STATE CONTROL OF STATE NATIONAL GUARD PERSONNEL

Think Tank

With President Trump considering use of state national guard troops to deport illegal immigrants, it is essential to understand which rules, federal or state, govern national guard personnel. The scenario raises the specter of a conflict of law situation. What if the President and a state governor issue differing orders? Which one is legally binding? The unequivocal answer is the governor’s. Pursuant to the power-sharing arrangement outlined in the Second Militia Clause, governors are the commanders-in-chief of guard personnel serving in a state status. Possessing the power to command, governors—along with state legislatures—possess the power to determine which rules bind the troops under their control, an auxiliary power. Presidential orders, therefore, are not automatically binding on state guard members; in fact, they have legal force only if the respective state authorities afford them such force. Absent state-level approval, instructions emanating from federal military sources are propositional, able to ignored without legal consequence. To learn more, see the below article from Texas Review of Law and Policy (coming in the Fall of 2017!).

THE CIVILIAN-MILITARY GAP

THE FERES DOCTRINE


The Feres Doctrine stems from the United States Supreme Court case of Feres v. United States, decided in 1950, which concluded that military service members cannot sue the government for any harm they sustain “incident to service.” This doctrine has since been expanded to bar lawsuits against superior officers and, often times, other service members. Lawsuits for sexual assault, medical malpractice, and even the undisclosed administration of psychotropic drugs have all been deemed “incident to service,” and immediately dismissed pursuant to the Feres Doctrine. The military falsely claims that Feres is necessary to preserve discipline and combat readiness, but all it does is shield physicians, military officials, and the government from lawsuits that would otherwise hold them accountable for their wrongdoings.


It is time to rethink accountability in the military, replacing blanket immunity with a more nuanced policy that preserves combat readiness while simultaneously honoring the victims of egregious misconduct and inexcusable neglect. To learn more, see the below articles from Orange County Lawyer magazine and the Orange County Register.

PENAL CODE SECTION 1170.9

SIDE-SWITCHING IN THE CA NATIONAL GUARD

The term “civilian-military gap” refers to the divide that exists between those that have served in the armed forces and those that have not. With less than 1% of the population currently serving in an all-volunteer force, and military experience in Congress on the decline, this “gap” is wider than ever. The RAND Corporation found in 2007 that this “gap” reduces support for defense budgets, increases the difficulty of recruiting qualified candidates, reduces public support and, ultimately, undermines the important principle of civilian control of the military.

One of the most powerful ways to connect with others is through the art of storytelling. Therefore, in order to combat this civilian-military gap, Veterans Legal Institute is working on a new podcast titled “A World Apart.” Listeners will hear stories from those that served and learn about service-related issues, all from a civilian perspective. For updates, be sure to follow us on Twitter and Facebook.

In response to concerns about the overall well being of our nation’s veterans as they reintegrate into civilian society, the California Legislature adopted Penal Code section 1170.9. It states that a person “convicted of a criminal offense” who is a present or former member of the military and suffers from military sexual trauma (MST), traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), substance abuse, or mental health disorders as a result of service may be ordered into treatment instead of incarceration. If the defendant does what is required under the statute, the court may restore the veteran “to the community of law abiding citizens.” To learn more, see the below article from Orange County Lawyer magazine.

A rape subculture exists when the number of sexual assault incidents exceeds the norm, victims are frequently blamed for their assaults, and internal forces collaborate to disincentivize reporting to authorities. The Department of Defense estimates that approximately 15,000 service members were sexually assaulted in FY 2016, yet only 143 cases resulted in a conviction for a sexual assault related offense. During military service, female service members are oftentimes not seen as part of the collective group and, therefore, acceptable targets of sexual violence. A female service member’s outsider status is accentuated by the military’s gendered vocabulary, its masculinized culture, and its emphasis on enduring pain in silence.

 There is a rape subculture that exists in the military that will not be extinguished without increased accountability, such as through the elimination of the Feres Doctrine (discussed above). To learn more, see the below article from Los Angeles Lawyer magazine.

UNLICENSED ATTORNEYS IN THE CA NATIONAL GUARD

Policy initiatives

UPCOMING EVENTS

VETERAN HOMELESSNESS

THE MILITARY RAPE SUBCULTURE

NEW PODCAST

VETERANS TREATMENT COURTS

In 2009, the VA announced an ambitious goal to end veteran homelessness within 5 years, yet Orange County is home to a growing number of homeless veterans. The “housing first” model has proven successful, because treating other conditions, such as mental illness and drug addiction, is much easier when an individual is sheltered. We must continue the work to end veteran homelessness – no one who has served this country should be living life on the streets. To learn more, see the below article from the Orange County Register.

"MILITARY SEXUAL TRAUMA: IS IT TIME TO RETHINK THE FERES DOCTRINE?​​ - APRIL 2018

Veterans Legal Institute is excited to announce that it has a podcast in the works titled “A World Apart,” aimed at closing the “civilian-military gap.” Listeners will hear stories from those that served and learn about service-related issues, all from a civilian perspective. For updates, be sure to follow us on Twitter and Facebook.

A veterans court is a "specialized court" which is charged with trying cases of minor offenses involving military veterans, particularly those diagnosed with service-related illnesses. Eligible veterans must have a clinical diagnosis of a substance abuse and/or a mental health disorder stemming from their service and have committed a nonviolent crime. To learn more, see the below article from The Council of State Governments website.

This symposium will bring together the thought leaders in the fields of Military Sexual Trauma (MST) and the Feres Doctrine, for the purpose of increasing academic and public awareness of the fact that military rape victims cannot seek redress in court.


For symposium updates, be sure to follow us on Twitter and Facebook. For sponsorship information, please contact Dwight Stirling at dstirling@vetslegal.com.

EDUCATIONAL ARTICLES

DISCHARGE UPGRADES

Unique amongst governmental law offices in California, the National Guard's legal department – otherwise known as the JAG Corps – consists of two wings, each diametrically opposed to the other, one representing the agency itself and the other representing employees accused of misconduct. Remarkably, militia attorneys are systematically moved back and forth between the two wings without ethical screening, the prophylactic measures developed by the Court in its jurisprudence on vicarious disqualification. This underlying rotation process exerts immense destabilizing pressure on client confidences, giving rise to professional responsibility conundrums of the first order and calling into question militia attorneys’ enduring duty of loyalty.  To learn more, see the below article from Boston University Public Interest Law Journal.

The California National Guard does not require that its attorneys be members of the California State Bar, a practice that appears by all accounts to be erroneous and illegal. These unlicensed militia attorneys perform a general counsel role, advising senior state government personnel on a broad range of state matters, including environmental compliance, privacy issues, and the use of force against California citizens. They also represent state militia employees accused of criminal misconduct and provide direct legal assistance to those who have personal legal problems, advising on everything from family law to landlord/tenant disputes to garden variety consumer law matters to state and federal tax problems. Yet, these unlicensed attorneys have not passed the California Bar Exam, cleared the State Bar's moral character evaluation, or registered with the State Bar.

This practice of unlicensed attorneys providing legal advice to public officials and militia employees must end, replaced with more robust civilian oversight of the California National Guard. To learn more, see the below article from Western State Law Review.

Every service member receives a characterization of service upon completion of his or her tenure in the military. A “less than honorable” discharge damages a veteran’s post-service employment and educational opportunities, and disqualifies him or her from many VA benefits. A discharge upgrade is an administrative process by which a veteran’s characterization of service may be improved from a less desirable to a more desirable type, thereby restoring their benefits. To learn more, visit our Legal Services page and see the below articles from Los Angeles Lawyer magazine and U.S. Veterans Magazine.

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The VLI houses a think tank dedicated to education, research and policy advocacy.  The Public Policy Division fills the need for a California-based research and policy institute focused on military and veterans issues.  VLI’s goal is to close the “knowledge gap” by producing scholarship that sheds light on veteran-related issues, while concurrently conducting programs and trainings that shed light on key issues facing veterans and military members.  


VLI is committed to providing free critical scholarship, education, training and resources to civilians and attorneys in order to create an environment where the rules developed for veterans and military members are as effective as possible. 

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