Following up on its prior order and as I had indicated in my prior blog post (Michigan Supreme Court Suspends All Case Filing Deadlines), the Court has now issued a clarifying order “tolling” filing deadlines for jurisdictional appeals; the time for filing a Claim of Appeal and Application for Leave to Appeal in the Supreme Court are jurisdictional – the Court will not recognize the filing if it is not filed within the time limit due date as specified in the Michigan Court Rules. A “late appeal” may be filed in the Court of Appeals, but the appeal is no longer one of right, but rather may be heard at the discretion of the Court.
For Supreme Court applications – late applications are not accepted.
The new order, AO 2020-4, effectively tolls the period of filing during the period of the Governor’s declared state of emergency (including any extensions) and it gives filers the same number of days to file upon expiration of the period of emergency as they had to file when the period commenced on March 24. It seems this particular aspect of the order was designed to avoid a large filing influx on the day after expiration of the filing period, which makes sense as the Courts would be flooded with appeals and applications on a single day.
This is an effective solution. Michigan Supreme Court is really proactive and handling this crisis extremely well! Well done!
In March 2020, Attorney Carson J. Tucker of Lex Fori PLLC filed another pro bono Supreme Court application in Michigan seeking to ensure that federally protected veterans’ disability benefits are used for the purpose that Congress intended, i.e., to support and provide for disabled veterans whose service to the United States resulted in their injuries. Congress has passed laws pursuant to its enumerated Military Powers in the Constitution providing veterans with benefits since the beginning of the republic. The federal statutes also affirmatively shield certain veterans’ benefits from any state court process and jurisdictionally prohibit any legal process from being used to take these benefits.
Part of Mr. Tucker’s practice is focused on providing pro bono and low bono legal representation to servicemembers and veterans throughout the country and abroad. It makes up about 30 to 40 percent of his law practice at any given time. As an appellate law expert admitted to the United States Supreme Court and other state courts and federal courts, Mr. Tucker also provides amicus curiae (friend of the court) briefs to various entities and organizations to protect their interests in cases addressing legal issues of significant importance to those organizations.
I’ve already posted about this recent victory, but wanted to highlight one for the more detailed aspects of this case that arose from our aggressive stance in litigation and on appeals and our creativity in exploring all remedies for our clients at all times.
Michigan, as in most states, the courts follow the “American rule” when it comes to recovery of attorney’s fees in litigation. This means that generally both parties pay their own attorney fees. The exception in Michigan and some other jurisdictions is where attorney fees are allowed by statute, court rule, or agreement by and between the parties (think of an arbitration or dispute resolution clause or just a regular contract requiring one or another party to pick up the attorney’s fees in the event of dispute or breach, etc.).
Generally, even if there is a rule or statute, a party must move for attorney fees before the final judgment. In this particular case, exercising a will to win and be creative, we utilized a court rule that allows a defending party in a child custody / domestic relations matter to recover attorney fees and successfully convinced the Court of Appeals to remand to the trial court to hold a hearing on our client’s request even though the request was made in a post-judgment motion.
Interestingly enough, this exercise was undertaken when we were retained about a week before the motions for reconsideration were due in the trial court to try and reverse the entire direction of the proceedings, which had theretofore all been against our client.
The most satisfying part of this particular case is that we did it for the widow of a United States Army veteran who had committed suicide while on active duty. Anyone who follows me knows about 30 to 40 percent of my practice is representing military veterans (usually pro bono and low bono). As a veteran myself Navy 1989 – 2003, and a former JAG officer with the United States Army (2003 – 2016), I am keenly aware of the challenges and issues faced by our nation’s warriors and their families! I fight these legal battles like they fight for us on the front line! No mercy.
Read the opinion here: Martin v Cleveland-Martin
We have been preparing, formatting and filing our briefs in the Court of Appeals and Supreme Court under Administrative Order 2019-6, which allows us to use all the readability and formatting tools of Adobe to create fully interactive and e-friendly briefs. As a former Supreme Court law clerk and an insurance coverage counsel, Mr. Tucker understands the convenience of having a fully interactive document with all file contents and citations referenced and linked for quick review.
The ideal briefs and appendices (which we strive to create) will contain fully interactive table of contents and bookmarks, links to cases, links to the direct location (page and line) in the Appendix and/or accompanying attachments and indices and tables of contents that are fully interactive – meaning the reader can toggle back and forth to the references and have immediate confirmation and documentary support for our arguments and factual assertions, respectively. We can also use a larger, eye-friendly font, which is critical for those who must read brief after brief, day in and day out!
Here’s one we filed in the Court of Appeals last month (January 2020) in a constitutional and property law case in the Michigan Court of Appeals. Mitchell.Brief.on.Appeal.01.17.2020
The lawyer’s weekly recently published an article on the Menard v Imig case in which I successfully represented the Macomb County governmental defendants in the Court of Appeals, briefing and arguing this case addressing governmental immunity and the highway defect exception under the Governmental Tort Liability Act.
As a follow up on our bulletin yesterday we provide the following summary of the Supreme Court unanimous (8-0-1) opinion in Howell v. Howell, agreeing with the “friend of the court” brief written by Carson J. Tucker for Veterans of Foreign Wars and Operation Firing for Effect.
On May 15, 2017, the United States Supreme Court released its opinion in the case of Howell v. Howell, Supreme Court Case No. 15-1031. In a unanimous 8-0 decision (Gorsuch, J., not participating), the Court held that state courts were pre-empted by federal law from divesting military veterans of their non-disposable retirement and disability pay to make up for losses to former spouses due to the military veteran’s waiver of his or her disposable retirement pay. This decision, the Court ruled, was dictated by pre-existing federal law as enunciated in 1981 by the Court in McCarty v. McCarty, 453 U.S. 210 (1981), the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1401, et seq., and Mansell v. Mansell, 490 U.S. 581 (1989).
This decision is significant in several respects. First, the Court held that state courts had no authority to order a veteran to indemnify or reimburse a former spouse for the loss of his or her portion of the veteran’s disposable retirement pay when the veteran exercises his or her right to waive that pay to receive service-related disability. This, the Court held applied whether the veteran waived his retirement pay before, during, or, as in this case, long after the divorce. In support of this holding, the Court reasoned that Mansell v. Mansell, the USFSPA and pre-existing federal law completely pre-empted the states from treating waived military retirement pay as divisible community property.
Second, relying on 38 U.S.C. § 5301, the Court addressed the former spouse’s argument that she had a “vested interest” in the property of the veteran such that the state court had authority to force the veteran to part with his military benefits to make up for the amount she lost as a result of his post-divorce waiver. The Court specifically stated: “State courts cannot ‘vest’ that which (under governing federal law – again citing 38 U.S.C. § 5301) they lack authority to give.”
Third, the Court rejected any state court orders trying to get around the restrictions of the USFSPA and Mansell by characterizing the payments to the former spouse as indemnification or reimbursements. To all those multitude of state courts that have been violating the law for the last 30 years the Court said simply: “Regardless of their form, such…orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress.” The Court concluded: “All such orders are thus pre-empted.”
Finally, the Court reiterated, as OFFE and VFW had urged in their amicus curiae brief, that the “basic reason” of federal law for why Congress intended to exempt military retirement pay from state community and equitable property laws applies to disability pay. The Court also made sure in its opinion to state, unequivocally and without reservation that McCarty’s rule of pre-emption was still good law, pre-existed the USFPA and was controlling on the question of a state court’s authority and jurisdiction over military retirement and disability benefits that were designated by Congress as purposed for the specific individual. Military benefits are a “personal entitlement” and through federal legislation Congress “intended that military retired pay ‘actually reach the beneficiary.’”.
In conclusion, the Court noted that the state court’s order rested entirely on the purported need to restore the former spouse’s lost portion as a result of the waiver. Such an order was void and unauthorized because it was prohibited by federal case law and federal statutes, particularly 38 U.S.C. § 5301 and 10 U.S.C. § 1408. The Court again emphasized that a former spouse has no vested interest to receive indemnity, offset, compensation or reimbursement from funds of the veteran.
Concurring in the totality of the opinion, Justice Thomas noted that there was no need to even discuss the purpose and intent of Congress because states were simply pre-empted by federal law from diverting the veteran’s funds.
Suffice it to say that the Supreme Court’s unanimous opinion clearly rebukes those many, many states that have issued decisions in direct contravention of this rule of federal pre-emption. Our amicus curiae brief detailed the history of federal military benefits and explained the fundamental underlying reasons Congress’ authority in this area trumps all state court orders to the contrary. Indeed, the Court expressly says that State courts have no authority to vest these benefits in the former spouse whether or not they are received by the veteran before, during or long after divorce proceedings. Importantly, the Court relies on 38 U.S.C. § 5301 in several parts of its opinion concerning this pre-emption and lack of authority and jurisdiction of the trial court over these funds.
Therefore, this pre-emption is absolute and as Justice Thomas’ concurrence clarifies, there is no need to discuss the intent or purpose of federal statutes providing veterans benefits, because the authority to do so springs from the plain language of federal legislation providing veterans the exclusive right to these funds, and the long line of Supreme Court decisions holding same. That authority further springs, as we demonstrated in our amicus curiae brief from the enumerated Military Powers of the Congress entrenched in the Constitution and buttressed by the unwavering operation of the Supremacy Clause, making all federal laws enacted by Congress pursuant to its enumerated powers the Supreme Law of the Land which no state legislature, judge or administrative agency can contravene.
What must not be forgotten is despite this long fought and unanimous victory, and the decision’s unequivocal reversal to all those state courts that have, without authority, divested veterans of these benefits, the state of the law prior to this decision (since at least 1989) left thousands of veterans without the federal benefits to which they have been entitled. This has resulted in the unjust and, in many cases, irreversible consequences of leaving our most vulnerable veterans who are physically and psychologically unable to continue working and living a normal life with little or no funds to survive on. It is difficult, if not impossible, to fathom the hardships this preexisting, and indeed, as confirmed by the Court’s opinion, illegitimate state of affairs brought upon our veterans during a most trying three decades of high-tempo military operations.
Carson J. Tucker operates an international legal consulting practice in Europe and the United States. Part of his practice involves writing specialized legal briefs for non-profit organizations, governmental entities, international non-governmental organizations, and collaborative groups with interests in the outcome of cases addressing issues of global and national importance.
The Michigan Supreme Court has issued an Order Docketing Amicus Curiae Brief prepared by the Law Offices of Carson J. Tucker on behalf of Michigan Defense Trial Counsel (local affiliate of the Defense Research Institute), in the case of Skidmore v. Consumers Energy Company, Supreme Court Case No. 154030.
In a case I brought to the Michigan Supreme Court, which remanded in Omian v Chrysler, 495 Mich. 859 (2013), to the Court of Appeals for consideration of my appeal, the Michigan Court of Appeals has now reversed the decision I originally appealed. In Omian v. Chrysler.COA.Published, the Court of Appeals agreed that evidence of a former employee’s ability to engage in a financially lucrative criminal enterprise generally allows consideration of that employee’s ability to “continue to earn wages” despite his or her claim that a work-related injury entitles him to wage-loss benefits. I argued that an ability to earn wages, any wages, even those gained through nefarious criminal activities, should be admissible to demonstrate that the claimant is not entitled to be paid wage-loss benefits based on a claimed disabling injury – an injury he or she claims is preventing him from earning wages in other legal and gainful employment.
Although the Court did not agree with all of my arguments, it reversed the case on the main principal espoused and directs the administrative tribunal to consider the evidence.
In Pace v. Jessica Edel-Harrelson, et al, issued on February 24, 2015, the Michigan Court of Appeals addressed a Whistleblowers Protection Act claim.
There are two remarkable points to the case. The first is that the COA panel (Shapiro, Gleicher and Roynayne-Krause) holds that reporting a suspected future violation of a regulation, law or rule is sufficient to trigger the protected activity element of the WPA.
The second aspect that is interesting is the court addresses the causation analysis under the WPA and, particularly, rejects the defendant employer’s claim that any reporting of a violation by the plaintiff was merely temporally related to the incidents which the defendant-employer claims justified the plaintiff’s termination.
In the end, the Court of Appeals here returns the WPA claim to the trial court because questions of fact remained over whether there was ever any planned future violation of a rule (misappropriation of the employer’s funds by another employee), and whether plaintiff actually engaged in the conduct for which she was allegedly terminated (threatening and intimidating a co-employee), and whether the plaintiff could prove causation.