Stennis Institute of Government

Mary Troupe, Executive Director of the Coalition for Citizens with Disabilities, on Tuesday, September, 9, 2008, presented “Champion of The People” awards to Senators Hillman Frazier of Jackson, and Senate President Pro Tempore Billy Hewes of Gulfport, for their efforts at bringing about equality for disabled persons.

Frazier is Chairman of the Senate Housing Committee, which is looking for ways to ensure that the state’s housing market continues to address the concerns of disabled persons, especially as the Gulf Coast rebuilds communities that were destroyed in 2005 by Hurricane Katrina.

Hewes is Chairman of the Senate Rules Committee and a member of the Housing Committee.

Welcome to the Stennis Institute of Government Civic Education Blog.  My name is Jeff Markham - as a Research Associate at the Stennis Institute, as well as the liaison between the Institute and the Mississippi State University Library’s Congressional and Political Research Center, I’ll be “authoring” this blog, which will have a focus on Mississippi-related civic education.

Please take a look at our civic education link on our website (www.msgovt.org).  You will find links, presentations, and research briefs related to civic education.

Thanks for visiting, and please let us know if the Stennis Institute can assist you.

During the 3rd week of August, something interesting happened at the Mississippi Supreme Court.  It might have gone unnoticed, except for Patsy Blumfeld of the Northeast Mississippi Daily Journal, who I believe is the first one who picked it up.  What happened is that Presiding Judge Oliver Diaz wrote a dissent in the case of Mississippi State Veterans Affairs Board v. Beverly Pettigrew Kraft, Personal Representative of the Wrongful Death Beneficiaries and Heirs at Law of Billy L. Pettigrew, Deceased, et al., No, 2006-IA000859-SCT (August 21, 2008).  But a majority of Justices didn’t want Diaz’s dissent published and voted to prevent the Clerk of Court from filing (publishing for the record) Justice Diaz’s dissent.

When I was a Commissioner at the Mississippi Workers’ Compensation Commission I dissented a lot.  I dissented whenever I believed that the majority was wrong and I was right.  Dissent is essentially American.  So, of course, I couldn’t believe that a majority of the Court would supress a dissent. But Patsy Blumfeld is too good a journalist;   therefore, I was comfortable with the veracity of the breaking story.

Why would Chief Justice Smith, Presiding Justice Waller and Justice Carlson, Dickinson and Randolph vote to prevent the publication of a fellow colleague’s reasonable dissent?  I still have no idea what the thought process may have been.

But an evaluation of the case makes some things clearer about why they might have wished that the dissent would go away.  Here’s how it looks to me:  In 2006, the Mississippi Supreme Court had ruled in the case of Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) that a wrongful death claim begins to run on the date of the wrongful act or acts which lead to the wrongful death.  Jenkins overruled a 1992 case, Gentry v. Wallace, 606 So. 2d 1117 (Miss. 1992) which held that a wrongful death claim begins to run on  the date of death or when the heirs knew or should have known about the negligence which caused the death.

While I will not discuss my thoughts about the 2006 opinion which significantly narrowed the rights of family members to seek a legal remedy when a negligent act of another with some duty to the deceased leads to the death, it is clear that the holding in the 2006 case requires a wrongful death beneficiary to act expeditiously, and moreover, may eradicate the cause of action if the actionable wrong is subtle and thus not immediately identified or identifiable.  Like, for example, a medical error or some highly technical error which might be the proximate cause of death of an individual.

In fact, as a matter of law, protection is effected for those who need protection.  Wrongful acts must be identified as such.  Just as minors are protected until they have an ability to understand their claims and just as those adjudicated to be mentally infirm are likewise protected, statutes of limitations associated with wrongful acts do not begin to run at the time of the act, but at the time of the injury or the time that the act is reasonably perceived to be wrongful.  So the Court’s decision in Jenkins seems, at first blush, contrary to the common law.  But then, statutes are to be specifically construed, and I could make an argument for strict construction of this statute of limitation that would fit Jenkins.

But I will interject that I know and love Beverly Pettigrew Kraft, the plaintiff/appellee.  And I bet the Justices do, too.  She is the Mississippi Supreme Court’s Information Officer (with “other duties as assigned”) and she does a beautiful job.  And judges are human and they wanted to help Beverly and her family.  But the majority didn’t want to overrule Jenkins.

It appears to me that the majority of the Court wanted the “result” that would be realized if Gentry were applied. And they could effect that result.  But they didn’t want the publicity that might ensue, should the public perceive that the Court was favoring the position of an employee-party over what might have occurred to a John-Q-Public-party before the Court.  The majority didn’t want to return to the more generous date that the statute of limitations begins to run in Gentry, but they didn’t want Beverly to suffer the results of Jenkins.

But seeking to stifle Presiding Justice Diaz’s dissent has brought the publicity that they did not desire.

Dissent is essentially American.  And as Justice Diaz noted in his opinion, the ability to dissent from an order of the majority is well established in law in the Mississippi Supreme Court.  An independent judiciary is a fundamental backbone of our judicial system.  Dissent, and particularly well-reasoned dissent, is essential to the functioning of an independent judiciary.

The Mississippi Supreme Court established a watershed in arbitration law last summer.  While it is not immediately applicable to state and local governments — it is not a case concerning a state or local government as a party — it is applicable to us all, including appropriate political entities.

The Mississippi Supreme Court has mandated that upon recognition that a suit is subject to arbitration, a defendant MUST file an immediate motion to enforce the arbitration and NOT participate in the more conventional, common law legal process — filing an answer, responding to discovery, etc. — or the arbitration is deemed waived.

The case is Century 21 Maselle and Associates, Inc., and Cindy Smith v. Tony L. Smith and Linda N. Smith, No. 2005-IA-01696-SCT, consolidated with No. 2005-CA-01814 (8/16/2007).

Presiding Justice Diaz has written a masterful dissent on one part of the opinion.  It reminds us that protection from over-reaching and unconscionability should remain the right of every Mississippian.  Justice Diaz notices that, while it is a matter of settled contract law that when parties contract to arbitrate under the Federal Arbitration Act [FAA], they are not required to establish that the transaction at issues involves or affects interstate commerce [In Re Choice Homes, Inc., 174 S.W.3d 408 (Tex. App. 2005)].  However, the FAA embodies a clear federal policy requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce 0r unless the the agreement to arbitrate is revocable upon “such grounds as exist at law or in equity for the revocation of any contract.”  (9 U.S.C. 2)  The Presiding Justice concludes:  “Congress and the U. S. Supreme Court acknowledge the primacy of state statutory and common law protections against overreaching and fraud, as often embodied in the doctrines of procedural and substantive unconscionability.  We should not be so quick to toss aside those tools meant to safeguard the rights of Mississippians.

When I think of unconscionability in an arbitration context, I am reminded of the family that could not get a desperately sick man into suitable assisted living unless the family agreed to arbitrate any dispute under the FAA.  It is not unreasonabled to believe that you have no other alternative in such a situation:  deprive the desperately sick family member of the care he needs, that you cannot provide at home, or wait and hope to find a suitable living situation where the contract does not require arbitration of any claims.  When choices are limited, circumstances in value-laden situations cause us to make decisions that we might not otherwise make.  Isn’t that what unconscionable contracts are make of?

State and local public employers should be aware of a new concept developing in the field of gender discrimination:  family responsibilities discrimination (FRD).  A report by the Center for WorkLife Law at the University of California’s Hastings College of Law, has examined the growing national trend in lawsuits filed by employees who contend that they have been discriminated against because of their care-giving responsibilities.  Claims within the FRD cause of action include the gamut of employment torts and constitutional protections:  sex stereotyping, pregnancy bias, hostile work environment, retaliation, disparate treatment, disparate impact, FMLA interference, ERISA violations, Equal Pay Act violations, breach of contract, tortuous interference with contract and wrongful discharge, to name a few.

The first U. S. Supreme Court case that could be considered an FRD case was Phillips v. Martin Marietta Corp.  This was a watershed case for working women because employers could no longer bar females with school-aged children from applying for jobs that a male employee with school-aged children could occupy.  The ruling attempted to ensure that women who were also mothers would have the same employment opportunities as women with no children or males.

FRD claims and FRI litigation are on the rise.  While only eight FRD cases filed in the decade of the 1970s – the decade the Phillips v. Martin Marietta Corp. was decided, according to the Center for WorkLife Law, in the ten years ending in December of 2005, FRD cases filed grew almost 400% from the immediately prior 10 year period (1986-1995).

A huge breakthrough for sex stereotyping claims occurred in 2005 in the 2^nd Circuit Court of Appeals:  the Court held that making stereotypical assumptions about a mother’s commitment to her job constitutes sex discrimination, even if the mother did not have evidence that similarly situated fathers were treated differently.  Stereotyping is the “blinking neon sign” in most FRD cases.  The term covers employment decisions based on unexamined biases of employers and HR personnel about how employees should handle their family care-giving responsibilities.

Consider requiring FRD training for your supervisory staff.  It can be made available to you through the Stennis Institute of Government by contacting Lydia Quarles.

The Court of Appeals of the State of Mississippi delivered an interesting opinion last week in the case of Kathi L. Acy v. Mississippi Employment Security Commission, No. 2005-CC-02019-COA (7/17/2007).  Acy worked as a greeter at Wal-Mart.  She and a customer had an altercation when a DVD purchased by the customer set off the alarm as the customer was leaving the premises.  It is undisputed that Acy cursed under her breath in the presence of the customer and the customer heard her (as did customer’s two daughters and their eight-year-old friend)and complained to management.  Acy was terminated because she violated Wal-Mart’s policy prohibiting rude or abusive conduct toward customers.

The interesting twist is that an employee who admittedly violates company policy, rules or regulations may not have committed, by that behavior, disqualifying misconduct and thus may remain entitled to unemployment benefits.

Generally, employers believe that if an employee commits an act that results in termination for cause, the employee will not be entitled to unemployment benefits.  Citing cases from other jurisdictions, the Court of Appeals found that while an employee’s conduct may harm the employer’s interests and justify the employee’s discharge, “it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton or equally culpable.”  Jacobs. V. California Unemployment Appeals Bd., 25 Cal. App.3d 1035, 1037, 102 Cal. Rptr. 364 (1972).

The moral to the story for cities, counties, state agencies and other governmental employers is that termination for cause does not necessarily disqualify the employee from drawing unemployment benefits.  Many employers who terminate an employee for cause do not even appear at an unemployment hearing, believing that this employee cannot negatively impact the unemployment ratio (thus raising the required investment from this employer into the unemployment benefit pool).

Take an active role in unemployment benefit hearings when an employee is terminated for cause.  It takes only a few facts skillfully articulated to rise to the level of wilful and wanton conduct.

Last week the United States Supreme Court issued a decision in Parents Involved in Community Schools v. Seattle School District #1.  This decision is worthy of consideration.  In looking at policies established in schools in Seattle and Louisville, Jefferson County, Kentucky, the Court rejected the formulas which used race as a classification in assigning students to particular schools.

The opinion is interesting in and of itself, but the fascinating thing about the opinion for Mississippians is that it implies that when desegregation decrees under which school districts have operated have been dissolved by the Court, action taken after the dissolution of the decree appears not to fall into the category of “remedying effects of past intentional discrimination”, thus these actions are no longer compelling governmental interests which demand strict scrutiny by courts.

Virtually all Mississippi public schools began operating under desegregation decrees in the late ’60s and early ’70s.  While many school districts continue to operate under the desegregation decree (the Starkville School District, for instance), others have affirmatively sought dissolution of the decrees.  When a desegregation decree is dissolved by the appropriate court, the court is indicating that the district has remedied effects of past intentional discrimination.  Thus, the responsibility of strict scrutiny does not devolve on a court considering subsequent actions of the district.

Why have we been busing children for 50 years?  And what happens to Brown v. Board of Education?  The Equal Protection clause prevents states from according deferential treatment of American children on the basis of their color or race.  This clause, as applied by the Warren Court in 1954, created the mandate for desegregation in public schools in America.  This clause, as applied in Parents Involved in Community Schools v. Seattle School District #1, has mandated that race cannot be relied on as an arbiter of diversity in America’s public schools unless there is no method available other than individual racial classification to elicit and achieve the school district’s articulated policy.

During its first 100 hours, the Democratic majority in the United States House of Representatives passed legislation that would increase the federal minimum wage for the first time in a decade. The legislation would increase the minimum wage from the current $5.15 to $7.25 an hour over the course of two years.

The word on the Hill is that this measure will pass the Senate in conjunction with tax breaks for small business — necessary to achieve majority support in the Senate.  The Chair of the Senate Finance Committee, Senator Max Baucus (Montana), noted that small business tax packages have been coupled with minimum wage increase in the past.  If the anticipated happens, it is projected that President Bush will sign the legislation.  A White House spokesperson indicated that any increase in the minimum wage should be tied to tax relief to help small business stay competitive.

The first federal minimum wage law was enacted in 1938.  This wage was 25 cents an hour, adopted as a part of FDR’s New Deal. The last increase — establishing the $5.15 rate — has been in effect since 1997.  The period between 1997 and 2007 represents the longest period since 1938 that the minimum wage has remained static.  The House version of the legislation would raise the minimum wage to $5.85 within two months after passage, with a second hike to $6.55 a year later and a final hike to $7.25 after a second year. Thirty states already have a minimum wage which is higher than the current federal rate.  Washington and Oregon have adopted the highest state minimum wages, at $7.93 and $7.80 respectively.

Local entities will be interested in tracking the federal moratorium on the ability of localities to tax internet access, which is set to expire November 1, 2007.  The Internet Tax Freedom Act was signed into law October 21, 1998.  The Act bans the taxing of internet access and  “internet-only” taxes such as bit taxes, bandwidth taxes and email taxes.  The measure further  prohibits governments from taxing items sold online.

Since its original enactment, it has been twice extended by Congress.  The early interest in this issue in the 2007 session bodes well for an extension. Moreover, at least one piece of proposed legislation would place a permanent ban on state taxes on internet access.  This legislation is sponsored by Senators Wyden (Oregon), McCain (Arizona) and Sununu (New Hampshire).  Wyden co-authored the original legislation passed in 1998 and also co-authored its most recent extension. Proponents of the legislation seek a means of ensuring more affordable broadband access, while opponents see a potentially vital local tax base being eroded by federal measures. President Bush supports the measure, which has a bipartisan base.

Thinking on internet service…Senator Stevens (Alaska) has proposed a measure, the Universal Service for Americans Act, which would require all communications services to pay into a fund which would subsidize service in rural areas, schools and libraries.  The passage of this measure could result in user fees for broadband subscribers. The user fee measure could result in significant advantages in rural areas of Mississippi,  the South, mid-West and Alaska.

Thanks for reading.  Have a good day.

A recent 10th Circuit decision from Oklahoma, Maldonado v. City of Altus, 433 F. 3d 1294 (10th Cir. 2006), has created a split in the federal circuit courts over whether workplace policies which require employees to speak only English in the workplace violate prohibitions on race or national origin discrimination.  Altus, Oklahoma, had a policy requiring municipal employees to speak only English.  A group of Hispanic employees in Altus charged that the policy created a hostile work environment, violating Titles VI and VII as well as 42 USC 1983.  The facts in the case, as developed, reveal that each plaintiff was bi-lingual.

Previous cases considered an English-only policy such as the one in Altus as one which, if violated, indicated the employee’s disregard of an employer’s order (insubordination, a disciplinary offense).  In other words, the cases were viewed from a ”labor and employment law” perspective.  The Maldonado court held that the presence of the policy alone could create or contribute to a hostile work environment.  By doing so it recognized a legal theory in which Courts could view these policies from a Title VII perspective, rather than an employment perspective. 

The questions the Court considered are these:  Is there a legitimate purpose to require Hispanics to refrain from speaking Spanish?  Or could the policy be construed as an expression of hostility against Hispanics?  In considering the rationale posited by employers, the Court said “the less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another langauge.” Because this case was heard by the 10th Circuit on an appeal by Maldonado and others from a summary judgment granted in favor of the City of Altus, this decision is not the end of the litigation.  Summary judgment (which the United States District Court granted in favor of Altus and its English-only policy) is granted only when a Court finds that there is no dispute as to any material fact and that the movant (in this case, Altus) is entitled to a judgment as a matter of law.  The 10th Circuit, in reversing the summary judgment order, found that there were questions of law and fact which were unresolved and thus summary judgment was inappropriate. 

Specifically, the 10th Circuit remanded to the United States District Court for a consideration facts and the fleshing out of law as it relates to the facts with emphasis on (1) disparate impact and disparate treatment under Title VII; (2) intentional discrimination under 42 USC 1981; and (3) denial of equal protection under 42 USC 1983.  But sending the case back to the United States District Court for further consideration will not necessarily end the litigation.  One of the few circumstances that will cause the United States Supreme Court to consider an appeal by writ of certiorari is when there is a split in the circuits on a particular legal question.

This is not the end of English-only policy debates which center around Title VI claims.  It merely heralds the beginnings.