Tackling Nursing Home Abuse

Suppose a nursing home has a rogue employee who abuses elderly patients by intentionally overdosing them, hitting a difficult patient, giving wet sponge baths near a person's mouth to create inhalation of water (leading to deadly pneumonia)—or simply being careless to the point where a patient falls and suffers a debilitating injury.

Over the past 15 years or so, operators of nursing homes have required patients (and their power-of-attorney guardians) to waive the right to sue for negligence, wrongful death and other claims. Instead, any claim must be arbitrated. That means the dispute is heard by a private judge, sometimes selected by the nursing home—and often the arbitration agreement sharply limits damages that an arbitrator can order.

This masquerades as a “voluntary” type of dispute resolution—but no more.

President Obama’s Human Services Department agency put forward rules that bar any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of court.

Cursive Made Easier by This Illegal Immigrant

Today, Google is remembering the life of László József Bíró, inventor of the ballpoint pen. 

“Biro was Jewish. And Hungary, which was at the time allied with Nazi Germany, was becoming an increasingly hostile place for Jews. In April 1938, Hungary passed laws limiting Jews’ ability to work; later that year, a law was passed banning the exportation of intellectual property. So Biro, who claimed to have converted to Christianity, left the country, carrying his plans with him, before the law went into effect. He and his brother traveled from Budapest to Paris, Madrid, and finally Argentina, where Biro began manufacturing the pens commercially.” http://www.vox.com/2016/9/29/13097948/ladislao-jose-biro 

Biro likely falsified his immigration papers, which at that time would have required a disclosure that was Jewish. Biro got his idea by watching kids play marbles in a puddle. As each marble streamed through the water, it left a trail. His thought was to use a tiny "marble" (ballpoint) at the end of an ink cartridge to trail ink along the line traced by the writer. The ballpoint pen is credited for making cursive a widely used form of handwriting … until computers. (Thank you, Alan, for the “tip.”)

The Day I Was Grilled in the Senate by a “RINO”

Yesterday, retired Sen. John Warner (R.-Va.) endorsed Hillary Clinton. Although he had a strong conservative record, he also worked with Democrats in areas of shared interest. That is why Tea Party and other alienated people are today calling him a RINO (Republican-In-Name-Only), suggesting he is a faux Republican.

On Feb. 12, 1997, I testified before the Senate Committee on Labor and Human Resources. A centrist Senator who flip-flopped parties (Sen. James Jeffords, R.-Vt.) invited me (and eight other panelists) to present my research on nonunion work teams. In a survey of 88 workplaces in more than 12 states, I found that these teams often are popular with workers.

These groups empower them, in varying degrees, to make work schedules, set rules, develop no-smoking and family leave policies, make efficiency improvements, and so on. These groups are also abused by some employers who form them as “company unions” to ward off union organizing drives. My research concluded that the nation’s main labor law should be modified to provide employers more flexibility to form and administer nonunion work teams.

After I testified for five minutes, the senators asked questions. Sen. Warner lambasted my work as “pro-union,” which was odd because I was testifying in support of the TEAM Act, a bill that employers wanted to see enacted. He was fierce in challenging my work. Sen. Kennedy jumped in and attacked my work as “anti-union.” He was just as fierce as Sen. Warner. I squirmed in my chair, not wanting to point out that my work supported a compromise reading of the National Labor Relations Act.

There was nothing phony about Sen. Warner’s conservative Republican values that day, and nothing phony about Sen. Kennedy’s liberal Democratic values. To those who attack Sen. Warner today, shame on you for creating a lie about Sen. Warner’s allegiance to the Republican Party and its core values. Your insult of him is in the same league as denying that President Obama was born in the U.S. Calling people insulting names and spreading scurrilous lies does not change the identity of these elected leaders.

Is Your Ethnicity "American"?

American politics is an over-analyzed topic. That said, the maps (above) narrate a remarkable development. (Click on the picture for a better look.) Until recently, being American was a statement about your nationality. But in poor and largely Appalachian areas, people tend to answer "American" to a survey question that asks for their ethnicity. The more that people say their ethnicity is "American," the more likely they are to vote Republican. For more, read http://fivethirtyeight.com/features/the-end-of-a-republican-party/

Smiles for Miles

Today’s short post is a test for you. Are you similar to Les Miles, or different? What are the tradeoffs here? I’m giving myself the test, too!

Excerpt of interview on Dan Patrick’s radio program today:

"I don't golf," Miles told Patrick. "I play no tennis. I enjoy shooting the gun; I don't necessarily like to point it at animals. I play cards, not very well. But what I have done for probably 12 to 14 hours a day for the last number of years is coach football. So I would have a difficult time not being involved in the game and not being a coach."

Who’s the Man Behind the Judicial Curtain? Justice Steigmann’s 2013 FOIA Decision

I have previously voiced concern that Justice Robert Steigmann has undermined the independence of courts by donating $2,000 to a challenger for the state’s attorney position. My view is based on something we all learned in high school civics: Our Constitution provides for separation of powers.

Question: Is Justice Steigmann coaching the challenger (a public defender) on legal arguments to run in newspaper ads? If so, shouldn’t the public know that Justice Steigmann is the man behind the curtain? Where would his influence end in relation to our local offices of public defender and state’s attorney?

Consider the checks-and-balances implications of the following. Suppose a reporter wanted to FOIA Justice Steigmann and the assistant public defender he is supporting with campaign donations to see what kind of information they have shared.

Answer: Justice Steigmann’s ruling Uphoff v. Groskopf (2013) likely means that this information is now exempt from public scrutiny.

To that scenario, I now quote from a Pantagraph news story that reports on Justice Steigmann’s decision to significantly narrow the scope of FOIA. Specifically, his opinion exempts state prosecutors from FOIA requests on grounds that these attorneys are judicial officers. Courts, it must be noted, are exempt under FOIA—but, as the dissenting opinion notes, that completely misreads the Illinois constitution. Judges and law enforcement officials are constitutionally distinct.

Judge for yourself after reading this excerpt from a Dec. 24, 2013 story from the Pantagraph news story (Bloomington-Normal, IL).

Prosecutors immune from public records law, court says

Reported by Edith Brady-Lunny  PONTIAC — Illinois state’s attorneys do not have to comply with the state’s Freedom of Information Act, according to a ruling by the Fourth District Appellate Court in a Livingston County case.

The opinion follows an appeal by the Livingston County state’s attorney’s office of a 2010 ruling that the prosecutor’s office should turn over documents in a 2001 murder case to Matthew Grosskopf, a private citizen who requested the materials under the state’s public records law.

In the appellate opinion filed Dec. 12, Justice Robert Steigmann put the blame for the confusion as to whether state prosecutors are part of the judicial branch of government on the legislature. He said 2010 changes to the State’s Attorneys Appellate Prosecutor’s Act moved special prosecutors from “an agency of state government” to the judicial branch, making them exempt from the records law.

Tomich, a 26-year-old flight attendant, was killed at the Limestone Rest Area near Pontiac by Kevin Bray. The victim was beaten to death by the Wapella man after she stopped at the rest area on her way home to Canton. The Livingston County case may move to the Illinois Supreme Court and become part of its consideration of a similar debate in a Kendall County case.

Illinois Press Association attorney Don Craven said Monday that he has asked the Supreme Court to hear the Livingston County case in conjunction with the Kendall County matter expected to be heard early next year.

The closure of records from the state’s attorney’s office denies the public information about more than what may be contained in criminal case files, said Craven.

“There are many things in that office that should be subject to disclosure and public disclosure,” said Craven. The county prosecutor advises county officials, handles public funds and operates a public office — all functions worthy of public scrutiny, said Craven.

****

Here is the dissenting opinion in Uphoff v. Grosskopf:

Presiding Justice APPLETON, dissenting.

I respectfully dissent. While I recognize the very real policy reasons in preventing the disclosure of prosecution files and work product (a policy with which I agree), I do not find the slender reed of the legislature’s denomination of the State's Attorneys Appellate Prosecutor's Office as a “judicial agency of State government,” without any substantive policy analysis of this conclusion by the General Assembly, is sufficient to support the conclusion this state's 102 State's Attorneys are exempt from FOIA. Nor do I believe the inclusion of State's Attorneys within the several iterations of the judicial article of our state constitution places those offices within the judicial branch of government. Indeed, it is the judicial branch of government that is specifically excluded as a “public body” within the meaning of FOIA. Those 102 offices function as the prosecutorial arm of our system of justice, independent of judicial control. Because State's Attorneys are not members of the judicial branch and, thus, excluded, it stands to reason the offices are “public bodies” according to our legislature's definition of that term.

Should the legislature come to the conclusion that State's Attorneys' files not be subject to FOIA, it can specifically exclude State's Attorneys' offices from its purview.

To My 53 Followers on Twitter … Thanks for Keeping Our Circle Really Small!

I have 53 Twitter followers, a number that is pumped up by loving family members who will like almost anything I tweet (and thank you, Sam and Janet, for that!). In contrast, the University of Tennessee professor who tweeted “run them down” with a picture of Charlotte protesters on an interstate has over 70,000 followers.

And that’s why this professor lost his way, and possibly his job. When a professor or anyone else has a large Twitter following—and bearing in mind that Twitter is uniquely geared toward incitement, hatred, and bombast— this explains why Twitter is the best place to lose your job or your reputation (or both) in about 10 seconds.

Me? I’m happy with my 53 followers. My non-following reminds me that my opinions and viewpoints are never going to have large impact. That’s okay!

Does Your Employer Force You to Waive Rights (Probably, Yes)?

Your employer probably requires you to sign some forms from time to time. A common form that you are often required to sign is a class-action waiver of your right to sue over employment.

Here’s a quick illustration for context. Suppose your employer asks you for a family medical history as part of entry or reassignment to a job (a possible violation of the Genetic Information Nondiscrimination Act, depending on when you are asked for this information); or you’re an hourly employee and are not being paid overtime after 40 hours a week; or you’re a nursing mother who is not being given any time to express or nurse.

These claims can be costly as class actions, where a bundle of closely related cases are handled by law firms that take a chance on bankrolling the group’s lawsuit (if they think the case is a winner). If you are forced to sue alone, it's more likely likely than not that you'll not press your claim.

The Supreme Court is being asked to consider whether “class action waivers” that are administered to employees (as distinguished from consumers who but a telecomm’s cell plan, for example) are valid.

The National Labor Relations Board has repeatedly ruled that employees cannot be forced to waive their potential class action claims. Most federal courts agree with the NLRB; some don’t. It’s a big deal for employers and employees—and maybe you, in a future scenario.

Back to your cell phone. You almost certainly signed a class action waiver. It's fully enforceable. Thus, if you have a small claim against your provider-- say, they "upsold" you on a service you don't want and didn't realize you were buying when you were checking boxes on the service agreement--you can sue over that annoying $10 per month fee (if they won't remove it)-- but you won't have the advantage of a class action.

Should Law Professor Be Fired? You Judge!

University of Tennessee law professor Glenn Reynolds urged motorists in this tweet to drive over protesters blocking a Charlotte-area highway in North Carolina. “Run them down,” said Reynolds, who also produces the Instapundit website and writes for USA Today.

In my research article, "#Academic Freedom: Twitter and First Amendment Rights for Professors,” Notre Dame Law Review, I concluded: “Is every tweet from a professor protected as a form of academic freedom by the First Amendment? In the wake of Waters and Garcetti, colleges and universities have won most First Amendment cases involving disruptive faculty speech.  This strong trend implies that tweets that disrupt a school’s mission or operations are not protected by the First Amendment.” My article is here: Click here to see my article (it's very short, just like tweets).

Prof. Reynolds—similar to Prof. Salaita—would argue that his speech was political and metaphorical. UT, like UIUC, would argue that these tweets “disrupt” its mission to provide a safe and tolerant community. The disruption concept appears in two Supreme Court cases on free speech for public employees. 

A federal district court did not accept UIUC’s argument. I predicted the opposite outcome, and I was wrong, because my research showed: “Eighteen court opinions ruled in favor of schools in the course of discussing disruptive faculty speech. In losing these cases, faculty invoked the First Amendment to justify discussions of personal details about their sex life, inappropriate advances,  wanton vulgarity, and required reading about their sexual arousal.  Other losing cases involved faculty whose speech was confrontational, degrading, or conducive to an atmosphere of tension (emphasis added to indicate how I classify the Salaita/Reynolds Twitter rants).”

I have a proven track record for wrong predictions—now, it’s your turn! (Thanks to Alan for the lead on this.) 

What Is Your Governor’s Disapproval/Approval Rating? Results Here

Some governors are very unpopular—others have high approval ratings.

Here are current figures (source is Morning Consult, here). Photo credit: Shutterstock.

HIGHEST DISAPPROVAL (Disapprove/Approve)here.

1              SAM BROWNBACK (R-KS)            71%  23% 

2              DAN MALLOY (D-CT)                      70%  26% 

3              CHRIS CHRISTIE (R-NJ)                   68%  29% 

4              RICK SNYDER (R-MI)                       61%  33% 

5              PAUL LEPAGE (R-ME)                      58%  39% 

6              BRUCE RAUNER (R-IL)                   56%  33% 

7              GINA RAIMONDO (D-RI)                 55%  38% 

8              ROBERT BENTLEY (R-AL)              53%  35% 

9              MARY FALLIN (R-OK)                      53%  40% 

10            SCOTT WALKER (R-WI)                    53%  43% 

HIGHEST APPROVAL (Approve/Disapprove)

1              DENNIS DAUGAARD (R-SD)          74%  15% 

2              LARRY HOGAN (R-MD)                   70%  17% 

3              CHARLIE BAKER (R-MA)                70%  18% 

4              STEVE BULLOCK (D-MT)                66%  19% 

5              GARY HERBERT (R-UT)                   65%  24% 

6              GREG ABBOTT (R-TX)                      63%  23% 

7              BILL HASLAM (R-TN)                      63%  25% 

8              BRIAN SANDOVAL (R-NV)             62%  21% 

9              ANDREW CUOMO (D-NY)               62%  31% 

10            JACK MARKELL (D-DE)                   61%  24% 

My amateur observation: The high-approval governors here—many unknown on the national scene— could be running for president in 2020.

Meet Illinois’ New Chief Justice—Who Is a Main Defendant in a Federal Racketeering Lawsuit

In 2004, a little known Republican judge from southern Illinois raked in millions of dollars for an election for Illinois Supreme Court Justice. So did his Democratic opponent. My research into Karmeier’s campaign funds shows these campaign entries by a shadowy interest group, located in Washington DC: Illinois State Board of Elections, Citizens for Karmeier— contributions by JUSTPAC of $150,000 on October 12, 2004, and $186,125 on October 21, 2004, under the vendor name MPGH Agency, Inc., with an address of  700 13th Street NW Washington, DC 20005.

There were many more donations just like this.

Why did this race attract so much money? State Farm Insurance Co. donated heavily to Justice Karmier at the time it was pursuing an appeal in Avery v. State Farm.  The trial court awarded policyholders $1 billion in damages for the insurer’s fraudulent use of inferior parts to repair cars.  After Justice Karmeier was elected, he voted to overturn this ruling.

The 2004 election hounds him today. Recently, a federal judge ordered him to sit for a deposition in a RICO lawsuit against State Farm that stems from the insurer’s campaign donations.  In 2014, Justice Karmeier barely survived a bitterly contested retention election that attracted more than $2 million to attack his record.

Now, he has been elected by fellow justices to be the Chief Justice.

Compare that high achievement with this news from yesterday (September 19, 2016) (News source here. 

“An Illinois federal judge late Friday granted class certification to plaintiffs representing 4.7 million State Farm policyholders involved in a complex Racketeering Influenced and Corrupt Organizations Act (‘RICO’) regarding an alleged scheme involving campaign contributions being poured into an Illinois Supreme Court justice’s race to influence the reversal of a $1.05 billion decision,” says a release from the Clifford Law Offices of Chicago.

According to the complaint, State Farm and related defendants allegedly “perpetrat[ed] a scheme through an enterprise specifically designed to defraud Plaintiffs and Class out of a $1.05 billion judgment.”

Per Clifford’s, “That ‘scheme’ allegedly involved the defendants orchestrating a ‘dark money’ network of campaign contributions to the campaign committee of Justice Lloyd A. Karmeier for the Illinois Supreme Court who would be sympathetic to State Farm’s position in the $1.05 billion class action, and then misleading and lying to the Court about its clandestine and sizeable involvement in contributions to Karmeier’s contested election.”

Per Clifford’s, “That ‘scheme’ allegedly involved the defendants orchestrating a ‘dark money’ network of campaign contributions to the campaign committee of Justice Lloyd A. Karmeier for the Illinois Supreme Court who would be sympathetic to State Farm’s position in the $1.05 billion class action, and then misleading and lying to the Court about its clandestine and sizeable involvement in contributions to Karmeier’s contested election.”

Avery v. State Farm involved damages to claimants’ cars being repaired with non-factory authorized or non-original equipment manufacturer or OEM parts when they were led to believe that they were factory authorized, as customer’s State Farm policies provided. The case covers a period between 1987-1998.”

Illinois has a supreme court that matches the other branches of government for low ethics.

Publication of “Open for Business: Illinois Courts and Party Politics”

The Journal of Law and Public Affairs (University of Pennsylvania Law School) will publish my research article, “Open for Business: Illinois Courts and Party Politics.” I am grateful to this law review—and to my family— for their support.

Professors as Critics of Judicial Ethics: Remembering Prof. Rubin G. Cohn

 A small group of professors examine problems in their state judicial systems. At the University of Illinois at Urbana-Champaign, I had an influential predecessor, Prof. Rubin G. Cohn.  His superbly researched, “The Illinois Judicial Department: Changes Effected by Constitution of 1970,” University of Illinois Law Forum (1971), said:

The issue of judicial reform which most dramatically— almost exclusively— absorbed the attention of the public and the communications media in the December 1970 referendum on the proposed Illinois constitution was election versus appointment of judges. Because of its intensely controversial nature, this issue was submitted to the voters for separate resolution, designated on the ballot as Proposition 2A (election of judges) and Proposition 2B (appointment by the Governor from nominees submitted by judicial nominating commissions). Proposition 2A carried, thus assuring a continuation of the adversary elective process for vacancies in judicial office but with significant substantive changes which have not received the attention they deserve.

Forty-five years later, I am trying in my research to retrace his footsteps, with the trail grown over by brush. 

Arbitration: A Better Place for Retired Judges

Many retired judges work as highly paid arbitrators for firms such as JAMS and the American Arbitration Association. Arbitrators are private judges who are hired by two or more parties who have a legal dispute.

Here is how JAMS, a highly respected private judicial system, promotes itself:

JAMS is the largest private alternative dispute resolution (ADR) provider in the world. With its prestigious panel of neutrals, JAMS specializes in mediating and arbitrating complex, multi-party, business/commercial cases – those in which the choice of neutral is crucial.

Founded 1979

The Experts

Nearly 300 full-time neutrals, including retired judges and attorneys with proven track records. 195 employee associates.

ADR Options

Facilitative and evaluative mediation, binding arbitration, neutral case evaluation, settlement conference, mini trial, summary jury trial, neutral expert fact finding, special master, discovery referee, class action settlement adjudication, project neutral and dispute review board services.

Cases Handled

JAMS panelists primarily resolve multi-party, complex cases in virtually all areas of the law. JAMS handles an average of more than 12,000 cases per year in hearing locations throughout the world.

In my opinion, this is an excellent way for a retired judge to be employed after leaving the bench. Retired judges frequently charge $300 per hour and up for their services. I see no problem with this-- it's a private sector market (and preferable to collecting a 100%-of-salary pension, while earning a 100% salary, all paid by taxpayers).

“Retiring” Judges

Illinois needs to reform judicial ethics. Consider the use of bogus retirements. When judges first run for office, they must declare a political party and win by 50% plus one vote. If they run again, this is a retention election. They do not list their party, and they must win 60% of the vote to retain them.

Three judges in St. Clair County who are up for retention elections “retired” to refile as new candidates in the general election.  By doing so, they will avoid the 60% retention requirement and need to garner only one more vote than their opponents to serve again. 

Sounding like a smooth talking politician, Judge John Baricevic said that running in the general election will allow him to speak about issues affecting the judiciary. He failed to mention that his less noble intention to game the system in order to survive the next election.

In his 2010 retention election, Judge Baricevic squeaked by with a 62.49% yes vote— a margin of about two percentage points.  In the 2016 election, he can poll twelve percentage points less than he did in 2010, and win another term on the bench. St. Clair County Judge Lloyd Cueto retired to run in the 2006 general election, which he won.  He bragged he did not break the law— and he was correct in pointing to this retire-to-run loophole.

These retiring judges might also be angling to double dip— that is, receive retirement income while earning income in their “new” job. This recently happened in New York, where state supreme court Justice Brian DeJoseph retired on December 31, 2014 and began a new term of office the next day.  His election to a new term exploited a loophole in New York’s retirement law, enabling him to bank an estimated $112,000 a year in pension benefits while concurrently earning $183,300 as salary.  In Pennsylvania, 86 judges similarly double-dip, receiving nearly $11 million in combined pension and salary payments. 

Illinois has a similar problem. Judge Michael McCuskey, now an Illinois circuit court judge, took his current post after he retired from his federal judgeship. Upon retirement, he became eligible by federal law for a full-salary pension of $199,100 per year.  He quickly returned to the bench— simply by changing a federal robe for a state robe.  In Illinois, he earns $190,758. 

Thus, Judge McCuskey appears to be paid about $389,858 annually from his federal pension and state salary. Nothing in Illinois’ Judicial Code addresses this problem, perhaps because drafters never thought that a judge would do this. Aggravating this problem, Rule 68 of the Illinois Code creates an informational obstacle course for anyone who wants to discover if a judge is double dipping with a public pension.  Judge McCuskey’s possible money grab, facilitated and obscured by unnecessary barriers in Rule 68, reduces public confidence in Illinois courts.

In my research, the only way to find any information was to drive to Springfield, present my photo ID at the state supreme court, and complete a form with my name and address and my purpose for requesting Judge McCuskey’s annual financial disclosure form. Bear in mind that this disclosure is provided specifically so that the public has this information—so, why make it so hard to get?

Judge McCuskey is an occasional guest on central Illinois radio, where he and another local judge are touted as “pace setters” for engaging the “common people.” The common people— better known as taxpayers—would like to know if we are paying Judge McCuskey a full federal pension on top of a full state salary.

Illinois' Porno Judge ... and More

If you use your employer’s computer and internet to access pornographic sites at work, you’ll probably be fired. Will County policies prohibit this conduct. That didn’t stop Judge Joseph Polito (pictured here) from frequently using his court computer to access pornography while at work. In 2013, Illinois’ Judicial Inquiry Board suspended him 60 days without pay. Why was the judicial board more lenient than many employers? What confidence can the public have in a judge who returns after a 60 day suspension?

The Chicago Sun-Times tried for months to have Will County’s Chief Judge, Gerald Kinney, reveal records that would expose Judge Polito’s misconduct. Judge Kinney stonewalled those efforts, claiming that judicial records were exempt under state FOIA laws. He was eventually overruled by the Illinois Attorney General, a ruling that led to public disclosure of Judge Polito’s misbehavior. Judge Kinney faced no discipline for keeping Will County citizens in the dark about their fallen judge. Doesn’t a judge owe citizens a higher duty than covering for a colleague who is viewing porn at his courthouse computer?

Judge Scott Drazewski and Judge Rebecca Foley (McLean County) had an extramarital affair at work.  During that time, Judge Drazewski presided over cases where Judge Foley’s husband represented local clients. When the attorney-husband learned of the affair, he filed a complaint that alleged that Judge Drazewski failed to disclose the personal relationship, to the possible detriment of people he represented. The Illinois Judicial Inquiry Board suspended Judge Drazewski for four months without pay, and censured Judge Foley.

Why was the board lenient? Judges hold positions of extraordinary trust. If they lack good personal judgment, this undermines public trust. Numerous court cases involve some aspect of an extramarital affair. These cases include division of marital property, child visitation and custody, alimony, contested wills, family partnerships, domestic abuse, stalking and more. Can anyone appearing before these judges in these types of cases feel confident about the integrity of their court?

In 2005, Judge Kurt Klein (DeKalb County) publicly endorsed another judicial candidate. The Judicial Inquiry Board found that he violated the Judicial Code that restricts a judge from campaigning for others. Judge Klein received a mild punishment— a reprimand. If the Board censured him, it would have made a stronger message about the Code’s campaign restrictions on judges.

On August 26^th, Justice Robert Steigmann donated $1,000 to a Republican candidate—a current assistant public defender— for state’s attorney in Champaign County. This was his second $1,000 donation to the candidate. In a radio interview, he explained that he was within the rules of the Illinois Supreme Court. He is correct—but he failed to mention that Illinois last modified its judicial rules for political campaigns in the mid-1990s. Iowa, Wisconsin, Indiana and Kentucky—our adjoining states— have newer and stricter rules. Why is Illinois more lax than our neighbors?

Not even in Cook County, where Democrats have a virtual monopoly on power, do sitting judges donate to candidates for state’s attorney. When a judge donates to a candidate for prosecutor, is this patronage? Would the candidate ask the judge for advice on prosecuting cases or setting prosecuting priorities? Would defendants perceive this as a fair and neutral court system? Would they perceive Justice Steigmann as a co-prosecutor?

Illinois has outdated and lax judicial standards. It has a judicial board that coddles wayward judges— Democrats and Republicans alike. These examples lower the reputation of many good judges. But Illinois has judges who put their selfish interests ahead of the public interest. The job of reforming Illinois courts belongs to the state supreme court. When will they act? 

Excellent Video of Champaign County Tornadoes

Click here and scroll down to video link.  We’re fortunate to have avoided widespread damage. Best wishes to those who are rebuilding in the aftermath.

Thank Goodness for a School Marm's Virtue in 1875 (Scandalous Details Follow)!

Before Craker v. Chicago and Northwestern Railway Co., an 1875 case, employers were liable in the U.S. for their employees only if the worker acted explicitly on the boss’s direction and caused harm.

An elementary school teacher missed her ride to Baraboo, Wisconsin on the passenger train, but was offered midday passage on the freight train making that run. She accepted the change in her ticket, and found herself seated in the cab near a conductor. Here is the court’s account from that point:

… the other passenger and the brakeman left the car, plaintiff and the conductor being the only persons remaining in it. The conductor then came and sat down near the plaintiff, and asked her several questions as to where she was going, where she lived, and whether she was acquainted with certain persons. What followed is thus stated by the witness: “He said, 'I suppose you are married like all the rest of the school marms?' I said, 'No, I am not.' Then he sat up nearer to me, and put his hand in my muff, and said, 'There is room for two hands in this muff, aint there?' I said, 'No, sir, there is not for yours,' and jerked my muff away. He then said, 'My hand is pretty dirty, aint it? It looks as though it needed washing.' I told him to wash it then, water was plenty. He then said, 'It is thawing considerable, that's so.' I had the tassel of my muff in my hand, tossing it, and he said, 'If you don't stop twisting that, you will wear it all out.' I said, 'I don't care if I do.' He then said, 'What makes you look so cross?' I didn't answer him, but turned away from him. Pretty soon he got up, and I supposed he was going away. He stepped to the side of my chair, threw his arms around me, and held my arms down. He threw his left arm around my shoulder, and took hold of my arm between the shoulder and left elbow with his right arm; he pressed his elbow on my right arm, and then commenced kissing me. I said, 'Oh, let me go; you will kill me.' He said, 'I am not agoing to hurt you.' Then I said, 'Do let me go; I will jump out of the car, if you will.' I tried to get up on my feet, and he pushed me back in the chair, and said, 'I aint agoing to hurt you.' Then I said, 'What have I ever done to you, that you should treat me in this way?' After he had kissed me five or six times, he said, 'Look me in the eye, and tell me if you are mad.' I said, 'Yes, I am mad.” Plaintiff continued in the car until she reached her place of destination.

…

The court expanded this employer’s liability, stating it didn’t matter if the employee’s actions were ordered or not. Here is how the court put it:

“It rested with the [company] to perform it by agents of its own choice, on its own responsibility. It chose the officers of the train, with the conductor at their head, to perform its contract for it. Where was the corporation and by whom represented, as to this contract and this passenger? Not surely in some foreign boardroom, by directors making regulations and appointing agencies for the corporate business. They could not perform this contract. ....  Like the English Crown, [the Company] lays its sins upon its servants, and claims that it can do no wrong. We cannot bend down the law to such a convenience.”

On feminine virtue, the court added: “In respect to female passengers, the contract proceeds yet further, and includes an implied stipulation that they shall be protected against obscene conduct, lascivious behavior, and every immodest and libidinous approach.” 

The Passing of My Mentor

My many blessings in life include this man, Peter Feuille, who hired and mentored me. As a mentor and campus leader, Pete had the courage to challenge people not to accept good results. Instead, he pushed us to reach our potential. Often, this meant that Pete gave us some tough love. The day the campus informed Pete, my Director, that I would be granted tenure, he called me in for the happy news. “Michael, I am pleased to inform you that you have been awarded tenure. Now, you can stop running the low hurdles and start running the high hurdles.” Did I like hearing this at the time? No. Did Pete make me step up my game? I’ve been running like Forest Gump ever since that day. I love you, Pete. Thanks and God bless you forever.

Gig Work: Undoing 300 Years of Social Responsibility

Advocates for “gig economy” work (think Uber and other forms of work arranged on a one-off basis) point to the flexibility and control people have when they work in this new kind of relationship. If an Uber driver gets into an accident, does Uber pay? The company offers $1 million in insurance while a passenger is in the car—but during the time a car is dispatched but empty, the driver’s personal insurance is all that applies (to confirm,click here). [Notice that the policy does not provide coverage for catastrophic accidents that cause more than $1 million in losses.]

This changes an employer’s liability for damages caused by his employee. These case are from English courts in 1691:

“The owners are liable in respect of the freight and as employing the master; for whoever employs another is answerable for him, and undertakes for his care to all that make use of him.” Boston v. Sandford, 2 Salk. 440; 3 Mod. 321 (1691).

“So, in this case, if the defendant's servant kindled the fire in the way of husbandry, and proper for his employment, though he had no express command of his master, yet the master shall be liable ...; for it shall be intended that the servant had authority from his master, it being for his master's benefit.” 1 Ld. Raym. 264 (1691).

Bottom line: The emerging work model sets us on a course where people who benefit by employing others do not take reciprocal responsibility for damages caused by their employees. It looks like a major step back in regulating how our society allocates risk and responsibility.

How Did Employers Become Liable for Damages Caused by Their Employees?

Consider these facts: A minor jumped on a train, and was therefore trespassing on private property. The brakeman seized the youth, and threw him from the train while the train was traveling at a high speed. The young man had his arm severed, and lost part of his remaining hand. The case, decided in 1910, extended the doctrine of strict liability to the railroad company with this reasoning:

“The master is responsible for the torts of his servant, done in the course of his employment with a view to the furtherance of his master's business, and not for a purpose personal to himself, whether the same be done negligently or willfully, but within the scope of his agency, or in excess of his authority, or contrary to the express instruction of the master.”

The doctrine was imported to America from England in the late 1800s.

Shipbuilders Strike in 1817 Over Withdrawal of Grog

My research into the evolution of the employment relationship turns up this interesting account. In 1817, Thacher Magoun, a shipbuilder of Medford, Mass., “determined to abolish the grog privilege.” As recounted by a 1934 Department of Labor historical record (quoting now): The hours of labor at that time were from sunrise to sunset, and all employers were obliged by custom to furnish liquor free at least twice a day. These two periods for drink were really periods of rest, and were called luncheon times, and Mr. Magoun's no-rum movement meant no luncheon time, and was practically an increase in the working time, the employer thus saving the cost of time as well as the cost of rum. The hours of this luncheon privilege were eleven o'clock in the forenoon and four o'clock in the afternoon. Many of the workmen who were temperance men were indignant at the action of their employer, as they felt that the luncheon times were as oases in the desert of unremitting toil. There was a brief, unsuccessful strike, “but finally all gave in and a ship was built without the use of liquor in any form.” Ship workers “seem to have been the first to bring the question of the hours of labor to a direct issue.” The journeyman shipwrights and calkers of Boston organized in 1832 and “resolved that from and after March 20 until the first of September we will not labor more than ten hours a day unless paid extra for each and every hour.” 

Employment Laws for Women (Breastfeeding vs. Hours Limits): Compassionate, Paternalistic, or Something Else?

Did you know that the Fair Labor Standards Act (our nation’s primary law for minimum wage and overtime) provides several rights for nursing mothers at work? These include reasonable “break time” for breastfeeding or expressing, up to a child’s first birthday (state laws may add more protection). See here for more.

Compare to this, Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (1876). A state law—common for the time— prohibited the employment of women (and minors) for more than 60 hours per week in manufacturing. The criminal complaint against the employer read: “COMPLAINT under the St. of 1874, c. 221, to the Police Court of Lowell against a cotton and woollen manufacturing company, for employing an unmarried woman named Mary Shirley, who was over twenty-one years of age, to work in the defendant’s manufacturing establishment in the manufacture of cotton goods for sixty-four hours per week.”

The state supreme court upheld the conviction of the employer (who paid a fine), reasoning:

It is also said that the law violates the right of Mary Shirley to labor in accordance with her own judgment as to the number of hours she shall work. The obvious and conclusive reply to this is, that the law does not limit her right to labor as many hours per day or per week as she may desire; it does not in terms forbid her laboring in any particular business or occupation as many hours per day or per week, as she may desire; it merely prohibits her being employed continuously in the same service more than a certain number of hours per day or week, which is so clearly within the power of the Legislature… 

Eight Hour Work Day: First Wage & Hour Law (1868) Nullified by Supreme Court (1876)

On Labor Day, it’s useful to recall that the nation’s first wage and hour law was enacted by Congress in 1868. Many federal projects were funded to rebuild a war-torn nation. As recited by U.S. v. Martin (1876): “On the 25th of June, 1868, Congress passed an act (15 Stat. 77), declaring ‘that eight hours shall constitute a day’s work for all laborers, workmen, and mechanics now employed, or who may hereafter be employed, by or on behalf of the government of the United States.’”

A man named Martin filed this complaint: “From said 19th of May, 1869, to the time of his final discharge, Oct. 15, 1872, he worked seven hundred and fifty-two and a half calendar days, twelve hours each day, and four hundred and thirty nine and a half calendar days, eight hours each day.” A lower court ordered a judgment for pay in arrears totaling $1,019.49.

The U.S. Supreme Court reversed, reasoning:

In the case before us, the claimant continued his work, after understanding that eight hours would not be accepted as a day's labor, but that he must work twelve hours, as he had done before. He received his pay of $2.50 a day for the work of twelve hours a day, as a calendar day's work during the period in question, without protest or objection. At that time ordinary laborers under the same government received but $1.75 per day at the same place, and those engaged in the same department with the claimant in a private establishment, at the same place, received but $2 for a day's work of twelve hours, and the finding adds, ‘they had more work to do than the claimant had while similarly employed.’ The claimant's contract was a voluntary and a reasonable one, by which he must now be bound.

In other words, by not protesting or striking, the Court reasoned he waived his right to an eight hour work day, instead of a twelve hour work day. Did this ruling encourage workers to be militant instead of cooperative?

Unlikely Labor Day Hero: President Martin Van Buren!

While researching the origins of our current laws on minimum wage and overtime pay, I uncovered this gem: The earliest American law that regulated hours for workers was issued on March 31, 1840 by (drum roll) President Martin Van Buren, whose proclamation extended to all projects funded by the U.S. government. His directive sought to remove “much inconvenience and dissatisfaction” by “adopting a uniform course” that directed “all such persons, whether laborers or mechanics, be required to work prescribed by the ten hour system.” Happy Labor Day, Martin! Source: FEDERAL LIMITATION OF HOURS OF LABOR ON PUBLIC WORKS, Monthly Review of the U.S. Bureau of Labor Statistics, Vol. 3, No. 4 (OCTOBER, 1916), pp. 116-133, Published by: Bureau of Labor Statistics, U.S. Department of Labor, http://www.jstor.org/stable/41823167.