Update on “My Dad, The Illegal Immigrant”

This recent post drew seven times the normal readership for ProfLERoy. That statistic, plus encouragement from some to publish the piece more widely, has led to publication (this coming Monday) in Law360, an online journal with a readership of 700,000 mostly lawyers.

The editor said the piece needs a tighter connection to lawyers—and while most of my readers are not lawyers, you might find the new part (it’s brief) interesting. I learned by making these edits and am happy to share!

Anti-immigration policies are not merely political. They require legal articulation. In practical terms, that means cadres of lawyers are needed to draft legislation and executive orders, and issue administrative rulings and court opinions. Recent experience shows that America has no shortage of brilliant legal talent that is poised to make Mr. Trump’s campaign promises of excluding Muslims and deporting millions of illegal aliens a reality.

Kris Kobach, a Yale J.D., is a prime example. He played a key role in drafting Arizona SB 1070, a law that criminalized the employment of illegal aliens until the Supreme Court, on a 5-3 vote, struck down that provision. 
Mr. Kobach had the good fortune, according to his online biography, of being born in Madison, Wisconsin. Whether he is Baptist by birth or choice, it’s true that Baptists have not been subjected to genocide. 
But I wonder if Mr. Kobach understands that Baptists started as a persecuted faith in a foreign country, England. Roger Williams began America’s first Baptist colony, the Providence Plantation, in 1636 to provide sanctuary to religious minorities, not just people of his faith. Try to reconcile Mr. Kobach’s passion for bringing the heavy boot of state authority down on illegal immigrants with Roger Williams’ vision of America, and you might conclude that Mr. Kobach would ship Mr. Williams back to England.

My father, by contemporary comparison, was less fortunate than Mr. Kobach….

If Mr. Trump is elected, he’ll need a small army of lawyers to draft regulations to make good on his promise to deport millions of people who are here illegally, and to exclude Muslims. If you’re inclined to be that lawyer, my father’s 56 years of illegal status in America is meant as an example for you to consider. Judging from Mr. Kobach’s lawsuits and model legislation, he believes he has made America better for Americans. Tell that to my Dad’s employees, some of whom were born in America and many who weren’t.  They would advise you to put your legal talents to better use. If you join the Trump deportation and exclusion team, you will make America whiter, more Christian, less Hispanic, and also less Asian— but you will also throw out America’s best hope to be great.

Map of Hate Tweets Mirrors Trump's Support

See the map? The red areas show “geotags” where cell phone messages are most concentrated for homophobic, racist, and disability tweets. The map strongly correlates to Donald Trump’s strongholds of support.

For homophobic tweets, the tracking tool counts tweets with the word dyke, fag, homo, and queer (different maps for each term).
For racist tweets, the tracking tool counts chink, gook, nigger, wetback, and spic (again, different maps by term).
For disability, the map counts cripple.
These hate-message geotags don't include Trump campaign tweets-- such as this-- but maybe they'll add a Pocahantas tracker:
Donald J. Trump ‏@realDonaldTrump  Jul 25

Elizabeth Warren, often referred to as Pocahontas, just misrepresented me and spoke glowingly about Crooked Hillary, who she always hated!

Humboldt State University (California) starting tracking this mapping tool in 2013, maybe earlier— long before Trump was a candidate.

If you want to see specific maps by “homophobic,” “racist,” and “disability” CLICK HERE TO SEE IF YOUR AREA IS HIGHLIGHTED. 

Map data ©2016 Google, INEGI

My Dad, the Illegal Refugee ... And Employer of Hundreds Who Sought Work

Donald Trump told a rally in Portland, Maine on Thursday afternoon that the U.S. should block access from certain countries, even refugees who are otherwise legally admitted. His rationale? Immigrants from these nations have plotted to kill Americans. His list? Somalia, Morocco, Uzbekistan (he asked the crowd where it was located), Syria, Afghanistan, the Philippines, Iraq, Pakistan and Yemen.

My Dad, a Hungarian refugee, faced similar attitudes and policies in 1949.

****

When my father died, I was 48 years-old. I knew my Dad came to America after he lost 26 members of his family in Nazi death camps and on the Russian front as human shields. Their crime? They were Jews. But I did not know my Dad was here illegally until after he died.

My Dad’s surname name was Lefkovitz— a dead giveaway that he was a Jew. When he met with agents of the French underground to come to America, they did three things for him. They gave him a French last name—LeRoy— to disguise his Jewishness. They gave him $5 as he boarded a cargo ship out of Hamburg. And they gave him false papers to enter America.

For the next 56 years, he lived in fear of being found out as an illegal alien—so fearful, he did not even tell my Mom, a Chicago-born American. She didn’t find out until he was eligible for Social Security benefits. After she pestered him to apply, he told her that U.S. government knew him to be three years younger than she (we) knew. [She told me about this after dad died and I started to teach a course on immigration and employment.]

Why did he lie and cheat the system?
Because the U.S. would not allow Jews over 18 years of age to enter America in the late 1940s. Fortunately, he looked younger than his years—and he had the benefit of an agent who forged convincing immigration documents.

In his 56 years in America, my Dad rose from a baker’s assistant in the Catskills, working from 3:00 a.m. to 3:00 p.m., to a highly successful owner of a construction business and a sprawling horse farm in Chicago’s northwest suburbs. He made a fortune; but he was more proud that he donated a fortune to people who had less than him.

The current backlash against illegal immigrants evokes memories of my Dad’s long, marble kitchen table. He ran his business from the head of that table. His work crews came by for breakfast and coffee—and detailed work instructions— six out of seven mornings every week.

My Dad loved to hire outcasts. He knew they would work harder than anyone else. I can’t count the number of Polish carpenters who worked for my Dad. They were Catholic and spoke in heavy accents. It didn’t matter to my Dad, a Hungarian Jew.

He hired Rick (Polish) and Ray in the late 1970s, the first gay men I knew. Today, they would be married—then, they were both rejected by their religious families.
When Ray was on his death-bed with cancer, my Dad traveled to Lockport to beg Ray’s father to visit his own son before he died. Ray’s dying wish was granted because my Dad understood the destructive power of rejection. Ray and his father made peace.

James, a U.S. citizen and African-American carpenter from the South Side, was one of my Dad’s favorite employees because, in my Dad’s words, James was “a project” who worked out. James wept the day he left my Dad and took a better paying job, with my Dad’s blessing. James, an ex-con, was recruited by a Polish worker who told him my Dad gives people second chances.

Then there was Emil, the 82 year-old carpenter from Norway. Rick learned that Emil could not move on and do anything after his wife of 60 years passed away. Emil was an excellent finish carpenter. Rick got him to apply for work. My Dad gave Emil a one week tryout—and on Friday evening, as we prepared for Sabbath dinner, Emil trudged in for his paycheck. My Dad hired him.

For those among us who want to throw out immigrants: You are throwing out America’s best hope to be great. You don’t have to open your wallets to these people—simply open your hearts, your minds, and the gates to opportunity.

Mike Pence Favors Free Riders: Right-to-Work the Indiana Way

Indiana passed a right-to-work in 2012. In general, right-to-work means that a state is allowed to pass a law that forbids a union and employer to enter into an agreement that requires an employee to be a union member as a condition of employment.

But what if the state law, in addition, requires the union to pay to represent employees who opt of being a member, and thereby opt out of paying dues or non-member fees?

Mike Pence, as governor, signed this bill into law.

Recently, a federal appeals court voted 2-1 to uphold the law.

The union argued that the law went beyond barring mandatory dues payment-- it also unconstitutionally obligated unions to pay for services for non-members (for example, by taking their cases to arbitration, a costly exercise).

The majority dismissed this argument on technical grounds, saying that the union did not brief the issue earlier.

The dissenting opinion, by Judge Diane Wood, said this:

Until now, however, reimbursement for the benefits that the union must confer on the nonmember has been a different matter, and for good reason. If there is no way to compel the nonmember employee to pay the actual cost of the services the union is obligated to provide for him, a classic “free-rider” problem arises. Free-riding is a potential problem whenever a collective good (such as the union services here) is involved. If the good (or service) can be priced individually (that is, the seller can ensure that only the buyer obtains the benefit), free-riding will not be a problem. But if each person in the group obtains the benefit of the collective good whether or not she pays for it, then there is a risk that the supply of the good will diminish, or in the limiting case will disappear altogether.

To read the case (Sweeney v. Pence), click here. 

Walgreen’s: At the Corner of Mean and Vindictive (Not Happy and Healthy)

Walgreen’s fired a pharmacist, Sami Mitri, after Mitri challenged his store’s questionable billing practices.

As reported by Reuters Legal, in 2010 Mitri accused Walgreens of firing him for complaining that some pharmacists in nearby Walgreens stores were partially filling prescriptions, giving the customer an "IOU" for the remainder, and billing Medicare, Medicaid and private insurers for the full amount. That could have resulted in fraud if the customer did not return for the balance.

Walgreens admitted the “IOUs” were a throwback to an earlier computer system. It said internal efforts to stop the practice were underway before and after Mitri complained.

By the way, no evidence showed that Walgreen's that defrauded the government-- but Mitri had a good-faith concern that fraud was occurring.

The jury found that Walgreen’s fired Mitri in retaliation for whistleblowing, and awarded him economic and punitive damages.

The current legal issue is the amount of punitive damages. Mitri won compensatory damages of $88,000. The jury awarded punitive damages of 13 times that amount—a bit over $ 1 million.

Walgreen's says that's unconstitutional (too high in relation to actual damages) under U.S. Supreme Court precedent.

The case is Mitri v. Walgreen Co. The Ninth Circuit federal appeals court has scheduled the matter for arguments. Photo credit: Trademarkia.com

New Pay Law for Women: Employers Can’t Ask for Salary History

Women earn about 80% of men— holding constant for education, experience, job requirements, and so on. No single factor explains the difference. This week, Massachusetts enacted a law (effective in 2018) that aims at one element of pay discrimination: asking employees for salary history during a job interview.

Drafters of the law believe that employers often lower salaries for women because women who apply for better-paying jobs are coming from jobs that pay them less than their male counterparts for the same work.

As reported by U.S. News & World Report, Amanda Marie Baer, an employment lawyer at Mirick, O'Connell, DeMallie & Lougee, LLP in Massachusetts explains: “The prohibition is designed to stop perpetuating pay inequality from employer to employer when employers offer to pay women applicants less than their male counterparts because the men were paid more at the last employer… For example, if a company is hiring two accountants, Pam and Paul, and knows their respective salary histories, it may be inclined to offer Pam $80,000 because she was paid $60,000 by her last employer, while offering Paul $90,000 because he was paid $70,000 by his last employer – resulting in a $10,000 pay gap. If the company does not know Pam and Paul’s salary histories, it may offer an equal salary of $85,000 to both.” (photo credit: kata-illustration.com)

“I Alone Can Fix It”: Comparing 1933 and 2016 Speeches

This clip is worth 30 seconds of our time. CLICK HERE.

Trump in World Context: More Germans Believe Jews Are Too Powerful

Consider these results from a recent public opinion poll in Germany (quoting in red font from the Jewish Chronicle Online, here.):

Eleven per cent of Germans think Jews have too much influence in society, according to a new study.

One in 10 want a new Fuhrer to run Germany, with around six per cent believing that Hitler would have been regarded as a great leader were it not for the Holocaust.

Researchers from the University of Leipzig asked 2,240 Germans about far-right attitudes.

They found that eight per cent felt that Nazism had its good points, while 12 per cent believed Germans were naturally superior.

Extremist views had become more acceptable following an increase in the number of immigrants arriving in Germany. Forty per cent of Germans were in favor of banning Muslims from migrating to the country, the survey found.

Oliver Decker, a co-author of the report, said that far-right ideology had moved from the fringes of society and was now commonplace.

….

The 40%+ group that favors Donald Trump has many mainstream voters, but also includes David Duke and other “proud” heritage people who call themselves “racial realists.”

Trump never repudiated Duke, even as Duke has espoused the belief that Jews control of the Federal Reserve Bank, the U.S. federal government, and the media.

So, in this light, it is disturbing to see that America’s fringe-right is on a parallel course with Germany’s fringe-right—a group also animated by strongly anti-immigrant attitudes.

The Fuhrer never apologized for offending anyone, as far as history can show.

Alienated White Workers: Parallels Between Hitler and Trump

Today’s Wall Street Journal features union members in Pennsylvania who support Donald Trump. The gist of the article is here:

The appearance won him (Trump) kudos from Monessen’s Democratic mayor, Lou Mavrakis, who says he is leaning toward voting for the Republican. “Trump is reaching the people,” says the 78-year-old former union organizer. “He’s giving them some hope. If you don’t have the Democratic Party coming here and offering something, what are we going to do?”

Here is a Wikipedia summary of Hitler’s use of the German Workers' Party to create his Nazi Party, and power grab for a dictatorship (the following are quotes from “German Workers Party”):

DAP was a short-lived political party and the forerunner of the National Socialist German Workers' Party, commonly referred to in English as the Nazi Party. The DAP only lasted from January 1919 to February, 1920.

The DAP was founded in Munich in the hotel "Fürstenfelder Hof" on January 5, 1919 by Anton Drexler. The members met periodically for discussions with themes of nationalism and antisemitism directed against the Jews. Drexler was encouraged to form the DAP in December 1918…. Drexler's wish was for a political party which was both in touch with the masses and nationalist. In January 1919 with the DAP founding, Drexler was elected chairman and Harrer was made "Reich Chairman", an honorary title.

….

 While monitoring the activities of the DAP, Hitler became attracted to founder Anton Drexler's anti-Semitic, nationalist, anti-capitalist, and anti-Marxist ideas. While attending a party meeting at the Sterneckerbräu beer hall on September 12, 1919, Hitler became involved in a heated political argument with a visitor, a Professor Baumann, who questioned the soundness of Gottfried Feder's arguments against capitalism….  

In vehemently attacking the man's arguments he made an impression on the other party members with his oratory skills and, according to Hitler, the "professor" left the hall acknowledging unequivocal defeat. Impressed with Hitler, Drexler invited him to join the DAP. Hitler accepted on September 12, 1919.

…. After giving his first speech for the DAP on October 16 at the Hofbräukeller, Hitler quickly became the party’s most active orator. Hitler’s considerable oratory and propaganda skills were appreciated by the party leadership as crowds began to "flock" to hear his speeches during 1919 and 1920. With the support of Anton Drexler, Hitler became chief of propaganda for the party in early 1920. Hitler preferred that role as he saw himself as the drummer for a national cause. He saw propaganda as the way to bring nationalism to the public.

Marathon Swimming for a Cause

My amazing high school friend, Doug McConnell, lost his father to ALS. Since that time, Doug has raised more than $320,000 to fund ALS research.

Tomorrow, Doug, with the help of his A Long Swim Team, will tackle the Molokai Channel, swimming between the islands of Molokai and Oahu. This is a 27+ mile marathon swim in open-ocean with steady trade winds, 15 foot swells, and lots of wildlife such as whales, dolphins, jellyfish and, lately, sharks.

Only 35 swimmers have successfully completed this journey.

His story is here, along with this opportunity to support his— that is, our— cause.

Godspeed, Doug. For more, including a link to make a donation, click here.

Hey, Voter: What Do You Think of the “Axiom of 80”?

In my research on elections for judges, I came across Prof. Charles Geyh’s “Axiom of 80.” Drop me a line at m-leroy@illinois.edu if you have a thought about this.

Efforts to address threats to independence that arise in the context of selecting judges must take into account four political realities, that together constitute what I am calling the “Axiom of 80”: (1) Roughly 80% of the public prefers to select its judges by election and does so; (2) Roughly 80% of the electorate does not vote in judicial elections; (3) Roughly 80% of the electorate cannot identify the candidates for judicial office; and (4) Roughly 80% of the public believes that when judges are elected, their decisions are influenced by the campaign contributions they receive.

Prof. Geyh discouragingly concludes that “reformers conceded to the political necessity of judicial elections long ago, and now many appear poised to raise the white flag on merit selection systems that split the difference between purely appointive models and contested elections.” Photo credit to The Economist.

Walk This Gauntlet for Financial Info on an Illinois Judge!

Suppose you’re an employee who is suing Wal-Mart for wrongful termination; or you’re an employer who is suing State Farm for fraudulently misrepresenting an insurance policy; or you’re suing a publicly owned landfill company to prevent them from building a new dump over your aquifer; or you’re a large company who is suing to stop Exelon from raising its rates. 

You might want to know if your judge has a financial interest in your case. Or, as in my case, you want to know if a judge is receiving a full-salary pension from federal courts and is double dipping by working now as a state judge.

Here is the form you’ll need to complete (see picture).

You’ll be required to identify yourself, list your address and list your phone number.

You’ll need to state your occupation.

You’ll be told: “Duplicate copy will be forwarded to judge whose statement has been examined.”

Let’s examine the state’s interest in collecting this information from you.

Your identity: It’s against the law to harass, threaten, intimidate, stalk, interfere with a judge's business relationships, and injure a judge. Seeking a judge’s financial statement has no connection to these illicit acts. But requiring you to identify yourself is a judge’s way to intimidate you into not asking for this information.

Your address: There is no obvious state interest in seeking this information—but asking for it has a chilling effect. An address is needed to serve a person with a subpoena for records or order to appear in court, under threat of possible contempt.

Your occupation: What does this have to do with seeking public information? Are lawyers privileged to get this information, but reporters and researchers aren’t? If you're unemployed, do you not get the information? Is the intent to contact your employer?

The more fundamental question is, why isn’t this material available online to the public? If we elect judges (we do), and if judges are required to recuse themselves in matters where they have a financial interest (they are so required), why must we drive to Springfield or Chicago, go through a security line, and fill out a form that turns the tables on us for seeking information?

Put another way: If it’s this hard to acquire financial information about a judge, then why require them to make these annual disclosures? 

Map Case Shows Courts’ Flaws

Illinois suffers from the most partisan system for electing judges, eroding the independence of courts from politics. A Cook County judge blocked an effort to allow voters to decide if an independent commission should redraw legislative maps, a move that would minimize politics in redistricting. Judge Diane Larsen ruled that the map plan did not meet requirements in the Illinois Constitution. Judge Larsen’s legal analysis is sound, consistent with a nonprofit group’s assessment in 2010 that she is “a smart judge who issues timely and well-reasoned opinions.” But the problem here is that she is a Democratic judge whose ruling keeps Speaker Michael Madigan in control of drawing maps. Appearances matter in the administration of justice.

The map case is a wake-up call to Illinois citizens: The state’s judicial system is deeply flawed because judicial power mixes with politics. Here are main findings from my current study:

Politics, Not Merit, Is the Crux of Selection for Illinois Judges: Judges at every court level must declare as a Democrat or Republican when they first run for office. This makes it easy for special interest groups, big business, labor unions, trial lawyers, and political parties to donate heavily to judicial candidates who run for powerful positions. Many states have partisan election systems—but they also have merit commissions to determine the competence of judicial candidates. Illinois is one of a handful of states with no formal merit process at any point in selecting judges.

Elections for Illinois Judges Are Giant Magnets for Out-of-State Campaign Contributions: Justice Lloyd Karmeier’s epic election in 2004 raised more money than eighteen U.S. Senate elections. Justice Karmeier, a Republican, and his Democratic opponent spent $9.3 million on a supreme court seat for a sparsely populated rural district. In 2016, Justice Karmeier barely survived a bitterly contested retention election that attracted more than $2 million to attack his record.

Democrats play the big-money game, too. Up for a retention vote, Justice Thomas Kilbride received more than $2 million from the state Democratic Party and labor unions, while business groups spent $600,000 to oppose him.  At the time, the money spent on this election made it the second highest grossing judicial retention campaign in history.

The General Assembly Overpays Illinois Judges: Since 1983, the General Assembly has implemented an opaque process that overpays judges. Pay for Illinois’ appellate judges ranks second in the nation.  The state’s Supreme Court justices are paid $220,873; and intermediate appellate justices are paid $207,882. Trial judges in Illinois rank third with pay of $190,758.

Some Illinois Judges Game the System: Illinois’ system of electing judges has greased the way for unethical conduct. Currently, three judges in St. Clair County who are up for retention elections chose to “retire” and file as “new” candidates in the general election.  By doing so, they will avoid the 60% retention requirement and need only 50% plus one vote for a new term.  

Illinois Lacks an Effective Disciplinary Board for Judges: In a 2014 audit, the public had more than 300 unanswered complaints against judges, some alleging judicial misconduct and mental incapacity; but the state’s judicial board had too many vacancies, too few investigators, and a shrinking budget that created this backlog. When the public complains about a judge, less than a one percent of these cases end with modest discipline or more for this elected official.

Illinois citizens who want to change the basic structure of state politics should demand a judicial system that eliminates partisan elections and provides a commission of non-lawyer citizens, lawyers, and judges who select and retain judges on merit. 

Should a Chief Justice Advise Judges Not to Marry Same-Sex Couples?

Here is the latest saga in political judges. Roy Moore, Chief Justice of Alabama’s Supreme Court campaigned to openly defy federal law on marriage equality. He was removed from the Chief Justice position in 2003 after he ordered the Ten Commandments to be placed in the high court’s assembly area. 

No worries, because in Alabama—just as an Illinois— the people elect judges. (I interject to note that since the 1950s, the Illinois State Bar Association and Chicago Bar Association have advocated for merit selection of judges, chosen by a body of judges, lawyers and non-lawyer citizens.)

So, Roy Moore was elected again to the post from which he was banished.

After the U.S. Supreme Court ruled that gay and lesbian adults have a constitutional right to marry, Chief Justice Moore began advising county probate judges to ignore federal court rulings and refuse to marry same-sex couples.

On Friday, Alabama’s statewide judicial ethics commission proposed to immediately fire the Chief Justice for disobeying the law, and failing to comply with a federal injunction.

No sneers for Alabama—they have an effective judicial commission that does its job. If Chief Justice Moore was in Illinois, he’d face the weakest state judicial ethics commission—a commission that has left four of its thirteen board seats vacant for as long as three years! (Photo shows 5,300 pound monument that sat in the Alabama supreme court until a federal judge ordered its removal.) 

Illinois’ Political Judges: Why They Aren’t Accountable to the Public

Most states use a “Model Code” to regulate judicial conduct, including how judges communicate their political ideas and how judges solicit campaign donations. Illinois has no such regulation—the last time it did anything in this regard was 1994 (The Model Code was revised in 2007 to take account of the hyper-growth of money in judicial campaigns.)

Consider this direct comparison between the more stringent ABA Model Code and Illinois Code:

American Bar Ass’n, Side-by-Side Text Comparison, 2007 Model Code of Judicial Conduct with Comparable Provisions of 1990 Code, at http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/new_old.authcheckdam.pdf, stating:

            Rule 1.2, Canon 2, Promoting Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety (emphasis added).

In contrast, see the less restrictive language in Illinois Judicial Ethics Committee, Code of Judicial Conduct, Rule 62, Canon 2:

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities

A. A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

The ABA Code uses the mandatory “shall,” while Illinois, by stating “should,” deprives its Code of sharp teeth for enforcement. Nothing in the Illinois Code mentions the need for the independence of courts— a serious omission in a climate of high-octane campaign donations fueled by special interest groups. The ABA Code, in contrast, strictly enjoins judges to maintain their independence. (Photo of Justice Steigmann, right, who defended his view on WDWS that judges "should not be philosophical or political eunuchs".)

Illinois Reports Growing Complaints of “Misconduct, and Physical and Mental Incapacity of Judges”

A recent report by the Illinois Auditor General exposed serious problems in enforcing the state’s judicial ethics. Due to board vacancies and underfunding, the Judicial Inquiry Board had “an inventory of 311 pending complaints,” including “a growing inventory level of pending complaints concerning alleged misconduct or physical or mental incapacity of judicial officers.” The Board operated for 811 days and 1,360 days without filling constitutionally mandated board positions for non-lawyers. From 2012-2014, the board operated with two investigators, and one person who served as its executive director and general counsel. Click here for details.

Employers, Beware of the GINA Trap! Your Physicians Ask Employees for a Family Medical History

My returning students will read Maxwell v. Valley Verde Ambulance Co., Inc. (2014). An employee claimed a disability, and his employer sent him for a medical evaluation. The employee was cleared to work without limitation or accommodation— but, as part of the examination, the occupational physician has the employee complete a standard form for medical history.

On the line listing “cancer,” the employee placed a check mark in the “yes” column and then wrote “grandpa.”

The employee later sued, claiming that his employer violated GINA (Genetic Discrimination Nondiscrimination Act) by requiring him to disclose “genetic information” in his family medical history during his examination at Verde Valley Urgent Care.

The court set a variety of issues for trial—including whether the medical form violated GINA and whether the employer was legally responsible for the physician’s questions about family medical history. 

But here is an interesting except:

Plaintiff argues that VVAC violated GINA by failing to direct Verde Valley Urgent Care “not to disclose any such genetic information” to VVAC. To support this claim, Plaintiff cites 29 C.F.R. § 1635.8(d), which provides that the “prohibition on acquisition of genetic information, including family medical history, applies to medical examinations related to employment.” That section further provides that

[a] covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required. Such reasonable measures may depend on the facts and circumstances under which a request for genetic information was made, and may include no longer using the services of a health care professional who continues to request or require genetic information during medical examinations after being informed not to do so.

Id. (emphasis added by Court).

Lesson: If you’re an employer and refer your employees for medical exams (e.g., worker compensation cases) you must tell your “must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.”

What Do Employment Lawyers Worry About?

Reuters Legal published a survey conducted by a prominent employment law firm, Littler Mendelson. Littler surveyed 844 attorneys and HR professionals.

Here are the concerns expressed by these professionals:

“Nearly three-quarters of company officials surveyed by labor and employment law firm say they expect to face discrimination claims from LGBT workers over the next year, a huge leap from one year ago.

Companies also are bracing for crackdowns from federal agencies stemming from a new overtime pay rule and an expanded definition of joint employment, the firm found in its fifth annual survey of workplace issues released on Tuesday.

The EEOC's involvement with LGBT issues, as well as its recent focus on employee background checks and retaliation cases, is likely behind the surge in employers' concerns about those types of claims, Littler partner Barry Hartstein in Chicago said in an interview Tuesday.

About two-thirds of respondents said they expected an increase in claims involving background checks, up from 57 percent in 2015, and 43 percent said the same about retaliation cases, a 10 percent increase.

"Whether or not they have prevailed in the litigation, the (EEOC) has raised the profile on all of these issues," Hartstein said.”

Littler also said 71 percent of those surveyed expect claims stemming from the actions of subcontractors, staffing agencies and franchisees after the National Labor Relations Board last year revised its definition of joint employment.

The board in Browning-Ferris Industries Inc said companies may be considered joint employers if they have the potential to affect working conditions. Previously, the board required proof of actual, direct control.” Photo Credit: Pinterest 

Justice Ginsburg Joins Justice Steigmann in Diminishing Respect for Courts

Justice Ginsburg’s recent volley of verbal attacks on Donald Trump probably felt good in the moment—but they permanently impair her effectiveness going forward as a U.S. Supreme Court Justice. For Illinois citizens, the same goes for Justice Robert Steigmann (below, right), who took to the airwaves on WDWS in May to say that judges should not be “philosophical or political eunuchs.” With approval ratings for Congress at about 10%-- and widespread disdain for the Illinois General Assembly— respect for our increasingly politicized courts will fall. Why should we care? Lawmakers and governors and a president cannot imprison us; they cannot fine us; they cannot hold us in contempt; they cannot order us to keep away from people … only judges hold these awesome powers. No thanks to Justice Ginsburg and Justice Steigmann for cheapening justice and lowering our confidence in our courts.

Do Professors Receive Annual Performance Reviews?

Professors at Research I universities are supposed to receive annual performance reviews.

Untenured faculty are reviewed nearly continuously. The first weed-out occurs at the three-year mark, when unpromising performers are counseled out of their positions. But by the time a faculty member advances to full professor, the odds go way down that he or she will be reviewed every year.

Having had four deans since I was promoted to full professor in 2000, I have received only one performance review since then.

Before we go further: Professors submit annual activity reports every year to their department chairs or deans. Usually, these are clearly formatted and sectioned to account for research, teaching, committee and disciplinary service, awards and recognition, and miscellany. These reports take about 20-30 minutes to complete. In my one annual review since 2000, my Dean noted the highlights from my report and provided brief but appropriate evaluative comments.

So, why doesn’t this occur routinely?

From a Dean’s or Department Chair’s perspective, this is a losing proposition. Tenured faculty tend to have delicate egos (I include myself here), and we tend to overrate ourselves. Tenured faculty are also powerful. If we feel a shared sense of personal grievance, we can wage a low-grade war or mount a coup against our reviewer. Finally, as a group, we don’t listen well to personal criticism.

So, why would anyone want to review a professor’s performance under these conditions?  

But this is bad for professors, bad for students, and bad for higher education.

For professors, we submit annual reports and get as much feedback as we see from the IRS after we file our annual return.

Does anyone actually read our reports? Probably, though not deeply, I suspect.

After 16 years of mostly administrative silence about my performance, I have made myself my own boss, as I suspect others like me—and ironically, this feeds the cycle of a superior not wanting to conduct a meaningful review. Surely, our swagger shows.

Without droning on, I add this: The cumulative effect of no review can leave a professor feeling passed-by, isolated, and not valued.

This, too, is probably off-the-mark—and ironic, too, because a professor’s superior might feel, to the contrary that this professor is so valuable, that there’s no need to acknowledge this fact.

For students with unsatisfactory experiences, the system tends to ignore issues that they might consider important, such as a professor’s classroom tone, accessibility, open-mindedness, engagement and the like.

For higher education, there is no getting around the fact that lack of annual performance reviews lend some credence to society’s critique that the tenure system is outmoded.

I welcome comments from anyone, especially those of us who are faculty, administrators, or students. To the extent that my comments are off-base, your feedback is especially welcome at m-leroy@illinois.edu.

University President Commits Suicide … and How We Undervalue Higher Ed Leaders

Texas A&M Commerce University President Dan Jones (pictured here) committed suicide on April 29, 2016. The school made this information public on Friday. President Jones had been treated earlier in April for depression.

Days before he took his life, he wrote to the campus community: “Stress makes everything worse, taking a toll on body, mind and spirit. We all know how stressful university life can be, for students, faculty and staff alike, and I urge all of you who are dealing with stressful challenges in your life to get the rest and help you need.”

Meanwhile, with college costs so high, campus administrators are easy targets for verbal assaults. Gov. Rauner has been vocal about this matter, suggesting that administrators at UIUC are part of the cost problem at the flagship school.

This charge is easy to make, and readily appeals to angry students, parents, and taxpayers—but misses a much bigger point that actually supports Gov. Rauner’s concerns about structural costs imposed by excessive government regulation.

Consider this excerpt from Inside Higher Ed:

Vanderbilt University Chancellor Nicholas Zeppos earlier this year testified before a U.S. Senate committee and cited a rather compelling, if somewhat surprising, fact: the cost of complying with federal regulations “equates to approximately $11,000 in additional tuition per year” for students.

The math was simple: $146 million in compliance costs in 2013 divided by some 12,800 students equals about $11,000 per student.” 

For more, click here. 

“Gutless” Judge Who Expressed Outrage at UIUC? Illinois Taxpayers Might Be Paying Him $389,858 Per Year

Quoting now from the News-Gazette: “On Wednesday's Penny for Your Thoughts (5-11-16) with Jim Turpin, Illinois state circuit court Judge Michael McCuskey said the University of Illinois administration, President Tim Killeen and Chancellor Barb Wilson, were ‘gutless.'”

How does the opinionated Judge McCuskey stand up to scrutiny for his own conduct? After much tedious research, here is what I can report (from my research project on judicial ethics):

Upon reaching age 65, a federal judge may retire at his or her current salary, or take senior status, after performing 15 years of active service as an Article III judge (referring to the Rule of, i.e., 65 + 15 = 80). 28 U.S. Code § 371 states: “(a) Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.” According to Judge McCuskey’s biographical information, he was born in 1948 and served as a federal district court judge from 1998 until he assumed senior status on June 30, 2013.

On May 31, 2014, he retired from senior status in order to take retirement. See Federal Judicial Center, Biographical Directory of Federal Judges, at http://www.fjc.gov/servlet/nGetInfo?jid=2765&cid=999&ctype=na&instate=na. By 2014, Judge McCuskey would be past his 65^th birthday; and by this date, he would have accumulated 16 years of service. He therefore appeared to qualify for a full pension—that is, 100% of his departing salary. In 2013, Judge McCuskey would have qualified for $174,000—but by staying one additional year on senior status, his pay increased to $199,100. See United States Courts, Judicial Compensation, at http://www.uscourts.gov/judges-judgeships/judicial-compensation.

Two weeks after retiring, Judge McCuskey accepted appointment in Illinois’ Tenth Judicial Circuit as Resident Circuit Judge of Marshall County in the 10th Judicial Circuit. See Retired Federal Judge Michael McCuskey Appointed in 10th Judicial Circuit, CINewsNow.com (June 16, 2014), at http://www.cinewsnow.com/news/local/US-Supreme-Court-fills-vacancy-in-10th-Judicial-Circuit-263311611.html.

Without mentioning the possibility or appearance that he was double-dipping at the expense of taxpayers, his polished interview noted: “I want to thank the Illinois Supreme Court and Justice Kilbride for the opportunity to serve where I grew up, practiced and began my judicial career.” He added, “I’m excited to return to the Illinois state court system, serving the people of the State of Illinois again; and I look forward to the variety of cases I will be hearing.” He then ran unopposed in the March 2016 primary election. See Michael McCuskey, Ballotopia, at https://ballotpedia.org/Michael_McCuskey#cite_note-5, at n.5. Illinois circuit judges earn $190,758. Supra note 47.

Thus, it appears that Judge McCuskey is paid $389,858 by Illinois taxpayers who file federal and state tax returns (though this is an estimate based on public sources).  I will follow up by visiting the Illinois State Supreme Court Clerk to see what pension is listed on Judge McCuskey's 2016 Statement of Economic Interests. Pensions are among the list of financial discsloures required by the Illinois Judicial Code. 

Rule 68 requires Illinois judges to make a declaration of economic interests. By administrative order, current economic interests specifically includes a “pension plan.” But the information is not available online—indeed, one must personally travel to Springfield or Chicago to inspect the filing, and further, “[e]ach person requesting examination of a statement or portion thereof must first fill out a form prepared by the Director specifying the statement requested, identifying the examiner by name, occupation, address and telephone number, and listing the date of the request and the reason for such request.”

If it is true that Judge McCuskey is double-dipping at the public's expense, he is not alone. See Michelle Breidenbach, Judge DeJoseph to Double Dip with Pension and Salary in New Term, Syracuse.com (Jan. 14, 2015), at  http://www.syracuse.com/news/index.ssf/2015/01/judge_dejoseph_double_dips_with_pension_and_salary_in_new_term.html. And in Illinois: George Pawlaczyk, Baricevic, Haida and LeChien Spurn Retention Vote, Will Run in General Election, Bellevue News-Democrat (Aug. 26, 2015), at http://www.bnd.com/news/local/article32427582.html#storylink=cpy. For a more general discussion, see Stephen B. Burbank et al., Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. Penn. L. Rev. 1 (2012).

Obstacle Course? Getting an Illinois Judge's Statement of Economic Interests

Illinois judges are required every year to file a statement of their economic interests with the Illinois Supreme Court. A citizen who is suing over an environmental matter might want to know, for example, if a judge owns stock in a utility with a coal-burning plant.

I spent two hours today trying to figure out how to get this information. Here is what I learned:

1.       I will need to visit the Illinois Supreme Court in person (or go to a satellite office in Chicago).

2.       I will need to complete a request form, indicating my identity and my reason for seeking the information.

3.       I will need to pay 25 cents per page of any copies.

4.       I will be watched by a clerk of the court as I examine the records.

5.       I can request only one record at a time. Illinois has 907 judges.

6.       My request form will be sent to the judge in question, with my identification and my reason for asking.

Here is an answer to my inquiry from a clerk with the Illinois Supreme Court: “As we discussed, you may view economic statements at the Springfield Supreme Court Building, Clerk’s office, after completing the requisite I-109.1 form(s).  You may request photocopies (either while viewing or before/after); the copy fee is .25/page ($1.00 minimum).  Our office hours are 8:30 am to 4:30 pm.  My lunch hour is from 12:00 noon until 1:00 pm.  In order to expedite your visit, if you will provide me with the name(s) of the judge(s) and the year(s) you wish to view, I can have it (them) ready for your perusal.  We should agree on a date and time since I will need to be here when you view the files."

Judge Resigns After Swapping Sexual Favors with Defendants; Second Judge Resigns After Taking Bribes

My research project on judicial ethics has found a new low. In May, Arkansas Judge O. Joseph Boeckmann, Jr. resigned amid allegations that he swapped sex for reduced sentences and took thousands of nude photographs of defendants and victims.

There is more to the story than the tawdry details. The judge got into trouble after the state’s judicial ethics commission filed 14 charges of rules violations against him. Boeckmann was accused of verbally abusing people -- mostly women and minorities -- in his courtroom, failing to recuse himself from cases involving business partners of his family, and offering young white men more lenient rulings in court if they agreed to perform sexual favors.

The commission alleged that Boeckmann chose certain young male defendants to receive "substitutionary sentences." The Judge didn't alert court staff to what the sentences would be and simply wrote "community service" in court documents.

Investigators seized 4,600 photos from the judge's computer. Most photos showed young men who were defendants in his court. Many images depicted naked young men from behind, bending over after an apparent paddling.

On a less repulsive note, last week a New York judge resigned after pleading guilty to taking bribes Justice John Michalek has been charged with receiving hockey game tickets and political fundraising from a Democratic operative while this person had an interest in civil cases before the judge.

Did Urbana Flag Burner Break the Law? (No, Here’s Why)

Yesterday, an Urbana man caused a controversy by burning an American flag, and posting the scene on Facebook with a searing political critique against his country.

A similar case was decided by a 5-4 vote in favor of a flag-burner in Texas v. Johnson (1989).

To protest President Reagan’s policies, Gregory Lee Johnson burned a flag outside the City Hall building in Dallas, Texas, in 1984. As in Urbana, many people were deeply offended. Texas arrested Johnson and convicted him of breaking a Texas state law that prohibited desecration of the flag of the United States. Johnson was sentenced to one year in prison and ordered to pay a $2,000 fine.

Johnson appealed his conviction, claiming First Amendment protection, and the Texas Court of Criminal Appeals stated that Johnson’s speech was symbolic and ruled in his favor.

Writing for the majority, Justice Anthony Kennedy reasoned: “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” Kennedy said. “And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

“Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt,” he said.

That didn’t end the matter. In 1990, Congress enacted an anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Court struck down that law as unconstitutional. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” said Justice William Brennan.

For more, see “Inside the Supreme Court’s Flag Burning Decision,” published by the Constitution Daily, at this link. For the full opinion in Johnson v. Texas, click here.

1776 and 1488

As we celebrate Independence Day from 1776, we should also learn a new number: 1488 (also known as 8814). These numbers are codes from the growing circle of Alt-Right, Neo-Nazi thugs who have found a national voice in Donald Trump. The ADL explains:

1488 is a combination of two popular white supremacist numeric symbols. The first symbol is 14, which is shorthand for the "14 Words" slogan: "We must secure the existence of our people and a future for white children." The second is 88, which stands for "Heil Hitler" (H being the 8th letter of the alphabet). Together, the numbers form a general endorsement of white supremacy and its beliefs. As such, they are ubiquitous within the white supremacist movement - as graffiti, in graphics and tattoos, even in screen names and e-mail addresses, such as aryanprincess1488@hate.net.  Some white supremacists will even price racist merchandise, such as t-shirts or compact discs, for $14.88.

The symbol is most commonly written as 1488 or 14/88, but variations such as 14-88 or 8814 are also common.

Attention, UIUC and Other State Employees: Gov. Rauner Has Implemented Gestapo-Like Powers

On July 1^st the Governor implemented his under-the-radar Executive Order 2016-04. See here.

This policy has the implicit premise that State Employees (he uses capital letters) are corrupt. The "rollout" of the Order is here.

I am particularly struck by this part of the Executive Order, which turns the Governor’s Office of Executive Inspector General [OEIG] into a modern-day Gestapo. My comments are in parentheses.

Consistent with these duties, State Agencies shall consider the OEIG to be a “law enforcement agency.” [THIS PUTS EVERY ETHICS REPORT AND QUESTION TO EMPLOYEES ON THE FOOTING OF A CRIMINAL MATTER.] The OEIG may compel any State Employee to truthfully answer questions concerning any matter related to the performance of his or her official duties. [WHAT POWERS CAN BE USED TO COMPEL SOMEONE TO ANSWER A QUESTION? THIS SOUNDS LIKE A POLICE STATE.] If so compelled, no statement or other evidence derived therefrom may be used against such State Employee in any subsequent criminal prosecution other than for charges of perjury or contempt arising from such testimony. [SO, IT CAN BE USED AGAINST AN EMPLOYEE FOR CRIMINAL CHARGES.] The refusal of any State Employee to answer questions if compelled to do so shall be cause for discipline, up to and including discharge [SO MUCH FOR THE FIRST AMENDMENT AND THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION].

Key to Success for Women in Business? They Played on a High School Sports Team

Female execs report in a current study that 94% played a sport in high school and 61% said sports helped them succeed. http://www.marketwatch.com/video/female-execs-have-this-surprising-thing-in-common/9D1DC809-B47E-4417-8F6E-A9BA251B98C1.html. No. 35, far-left, is a successful young executive who played basketball at an academically challenging high school.  

Pop Quiz: You Guess the Discipline for this Judge

Today’s judicial doofus is a Mississippi judge. Here are excerpts from the complaint against her:

Statements on Social Media

Political Campaigning

Clinkscales admitted that, while serving as Municipal Court Judge for the City of Columbus and Judge for the Columbus Drug Court, she made the following statement on social media: “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! ... Let's not lose this seat!” Clinkscales admitted that this statement violated Canon 5(A)(1) of the Code of Judicial Conduct, which generally prohibits judges from publically endorsing political candidates.

Operation of Columbus Drug Court

While serving as a drug court judge, Clinkscales ordered some individuals to enter the drug court program who had not volunteered. During Clinkscales's tenure as a drug court judge, some drug court participants remained in the program longer than the law allowed. Additionally, Clinkscales ordered her nephew to enter the drug court program, in violation of constitutional and statutory law. See Miss. Const. art. 6, § 165 (1890) (“No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity[.]”); accord Miss.Code Ann. § 9–1–11 (Rev.2014).

Statements in Newspaper Interview

On June 23, 2009, prior to her tenure as a judge, Clinkscales was arrested and charged with failing to obey a police officer. In February of 2011, while serving as a judge, she gave an interview to a local newspaper in which she admittedly gave misleading and deceptive responses to questions about her arrest. Specifically, Clinkscales told the interviewer that she had not broken any laws and that she expected to be cleared of any charges. After giving the interview, she entered a plea of no contest to the charge of disobeying a police officer.

Conduct in the Courtroom

Clinkscales admitted to the Commission's allegations that she routinely started court late and acted in a manner which could be construed as discourteous and exhibiting poor courtroom demeanor.

Okay, people, let’s guess her discipline:

1.       The complaint was dismissed.

2.       The judge was suspended for 30 days.

3.       The judge was removed from office.

4.       The judge was reprimanded and fined $500.

5.       The judge was barred from running for office in the future.

E-mail your guesses to m-leroy@illinois.edu!