June 10, 2010
Great Article by Jan Hamilton re Hamilton v. Lanning
(Copied from NACTT)
Reflections On A Journey To The U.S. Supreme Court
Hamilton v. Lanning, Case No. 08-998
Jan Hamilton is the Chapter 13 Trustee for Topeka, Kansas. He has served in this position since 1998. Jan is a graduate of Washburn University and Washburn School of Law. He is also a 2009 inductee as a Fellow in the American College of Bankruptcy.
Teresa L. Rhodd is a cum laude graduate of Washburn University and a summa cum laude graduate of Baker University. She has been staff attorney for Jan Hamilton since 2006.
On Leaving Kansas
In retrospect, it all now seems like a trip to a foreign country without the benefit of Berlitz or Rosetta Stone. But, mostly, it has been a blur of paper, extraordinarily long hours, and hard work. Maybe you will end up there one day, perhaps just as much by accident as I did. Maybe you won’t. Nonetheless, a trip to the Supreme Court of the United States is a relative rarity for those of us who are ordinary mortals. I thought that sharing The Experience might be of some interest. For me, it was the most incredible experience of my legal career.
I should note that although this article is not particularly about the merits of the case, for those interested, the entire history of the case can be found at SCOTUSblog.com. All briefs and decisions, including a transcript of the oral arguments, can be found with a single click.1
“We’re Gonna Do What?”
I suppose I should say that this didn’t start out to be a US Supreme Court case. Maybe they never do. Appellate advocacy has not been my stock in trade, although over the years I’ve ended up in the higher courts, here and there. So, I must confess that prior to November 2, 2009 (the day certiorari was granted on my case), I likely would not have scored a passing grade on reciting the names of the United States Supreme Court Justices, let alone their perceived judicial bent. My staff attorney, Teresa Rhodd, without whom this case could not possibly have been properly prosecuted, put their pictures on the wall of my office, by the light switch, along with their names and seating positions. By the end of this “Mr. Toad’s Wild Ride” the pictures and I were old friends. When I stepped up to the podium on March 22, 2010, I knew the names of the Justices, where they sat, and quite a bit about each of them. Addressing these almost mythical figures by name was not only required, but now seemed almost natural.
By The Numbers . . .
The case of Hamilton v. Lanning is unusual in many respects. First, the sheer odds of a case actually being decided by the SCOTUS are not good, to say the least. Only about 1 out of 100 petitions for certiorari is granted.2
Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 10,000 petitions for certiorari, of which approximately 100 are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.3
Although I can’t take much of the credit, really, I am the only Chapter 13 Trustee to obtain a writ of certiorari in the history of modern bankruptcy law. Only one other Chapter 13 Trustee has ever argued a case before the U.S. Supreme Court.4 Certainly, without the involvement of the Solicitor General, Lanning would never have shown up on the Court’s radar. Once again, we proved that it is always better to be lucky than smart.
In The Beginning, Was The New Law — BAPCPA
It all started in 2005, when Congress amended, or I should say appended to, the Bankruptcy Code of 1978. The changes were many, but central to these modifications was the “means test.” That year, at the National Association of Chapter 13 Trustees (“NACTT”) Convention in Orlando, Florida, many suggested that Chapter 13 Trustees should endeavor to obtain circuit level authority as quickly as possible in order to resolve apparent interpretative anomalies. Teresa and I took these admonitions to heart. We really didn’t know what we were getting into, but nonetheless, we started down the path.
What WERE We Thinking?
Our central thought was that “messy facts make messy law.” So, we carefully selected a case where the facts were simple and clear. We wanted them to be at least uncontroverted, if not stipulated to. Additionally, we narrowed the issue by choosing a case implicating only the income side of “means test,” as we thought the expense side issues were markedly different and needlessly complicated the equation. We also chose facts that appeared to be outrageously anti-debtor, as it appeared conventional wisdom was that the “means test” was debtor-oriented. We believed this wisdom to be incorrect. Our thought was that the new law cut both ways. We sought to illustrate that point with our case selection.
And The Issue Was?
The issue, simply put, was whether courts should follow the plain language of the new statute or whether courts might adjust the “means test” formula for changes in circumstances. The briefs turned this simple proposition into a fairly complicated one, but at the core, that was and is the true issue. The Debtor, Stephanie Lanning, had unusually high income in the six months prior to bankruptcy filing. This event skewed what the means test required her to pay. In fact, she couldn’t pay it. We sought to demonstrate that if the law was interpreted properly, the “means test” could still be used. The subtitled agenda was that if the statute doesn’t work, it is up to Congress to fix it, not the Courts.
The position we took was the simplest, although not the most supportable, of the positions.5 We chose the “textualist” or plain reading view of the statute as it made it easier for us to articulate a position, stake out our territory, and defend it. At the time we started, we had no thought of winning, only to assist in getting clarification, at the circuit level, of a portion of the statute that seemed destined to be a Petri dish for litigation. Bankruptcy Judge Janice M. Karlin obliged us with a finely researched and written decision. Although not stated, the subliminal message was “Appeal me!” We needed to lose at both the bankruptcy and appellate levels, or there would be no Tenth Circuit decision. (Don’t think for a moment that we tried to lose. We stepped into the shoes of the textualist position and never took them off . . . ) As of this writing, we don’t know if we will “win” or “lose” or even if our efforts will result in resolving this important interpretative issue. However, we really thought the end of this road would be a Tenth Circuit decision.
The Bumpy Road Up
So. We lost at the bankruptcy court level.6
We lost at the Bankruptcy Appellate level.7
And, we lost at the Circuit level.8 So far, so good . . . but . . . then events we hadn’t planned on occurred.
First, we became enamored of our position and became convinced the “losing” side we had picked to take up had considerable merit. We didn’t know if this was a result of good advocacy or denial. Second, a clear split in the circuits developed.9 I can remember the morning we became aware of the split. Teresa and I looked at each other and said the word we were then unable to spell: “Certiorari!”10
The Petitioner in Frederickson filed his Petition on January 23, 2009. Of course, we thought ours was a more appropriate case — our facts were simpler, the legal issues were narrower, and naturally we thought our presentation was better from a bankruptcy perspective.
Filing the Petition for Certiorari
We quickly educated ourselves on the process. It was relatively straightforward, except for the extremely technical briefing requirements at the Supreme Court level. Our Petition for Certiorari was as carefully prepared as we were capable of doing. We focused on clear and simple sentence structure with paragraphs that followed the same formula. Sample certiorari petitions were reviewed to see what made sense to us. We endeavored to avoid complicating the issues which we thought would “compound the felony” of BAPCPA. Non-lawyer friends were actually asked to read the finished product to see if the Petition made sense, in an ordinary, plain reading sort of way.
We filed our Petition for Certiorari on February 9, 2009.
Of course, we had no idea if the Petition actually mattered, but we sure tried to make it matter. We hoped that a combination of uncomplicated, attention-getting facts and a plainly written Petition for Certiorari would catch someone’s interest. We didn’t really know how hard that would be. But for the Solicitor General’s involvement, this was about like trying to flag down a freight train.
Who Is The Solicitor General And Why Was She Involved?
The Office of the Solicitor General, an agency of the U.S. Department of Justice, supervises and conducts appellate litigation on behalf of the U.S. Government.11 Often referred to as “the 10th Justice,” the SG is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year. Here, the SG’s involvement was quite by happenstance. As the Debtor chose not to defend the appeal to the Bankruptcy Appellate Panel, I notified the United States Trustee for this region that perhaps the Government ought to consider being involved. This was an important issue, and the other side would not otherwise be defended. The Office of Richard A. Wieland, United States Trustee for Region 20 (Kansas, Oklahoma, and New Mexico) briefed the matter at the BAP level. At the Tenth Circuit level, the SG took over. But for the Debtor’s non-participation, the SG would likely not have been involved. Consequently, but for the SG’s involvement, certiorari likely would not have been granted, as I am not sure we would have been spotted.
Reading The Directions
There are many books and articles on appellate advocacy. Given the time constraints, we concentrated on a few resources that appeared promising. Of course, starting with the information available from the Supreme Court seemed particularly appropriate. Time devoted to in those in-house publications was well spent. The “Guide for Counsel” in cases to be argued before the Supreme Court of the United States and the Rules of the United States Supreme Court were the cornerstones of our research on what it was, exactly, we were supposed to be doing.
The Clerk Of The United States Supreme Court—The Way Government Should Work
As, an aside, Teresa and I were very impressed with the Clerk of the Supreme Court, William K. Suter, and his staff. The office was easily accessible. We were able to speak to live and knowledgeable court staff who were courteous and really helpful. The process was quite fluid and forgiving, for the most part.
Immediately preceding oral argument, Mr. Suter, dressed in traditional morning suit, gave us a short explanation as to how things would work, and then even asked us to advise if we had any comments on how they could improve their operation!
A Pleasant Surprise
The find of the year was Justice Antonin Scalia and Bryan A. Garner’s Making Your Case: The Art of Persuading Judges (Thompson-West, 2008). We felt this appellate primer was spot-on with simple, yet detailed explanations of what would be expected of us. (Well, we thought, Justice Scalia should know . . .) This work is a “must read” for any lawyer involved in an appellate case.
Bed Time Reading . . . Bankruptcy And The Supreme Court.
I must confess that when I first looked at Kenneth Klee’s Bankruptcy and The Supreme Court (Lexis-Nexis 2008) my eyes glazed over. This is not an exciting area to any but the most hardcore bankruptcy enthusiast. Some would even say using “bankruptcy” and “enthusiast” in the same sentence is the ultimate oxymoron. However, once we found ourselves donning gladiator gear, this most excellent resource material suddenly became an exciting, if not riveting, piece of work. It gave us a good feel for how bankruptcy law had developed in the Supreme Court over the years.
Professor Klee suggested that the Supreme Court might appreciate hearing from experienced bankruptcy counsel. We took that notion to heart in making our final decision to not farm out the case to experienced appellate counsel.
A Waiting Game
The SCOTUS denied the Frederickson application for certiorari on March 23, 2009. We waited for the other shoe to fall. Week after week went by. A month turned into months. Finally, SCOTUS asked the Solicitor General, “What do you think?” The SG said, well, Hamilton is wrong, but you should decide the case. Again we waited and waited. Finally, on November 2, 2009, certiorari was granted.
In The Trenches
For the better part of five months, Teresa and I worked nights and weekends, in addition to our “day jobs.” The amount of reading necessary just to get started writing was nearly overwhelming. In addition to all of the United States Supreme Court cases, there were literally dozens of lower court decisions implicated. Researching the legislative history presented a special challenge for us because of the number of years it took for the legislation to pass. The time and energy commitment was far greater than that of any jury or bench trial in which I have been involved.
Organization of the Opening Brief was challenging. I am sure I spent the better part of two days trying to construct a syllogism that made sense. Some would say I never accomplished that goal, I am sure.
After constructing a comprehensive outline of our argument, Teresa and I each picked sections and wrote them. We relied heavily upon Justice Scalia’s book as to how to approach the writing of the brief. We were not sorry for accepting this guidance. We exchanged drafts, rewrote each other’s sections and eventually tied it all together. Only then were we able to write the Summary of the Argument and the Statement of the Case. True or not, we assumed as true the street wisdom that often times only the Summary and the Statement of the Case were read. Avoiding duplication was difficult as the various argument points often intersected. Finally, we locked ourselves in my office for a couple of days and read the brief aloud, correcting errors, editing sentence structure, and reorganizing paragraphs. We shipped it off to the printer and waited for reactions. To our relief, the feedback from other bankruptcy professionals was overwhelmingly positive. We had apparently not missed the mark.
We were even more relieved after reading the opposing and supporting briefs. We had not missed any significant cases; our arguments had been dead on. The fine attorneys on the other side were not invincible and had shown their underbelly on many of the finer points of bankruptcy law. At this point, who knows if those hair splits will prove germane? I am sure they might have similar thoughts about our appellate efforts.
In addition to the Solicitor General’s brief, Tom Goldstein of the firm Akin-Gump, who specializes in Supreme Court advocacy, filed an Opening Brief for Ms. Lanning. He was quite the gentlemen and helpful. We attempted to reciprocate. The entire process was much more civil than the rough and tumble trial advocacy common here.
Our Reply Brief took as much, or maybe even more time than our Opening Brief. We now had four briefs to respond to in fewer than 6,000 words. Never play the other person’s game. We reorganized the oppositions’ arguments into our framework and attempted to turn their game into our game. At least we entertained ourselves with this scholastic endeavor.
Printing The Briefs
Gutenberg would not recognize modern printing. Certainly, WE didn’t recognize what United States Supreme Court printing was all about. Upon the recommendation of others who had been before us, we hired an outside printing firm, Cockle Printing, out of Nebraska. These folks were wonderful. They did the fine proofing . . . consistency in punctuation, citation, etc. They also made sure we followed the briefing rules. This turned out to be a technical area we could not have hoped to command while trying to write the briefs. Although our printing bill would eventually reach about $13,000, this was money well spent, but does point out how a case of this nature may be beyond the means for many. When all was said and done, we likely had $17,000 or so in out-of- pocket expenses. The thought of what it would have cost to hire outside counsel made us shudder, when we considered the hours we put in multiplied by $750 or more per hour, even discounting our time for the learning curve.
We lucked out and obtained a moot court session at the Georgetown University Law Center Supreme Court Institute. Two professors and a practicing appellate lawyer raked me over the coals for close to an hour a few days before the actual oral arguments. This free service was absolutely invaluable. It gave me confidence in believing I would actually survive oral arguments. It also permitted us to fine-tune some of the points we thought relevant.
While we waited for the Opening and Amicus to come in, we worked on the oral argument. This preparation was detailed and time consuming. There would be no “winging it” here. While the allotted time to speak was only 30 minutes, I had to be prepared to answer nearly any question relative to the case, the facts, the law, and the lower court and Supreme Count cases. I read and re-read the statutes and pertinent decisions, first creating detailed outlines, then summaries, and finally, brief Post-It note references. I took very little to the podium and used none of what I had prepared. Not unexpectedly, I spoke for only a short period of time before being interrupted by the Court, first by Justice Ginsberg. The remainder of my time was spent responding to tag-team questions. The focus was the actual statutory language and how the pieces fit together. We were on my home turf. Regardless of the result, I was going to survive. I was able to intertwine much of my argument into the answers to the questions. At least I was going to have, as they say on BBC, “my say.” I spoke for 28 minutes, reserved 2. The time flew by quickly and the white light turned red before I knew it. The exhilarating ride was nearly over.
Sundry Items That Don’t Fit Anywhere Else
We got free quill pens.
28 lawyers represented other parties. There were two of us for Petitioner.
I received 7,203 emails referencing “Lanning” from January 1, 2007, to the date of oral arguments, March 22, 2010. During that same period I sent 4,576 emails on the same subject.
I took at least one of my dogs with me to the office at night, when working on this case. I often tried out my sentences and paragraphs on them. They generally looked confused during those endeavors.
Staying well was a worry and a priority. I took more vitamin C during that 5 months than I have in the rest of my lifetime.
Dark suits—charcoal gray, black or dark blue are encouraged for oral argument. We joked about showing up in light blue seersucker suits and straw hats.
Teresa bought a new suit. I bought new shoes and belt. We both got haircuts.
The Justices were well prepared. They were courteous. They were respectful. There was no mean spiritedness about them.
I took an extra suit and shirt . . . just in case, and packed most of what I would take a month before we left.
We checked our clothing suitcases and carried all legal materials on the plane. We thought it would be easier to buy new clothes than to replace the books. We also had most of what we need stored on external drives and on drives at the office we could access.
The podium is very close to the justices; maybe ten feet away. Had we not been warned, this could have been disconcerting.
Making mistakes in oral arguments in front of a bankruptcy judge with a room full of sleepy lawyers is a lot different than making mistakes in a large courtroom packed full of friends, non-friends and Supreme Court groupies.
There is almost no way to really prepare for oral arguments except to know your argument as well as you know your family.
Patient spouses were necessary and appreciated. Most days, I wasn’t sure what month it was.
Did I tell you we got free quill pens?
And when it was over, the pressure of the months of hard work faded, and relief washed over me. I could see Teresa was experiencing the same. After a post mortem with Tom Goldstein and some of his Harvard law students, we walked toward the exit on the lower level. A small group of Chapter 13 Trustees stood to one side. As we approached, they smiled broadly and began to clap. We heard “Bravo!” “Good job!” “Excellent!” We smiled and waived. Regardless of the outcome, we knew we really had done our best and it was time to go back to Kansas, where we belong
1 Hamilton, Chapter 13 Trustee v. Lanning at SCOTUSwiki.
2 Glossary of Supreme Court Terms.
4 Fidelity Financial Services, Inc. v. Fink, 522 U.S. 211, 118 S.Ct. 651(1998). Richard V. Fink is the Standing Chapter 13 Trustee for the Western District of Missouri.
5 See Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008); contra Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir. 2008).
6 In re Lanning, 2007 WL 1451999 (Bankr. D. Kan. May 15, 2007).
7 In re Lanning, 380 B.R. 17 (10th Cir. BAP 2008).
8 In re Lanning, 545 F.3d 1269 (10th Cir. 2008).
9 See In re Kagenveama and In re Frederickson, supra.
10 Author’s confession: Teresa could always spell certiorari, and I still can’t.
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Too much - too little...now, is it too late? If the author is reading this: Thank-you!
My wife and I are in the 'process' of filing for bankruptcy protection and can't seem to pass a means test.
Why is it that none of the local [Grand Rapids, Mi] attorneys have even heard of this (your)case? It's simple; we make too much for Chapter 7 and the means test indicate that in a Chapter 13 that we have about $1450.00 per month of 'disposable' income.
Having lived off of a written budget for the better part of 5 years, we can tell you (to the penny)how much 'disposable' income we have. We can also let you know that we have no renters or life insurance...you know, those things really aren't needed, are they?
Anyhow - We (I) have researched until my fingertips are raw and when I found the case and ultimatley this article it offered at the very least, a glimmer of hope. If not for me , then perhaps someone who comes behind me.
We really, really do want to pay back everyone we owe - but, the 'rules' say we can't. So, we'll have our wages garnished from now until????
Thanks for the hard work on behalf of everyone who is really trying.
Robert & Michele Hall
Posted by: Robert & Michele Hall | Mar 2, 2011 9:34:35 AM