United States Supreme Court Completes Oral Arguments in Veterans’ Pension Benefits Case in which Pro Bono Amicus Curiae Brief was Submitted by Law Offices of Carson J. Tucker

On Monday, the Court heard oral arguments in the case of Howell v. Howell, Case No. 15-1031. I’ve written ad nauseum about this case and the pro bono amicus curiae brief submitted on behalf of Veterans of Foreign Wars and Operation Firing for Effect, but reviewed the transcript of the proceedings and wanted to share that with those interested.

No way to read the tea leaves; I’d say that Justices Ginsburg, Sotomayor and Kagan are likely in favor of Respondent (the former spouse).

Justice Breyer seems to understand the graft inherent in what the state courts are doing, so that it is a good sign. Justice Roberts too.

Breyer and Roberts gave the Solicitor General’s attorney a hard time on this, which it deserves for getting behind the states in this case.

The law office arguing supreme court cases for the federal government as a rule should be supporting (1) the Constitution, (2) Congressional acts passed pursuant thereto, and, last but certainly not least, (3) the veterans who have fought and died so the prior two instruments of governance in our Republic can operate as they should.

A majority of the justices did seem sensitive to two things brought up  in the amicus curiae brief (1) this is a marital property case, which is totally different from spousal support and child support cases – this is really important to establish with the upcoming fight on the 38 USC 5301 front; and (2) the “graft” that state courts are engaging in by substituting “other money” in lieu of outright saying that they are taking restricted disability and special pay from the veterans, many of whom have only this money to survive on.

As Justice Roberts pressed the federal government’s lawyer (to laughter from the audience) during the oral argument, on page 42, allowing state courts to make an end run around the statute (which prohibits dividing waived military retirement pay, disability pay, and special compensation) by substituting in the veterans’ “other money” for the loss  by the former spouse of his or her share is the kind of thing that gives the law (and I would add lawyers) “a bad name”!

Aptly describing it as making the statute little more than a “charade”, Justice Roberts pressed the government’s attorney to rationalize the state courts’ actions, which she was unable to do.

It should be noted there is a solid split of authority on this issue, with some state courts, with widely divergent political backgrounds, think Vermont and Mississippi, have correctly ruled in favor of the veterans and have held that state courts are forbidden from doing indirectly what they cannot do directly.

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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