Wednesday, November 14, 2012

Secession . . . Seriously???

I have to take a time out and comment on the latest internet based political argument.  Supposedly, up to thirty states now have some sort of internal call for secession from the Unite States.  This is not some official act by any of these states’ governments, but citizens signing petitions on the internet, asking that their state (i.e. Texas) to secede from the United States, just like the Confederacy attempted in the 1860s.  

I’ll speak to some specifics about this in a moment.  But are we really serious about this?  Look, republicans/conservatives lost the election.  A close election (by popular vote, anyway) mind you, but those of us who aspire to conservative values lost the election.  So are we going to take our ball and go home?  How mature!  There are plenty of real, practical ways to work towards getting the nation back on track.  The concept of secession is absurd.  

Why won’t secession work? 

It’s illegal.  It’s unconstitutional.  Our Constitution replaced the Articles of Confederation, which was basically a loose-fitting regime of sovereign states involved in multilateral negotiations with each other.  The Constitution replaced that with something much better – the democratic rule of law.  Every State in the Union has ratified the Constitution. This means the Constitution is “the supreme law of the land.”  This is clearly present in the ratification debates which led to the adoption of the original Constitution.  Its’ clear in the preamble’s reference to a “more perfect union.”  Our founding fathers never considered an “exit option.”  The Constitution is not an “at will” contract.  It is, by definition and the will of the people of every State in this nation, the “law of the land.”  Instead of each sovereign State being able to engage in multilateral negotiations, the Constitution sets in place national democratic institutions with authoritative dispute resolution by the federal courts.  This was the concept the southern states failed to recognize in 1860. The US Supreme Court, in interpreting contractual disputes involving the Confederate government during the Civil War, settled on the concept that such contracts were void because the Confederate government never had a right to exist.  Not because they lost the war, but because as a matter of law, there is no authorization to secede. Those who clamor for secession today also refuse to see this fundamental and foundational concept. 

Does anyone honestly think there is unanimity of purpose in any single state for secession?  I’d be willing to wager my annual income that no one could find even 75% unanimity for one side of the political spectrum on their own city block, let alone across an entire state.  We are a nation divided, indeed, but not based on geography.  The threat of secession doesn’t make any sense at all.  

Is anyone clamoring for the secession of states like Indiana or Nebraska thinking of the practical implications?  What happens to all the federal property within these states?  (Property paid for by the collective tax support of all 50 states).  Will Indiana reimburse the federal government for the unwarranted taking of this property?  And what about access to services, communication, travel etc. provided by the federal government or other states that choose to remain in the Union?  Will Indiana be able to access the drinking water from Lake Michigan? Will they pay the federal government for such access?  What about currency, or a monetary system?  What about mail delivery?  What happens when the corporation you work for, which has its headquarters in a state that stays loyal to the union, pulls out after secession?  What happens when airlines simply refuse to serve seceding states? What if the seceding states are blockaded, like during the Civil War?  How soon after secession will there be food on grocery store shelves, or consumer goods, or gasoline for your cars?  What happens when the federal government closes the interstate highway systems leading into the seceding states?  Our states are so intertwined with each other and the federal government, to even attempt to secede would be like cutting your midsection out, and expecting your legs to continue to function. 

Finally, the most compelling argument against secession is the federal “gravy train.”  Will any state, and its inhabitants, simply agree to forego all of the federal benefits and programs they currently enjoy?  The Federal Government currently spends about 3.8 trillion dollars every year.  The collective spending of the 50 states amounts to about 1.6 trillion.  The 50 states collectively spend about a half trillion on health care.  The federal government spends 1 trillion on health care alone.  Twice as much.  Will the individual states simply agree to forego these benefits for their citizens? What about all the internal state improvements funded by federal dollars?  Federal support of education?  What about pensions funded by federal funds?  How will each of these states raise armies?  Where will the money come from?  Especially in a state like Illinois, which is basically bankrupt to begin with. 

Secession didn’t work in 1860.  It won’t work now.  Its stupid, foolish speculation.  It only serves to allow those on the political left to paint all conservatives as stereotypes -- “right wing wack jobs.” Let’s find solutions that work, instead of this craziness.  Let’s pray for the electorate to wake up and realize the wrong path we’re going down.  Let’s be sensible and credible. 

Tuesday, August 28, 2012

Sending Your Kids to College . . . Are they Protected?

It’s that time of year – the end of August.  If you are the parent of a college student, you’ve either already moved them into their dorm rooms or apartments, or will be doing so by the end of next week.  The move to college takes a lot of planning – your college student has had to make sure they have what they need – clothes, school supplies, bedding, computer, refrigerator, etc. You’ve probably helped them make sure they have everything they need to be ready for the upcoming semester.  But have you thought of everything?  What would happen if your child became ill or was injured, and you needed to contact them?  What if the worst happened and your student was missing? How would you get the information you need to help them, or to find them?  
The problems I have just mentioned are exacerbated by the fact that most freshmen in college either are, or will become 18 years old.  In other words, they are legally an “adult.” Therefore, if you as a parent are to have the authority or ability to get the information you need to help your child in need, your 18 year old child needs to give you the legal authority to act on their behalf should they become disabled and unable to communicate.  Why?  Because health care providers and the colleges your child attends consider your child an adult when it comes to decisions relating to health care and school records.  Add to this the ramifications of the Health Insurance Portability and Accountability Act (known by its infamous acronym “HIPAA”), and health care providers become loathe to disclose any information about your son or daughter. 

This shouldn’t happen.  The HIPAA privacy regulations offer exceptions which give health care providers some “common sense” discretion to disclose “personal health information” to “a family member, other relative, or a close personal friend.” (45 CFR 164.510(b)). This rule goes on to specifically allow a provider to use its professional judgment and experience with common practice in deciding whether and what to tell such persons. 

But many providers overreact, and interpret HIPAA’s privacy protections as an absolute barrier to all disclosure.  This leads to absurd results. For example, a client told me about a college sophomore who traveled to an “away game” for the school’s hockey team.  This young lady was somehow injured at the game, and transported by ambulance to a local hospital.  The student’s parents were notified that their daughter had been hospitalized, but no one was willing to disclose where she had been taken, or the extent of her injuries.  Those parents spent a sleepless night worrying until their daughter contacted them the next morning, fortunately not seriously injured.

How can parents avoid this?  By having their college aged children execute a durable power of attorney (or “POA” for short).  This is a legal document that permits the child to appoint a parent (or other person) as agent to carry out certain functions and make decisions in their place. It is a simple form that is “fill in the blanks” and signed – no court order or other action is needed (though I do recommend consulting an attorney -- the instructions in the body of the document should be tailored for the specific situation).  Under Illinois law, a Durable Power of Attorney for Health Care permits your child to appoint you or your spouse as an agent while expressing their per­sonal wishes about health care decisions in the event they become incapacitated. In addition, I recommend executing a Durable Power of Attorney for Property to cover issues relating to school records (e.g. in the event of an emergency when the child is unavailable or missing, the school clearly understands the child’s intent to allow information to be given to his/her parents). Besides HIPAA, there is another federal statute known as FERPA (the "Family Educational Rights and Privacy Act"), which protects the privacy of student education records.  Most colleges are proactive in providing students with FERPA waiver forms to allow parents access to school records, but careful drafting of the POA for Property can expressly give parents access to any school records or be able to talk to any professor or other college employee in order to get critical information about your child.  

Some students might balk at the idea of their parents having access to their records, but these documents can be personalized to only allow such access in the event of an emergency.  I have personally assured my own college aged children of this limitation, and have respected those boundaries. But the usefulness of this kind of planning can go beyond emergencies. For example, if a student has a chronic health problem or a disability, the parent, as an agent under a POA, can be more involved with on-campus health services and the student’s instructors to monitor progress. 

While the exceptions to the HIPAA privacy regulations should allow parents to receive critical information about the medical treatment of their adult college-aged children, a properly worded and executed power attorney gives parents the specific, direct authority to overcome the misinterpretation of privacy rules. I recommend that parents of college aged children arrange to have their kids execute the appropriate powers of attorney as they begin school in the fall, and have copies filed with the appropriate authorities and health care providers on campus.  Then, they can head off situations like the one I described, and be assured that whatever happens, they will be “in the know” regarding their child’s status while away at college.

Wednesday, May 9, 2012


John R. Russell Ltd announces its new office location, in the heart of South Holland's business district.

Our new office is located in the Heritage Center, 401 East 162nd Street, Suite 203, South Holland, Illinois, 60473.  Our phone is still the same, 708-359-4906, fax is 708-310-3555, and the e-mail is

More details are coming for exciting events this summer in conjunction with the Village of South Holland's summer promotions, events planned with the South Holland Business Association, and of course, some special events with our office as well.  Stay tuned!

Thursday, February 2, 2012


Most of us take those summonses
 for jury duty seriously, but enough people skip out on their civic duty
 that a new and ominous kind of fraud has surfaced,

 The caller claims to be a Jury Duty Coordinator. If you protest that you
 never received a summons for jury duty, the Scammer asks you for your
 Social Security number and date of birth so he or she can verify the
 information and cancel the arrest warrant. Give out any of this
 information and bingo, your identity was just stolen..

 The fraud has been reported so far in 11 states, including Oklahoma ,
 Illinois , and Colorado , AZ and more. This (swindle) is particularly
 insidious because they use intimidation over the phone to try to bully
 people into giving information by pretending they are with the court

 The FBI and the federal court system have issued nationwide alerts on
 their web sites, warning consumers about the fraud.

 Check it out here:

and here:

Sunday, January 22, 2012

U.S. Supreme Court Upholds Religious Freedom with Confirmation of the "Ministerial Exception"

A few weeks ago, on January 11, 2012, the U.S. Supreme Court made a unanimous decision which is one of the clearest rulings in favor of religious freedom in decades.  In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court affirmed the “ministerial exception” under civil rights law, effectively preventing civil court review of employment disputes between churches and ministers. The EEOC had sought to eliminate the exception.  This “ministerial exception” has been applied to a wide range of employment disputes by state and federal courts over the past fifty years, but this was the first time the Supreme Court addressed the issue.

 “[T]he authority to select and control who will minister to the faithful is the church’s alone,” Chief Justice John Roberts wrote in the court’s opinion.  Three other Justices -- Clarence Thomas, Samuel Alito, and Elena Kagan  -- wrote separate concurring opinions, and argued  that the ministerial exception should have even broader application than the unanimous opinion held.
“It was a strong rebuke to the extreme position taken by the Obama administration,” said Luke Goodrich of the Becket Fund for Religious Liberty, who served as counsel to the church in the case. “One of the biggest things is it’s unanimously decided, which nobody was predicting and is a really big deal. … It’s a great day for religious liberty.”

The case involved the Hosanna-Tabor Evangelical Lutheran Church and School, an affiliate of the Lutheran Church-Missouri Synod.  It operates a church and school in Redford, Mich., offering classes from pre-school through the eighth grade.  It has teachers who work on contract, and teachers whom it regards as “called” in the spiritual sense, after they have completed a course at a Lutheran college.  It regards them as “commissioned ministers.”  However, most of them working as teachers do not have duties that are much different from contract teachers — that is, on the whole, all teachers mostly lead classes in non-religious subjects.

In July 1999, the school hired Cheryl Perich to teach kindergarten as a contract teacher.  The next year, she completed the required religious studies and became a “called” teacher, but with no change in what she taught.  For the next three years, she taught kindergarten.  During the 2003-2004 school year, she taught third and fourth grades.  She taught math, language arts, social studies, science, gym, art, and music, using non-religious textbooks.  She testified that she almost never introduced any religious ideas into her classes.

However, four days a week, for 30 minutes, she taught a religion class, and she attended chapel with her class once a week for 30 minutes.  She did lead her class in prayer three times a day, for five or six minutes.  In the final year she was at the school, the class under her leadership engaged in a brief devotional activity each day.  Twice a year, she took her turn — with all teachers, contract or “called” — in leading chapel services.

In June 2004, before the next term opened, she suddenly became ill and was hospitalized.  She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February.  The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades.  School officials then decided it would be best if she resigned.   Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act.  When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve their disagreements via internal church arbitration.

She filed charges with the EEOC, claiming retaliation under the ADA.  The EEOC wound up suing the school, and Perich joined in the lawsuit.  A District Court ruled that her claim was barred by the “ministerial exception” to federal workplace discrimination law.  The Sixth Circuit Court, however, while recognizing (as have all federal Circuit Courts) that there was such an exception, ruled that Perich could not be treated as a “minister” under that exception because her duties were not primarily involved in the teaching of the faith, and that she had no role in spreading the faith or in church government.

Indeed, Assistant Solicitor General Leondra Kruger had argued before the Supreme Court that the church school should only have the protection of freedom of association, the same protection that a labor group has. The court in its opinion characterized that argument as both “remarkable” and “extreme,” noting that the Constitution outlines specific protections for religion beyond those for a labor organization. Religious cases before the Supreme Court often center on the tension between the Free Exercise Clause of the Constitution and the Establishment Clause, but Roberts wrote that in this case, both clauses protect the Lutheran school from government interference.

This was the first time the high court had ever ruled on the ministerial exception -- a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question qualified. The court did look at several distinct factors in the evidence to bolster its conclusion that the teacher qualified as a “minister,” such as (1) her role was distinct from that of most of the church's members; (2) when her congregation called her as a teacher, it provided her with a certificate according her the title of "commissioned minister"; (3) she was tasked with performing her teaching duties "according to the Word of God"; (4) the congregation prayed that God would bless her ministry to the glory of God; (5) to become a licensed minister, the teacher had to complete eight college-level courses, receive endorsement from her Synod district, and pass an oral examination; (6) she was commissioned as a minister only upon election by her congregation upon its recognition of God's call to her to teach; (7) she held herself out as a minister by accepting the formal call to teach, and by claiming a housing allowance exclusion on her tax return; (8) her job duties demonstrated her role in conveying the church's religious message and carrying out is mission; (9) she performed several religious duties at the school as a called teacher.  The Court concluded: "In light of these considerations—the formal title given [her] by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church—we conclude that [she] was a minister covered by the ministerial exception."

Yet, the court refused to adopt any particular standard for determining when a litigant is a “minister.” “We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision.  Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.

The 6th U.S. Circuit Court of Appeals ruling in favor of the teacher had primarily been based on the fact she spent more minutes of the day teaching secular subjects than religious subjects, therefore not qualifying as a minister. The Supreme Court rebuffed this concept. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote, “The amount of time an employee spends on particular activities is relevant in assessing that employee's status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed." The Court acknowledged that the teacher's religious duties "consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects." The Court also noted that it was unsure whether any church employees devoted all their time to religious tasks: "The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."

During the oral arguments, some of the justices seemed bothered by the facts of the case – there was no dispute the teacher suffered from a disability, and the Church had gone so far as to revoke the teacher’s ministerial commission and then fired her when she filed the suit, on the grounds that she had circumvented the channels within the church hierarchy for resolving such disputes.  Interestingly, Justice Alito made a reference to 1 Corinthians 6:1-7 in the notes of his concurring opinion, a biblical text that advises believers not to go before “the ungodly for judgment.”

“She was fired simply for asking for a hearing,” Justice Anthony Kennedy said in the arguments. But the court’s unanimous opinion said the question of whether the church used religious reasons as a pretext for firing the teacher “misses the point of the ministerial exception,” which requires courts to preserve churches’ autonomy in selecting leaders.

The EEOC argued that such a broad application of the ministerial exception would encourage abuse by religious groups, such as violations of child labor laws or the hiring of undocumented immigrants. Roberts responded that churches are still subject to criminal prosecution, and that courts could consider other types of lawsuits regarding breaches of contracts, for example, “if and when they arise.” But Roberts concluded,:

“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministerial exception bars such a suit …. The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” (Emphasis added).

What does this opinion mean for the average church or parochial school?

First, this is one of the first truly favorable Supreme Court opinions favoring religious freedom in decades, rendered by a unanimous court.  It is the first explicit recognition of the ministerial exception by the Supreme Court, verifying an important principle in the fight for religious freedom that had appeared to be ebbing.  The ability of both churches and private schools to govern themselves based on the principles of their faith and their foundational doctrines appears more firm.  This would appear to at least slow down secular interferences with church governance.

It should mean fewer employment discrimination or wrongful termination cases filed against churches.  While the Court refrained from providing a definition of the term "minister" for purposes of the ministerial exception, it did note several factors that made the teacher in this case a minister, and this will provide church leaders with helpful insight into the application of the exception to other church staff members.  The concurring opinions indicate there is a potential for even broader application.

What about parochial schools?  This would appear to be a tougher case.  The facts distinguished between “contract teachers” and “called ministers.” One of the attorneys for the school even commented that the exception should not apply to most classroom teachers who teach secular subjects.  But many private parochial schools require their teachers to have religious or bible-based training, often at the college level, and have them function in the same manner as the plaintiff in this case.  It would seem possible to define teacher roles in terms of ministerial function, even for regular classroom teachers.  If many of the factors cited by the Court which added up to confirmation of the ministerial exception in this case were also present in the daily lives of Christian School teachers – and if the teacher contract also expressly confirmed the status – it might be possible to argue for the ministerial exception for the average Christian school teacher.  (Having a school affiliated with a church or denomination helps as well).  A tougher hurdle, to be sure, but arguably not insurmountable.