United States Supreme Court Petition for Disabled Veterans

Carson J. Tucker and Lex Fori PLLC filed a petition in the United States Supreme Court on Friday, August 28, 2020 to protect veteran’s disability benefits from wrongful appropriation contrary to federal law.

For decades, disabled veterans have suffered immeasurably under the Court’s wholly judicial creation of an exception to explicit protections afforded them by Congress’s exercise of its enumerated military powers.

Self-interested lawyers and state machinations have collaborated to raise a clamor to prevent this self-executing and explicit preemptive law from taking effect. But the swell of defiance does not make these parties any more correct, nor can it insulate state courts from the rights of those who seek to regain and restore to themselves their constitutional entitlements.

The passage of time and the din of dissension cannot erode the underlying structure guaranteeing the rights bestowed. The Supreme Court has recently expressed this sentiment in overturning more than a century of reliance on erroneous legal principles. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). There, Justice Gorsuch, writing for a majority of the Court stated:

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” Id. at 2482.

The federal statutes and regulations passed pursuant to Congress’s enumerated military powers contain no allowance to the states to sequester the veterans’ disability benefits at issue in this case and force them to be paid over to any other individual for state-imposed support obligations.

Rather, these benefits are (and always have been) explicitly excluded from state jurisdiction and control, before, 42 U.S.C. § 659(h)(1)(B)(iii), and after, 38 U.S.C. § 5301(a)(1), their receipt by the beneficiary.

We are taking affirmative steps of ensure that this is rectified.

Amicus Curiae Brief Addressing Causation and Tort Liability of Public and Quasi-Public Utilities in Wrongful Death Case Against Consumers Energy Company

Summary

Attorney Carson J. Tucker submitted an amicus curiae brief in support of an appeal filed by Consumers Energy Company in the case of Estate of Skidmore v Consumers Energy Company, Michigan Supreme Court Docket No. 154030.

In July 2011, a high-voltage power line owned by Consumers fell into the yard of Roody Cooper. Ralph and Dawn Skidmore lived in the house across the street. Both Mr. and Mrs. Skidmore saw fire and sparking caused by the electrical power line near to Mr. Cooper’s van and in his front yard. Two other eyewitnesses, who were also neighbors to Mr. Cooper, had left their house and were watching the power line sparking and flaming. Mr. Cooper also noticed the power line and saw that it had caused an 8-foot bush in his yard to catch fire, which was entirely consumed by flames.

Mr. Skidmore testified he warned Mrs. Skidmore not to go outside. Nonetheless, she told Mr. Skidmore she feared the van would catch on fire and that she wanted to warn Mr. Cooper while her husband called 911. Despite her husband’s warning and shouts from the other two neighbors not to approach, Mrs. Skidmore ran straight across the street and into Mr. Cooper’s yard where the power line was laying. Mrs. Skidmore either got too near to or came into contact with the power line and she was immediately electrocuted.

Mr. Skidmore sued Consumers both as an individual and on behalf of his wife’s estate, claiming negligence, res ipsa loquitor, negligent infliction of emotional distress, and bystander liability. Consumers moved for summary disposition arguing it had no duty to protect against the completely unforeseeable acts of Mrs. Skidmore, who ignored multiple warnings and defied common sense in running towards the known deadly hazard. The trial court granted Consumers motion finding that Mrs. Skidmore’s actions were unforeseeable.

The estate appealed and the Court of Appeals (Judges Shapiro, Borrello, and O’Connell) issued an initial, unanimous published opinion reversing the trial court. The Court of Appeals ruled that although Mrs. Skidmore was aware that a power line had fallen, it was reasonably foreseeable that as a neighbor she might attempt to rescue or aid Mr. Cooper.

Both parties filed motions for reconsideration, which the Court of Appeals granted. The Court of Appeals then issued a second published opinion vacating the prior one. The Court of Appeals noted that there was an issue of fact whether Mrs. Skidmore even knew that a downed power line was causing the fire in Mr. Cooper’s yard. The Court also injected the “Rescue Doctrine” into the case, ruling that under this doctrine, a person could recover for injuries received during a reasonably foreseeable rescue attempt.

Judge O’Connell, while agreeing with the original conclusion, concurred in part and dissented. He adhered to his original opinion, in which the entire court had found that Mrs. Skidmore knew a power line had fallen, but that there was an issue of fact as to whether she had acted reasonably, and therefore whether her injuries were a foreseeable result of Consumers’s alleged negligence in failing to maintain and/or repair the power lines.

Consumers filed an application for leave to appeal in the Michigan Supreme Court, raising the following issues:

(1) whether the Supreme Court should grant to address the Court of Appeals’ analysis on reasonable foreseeability, (2) the applicability of the rescue doctrine to the case, and (3) the open and obvious doctrine (that the open and obvious doctrine did not apply to bar plaintiff’s claims).

Carson J. Tucker volunteered to file the amicus brief in support of the application. MDTC pointed out that the Court of Appeals’ decision ignored several major common-law principles in Michigan law.

With respect to actions against public utilities, Mr. Tucker pointed out that Michigan courts have historically analyzed any personal injury action against such an entity from the perspective of the public policy of protecting affordable electricity and in recognition that high-volume provision of such public and quasi-public utilities must be protected from overburdening litigation.

In this same vein, Mr. Tucker demonstrated that public utilities were not historically held to a “higher standard of care” or “heightened duty” and thus not treated as absolute insurers of public safety. While some states have imposed a higher duty of care or “strict liability” on certain public service providers that engage in ultra-hazardous activities (like the provision of high-voltage electricity), Michigan has historically treated public utilities as any other ostensible tortfeasor, analyzing their conduct under an ordinary reasonableness standard.

Mr. Tucker also addressed Michigan’s robust common-law tradition of not imposing tort liability on ostensible tortfeasors for the unforeseeable actions and conduct of others that bring about injury either to themselves or to a third party.

Finally, Mr. Tucker explained the modern tort-law analysis applied by the Michigan Supreme Court (and the majority of other states) which looks at issues of duty, breach, proximate cause and foreseeability in light of public policy and the scope of liability imposed on tortfeasors depending on the facts and circumstances of a given case. This would, Mr. Tucker argued, necessarily require consideration of the nature of the defendant’s business activity – here the provision of a public utility.

Mr. Tucker also argued for reversal of the Court of Appeals opinion because it ignored the public policy of protecting public utilities from incurring strict liability for unforeseeable events. It also pointed out that the lower court’s opinion appeared to impose nearly strict liability for injuries occurring to a member of the public as the result of a downed power line. If the Court of Appeals was willing to extend the scope of liability out to the unforeseeable actions of Mrs. Skidmore, who inexplicably ran towards a fire in her neighbor’s yard (whether or not she knew it was from a downed power line), then liability would encompass a wide swath of the public who might accidentally or inadvertently come into contact with a downed power line.

Mr. Tucker also analysed the rescue doctrine applied by the Court of Appeals and noted that it had its own limitations on liability for unforeseeable actions and the conduct of the rescuer. In short, the law does not impose liability for the “unforeseeable plaintiff.” As issues of public policy, liability of public utilities, and common-law protection against imposing liability on ostensible tortfeasors for the unforeseeable actions and conduct of others were present in this case, Mr. Tucker urged the Supreme Court to reverse the Court of Appeals decision, or to at least grant Consumers’ application to clarify the law.

Amicus Curiae Brief in Skidmore v. Consumers Energy Company, Supreme Court of Michigan March 7, 2017

Amicus Curiae Brief for Veterans Organizations in Minnesota Court of Appeals Results in Victory and Reversal of Minnesota Jurisprudence

Summary

Another pro bono project by Lex Fori PLLC contributed to a victory in the Minnesota Court of Appeals for a disabled veteran.

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Another pro bono project by Lex Fori PLLC contributed to a victory in the Minnesota Court of Appeals for a disabled veteran.

Summary

Another pro bono project by Lex Fori PLLC contributed to a victory in the Minnesota Court of Appeals for a disabled veteran.

After serving over 10 years in the United States Navy and suffering injuries during his service resulting in a 70 percent disability rating, Retired Navy SEAL Chief Petty Officer Mark Mattson’s wife filed for divorce. He reluctantly entered into a stipulated divorce decree in which he agreed to divide his retirement and disability pay with his former spouse. Chief Mattson’s ex-wife filed a motion to enforce the judgment after he stopped paying the oppressive obligation. The trial court entered an order awarding the ex-wife arrearages and attorney fees holding Chief Mattson could be required to use his veterans administration disability pay to satisfy these orders.

Chief Mattson appealed the decision in the Minnesota Court of Appeals claiming that federal law forbade division of military disability pay as marital property consequent to divorce.

Realizing the significance of this case as it pertains to this important issue, Operation Firing for Effect (OFFE) and Forgotten Warriors Project, Inc. teamed up and submitted an amicus curiae brief prepared and filed by Carson J. Tucker supporting reversal of the trial court’s decision.

On October 2, 2017, the Minnesota Court of Appeals issued its opinion in the case: Berberich v. Mattson, Minnesota Court of Appeals Case No. A16-1535. The Court held, consistent with the arguments presented in the amicus curiae brief submitted by OFFE and Forgotten Warriors Project, that federal law preempted all state law concerning disposition of military retirement pay and disability pay. The only exception pertinent to the case was the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. 1408, which allows partition of only a portion of disposable retired pay, while making all other military pay off limits to state courts when partitioning marital property in divorce proceedings.

This important decision comes on the heels of the United States Supreme Court’s unanimous decision in Howell v. Howell, which also followed arguments presented in “friend of the court” brief filed by Mr. Tucker in that case on behalf of Veterans of Foreign Wars (VFW) and OFFE.

The significance of the Howell decision continues to reverberate as state courts across the country are faced with having to overrule nearly 30 years of bad precedent which had allowed former spouses (and their lawyers) to profit off of federal monies constitutionally purposed for supporting disabled veterans after they have sacrificed their best years and health in the service of our country. While these current victories after a long-fought battle are encouraging, they do nothing to bring back the lives of so many veterans destroyed by state bureaucracies functionally designed to seek out every potential support dollar available to pay off court-ordered legal fees and awards to former spouses, rather than provide the disabled veterans with what was often their only form of sustenance. The fight continues.

Mr. Tucker operates an international law practice and risk consulting service with locations in the United Kingdom, France, and the United States. He has developed a particular expertise in prosecuting and defending appeals in state and federal courts, including the United States Supreme Court and has had several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals. In addition to his work on appeals, Mr. Tucker has written amicus curiae (friend of the court) briefs in the United States Supreme Court and state and federal courts on behalf of various governmental and non-governmental entities, not-for-profit corporations, and individuals. A significant portion of his practice involves providing pro bono (free or substantially reduced) legal services to individuals and organizations where focus and efforts can be directed on changing the law for a wide swath of interested parties and stakeholders. In addition to being licensed to practice in Michigan, Mr. Tucker is admitted to practice in the Eastern and Western District Federal Courts in Michigan, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

After serving over 10 years in the United States Navy and suffering injuries during his service resulting in a 70 percent disability rating, Retired Navy SEAL Chief Petty Officer Mark Mattson’s wife filed for divorce. He reluctantly entered into a stipulated divorce decree in which he agreed to divide his retirement and disability pay with his former spouse. Chief Mattson’s ex-wife filed a motion to enforce the judgment after he stopped paying the oppressive obligation. The trial court entered an order awarding the ex-wife arrearages and attorney fees holding Chief Mattson could be required to use his veterans administration disability pay to satisfy these orders.

Chief Mattson appealed the decision in the Minnesota Court of Appeals claiming that federal law forbade division of military disability pay as marital property consequent to divorce.

Realizing the significance of this case as it pertains to this important issue, Operation Firing for Effect (OFFE) and Forgotten Warriors Project, Inc. teamed up and submitted an amicus curiae brief prepared and filed by Carson J. Tucker supporting reversal of the trial court’s decision.

On October 2, 2017, the Minnesota Court of Appeals issued its opinion in the case: Berberich v. Mattson, Minnesota Court of Appeals Case No. A16-1535. The Court held, consistent with the arguments presented in the amicus curiae brief submitted by OFFE and Forgotten Warriors Project, that federal law preempted all state law concerning disposition of military retirement pay and disability pay. The only exception pertinent to the case was the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. 1408, which allows partition of only a portion of disposable retired pay, while making all other military pay off limits to state courts when partitioning marital property in divorce proceedings.

This important decision comes on the heels of the United States Supreme Court’s unanimous decision in Howell v. Howell, which also followed arguments presented in “friend of the court” brief filed by Mr. Tucker in that case on behalf of Veterans of Foreign Wars (VFW) and OFFE.

The significance of the Howell decision continues to reverberate as state courts across the country are faced with having to overrule nearly 30 years of bad precedent which had allowed former spouses (and their lawyers) to profit off of federal monies constitutionally purposed for supporting disabled veterans after they have sacrificed their best years and health in the service of our country. While these current victories after a long-fought battle are encouraging, they do nothing to bring back the lives of so many veterans destroyed by state bureaucracies functionally designed to seek out every potential support dollar available to pay off court-ordered legal fees and awards to former spouses, rather than provide the disabled veterans with what was often their only form of sustenance. The fight continues.

Mr. Tucker operates an international law practice and risk consulting service with locations in the United Kingdom, France, and the United States. He has developed a particular expertise in prosecuting and defending appeals in state and federal courts, including the United States Supreme Court and has had several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals. In addition to his work on appeals, Mr. Tucker has written amicus curiae (friend of the court) briefs in the United States Supreme Court and state and federal courts on behalf of various governmental and non-governmental entities, not-for-profit corporations, and individuals. A significant portion of his practice involves providing pro bono (free or substantially reduced) legal services to individuals and organizations where focus and efforts can be directed on changing the law for a wide swath of interested parties and stakeholders. In addition to being licensed to practice in Michigan, Mr. Tucker is admitted to practice in the Eastern and Western District Federal Courts in Michigan, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

Amicus Curiae Brief Supporting Chief Petty Officer (SEAL) (ret.) Mark Steven Mattson on Behalf of Operation Firing for Effect and Forgotten Warriors Project, Inc.

    United States Supreme Court Amicus Curiae Brief in Howell v. Howell, 137 S. Ct. 1400 (2017) for Veterans Service Organizations

    Summary

    Lex Fori PLLC attorney Carson J. Tucker, JD MSEL, filed an amicus curiae (friend of the court) brief in the United States Supreme Court on behalf of Veterans of Foreign Wars (VFW) and Operation Firing for Effect (OFFE) addressing the propriety of state court disposition of veterans’ disability and special compensation pay in marital property divisions consequent to divorce. This was a pro bono project, which makes up about 30 to 40 percent of Mr. Tucker’s practice.

    This issue has been hotly debated since the mid-1960’s. Despite two unequivocal Supreme Court cases explicitly holding federal law prohibits, i.e., preempts, state court authority over veterans retirement and disability pay, an Act of Congress doing the same thing, and a federal anti-assignment provision that without doubt bars courts from doing this but for a very limited exception, state courts continue to find ways to get around the federal law.

    Military disability and retirement benefits have been a staple of veterans’ rewards for service to the country since before the revolutionary war and it was engrained in the Constitution thereafter. Congressional authority to provide such benefits has no greater preemptive weight than that given to it through the specifically enumerated “Military Powers” clauses in the U.S. Constitution, Article I, section 8, clauses 11 through 14. The necessary and proper clause further supports absolute and exclusive federal preemption of state court authority in this unique area. Even the Tenth Amendment, which reserved all powers to the States that were not specifically granted to the federal government in the Constitution, specifically defers to Congress’s Article I enumerated powers. Finally, the Supremacy Clause, Article VI, section 2, of the Constitution provides that no state constitution, statute or judicial decision can contravene the laws that have been passed pursuant to these enumerated federal powers.

    Judicial deference to Congress is at its “apogee” when addressing laws passed pursuant to its enumerated military powers. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Veterans benefits, which are specifically authorized through these laws, ensure the robust defense and security of this nation, promote the volunteer spirit of service and sacrifice, increase and preserve the morale of those who are currently serving, and most importantly, protect, reward, honor, and compensate those who have sacrificed a large part of their lives protecting this nation’s veterans.

    When state courts disregard this authority and decide disability payments authorized by these laws should be diverted to another, they take from disabled veterans the benefits which are specifically purposed to supplement the veterans’ inability to achieve equally gainful employment and participation in society after he or she has served the country

    The state courts blatantly disregard these specifically designated funds by ordering veterans to pay their former spouse from whatever funds they have, even if that means the veteran’s only source of income will be diverted. Veterans who are severely disabled, many of whom are suffering from PTSD, have neither the means nor the capacity to fund an adequate legal defense, much less withstand the scrutiny of divorce lawyers, state court judges, and cold, senseless bureaucratic functionaries who ensure that every last penny is taken from the veteran. Often, the veterans end up homeless, or worse, they commit suicide. This has been described by at least one state as an “epidemic”.

    The United States Supreme Court issued a unanimous opinion agreeing with every one of the points made in the amicus curiae brief, and even addressed them in the order in which they were presented to the Court.

    Amicus Curiae Brief Addressing Civil Rights Litigation Against Private Foster Care Entities

    Lex Fori, PLLC prepared this amicus curiae brief for Michigan Defense Trial Counsel in Johnson v. Wolverine.

    The brief addressed the important federal question of the parameters of constitutional tort liability under 42 U.S.C.A. § 1983 for private foster care homes.