Part of our work in advancing disabled veteran’s constitutional rights to their benefits is relying on amicus curiae (friend of the court) brief writing to ensure that state courts are following the federal laws that protect veteran’s disability benefits from “all legal and equitable process whatever, either before or after receipt” as 38 U.S.C. 5301 requires.
In the case of Berberich v. Mattson, Carson J. Tucker of Lex Fori PLLC submitted an amicus curiae brief on behalf of Operation Firing for Effect and Forgotten Warriors Project. This case addressed the extent to which state courts in Minnesota could force disabled veterans to pay their protected federal disability pay to former spouses even though federal law preempts all state law on this subject matter.
By being admitted to the Court of Appeals of Minnesota and approved for the filing of the friend of the court brief Mr. Tucker was able to offer his knowledge and expertise as an appellate lawyer for a proper understanding of the status of veterans’ disability benefits in state court proceedings.
The Court held: “Federal law preempts state courts from dividing a veteran’s military disability compensation as marital property and renders such property divisions unenforceable, even if agreed upon, overruling parts of Gatfield v. Gatfield, 682 N.W.2d 632 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).”
The identification of state court cases and procuring amicus curiae briefs to assist the state courts in properly following federal law is a critical part of any efforts to provide advocacy for disabled veterans.