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A Three-Hour Tour and Other Distractions

posted by Melissa Jacoby

MichiganRoadsThe City of Detroit has proposed a three-hour bus tour of the City to start its chapter 9 plan confirmation hearing. Some creditors object. The City's motion says "[i]f any case ever warranted a Site Visit, this one does." I don't agree, for reasons explored below, but in any event, the eligibility trial would have been a more logical place for it. And even Gilligan and the Skipper too couldn't cover 139 square miles in three hours. So what is going on here?

A step back. In the earliest days of my bankruptcy court clerkship, the United States Trustee sought to dismiss or convert the chapter 11 of a small nonprofit on the south side of Chicago. The debtor and the U.S. Trustee parties presented starkly contrasting depictions of this debtor - I remember the dueling photographs - with neither more obviously credible than the other. The case, like most in the bankruptcy court, had a starkly human element: the debtor was a rehabilitation center of sorts. The U.S. Trustee essentially was alleging that the residents lived in deplorable conditions, and the debtor strongly disagreed. To resolve the discrete factual dispute between two parties about the property's condition, Judge Ginsberg decided to schedule a time to leave the modernist skysraping box that was the Dirksen Federal Courthouse and visit the premises, in a van, with law clerk, court reporter, and others in tow. No easy way to verify -  the name of the case is lost to me now - but my strong recollection is that the site visit idea prompted no objections. The case cratered for an unrelated reason, mooting the trip. No other case during my clerkship prompted Judge Ginsberg to make a similar proposal.

Over the years, I have learned of other judges' experiences with site visits, revealing similar characteristics: cases with limited parties in interest, specific factual disagreement, the resolution of which could be accomplished efficiently by visiting circumscribed sites. 

Back in Detroit, the City's motion says it wants the Court to see such things as the terrible conditions of Detroit's public safety units and blighted neighborhoods. If creditors exist in this case who dispute those facts, surely they fit into the narrowest of broom closets. Already, in the eligibility decision, the Court found the City to be service delivery insolvent. From hearings and pleadings throughout the case, Judge Rhodes knows that street light replacement and quality of life initiatives are underway. He has repeatedly stressed the human elements of this case where appropriate.

The City's motion asserts that "the Court cannot fully appreciate the vital role that [the Detroit Institute of Arts] plays in the cultural life of the City - and will play in its renaissance - without actually visiting it." Yes, I double checked. It says this. Document 5250, page 5.

The proposed protocol says that the tour should not count against the City's total trial hours (can't fault it for trying, but implausible) and wants to keep the time and place of the tour embarkment a secret from the press (Santa-Claus-level implausible). 

You may wonder: why spend time writing about a bus tour given other issues looming so large in this case? In part, it reflects a resistance to underlying assumptions of exceptionalism - that rules and norms are different for a case such as this, and that people who disagree are cruelly overlooking the human element. In part, I worry that the bus tour will consume precious resources and time - before, during, after. Maybe I am surprised and disappointed that the City's arguments for the tour are not stronger and more specific given the City's formidable legal team. A longer laundry list rattling around in the psyche could be presented. But ultimately, I have confidence in the most conventional trial tools for this plan confirmation process.

If a specific factual dispute arises that the Court decides would be best resolved with a field trip, so be it. In the meantime, let the critical main event begin.

Michigan Road Map image courtesy of Shutterstock



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