By Brig. Gen. Michael C.H. McDaniel, USA (ret.)
Michael C.H. McDaniel is a professor and the director of WMU-Cooley’s Homeland and National Security Law Program. He served as the Deputy Assistant Secretary of Defense for Homeland Defense Strategy. His responsibilities included supervision of the Department of Defense Critical Infrastructure Protection Program and the Global Anti-Terrorism/Force Protection Policy.
It may seem, to the casual observer, that there has been a recent surge of manuals for the practitioners of military and veterans law. In 2014, the Michigan Department of Attorney General simultaneously published the Michigan Guide to Military Family Law with WMU-Cooley Law School and the Michigan Military and Veterans Legal Service Guide with University of Detroit Mercy Law School.
This year, WMU-Cooley law students have assisted in developing two publications for Michigan judges on laws affecting Servicemembers and Veterans: The 2015 Revised Michigan Judge’s Guide to the Servicemembers Civil Relief Act and the soon to be released Veterans Treatment Courts in Michigan: A Manual for Judges.
All of these publications were vitally needed, however, in the post-conflict legal environment with a resultant sharp increase in the need for services for servicemembers and veterans. The 2015 Revised Michigan Judge’s Guide to the Servicemembers Civil Relief Act will assist practitioners greatly in this area.
When this country was ramping up to engage in World War II, Congress enacted the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) to provide protection to those called to serve in the nation’s armed forces. Enacted in 1940, with a few changes after the Gulf War in 1991, the SSCRA was largely unchanged until 2003. The Servicemembers Civil Relief Act (SCRA) was written to both acknowledge the decades of judicial interpretation of the SSCRA since enactment in 1940 as well as to update the law to reflect the changes in American life. The SCRA, can be found at 50 U.S.C. App. § 501 et seq.
Courts generally construed the original act, the SSCRA, liberally to protect those in uniform. The U.S. Supreme Court has said that the statute should be “liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation” Boone v. Lightner, 319 US 561, 575, (1943) and should be read “with an eye friendly to those who dropped their affairs to answer their country’s call.” Le Maistre v. Leffers, 333 U.S. 1, 6 (1948). The same spirit and intention is reflected in the SCRA.
A 2009 case in Michigan, Hurley v Deutsche Bank Trust Co 2009 U.S. Dist. LEXIS 20261 (W.D. Mich. Mar. 13, 2009) ultimately reinforced that principle. The ripple effect from an unpublished decision on a motion for reconsideration in western Michigan caused waves in many directions: the decision was the first in the nation to find a private cause of action on behalf of the harmed servicemember, it resulted in Congress creating an explicit cause of action, as Section 802(a) of the Veterans’ Benefits Act of 2010 (VBA-2010), Public Law 111-275, amended the SCRA, and it compelled Matt Cooper, SGT Hurley’s attorney, to volunteer to update the existing Michigan Judge’s Guide to the Servicemembers Civil Relief Act.
The 2015 edition of the SCRA Guide is vital to every attorney and judge as it continues the template of annotations based on Michigan and other states’ decisions which interpret each section of the Act, or noting where state statutes may be limited by the SCRA. There is a substantial increase in the number of annotations, as one would expect. It also continues the use of “Michigan Practitioners’ Notes” which emphasize key areas of concern or of potential distinction from Michigan practice. Finally, the 2015 edition contains two new key points of discussion: the private cause of action by servicemembers created by the Hurley decision and the subsequent amendment, and it expands the discussion on the Act’s limitation on the concept of paramount title.
The original Michigan Judge’s Guide to the Servicemembers Civil Relief Act was created by the Honigman firm with substantial assistance from WMU-Cooley Law students through its Service to Soldiers Legal Assistance Program.
The 2015 Guide was shepherded by Matt Cooper, of Schuitmaker, Cooper, Cypher & Knotek. Sean Crotty of the Honigman firm assisted and assured continuity with the original guide. WMU-Cooley students Heather Spielmaker, Nathan Chan and Matthew Flynn continued the WMU-Cooley tradition of the practical application of legal skills and of service to the community by ably assisting in the research and drafting of the 2015 edition.
Aug. 18, 2015 news release: Students Work to Update Michigan Guide to Servicemembers Civil Relief Act