Born: 1942

Education: Wayne State University Law School (1965); University of Michigan (1968)

Admitted to Bar: 1968

Experience: Kienbaum Opperwall Hardy & Pelton, PLC (1997 - present); Dickinson Wright (1968 -1997)

Legal affiliations: Past president, State Bar of Michigan; Detroit Metropolitan Bar Association; Detroit Barristers Association; Fellow of the College of Labor and Employment Lawyers; Advisory Board of the National Employment Law Institute; The Best Lawyers in America

In the legal profession, it is often easier to find a gracious loser than it is to find a gracious winner.

Thomas Kienbaum is the exception.

He has managed to maintain his dignity and good manners in an increasingly hostile litigation environment.

Considered by his colleagues to be a "gentleman and a scholar," Kienbaum's love of "the practice of law in the abstract" has translated itself into a successful employment law practice, with a focus in major class-action litigation.

While referring to himself as "simply being a trial lawyer with a sometimes accurate gun," Keinbaum expresses his love and respect for the myths and tales of the American West, where "men fought with simpler and more honest weapons."

Although Kienbaum has been involved in many interesting and even "bizarre" cases during his 35 years of practicing law, Michigan Lawyers Weekly asked him to focus on 46th Circuit Trial Court v. Crawford County, et al., which is currently before assigned Circuit Court Judge Dennis Kolenda in Otsego Count.

Q. Can you give our readers some background on the 46th Circuit Trial Court case?

A. The 46th Circuit Trial Court — a unified trial court that covers the Counties of Kalkaska, Crawford and Otsego — was having funding issues with one of the funding units, Crawford County. Because the focus at the time was on employee benefits, and because of my prior involvement — when I was active with the State Bar — in court reform, the court asked us to assist it in efforts to resolve the dispute.

Unfortunately, the dispute could not be resolved short of litigation, and what started as a relatively narrow employee benefits issue developed into a full-blown funding dispute which, absent resolution, called into question the very existence of that court in its consolidated form.

Q. What is the current status of the case?

A. Although there is presently no final resolution in the case, Crawford and Kalkaska Counties have sought, and were granted, interlocutory appeal from rulings of the assigned trial judge, the Hon. Dennis Kolenda, which granted the 46th Circuit Court's request that its counsel be paid. That issue will shortly be addressed by the Court of Appeals.

There have been indications that Crawford, and possibly Kalkaska, counties will appeal Judge Kolenda's July 25, 2003 decision. That ruling is the most comprehensive and detailed analysis of court funding for quite some time, and fully sustained the 46th Circuit Court's position concerning funding and other matters.

In a related opinion, Judge Kolenda dismissed ill-advised claims of fraud leveled against the court and Otsego County, the control unit, which is fully aligned with the court, and sanctioned Crawford County's lawyers for making these allegations.

While Judge Kolenda's opinion draws on established precedent and carefully explains principles underlying our co-equal branch of government structure, Crawford County's advisors — who obviously do not wish the dispute resolved on the basis of Judge Kolenda's ruling — have sought to characterize the opinion as granting powers and rights to the courts which the courts have not claimed, and do not have.

As long as this mischaracterization of Judge Kolenda's opinion continues to be accepted in certain quarters, an appeal is likely. Such an appeal will unfortunately protract the dispute, and further drain the counties of needed resources.

Q. Court systems, counties and county employees would be interested in this case, but how can this case benefit a greater audience of attorneys? Will this case impact any employment issues other than public employee pensions?

A. While the focus for a short time was on employee benefits, including pensions, this turned out to be a rather straightforward issue which, as Judge Kolenda found, involved a commitment by the funding units to provide these benefits — which commitments two of the funding units later, and ineffectively, withdrew.

Thus, while I learned quite a bit about the Michigan Employee Retirement System and pension costs — and how pension costs can be misrepresented — I now find myself involved in a constitutional dispute in which these routine personnel issues have become quite secondary.

Q. Can you comment on any interesting "political aspects" of the case? For example, what were the reactions regarding bringing in an out-of-county judge?

A. I am reluctant to describe what happened as part of the political process, because I respect that process.

Crawford County's ill-advised position resulted from the views of a small number of people who wrongly believe that the court's role in our three-part governmental structure somehow means something different than what it really is. Those people believe that, because the legislative branch has the power of the purse, it should be the sole decision-maker as to how much money the court should spend, and even how that money should be spent. They chafe at the notion that the responsibility to fund the courts on a reasonable and necessary basis inevitably means that funding units must allocate a certain amount of money to the court, even if at times they may disagree with how much the court is required to spend.

Let me give you an example. In 2000, Crawford County's controller, with the blessing of its commissioners, looked at the court's budget and, based on his perception of what it could spend, unilaterally and without consultation slashed requested appropriations because, as the controller explained, that's how he deals with all of the county's "divisions."

The shortfall created was immediately magnified fourfold because Crawford County funds only approximately one-quarter of the court's budget, and this resulted in the funding process essentially being shut down. At this point, the court had no alternative but to litigate.

After careful consideration of the facts after trial, Judge Kolenda awarded the court its requested appropriations, finding them reasonable and necessary, and explaining how basic principles of our constitutional form of government mandated this result. Judge Kolenda pointed out that "reasonable and necessary" means exactly that, and that this level of funding must be maintained, even at the expense of discretionary appropriations desired by the counties in other areas.

This very basic, and unquestionably correct, statement is now being trumpeted by those who believe this makes the courts too powerful, as potentially upsetting our constitutional balance. Developing this theme, Crawford County's lawyers have recently gone so far as to argue that every sitting judge — because each arguably could be impacted by a decision on this issue — should be disqualified from presiding over court funding cases, notwithstanding the fact that Judge Kolenda tried the case without such objection.

In the background, of course, are elected officials who made some very bad decisions and who wish to avoid the reckoning that may result from having needlessly burdened the electorate with hundreds of thousands of dollars of expenses.

Q.Your firm is currently representing DaimlerChrysler in a significant employment-discrimination case, Gilbert v. DiamlerChrysler Corp. The jury in this case awarded the plaintiff approximately $21 million. Can you comment on this case?

A. Because the Gilbert case was just argued before the Supreme Court, it would be inappropriate to comment on it. All I can say is that our firm, together with other counsel, was asked to address serious errors that had occurred at the trial court level.

Q. Tell us how you feel about the practice of law.

A. I love the practice of law in the abstract, and its principles that are maintained by the vast majority of lawyers. I do not like the approach of some who see the practice as only a way to make money — for instance, obtaining the largest verdict possible at any cost.

Q. In your long and "illustrious" career, what accomplishments are you most proud of?

A. I know enough to object to the form of the question, as I'm not going to buy into the "illustrious." Again, it is difficult to isolate a particular result or undertaking as most significant.

Let me just say that I have felt most accomplished when I have been able to find a solution to an issue that requires my input beyond simply being a trial lawyer with a sometimes accurate gun. Trying and winning a case gives you an unparalleled high, but it is momentary, whereas resolution of a dispute in a constructive fashion tends to provide ongoing satisfaction.

Q. Do you miss being president of the Michigan Bar?

A. Yes and no. And, to be honest, the no prevails. While I look back with fondness to my years on the State Bar Commission, and the work we did with fellow practitioners and the bench, it was a time-consuming involvement that should, and must, be given up to others who come along.

It is fun, though, to get that sense of déjà vu when you meet with, and read about, terrific people who have followed me in that role.

© 2003 Lawyers Weekly Inc., All Rights Reserved.