Three local lawyers get their day in the nation's highest court
Published in 2008 Michigan Super Lawyers magazine
By Bill Glose on September 8, 2008
Alan Gilchrist felt like David facing Goliath. Timothy Stoepker revamped his presentation the weekend before the big day, and Mike Cavanaugh almost lost his clothes.
Arguing cases before the U.S. Supreme Court is always a memorable experience. Three Michigan lawyers agree it’s one they will cherish for the rest of their lives.
Timothy Stoepker prepared longer and harder for his appearance before the nation’s highest court than he had for any case in his life. Then he wound up rewriting his argument days before delivering it.
The case involved a developer who had been granted a state permit to build condominiums but was later told he would need a second permit from the Army Corps of Engineers. The Corps declared the property to be federally protected wetland and denied the permit. Stoepker challenged the Corps’ jurisdiction, taking his case all the way to the Supreme Court in 2006.
“We researched all the opinions of all the justices regarding interstate commerce issues and environmental matters,” says Stoepker, a real estate attorney and partner at Dickinson Wright in Detroit. “Then there were probably over 50 amicus briefs filed.” He spent 80 hours assembling his argument the week before his Supreme Court date, then rehearsed in front of a mock panel.
Stoepker calls the mock court’s thoroughness “unbelievable.” The aggressive questioning he received pushed him to restructure his argument over the weekend.
“I was told that my points and my arguments were well taken,” he says. But he was also told that he would never have time for all of them. “I was only allotted 20 minutes, because there was a companion case with mine … so I was told to get out the two or three most critical facts right at the very beginning, and then interweave the argument into the questions that are asked. And that’s exactly what happened in the actual argument. In the 20 minutes that I argued, I had 44 questions.”
The U.S. Supreme Court voted in Stoepker’s favor, with five justices agreeing that federal jurisdiction hadn’t been proven by the Army Corps—good news for Stoepker’s client. But they disagreed about what test should be used to determine jurisdiction.
“When you don’t have five justices concurring on a test for future purposes, there’s debate as to what test applies,” Stoepker says. “So we’re back before the Army Corps now to visit that question of jurisdiction.”
Now that Stoepker has appeared before the Supreme Court, he’s itching to go back again. “Even though the ultimate decision is not what we had all hoped for,” says Stoepker, “I still am a firm believer that the process works. If a person like my client and I had the opportunity to appear in front of one of the greatest judicial bodies assembled in the history of democratic government, then anybody does. Maybe that’s a very naïve position to take, but I don’t think so.”
Michael Cavanaugh took home a souvenir—not to mention a win—from his appearance before the highest court in the land.
“The court is very elegant, very formal,” says Cavanaugh. “There’s a real sense of history when you’re there. There was a waiting room where the lawyers who are going to argue could wait, and there was a table there with some of the court’s original signed opinions, going back to the 1700s, early 1800s. On [the] counsel table, they still have quill pens. They put the quills on the table before each argument so that the lawyers can take them. There’s no ink there, so it’s purely a historical tie. I still have mine.”
He quips, “We picked up everything that wasn’t bolted down. If we could’ve gotten the tables out the door, we would’ve taken those.”
It was 1979, and Cavanaugh was representing Dr. Ronald Hutchinson, a research scientist funded by the government who was studying aggression in primates, including monkeys and humans. The Navy and NASA were interested in human applications of the research during extended confinement in space and under the sea. However, Wisconsin Sen. William Proxmire, who had just initiated his Golden Fleece Award for what he considered wasteful government spending, announced a Golden Fleece for Hutchinson, alleging he had “made a monkey out of the American taxpayer.”
“He totally ridiculed the research,” Cavanaugh says. “In addition, Proxmire’s office contacted the funding agencies, which eventually led to the cutoff of the funding.”
Proxmire made a speech criticizing Hutchinson’s research on the floor of the U.S. Senate, then passed it out to more than 200 members of the media. He repeated some of the statements in a newsletter. Cavanaugh sued Proxmire for libel on Hutchinson’s behalf, and the federal district court in Wisconsin ruled that Proxmire was protected by the Constitution. “The speech-and-debate clause, in essence, says that a member of Congress cannot be called to account for their actions on the floor of Congress in any forum other than Congress itself,” explains Cavanaugh.
Cavanaugh, who practices commercial and employment litigation, as well as alternative dispute resolution, with Fraser Trebilcock Davis & Dunlap, was a little surprised when the U.S. Supreme Court took his case. He had lost in the lower courts, and Congress was against him. “The Senate created an office of Senate counsel just to defend this case and staffed it with lawyers,” he says. “Amicus briefs were filed by the speaker of the House and by other senators. So we went to Washington to argue this case with what appeared to be the entire federal government against our position.”
Another bad omen: The night before his appearance, there was a small fire in the hotel where Cavanaugh was staying. When the alarm sounded, he threw his legal papers into a briefcase and left the hotel. “So we got down on the street,” he says, “and the firemen were going in, and I said to my wife, ‘Hey, good news: I saved all the papers.’ And she said, ‘Yeah, but you’re going to be the only lawyer to ever argue in the Supreme Court in jeans and a sweatshirt.'” Luckily, the clothes were saved.
There was another dramatic moment the next day, when the opposing counsel made a claim that wasn’t supported in the legal briefs. “[Justice] Thurgood Marshall stopped him in his tracks,” Cavanaugh recalls. “He said, ‘Counselor, where does it say that in the record?’ The lawyer wanted to back up and [explain], and Thurgood Marshall just would not let go of the point. He said, ‘You made the statement; now show us where it is in the record that it says that.’ The opposing counsel had to finally admit that there wasn’t anything in the record that literally said that. And Thurgood Marshall said, ‘Thank you. That’s what I thought.’ . . . He obviously knew the answer before he asked. They are very well prepared.”
The court ruled 8-1 that Proxmire went beyond the constitutional protections of a Congress member by publishing his statements about Hutchinson outside the House or Senate. And in such a case, a Congress member could be sued for defamation. The libel case itself was settled and Dr. Hutchinson was returned to “good standing” with federal agencies.
When Alan Gilchrist walked into the U.S. Supreme Court chambers in 1986 to argue that family physicians deserved pay from Medicare equal to that of other specialists, he was not exactly confident. Especially since the opposing attorney was dressed in the traditional swallowtail tuxedo.
“Oh, yeah,” says Gilchrist, “tails and the whole show. I didn’t wear a tux. As a matter of fact, I forgot my belt. … Frankly, I walked in confident that I was going to be clobbered, and within five minutes I was saying, ‘Wow, what’s going on here?’ It kind of went the other way around. The solicitor general[‘s office] went first, and they got blasted. When I got up, I got snowballs.”
At the time, Gilchrist—who now practices white-collar criminal law, with an emphasis on health care, with Foster, Swift, Collins & Smith in Farmington Hills—was one of only six lawyers in a small firm. “I represented family physicians who were being screwed,” he says, then, laughing, gives a more politically correct definition: “I mean, being discriminated against by the Medicare program.” At that time, Medicare would pay a specialist such as an internist twice as much as a family physician for the same treatment.
It was an uphill battle. All the federal circuits around the country except one—the 6th Circuit, in which Gilchrist had prevailed—had ruled that federal courts could not review Medicare issues. Not only were most circuits aligned against him, the solicitor general of the United States, Charles Fried, who appealed the case to the Supreme Court, tried to quash it before it was heard.
Fried successfully asked the Supreme Court to hold off on Gilchrist’s case until it decided another one with similar issues, United States v. Erika, Inc. The high court ruled unanimously against Erika—a private insurance carrier that was contesting some Medicare payments—so Fried then asked the justices to decide Gilchrist’s case without hearing arguments. Had the court agreed, Gilchrist figures he would have surely lost. But the justices decided to hear arguments.
“They damn near barred me [from presenting my case],” Gilchrist says, “and [then] we had to argue within 90 days. The solicitor general’s power is amazing. There’s a book about it called The Tenth Justice; that’s totally true. They have amazing power, and I’m this schlub in Detroit trying to get this case heard.”
Experts in the health care field had given Gilchrist little chance of succeeding, but the Supreme Court voted unanimously in his favor.
Gilchrist describes his position at the counselor’s table as the worst seat in the house. “You’re so close to them and you’re looking up at them, and you really can’t see them,” he says. “They’re up in these leather chairs, and you’re trying to make points and you can only see three at any time at all. In contrast to a jury trial, where you can move about, you’re stuck there behind this podium. The bench is shaped in kind of a circle, probably an arc, with nine of them, and they’re talking back and forth, and you have no idea what the hell is going on.”
Another difficulty for Gilchrist was adjusting his courtroom style. “As lawyers,” he says, “we’re used to citing 4th Circuit, or whatever, precedent, and you know what they say to that? ‘We don’t care. Tell us what you mean. Tell us why the government’s wrong. Tell us why you are right. Tell me what you think.’ They want to hear what you have to say about all this. The power there is incredible and it’s very disarming. We’re trained constantly to [rely on court] precedent; I’m not saying it means nothing, but it means not a lot to them. They’re the emperors.”
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