Who among them can be fired?

Earlier this month, SCOTUS issued a unanimous decision in Hosanna-Tabor Lutheran Evangelical Church vs EEOC.  The case holds that a church receives freedom of religion protection under the First Amendment when it comes to employment termination decisions.

This case came about because the school, located right here in Wayne County, MI, fired one of the school's "called", or vocational teachers.  The church utilized both lay teachers, and vocational teachers; the latter being formally ordained by the church congregation and equipped with a "diploma of vocation".

Cheryl Perich started out at the school as a lay teacher, then earned her diploma and was commissioned as a "called" teacher in 1999.  Her problems with teaching at the school began at the start of the 2004 school year when she was diagnosed with severe narcolepsy (sudden deep sleeps from which a person cannot be roused) and placed on disability.

When Ms. Perich attempted to return to school with medical clearance, she was fired.  She filed a claim with the EEOC alleging her firing violated the Americans with Disability Act.  The U.S. District Court for the Eastern District of Michigan agreed with the church school that the so-called "ministerial exception" to our employment laws applied; summary judgment was granted.

On her appeal to the U.S. Sixth Circuit Court of Appeals, the lower court was reversed and instructed to allow Ms. Perich to present her claims that the firing had been retaliatory.

This case was one of the first to be argued before SCOTUS last fall.  Due to the unclear scope of the "ministerial exception", the case received much attention from the legal media and court watchers.

In its decision, SCOTUS ruled that the doors of the courthouse were essentially closed to ministers claiming violation of state or federal workplace discrimination laws.  The decision is now being touted as the most significant church-state ruling from SCOTUS since its 1990 decision affirming a general government prohibition of spiritual peyote smoking by Native American Indians.

The EEOC urged the High Court to limit the application of the "ministerial exception" to employees who functioned in an "exclusively religious function" (i.e. not teachers).  SCOTUS refused to take the bait, with Chief Justice John Roberts, the author of the opinion, characterizing the government's plea as an extreme position.

So now, the line remains unclear.  SCOTUS did not precisely define how far into the church's employee roster the exception goes.

Nevertheless, the Court's decision pointed to significant factors in holding that the exception applied in this case: Ms. Perich was ordained by the church; that she performed "important religious functions" in addition to her mostly secular teaching duties; that she taught a religion class 4-days per week, etc.

Critics of the decision wonder why only the employment discrimination laws do not apply to religious employees of a house of worship.  For example, if a senior minister conducts a campaign of sexual workplace harassment upon a junior pastor, does this decision now bar the junior pastor's claims?

No doubt, there will be more cases in the future that will require the courts to define this exception with more precision.

www.clarkstonlegal.com

info@clarkstonlegal.com

Last Monday, the SCOTUS issued a 5-4 decision in what could turn into a seminal 4th Amendment case; United States vs Jones.  The High Court strongly embraced privacy here in the electronic age.

In 2004, Antoine Jones owned and operated a hopping night club in downtown Washington D.C.  His joint was so jumpin, it caught the attention of a joint drug task force consisting of the FBI and the Washington PD.

The task force staked out the club by filming all the action at the front door.  Also, Jones' cell phones were tapped and data dumped.  With this evidence in hand, the task force applied for and was granted a warrant to place a GPS tracking device on Jones' wife's Jeep Cherokee within 10-days and within the District of Colombia.

Problem: the GPS device was placed on Jones' vehicle on the 11th day, and in Maryland.  The vehicle was tracked for 28-days and a case for cocaine distribution was submitted for prosecution based, in part, on the evidence collected through the GPS tracker.

Prior to his first trial, Jones moved to suppress the GPS data; his motion was only granted in part.  The trial resulted in a hung jury.  Jones was tried again, and ultimately he was convicted and sentenced to life imprisonment.

The federal appellate court, the D.C. Circuit Court of Appeals, reversed Jones' conviction and SCOTUS granted the U.S. Solicitor's petition for certerorari.  On appeal, the government conceded to the botched execution of the warrant, arguing no warrant was needed in the first place.

Last November, when the case was orally argued before the United States Supreme Court, the Justices were clearly troubled by the government's argument.  An appellate lawyer can glean a lot about the likely outcome of a case from the questions justices and judges pose, or don't pose, during oral argument.

In Jones, Justice Steven Breyer likened the government's position to George Orwell's 1984, commenting to the Solicitor General, "If you win this case, there is nothing to prevent police or government from monitoring 24-hours a day, every citizen of the United States."

Chief Justice John Roberts wanted to know whether the Solicitor General's argument meant that the government could place tracking devices on the vehicles of the 9 Justices.

The opinions themselves, contain Justices' musings [dicta] on what the founders would have ruled back in 1791, regarding these confounded GPS devices.

Justice Sonia Sotomayor wrote a concurrence taking a broad view of our privacy protections guaranteed by the Fourth Amendment, against the many highly sophisticated new electronic tracking devices deployed by the government.  Justice Anthony Scalia, writing for the majority, tailored a more narrow view of privacy; couching his conclusion on the basic definition of a "search", and clearly demarcating our "expectation of privacy" to include satellite tracking device-free vehicles.  

Flatly rejecting the government's argument that the temporary installation of the GPS tracking device was not a search, the Scalia majority affirmed the DC Circuit's reversal of Jones' conviction, warning authorities they needed a probable cause warrant in order to attach tracking devices.

Other than Sotomayor's concurrence, which does not bind future courts, SCOTUS  did not provide a sweeping enhancement of privacy rights in the electronic age.

Dodging a serious sentencing bullet, life, Mr. Jones is now free to go; his conviction for distributing cocaine stays reversed.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Thanks to our readers, this blog has over 62,000 page views in the nearly two years of its existence.  Since March 2, 2010, we have posted 200 times on legal topics of interest to readers of the Oakland Press' e-paper.

There are literally millions of blogs now on the Internet.  Of these, hundreds of thousands are devoted to legal topics.  The competition for 15-seconds of a reader's attention is keen these days.

We will continue to scour the web, fine-tuning our news feeds for interesting and useful legal information for your regular consumption.

When walking the halls of the various courts in Southeast Michigan, colleagues and judges occasionally mention one of our posts.  Grateful to claim a professional readership component among our followers, we will do our best to post relevant legal content on an ever more consistent basis.

Our view is that as the 21st Century begins to take full root, information, especially legal information, will flow at an ever faster pace.  Legal information is available to the people; it is how that information is managed that counts.

Thank you readers; check back soon.

www.clarkstonlegal.com

info@clarkstonlegal.com

As our soldiers return from war in the Middle East, many cases of post traumatic stress disorder are becoming manifest.  Often, the PTSD shatters an already fragile marriage, strained to the break point from years long separation.

Many soldiers, having survived the war, come home only to be placed in a trick bag: struggling with PTSD while their marriage falls apart.  To complicate things even more, there are special rules that apply to military divorces.

The psychology of both partners to the marriage is affected by the homecoming.  The state-side spouse absorbed 100% responsibility for managing household tasks, child rearing, education, and all other domestic issues.  A sense of independence may have seeped into the spouse's "mindset" that often requires an adjustment when the other partner returns from war.

For his part, the returning soldier needs time and some space to decompress from war; especially if the individual is not only returning state-side, but also discharging from the armed forces.

If the soldier's deployment was for several years, a spouse may have developed an "interim relationship" which must now be dissolved if the marriage is going to survive.  Many do not.

The Servicemembers Civil Relief Act (SCRA) [formerly known as the Soldiers' and Sailors' Civil Relief Act] is a federal statute that governs issues of defaulted servicemembers and the related stay of proceedings in divorce actions.  One feature of SCRA is that divorcing servicemembers are entitled to have the judge appoint them an attorney in the family court.  Interestingly, however, the statute is silent as to the scope of the appointed attorney's duties and her right to compensation for services rendered.

In a military divorce, support is also governed by federal regulations; each branch of the armed services has promulgated policies in the form of regulations that require the servicemember to provide adequate support for family members.  To calculate support, the servicemember's "leave and earnings statement" must be obtained and deciphered.

To enforce a support order, the support payee must turn to the Defense Finance and Accounting Service.  The DFAS website has references to garnishment resources and information on designated agents.

Custody issues are resolved, for now, in accord with the state laws governing this issue within a divorce proceeding.  Many states have specific provisions within their custody statutes that deal with a servicemember.

Congress, however, has been considering various amendments to SCRA that would federalize custody issues arising within military divorces.  The ABA has prepared a "white paper" on the subject.

www.clarkstonlegal.com

info@clarkstonlegal.com

Unanimously, the 5 members of the National Transportation and Safety Board called for all states to impose a complete ban on texting, emails, and even cell phone use (hand held or hands free) while operating a vehicle.  The NTSB's little-noted but highly significant recommendation came out before the holidays last month in the wake of a series of deadly car crashes involving distracted drivers.

In one of the crashes, a Missouri teenager caused a death accident after texting 11 times in as many minutes.  There seems to be a correlation between youth and distracted driving which is compounded by the youth's relative inexperience on the road.

Now the question is whether the state legislatures have the political will to outlaw what has become ingrained behavior for most driving Americans.  Even if distracted driving is banned, there is also a question of enforcement.

With all the OEMs producing vehicles outfitted with navigation systems and sophisticated communication software built right into the car, state legislatures will soon have lunch dates with automotive industry lobbyists; for sure.  And then there is the cell phone industry; not likely to stand on the sidelines and watch this type of prohibitive legislation develop.

Here is the legislative breakdown so far, with new laws appearing on the books every year: 35 states and the District of Columbia have banned texting while driving; 30 states have banned all cell phone use by a beginning driver; 9 states have banned hand-held cell phone use while in a car.

The NTSB's firm position is simply that use of electronic communication devices is too dangerous to be allowed anywhere in the United States.  When the NTSB announced the recommended ban early last December, it chairwoman, Deborah Hersman, said, "We're not here to win a popularity contest.  No email, no text, no update, no call is worth a human life."

You got that right sister; you sure got that right.  We will be monitoring the state legislation on this topic and will report back to you with significant developments.

www.clarkstonlegal.com

info@clarkstonlegal.com

Yesterday, the NBC Today Show featured a segment on family court cases where a parent was mounting a child custody challenge based on obesity.  This past year, I recall hearing much about the subject of childhood obesity, perhaps due to the First Lady's "Let's Move" campaign.

According to a recent report by the Center for Disease Control, childhood obesity affects 17% of our nation's youth; a figure triple what it was just a generation ago.  Now that this is a recognized condition putting on the cloak of yet another national crisis, should family court judges take childhood obesity into account in the custody calculus?

The father featured in the Today Show segment was shown cooking a vegetarian meal for his two preteen children.  He succeeded in his custody ploy to the extent the family court judge modified  custody such that the children stayed at dad's house during the weeks of the school year.

In Michigan, the Child Custody Act sets forth several factors which a family court judge must consider when deciding a custody dispute.  One of these factors is the capacity of a parent to provide food, clothing, medical care or other remedial care.  Arguably, this factor could include how a parent manages a child's diet; particularly if that child is at risk for obesity or is, in fact, obese.


The relative physical health of the parents and the reasonable preference of the child (particularly if older than age 12) could also come into play in a childhood obesity custody case.  A parent's unhealthy lifestyle may factor into the family court judge's calculus.


In come cases, it may strike the judge as unfair to basically penalize a parent for the child's eating habits.  This is a particularly close case where the obesity may be genetic and thus, hereditary.  Also, how far does the family court go?  


The optimal situation, of course, is where both parties co-parent with the child's best interests in mind.  Diet, exercise and lifestyle, however, often do not mesh between divorced parents.


As our nation continues it's struggle against the bulge, the cases of the type featured on the Today Show may pop up with more regularity in the county family courts across the state.  We all want the best for your young children.  Certainly, a good diet is an important component to a good healthy upbringing.

www.clarkstonlegal.com

info@clarkstonlegal.com