same situation as if [the money] had been withheld in the first instance? Only by subordinating substance to mere form could it be held that his compensation was not diminished.”

In Miles v. Graham, 268 U.S. 501 (1925), the Court ruled that the income tax could not constitutionally be applied to a judge who was appointed after the tax’s enactment. The timing of the judge’s appointment made no difference: Congress must fix judicial salaries, after which “the amount specified becomes the compensation which is protected against diminution during [the judges’] continuance in office.” Because the tax diminished the judge’s pay, it was invalid.

Miles v. Graham was overruled by O’Malley v. Woodrough, 307 U.S. 277 (1939), which taxing the salary of a federal judge who took office after the tax statute was enacted. Justice Frankfurter could scarcely conceal his incredulity at the view that subjecting newly appointed judges to a nondiscriminatory, pre-existing income tax might compromise judicial independence. The tax merely “charge[s] them with the common duties of citizenship, by making them bear their aliquot share of the cost of maintaining the Government.”

The end for Evans v. Gore came in United States v. Hatter, 532 U.S. 557 (2001), which challenged the extension of Medicare and Social Security taxes to sitting federal judges. Before 1983, Article III judges (and most other federal employees) were exempt from both taxes. The Hatter Court overruled Evans v. Gore because the Constitution does not forbid “a nondiscriminatory tax that treat[s] judges the same way it treat[s] other citizens.”

The Hatter Court upheld the extension of Medicare taxes to Article III judges as part of a statute that also brought most other previously exempt federal workers into that program. Less persuasively, the Court found that the Social Security tax extension violated the Compensation Clause because it somehow discriminated against federal judges.

As a practical matter, Hatter makes it unlikely that taxation issues will intersect with the Compensation Clause again. Lurking in these cases, however, is another rationale for the Compensation Clause: maintaining judicial salaries at a level that will attract excellent lawyers to the bench.

Withholding Cost-of-Living Increases
The Compensation Clause implications of inflation were foreshadowed in Hatter. After concluding that the extension of Social Security taxes to sitting federal judges constituted an impermissible diminution in judicial pay, the Court rejected the government’s argument that subsequent pay raises, which exceeded the cost of the new taxes, served to remedy the violation. Justice Breyer explained that “the judicial salary increases [cited by the government] simply reflected a congressional effort to restore . . . to judges . . . some, but not all, of the real compensation that inflation had eroded.”

At the time of the Hatter decision, Williams v. United States,240 F.3d 1019 Fed. Cir. 2001, a case addressing the erosion in the real value of judicial salaries, was making its way through the system. Williams rejected a Compensation Clause challenge to congressional action setting aside several cost-of-living increases in judicial salaries. The case arose under the Ethics Reform Act of 1989, which established a new system for determining judges’ pay. That statute raised judicial compensation by 25 percent to make up for the effects of inflation. In addition, it provided for cost-of-living increases for federal judges in any year that civil service employees received such salary adjustments. Although judges received cost-of-living adjustments for several years, Congress passed legislation blocking raises in 1995, 1996, 1997 and 1999.

Several federal district judges claimed that withholding cost-of-living adjustments unconstitutionally diminished their compensation. The U.S. Court of Appeals for the Federal Circuit held that Will doomed the judges’ claims: the blocking statutes were enacted before the start of each relevant year, so the cost-of-living increases for those years never took effect.

The Supreme Court denied certiorari, over the dissent of three justices. With the support of Justices Scalia and Kennedy, Justice Breyer (who wrote for the Court in Hatter), wrote a 12-page opinion suggesting that the Ethics Reform Act could be seen as embodying a congressional commitment “to protect federal judges against undue diminishment in real pay by providing cost-of-living adjustments to guarantee that their salaries would not fall too far behind inflation”; the blocking statutes that withheld those adjustments could be construed as breaching that congressional commitment in violation of the Compensation Clause.

In addition, failure to raise judicial salaries had caused genuine economic harm. The real value of federal district judges’ pay had declined by nearly 25 percent since 1969, leaving judicial compensation “below that of typical mid-level (and a few first-year) law firm associates and many law school teachers and administrators, [while] the real compensation earned by the average private sector worker has increased, as has that in nearly all employment categories outside high levels of government.”

Meanwhile, in late 2001 Congress made permanent an earlier appropriations rider requiring specific legislative approval for any judicial pay increase. This development changed the process for awarding cost-of-living increases for federal judges from a presumption in favor of such adjustments, the system embodied in the Ethics Reform Act, to a presumption against them. Moreover, the change affected only federal judges. Under the reasoning of Hatter, which focused on whether Congress had “impose[d] a special legislative burden upon [judges’] salaries alone,” singling out the judiciary for less favorable treatment in connection with cost-of-living adjustments might well violate the Compensation Clause.

It is possible that we will soon get an authoritative response from the Supreme Court. After Congress failed to increase judicial salaries for 2007, another group of judges (including Judge Hatter) filed a new lawsuit alleging that their compensation had been diminished unconstitutionally. In Beer v. United States, 361 F. App’x 150, 592 F.3d 1326 (Fed. Cir. 2010), the Federal Circuit summarily affirmed the dismissal of the complaint, reasoning that the case was controlled by Williams. A petition for certiorari was filed in May 2010, but no disposition of the petition has yet been announced.

Although federal judges so far have been unsuccessful in challenging the withholding of cost-of-living adjustments, a similar claim succeeded in Maron v. Silver, 925 N.E.2d 899 (N.Y. 2010). The New York Court of Appeals ruled that the state judiciary had been wrongly deprived of cost-of-living increases over an eleven-year period during which the real value of judicial salaries had declined almost 33 percent.

The decision did not rest on the state’s Compensation Clause, but rather on general principles of separation of powers. The legislature had not explicitly reduced judicial salaries nor had it passed any measure that discriminated against judges economically. Rather, judicial pay remained frozen due to an unrelated political impasse between the governor and the legislature. Those officials had “fail[ed] to consider judicial compensation increases on the merits, and instead [held] them hostage to other legislative objectives,” which “threaten[ed] the structural independence of the Judiciary.”

Maron v. Silver did not explicitly hold that New York judges must receive cost-of-living pay increases. Requiring the political branches to consider the issue of judicial pay raises “on the merits” does not direct the governor and the legislature to approve such raises. Because the parties accepted that the state judges “have earned and deserve a salary increase,” addressing the question of judicial pay “on the merits” seems inevitably to foreshadow some kind of upward salary adjustment.

It is far from clear whether Maron v. Silver will provide support for federal judges. For one thing, the New York court thought that Hatter and other federal cases did not outlaw indirect diminution of judicial salaries as a result of inflation. At the same time, some of the reasoning in Maron v. Silver appears to be inconsistent with the Supreme Court’s view of the federal Compensation Clause. The New York court found no impermissible diminution of judicial salaries in part because legislators, the governor, and other constitutional officers also had not received pay raises. In Will, however, the Supreme Court found it irrelevant that other federal officials suffered the same financial injury because those other officials did not enjoy the explicit protection against salary diminution that the Compensation Clause accords to Article III judges.

Nevertheless, the persistent failure to provide New York judges with cost-of-living increases over an eleven-year period appears to be a more compelling case for finding an impermissible diminution in judicial compensation than the erratic course of such increases for federal judges over the past two decades. Still, the 2001 federal legislation requiring specific congressional approval for increasing judicial salaries might constitute the type of discrimination that could run afoul of the federal Compensation Clause. Even if Congress has no constitutional obligation to award cost-of-living increases or set judicial salaries at any particular level, the question of how much judges should be paid deserves thoughtful consideration as a matter of policy.

Judicial Compensation as a Policy Issue
The failure to award federal judges cost-of-living increases in about one-third of the years since passage of the Ethics Reform Act has generated widespread criticism and concern. Justice Breyer addressed the erosion of judicial compensation both in Hatter and in his dissent from the denial of certiorari in Williams. Chief Justice Rehnquist regularly called attention to judicial compensation in his annual state of the judiciary report; Chief Justice Roberts devoted his entire 2006 report to that subject and has referred to it in almost all his other reports. Moreover, commentators and bar associations have decried the situation and called for higher judicial compensation to take account of inflation.

Chief Justice Roberts summarized the main points of concern in his 2006 report. Using 1969 as a baseline, he noted that in that year federal district judges were paid “21 percent more than the dean at a top law school and 43 percent more than its senior law professors,” whereas in 2006 federal district judges were making “substantially less than—about half—what the deans and senior law professors at top schools [were] paid.” Moreover, during the same period the average American worker’s real wages had risen by 17.8 percent while federal judges’ salaries had declined by 23.9 percent. While compensation was eroding, the composition of the federal judiciary also has changed so its members “are no longer drawn primarily from among the best lawyers in the practicing bar.” Almost two-thirds of President Eisenhower’s appointees to federal district courts came from the private bar, while just over one-third came from the public sector. Under President George W. Bush, however, less than 40 percent of district judges came to the bench from the private sector, while about 60 percent came from the public sector. At the same time, attrition has increased, with larger numbers of judges leaving the bench: 38 judges have done so since 2000.

Other critics have pointed to institutional problems associated with judicial attrition. For example, departing judges take with them experience and expertise that are difficult to replace. Early departures result in larger dockets for remaining judges, at least until vacancies are filled, and the process for appointing judges has become increasingly time-consuming and contentious.

These are legitimate concerns, but we should not uncritically accept the diagnosis of impending doom. First, it is important to consider the baseline against which we measure trends in the real value of judicial compensation. It is quite common to use 1969 for this purpose, but that year might bias conclusions about the effects of inflation. Federal judicial salaries increased substantially in 1969, reaching their highest value in real terms since 1913. Using 1986 as a starting point might suggest a different conclusion: in real terms, judicial salaries in 2006 were more than 14 percent higher than they were two decades earlier. In other words, the choice of baseline can affect the interpretation of trends in judicial compensation.

Second, it is also important to consider the baseline for assessing the background of newly appointed federal judges. Chief Justice Roberts focused on the Eisenhower administration, but that era might have been atypical. Eisenhower appointed an unusually high percentage of his district judges directly from private practice. In recent years, more newly appointed federal district judges have had previous experience on the bench, either as state judges or as federal magistrate or bankruptcy judges. Is it better or worse to have a more “professional” federal judiciary? Those who deplore the reduction in the proportion of private practitioners on the bench have not offered a systematic argument in support of their position.

Third, advocates for increasing judicial compensation point to the number of judges who resign for financial reasons. Much of the evidence adduced in support of this concern is anecdotal. Even one analyst who found a statistically significant relationship between compensation and resignation concedes that “[t]he total number of judicial resignations is quite low, even in recent years, so it is hard to speak of a ‘crisis’ of resignations.”

Judges should be paid fairly, but judicial service offers more than financial rewards. If, as Chief Justice Roberts suggested at his confirmation hearing, the role of a judge is analogous to that of a baseball umpire, the ability to decide rather than simply to argue must represent a significant attraction. Recall the umpire who, when asked whether a pitch was a ball or a strike, replied: “It ain’t nothing ’til I say so.” Those who believe that the courts are facing a crisis of retention and recruitment due to inadequate judicial salaries typically do not suggest what level of compensation they regard as appropriate or necessary to remedy the problem. Beyond that, we ought to be deeply skeptical about anyone who seeks a judicial position primarily for the salary. Charles Evans Hughes wisely observed that “we should be cautious about increasing the chance of drawing [people] to the public service who seek it for the sake of the compensation,” and added that, “to attract good [people] and to secure efficiency, the honour and independence of the office are of far greater account than the emoluments that attach to it.”

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Chapter Holds Sixth Annual State of the Court Luncheon

The Northern District of Ohio Chapter of the Federal Bar Association recently played host to a sold-out audience for the Sixth Annual State of the Court Luncheon. Chief Judge Solomon Oliver, U.S. District Court, Northern District of Ohio, and Chief Judge Marilyn Shea-Stonum, U.S. Bankruptcy Court, Northern District of Ohio, provided an update on the state of the affairs of both the District Court and Bankruptcy Court to the approximately 450 individuals in attendance. Chief Judge Oliver commented on budgetary constraints which will face the judicial branch in the coming year, but noted that the Northern District of Ohio continues to forge ahead leading the way in several areas. The Chapter also welcomed newly appointed Bankruptcy Judge Jessica Price Smith and Magistrate Judge Kathleen Burke to the bench, and presented them with honorary memberships in the Federal Bar Association. The Chapter also recognized the recent appointment of U.S. District Judge Benita Pearson and honored long-time FBA Board Member, Honorable Randolph Baxter, for his outstanding service to the community and Chapter, and congratulated him on his recent retirement from the U.S. Bankruptcy Court, Northern District of Ohio, after nearly 26 years of service on the bench.

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2011-2012 Installation of Chapter Officers and
Board of Directors for 2011-2012

On Oct. 19, 2011, the NDOC held its installation ceremony in Courtroom 19 A of the Carl B. Stokes U.S. Courthouse. Torrential rains and high winds marked the afternoon, but that did not deter members and guests who attended the event. Following an opening reception in the 19th floor foyer, brief words of introduction were made by President Elect Virginia Davidson.

The Honorable Solomon Oliver Jr., Chief Judge, U.S. District Judge swore in members of the FBA NDOC 2011-2012 Board of Directors. Immediately thereafter, Chief Judge Oliver delivered the oath of office to incoming Chapter President Diana Thimmig.

Kip Bollin, Immediate Past-President, was recognized with a heartwarming tribute for his exemplary service to our Chapter during the past year and was presented with a beautiful plaque commemorating his year as president. Several individuals were recognized and thanked in absentia for their service on our Chapter’s Board during the last year, including the Honorable Randolph Baxter, U.S. Bankruptcy Judge (retired), Steven M. Dettelbach, Lisa Babish Forbes, Michael Mumford, Meggan Rawlin, Harris Senturia, and Vicki Lynn Ward.

Brief remarks were provided by Chapter President Diana Thimmig, regarding a number of initiatives which will be undertaken in the upcoming year. These initiatives are specifically designed to increase awareness of the Federal Bar Association and our Chapter throughout the Northern District of Ohio; increase participation; and, provide a variety of professional networking, social and service opportunities for Chapter members. Special emphasis was placed on reinvigorating our Young Lawyers Committee and its programming.

Following the formal program, a picture of the Chapter’s 2011-2012 Board of Directors and Officers was taken as guests returned to the Foyer and the festive Reception.

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Kathleen B. Burke sworn in as newest
Northern District Magistrate Judge

On Oct. 21, 2011, the Akron-Summit County Public Library was the setting for the formal investiture of Honorable Kathleen B. Burke as the Northern District of Ohio’s newest Magistrate Judge. Chief Judge Solomon Oliver welcomed family, friends and other judicial officers to the event and introduced those individuals offering remarks in support of Magistrate Judge Burke including her husband, William S. Gaskill. Magistrate Judge Burke’s son, Christopher Burke Gaskill read the commission and her daughters, Kelly Anne Sustar and Shannon Marie Gaskill assisted their mother as she donned the robe.

In her remarks, Magistrate Judge Burke thanked guests, family and friends in attendance. She thanked the judiciary, singling out Judge David D. Dowd, as a valued mentor during her first weeks in office. Magistrate Judge Burke acknowledged various groups which were instrumental in her life, such as Jones Day, St. John’s University, the Ohio State Bar Association and Notre Dame College. She noted that Irv Leonard, a retired Jones Day partner was instrumental to getting her to settle in Ohio. Magistrate Judge Burke concluded her remarks by pledging “to treat all parties and counsel with dignity and respect.”

Following the ceremony, the Federal Bar Association Northern District of Ohio hosted a reception in the Atrium of the Library.

 

 

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Jessica E. Price Smith sworn in as U.S. Bankruptcy Judge, ND Ohio

On Friday, Nov.18, 2011, Jessica E. Price Smith was sworn in as a judge on the U.S. Bankruptcy Court for the Northern District of Ohio. Judge Price Smith takes the seat previously held by her mentor retired Chief Bankruptcy Court Judge Randolph Baxter, for whom she once served as a law clerk.

The ceremony took place at the Howard M. Metzenbaum United States Courthouse, in front of two packed courtrooms (one by video-conference). In addition to the members of the bench and bar in attendance, Chief Judge Solomon Oliver welcomed the Judge’s friends and family to the gathering. The audience was treated to remarks from Bankruptcy Court Chief Judge Marilyn Shea-Stonum, as well as Jeffrey Heintz, Managing Partner at Brouse McDowell (where Judge Price Smith spent most of her professional career), and proud father, John W. Price, and Dean David Drago of the Claude W. Pettit College of Law at Ohio Northern University shared stories of Judge Price Smith’s days as a talented law student.

Sixth Circuit Chief Judge Alice Batchelder, returning to the Court where she once sat, administered the oath of office to Judge Price Smith. The robing of Judge Price Smith was overseen by her mother Sandra Price and husband Gregory Smith.  Judge Price Smith thanked the hundreds of guests in attendance for their support, and then invited them to a reception in the courthouse atrium, hosted by the FBA, CMBA, and Norman S. Minor Bar Association.

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FBA - NDOC Members Volunteer at Cleveland Foodbank

By Bozana Lundberg

On Nov. 15, 2011, members of the FBA-NDOC volunteered at the Cleveland Foodbank to sort food that is donated to local shelters, food pantries and other programs offering hunger relief in Northeast Ohio. The Foodbank receives food from food manufacturers, wholesalers, retailers and community groups. We also observed several pretty reusable grocery bags full of canned goods that appeared to be donated by caring individuals. Close to 20 members came to the Foodbank to volunteer including several law students and member’s spouses. Chapter President Diana Thimmig and her husband were there as well as the winner of the iPod Touch contest, David Carter from Cleveland-Marshall College of Law. The Foodbank first showed us a short movie about its work and the need for food in our community. Our service that night felt especially rewarding considering that the holidays were just around the corner when many of us celebrate with plenty. We realized that some may go hungry were it not for organizations like the Cleveland Foodbank and its volunteers. For two hours, volunteers had fun sorting the food and went home knowing that their service would benefit the community tomorrow. Thanks to all who were able to come out and help!

We will be volunteering at the Cleveland Foodbank again in March 2012. Check the FBA-NDOC calendar for more information.

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Upcoming Younger Lawyers Section Evening Socials

For the year 2012, the Younger Lawyers Section has planned several evening socials close to the downtown Cleveland area. We invite all of our members to come out and meet other younger lawyers in northern Ohio. We have chosen a different location for each month so this is a great chance to try out different bars or restaurants in Cleveland. The locations are downtown, on West 25th Street or in Tremont. If there is a strong interest, we can also schedule socials on the east or west side of town.

On December 14, we held a social at the Great Lakes Brewing Company. It was great to see members from Akron and Westlake attend the event. We all got a chance to meet people that we may not otherwise run into on a daily basis. There were attorneys from various areas of law including housing, securities, and criminal law at the event.

For January, we will be meeting at Panini’s at 840 Huron Road East, Cleveland, Ohio 44115 at 6 p.m. Please meet us at Panini’s on Thursday, Jan. 26, 2012. The following month we will meet at Lava Lounge in Tremont. Lava Lounge is located at 1307 Auburn Avenue, Cleveland, Ohio 44113. This social will be at 6 P.M. on Feb. 23, 2012. In March, we will gather at Wonder Bar at 2044 East 4th Street, Cleveland, Ohio 44115. The social will be at 6 p.m. on March 29, 2012.

Please check the calendar on the FBA-NDOC website for the most current information on all events. For questions or comments, please contact Božana Lazić Lundberg at blundberg@ralaw.com or (216) 696-7727.

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Wave Goodbye to Waivers of Time to Bring FMLA Claims: Federal Court Finds Waivers of Statutory Period for Employee to Bring Claims Under Family Medical Leave Act is "Void as Contrary to Public Policy"

Employers commonly include contractual waivers of the period within which to file certain statutory claims against their employers in employment applications or other employment documents. However, such waivers may be void and unenforceable for claims brought under the Family Medical Leave Act (FMLA), and other potential claims, at least according to one recent federal case.

Factual Background
In 2004, Tracey Madry signed an employment application with Gibraltor National Corporation d/b/a Quikrete of Michigan (“Quikrete”), which provided that “any action or claim arising out of her employment” must be brought within 180 days of the event giving rise to the claims “or be forever barred,” and that the employee “waive[d] any limitations period to the contrary.”¹ The application further provided that the employee would be required to pay Quikrete’s attorneys’ fees and costs in the event any claim she brought was unsuccessful.² Madry was subsequently hired by Quikrete as an account clerk.

In October 2008, Madry took maternity leave under the FMLA. However, in January 2009, Quikrete refused to allow Madry to return to work, and instead terminated her employment.

In September 2010, approximately a year and a half later, Madry filed a lawsuit against Quikrete alleging that the company violated the FMLA. In its Answer to Madry’s Complaint, Quikrete asserted several affirmative defenses, including that Madry’s claim was barred by the limitations period contained in her employment application.³ Madry subsequently moved to strike several of Quikrete’s affirmative defenses, including the affirmative defense regarding Quikrete’s limitations period.⁴

Court Holds Quikrete’s Waiver of Statutory Period is “Void as Contrary to Public Policy”
In deciding Madry’s motion, Magistrate Judge R. Steven Whelan acknowledged that, as a general principle, a statute of limitations may be contractually shortened.⁵ Magistrate Judge Whelan was nevertheless persuaded by Department of Labor regulations prohibiting employers from “interfering with, restraining, or denying the exercise of (or attempts to exercise), any rights provided by the [FMLA],” which presumably includes the “right” to bring an action within the statute of limitations prescribed by the FMLA (two year for non-willful violations and two years for willful violations).⁶ Magistrate Judge Whelan found that, while no Circuit Court of Appeals has directly ruled on the issue, “other districts have [held] . . . that a waiver of the FMLA statute of limitations is void.”⁷ Furthermore, in discussing analogous issues under the Fair Labor Standards Act, Magistrate Judge Whelan observed that “regardless of whether the statute of limitations is regarded as substantive or procedural, limiting it in a remedial statute such as the FMLA or the FLSA interferes with the plaintiff’s ability to bring a claim.”⁸ “[G]iven the strong public interest in providing employees their full panoply of rights under the FMLA,” Magistrate Judge Whelan held that “[t]he waiver of statute of limitations in [Madry’s] 2004 employment application is void as contrary to public policy.”⁹

Recommendations
Although the case is still pending on the underlying merits, Magistrate Judge Whelan’s decision in Madry is highly instructive, particular to employers in the Sixth Circuit. An employee’s waiver of time to bring a claim under the FMLA or the FLSA is likely to be held as void as against public policy and unenforceable. Furthermore, while the issue was not addressed in Magistrate Judge Whelan’s decision, an employer’s continued use of any such waiver could potentially be used to argue that the employer acted in bad faith, which could serve to extend the statute of limitations, and subject the employer to liquidated damages and other penalties. It is recommended that companies review their employment applications and other contracts with their employees for any waivers or restrictions on employees’ time to bring claims, and either remove these restriction periods in their entirety or, at a minimum, to make exceptions for the FMLA and FLSA.

Endntoes
¹Madry  v. Gibraltor Nat. Corp., Case No. 10-13886, 2011 WL 1565807, *1 (E.D. Mich. Apr 25, 2011).
²Id.
³Id.
⁴Id.
⁵Id., at *2 (quoting Bates v. 84 Lumber Co., L.P., 205 Fed. Appx. 317, 322–324, 2006 WL 2660728, *5 (6th Cir. 2006)).
⁶Id.
⁷Id. (citing Lewis v. Harper Hosp., 241 F.Supp.2d 769  (E.D. Mich. 2002); Henegar v. Daimler–Chrysler Corp., 280 F.Supp.2d 680 (E.D.Mich. 2003)
⁸Id., at *3 (quoting Wineman v. Durkee Lakes Hunting & Fishing Club, Inc., 352 F.Supp.2d 815 (E.D. Mich 2005).
⁹Id., at *4.

 

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