The Dissent in Traynor v Turnage

Alcoholism Should Not Be Presumed to be Caused by Willful Misconduct

In our last blog post, we looked at the majority decision in Traynor v. Turnage, 485 U.S. 535 (1988), upholding a Veterans' Administration (VA) regulation that defined primary alcoholism as "willful misconduct." Today, we look at the three-Justice dissent.

By The U.S. Army (Veterans remember Prisoners of War) [Public domain], via Wikimedia Commons

The Traynor majority ruled that two Vietnam War veterans, who were in recovery for alcoholism, were not entitled to an extension of time in which to use their GI Bill education benefits. Under the law, veterans had to exhaust their educational benefits within 10 years of their military service. Extensions were only allowed for veterans who could not use their benefits because of a disability not caused by their willful misconduct.  Because VA regulations defined alcoholism as willful misconduct, the VA denied the veterans' requests for extensions, and the Court upheld those denials.

The dissenting opinion by Justice Blackmun, joined by Justices Brennan and Marshall, concerned the majority's upholding of the regulation whereby the VA presumed, irrebuttably, that primary alcoholism always is the result of the veteran's "own willful misconduct."  Justice Blackmun shared facts about the named veterans, that were not presented in the majority opinion, to show how that presumption is flawed.

The first veteran, plaintiff Eugene Traynor, began drinking when he was eight or nine years old. He drank with increasing frequency throughout his teenage years, and was suffering alcohol-related seizures by the time he was on active military duty in Vietnam. During the four years following his honorable discharge in 1969, Traynor was hospitalized repeatedly for alcoholism and related illnesses.  Not until 1974 - five years after his discharge - did Traynor conquer his drinking problem. He attended college part-time beginning in 1977, and continued working toward his degree until the 10-year period for using his veteran's educational benefits expired for him in 1979.  Because of the VA regulation, Traynor was presumed to have brought his alcoholism upon himself through "willful misconduct." He was therefore unable to obtain an extension of the 10 year limitation period to utilize all of his GI educational benefits.

The other veteran, plaintiff James P. Mckelvey, also started drinking when he was a child. By the time he was 13, he began to develop the alcohol dependency that was common among members of his family. His drinking problem plagued him while he was in the Army, and afterwards. He was hospitalized frequently during the nine years that followed his honorable discharge in 1966. Mckelvey finally obtained sobriety in 1975, only a year and a half before his 10-year delimiting period expired. The VA denied Mckelvey's request for an extension because his disability, primary alcoholism, was conclusively presumed to have been caused by his "own willful misconduct."

The dissent noted that the VA's regulation deprived each of these veterans of any opportunity to establish that, in his particular case, disabling alcoholism was not willfully incurred.

Justice Blackmun wrote:

While some primary alcoholics may well owe their disability to willful misconduct, as delineated by the regulation, the VA has failed to demonstrate that all primary alcoholics had any awareness that their initial drinking was likely to result in serious injury. Nor, in many cases, would it be appropriate to describe one's gradual development of alcohol dependency as evidence of "wanton and reckless disregard of [drinking's] probable consequences." Indeed, I wonder how one meaningfully can ascribe such intent and appreciation of long-range consequences to a 9- or 13-year-old boy who follows the lead of his adult role models in taking his first drinks.

Justice Blackmun then noted that the diagnosis of alcoholism, as recognized by the medical community, requires an individualized assessment to fully understand the cause of alcoholism in each person. Presumably, evidence concerning the circumstances surrounding a veteran's development of alcohol dependence -- including his age, home environment, and psychological health -- always will be relevant to this assessment, and may not suggest willful misconduct.

The dissent concluded that the VA failed to demonstrate that any legislative or medical determinations justify its conclusive presumption that the veterans' alcoholism were incurred willfully. The dissent would have remanded the case back to the VA for individualized determinations, based on sound medical judgments whether the veterans were entitled to the extensions of time to receive all of their veterans' educational benefits.

That would have been the more reasonable approach in our opinion.

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The Supreme Court and the Disease Concept of Alcoholism

350z33 at English Wikipedia [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons

Has the U.S. Supreme Court ever been confronted with the issue of whether alcoholism is a disease?   Yes, as a matter of fact, in the 1988 case, Traynor v. Turnage, 485 U.S. 535 (1988).  But it punted.

In Traynor, two honorably discharged veterans, who suffered from years of alcohol addiction, failed to use all of their GI Bill educational assistance benefits within 10 years of their military service.  Federal law required veterans to use such benefits within that time frame, or forfeit the unused amount.  But the law allowed veterans to request an extension of the 10 year period if they were prevented from using their benefits by a physical or mental disorder which was not the result of their own willful misconduct.  The veterans applied to the Veterans' Administration (VA), claiming they were entitled to the extension on the ground that they were disabled by alcoholism during much of the 10 year period.

The VA denied the veterans' extension requests, because its regulations defined alcoholism as "willful misconduct."  Petitioners filed separate federal court actions - one in the Second Circuit and the other in the D.C. Circuit - seeking judicial review of the VA's decisions.

Procedural History

The procedural history is interesting because the Second Circuit held that veterans were not even entitled to judicial review of VA determinations made pursuant to the particular federal law. The VA denial was therefore upheld.  In contrast, the D.C. Circuit held that VA determinations were subject to judicial review, but nevertheless sided with the VA.  The court reasoned that the VA could reasonably conclude that alcoholism is a "willfully caused handicap" unless attributable to an underlying psychiatric disorder.

The Supreme Court first held that the question whether a VA regulation violates federal law is subject to judicial review, and went on to address the merits of the veterans' claims.

Decision on the Merits

The Court observed that since World War II, Congress had always imposed time limitations on the use of GI Bill educational benefits.  In 1977, Congress created an exception to the current 10-year delimiting period for veterans who were forced to delay their education because of a physical or mental disability, as long as that disability was not the result of their own willful misconduct.

Congress has long used the term "willful misconduct" in veterans' benefits statutes.  The term has been used to deny compensation for service-connected disabilities that are "the result of the veteran's own willful misconduct."  Interpreting these statutes, the VA has long promulgated regulations construing the term "willful misconduct" to include alcoholism not caused by an underlying psychiatric disorder.

Congress was presumed to know about the VA regulations at the time it enacted the 1977 legislation. The Court thus reasoned that if Congress had intended alcoholism not be deemed "willful misconduct," as it had been deemed for purposes of other veterans' benefits statutes, "Congress most certainly would have said so."

The Court did not believe VA regulations to be unreasonable, because a veteran who claims to have been disabled by alcoholism is entitled to an individualized assessment of whether his or her condition was the result of a mental illness, and not due to willful misconduct.

The American Medical Association (AMA) has classified alcoholism as a disease since 1957.  But that did not sway the Court.  The Court, quoting the D.C. Circuit, noted that "a substantial body of medical literature . . . contests the proposition that alcoholism is a disease, much less that it is a disease for which the victim bears no responsibility."

The Court noted:

Indeed, even among many who consider alcoholism a "disease" to which its victims are genetically predisposed, the consumption of alcohol is not regarded as wholly involuntary.  

Yet the Traynor decision should not be regarded as the complete repudiation of the disease concept of alcoholism.  The Court offered these closing remarks, possibly to assure the AMA, that it was remaining neutral.

This litigation does not require the Court to decide whether alcoholism is a disease whose course its victims cannot control. It is not our role to resolve this medical issue, on which the authorities remain sharply divided. Our task is to decide whether Congress intended . . .  to reject the position taken on the issue by the Veterans' Administration and by Congress itself only one year earlier. In our view, it is by no means clear that [the federal statute] and the characterization of . . . alcoholism as a willfully incurred disability are in irreconcilable conflict. If petitioners and their proponents continue to believe that this position is erroneous, their arguments are better presented to Congress than to the courts.

In our next post, we'll take a look at the dissenting opinion in Traynor.

Eckhart Tolle's Advice For Dealing With Addiction

By Kotivalo (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

Eckhart Tolle, for those of you who do not know, is regarded as one of the most spiritually influential individuals in the world. He has authored several books, including The Power of Now, and A New Earth: Awakening to your Life's Purpose. A New Earth became the first spiritual book to be selected for Oprah Winfrey's 's Book Club as well as the subject of a ten-week online workshop co-taught by Eckhart and Oprah.

By Kyle Hoobin (twitter.com/kylehoobin) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

So why are we mentioning Tolle in the Drunk Lawyer Blog? In A New Earth, Tolle provides some advice for individuals suffering from addiction problems. On page 246 of my paperback edition of A New Earth, Tolle describes an addiction as "a long-standing compulsive behavior pattern." To some addicts, this behavior takes on its own subpersonality that may possess the mind of an addict at times.

Many addicts, such as those in Alcoholics Anonymous, live with, and overcome, their addiction "one day at a time." Abstaining from their addiction for the rest of their lives may seem like an insurmountable task. But focusing on just today - living in the now and not thinking about the future - makes achieving sobriety manageable.

Tolle's advice seems geared for that day-to-day challenge. He says that when an addict observes the compulsion arising to engage in some form of destructive conduct (be it smoking, drinking, drugs, gambling, porn, the internet, etc), the addict should try this simple practice: Stop what ever it is you are doing or thinking, and take three conscious breaths. That means to observe your deep inhalations and exhalations. Then become aware of the compulsive need arising inside you. You can sense it, and feel it. Realize that you are the observer watching it. Then take more deliberate, conscious breaths.

Tolle believes that just this practice of conscious breathing to make you aware and in the present may be enough for the compulsive urge to disappear in some individuals. If not, don't give up. He believes that continued practice of this conscious breathing technique will eventually cause the addiction pattern to weaken and dissolve.

The essence of Tolle's teaching is that you are not your addiction, you are not even your body. You are consciousness without conditions. Your true self is formless and eternal. So taking those conscious breaths helps you become still and remember who and what you are.

Peace.

What is the Twelve Step Program of Alcoholics Anonymous?

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The preamble for Alcoholics Anonymous (AA), created in 1935, provides a description of what AA is all about:

Alcoholics Anonymous is a fellowship of men and women who share their experience, strength and hope with each other that they may solve their common problem and help others to recover from alcoholism. 

The only requirement for membership is a desire to stop drinking. There are no dues or fees for AA membership; we are self-supporting through our own contributions. AA is not allied with any sect, denomination, politics, organization or institution; does not wish to engage in any controversy; neither endorses nor opposes any causes. Our primary purpose is to stay sober and help other alcoholics to achieve sobriety.

At the heart of AA are twelve statements that members incorporate into their lives.  These Twelve Steps are a group of principles which may be spiritual in nature.  The goal is that practice of the Twelve Steps will eliminate the obsession to drink and lead members to happy and joyous lifes.

Here are the Twelve Steps:

 1) We admitted we were powerless over alcohol- that our lives had become unmanageable.
2) Came to believe that a Power greater than ourselves could restore us to sanity.
3) Made a decision to turn our will and our lives over to the care of God as we understood Him.
4) Made a searching and fearless moral inventory of ourselves.
5) Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
6) Were entirely ready to have God remove all these defects of character.
7) Humbly asked Him to remove our shortcomings.
8) Made a list of all persons we had harmed, and became willing to make amends to them all.
9) Made direct amends to such people wherever possible, except when to do so would injure them or others.
10) Continued to take personal inventory and when we were wrong promptly admitted it.
11) Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His will for us and the power to carry that out.
12) Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.

If you notice, alcohol is mentioned very little.  In fact, it is only mentioned in Step 1.  The rest of the steps focus on surrender, forgiveness, humility, limitations, and service to others.  Regular and devoted practice of the Twelve Steps is said to result in the growth of character traits such as honesty, humility, and patience.

For more information, check out the AA website.
  

Substance Abuse Makes You Sick

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Everyone knows – or should know – that substance abuse can lead to major complications.  For instance alcohol has a damaging effect on every organ system.  Taken regularly in large doses, alcohol can cause the permanent loss of memory, gastritis, esophagitis, ulcers, pancreatitis, cirrhosis of the liver, high blood pressure, weakened heart muscles, and fetal alcohol syndrome – for starters.

But did you know that substance abusers just get sick more often than those who don’t abuse substances?  You may be asking:  What is substance abuse?  Abuse in this context is the continued use of alcohol or other drugs in spite of negative consequences.  Let’s say a person drinks too much at a bar one night and is arrested for DUI on the way home.  A week later, instead of drinking less or calling a cab, that same person makes the choice to repeat the conduct that led to the DUI.  That would be abuse.

Abuse differs from addiction or dependence, which is the compulsive use of alcohol or drugs regardless of the consequences.  The person doesn’t make the choice to continue drinking, the person is compelled to drink.

How does abuse make you sick?  Well, alcohol abuse can lower your immunity to infection.  Substance Abusers also tend to neglect proper nutrition and exercise.  So substance abusers are just more susceptible to catching colds and illnesses.

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Do You Know the General Signs of Drug Abuse?

Would you know how to recognize if a fellow attorney in your law firm is abusing drugs?  The American Bar Association's Commission on Lawyer Assistance Programs provides some basic information.  It warns that each drug has its own specific symptoms of abuse, but there are some general signs of which we should be aware. 

•Bloodshot eyes or pupils that are larger or smaller than usual.
•Changes in appetite or sleep patterns. Sudden weight loss or weight gain.
•Deterioration of physical appearance and personal grooming habits.
•Unusual smells on breath, body, or clothing.
•Tremors, slurred speech, or impaired coordination.
•Drop in attendance and performance at work or school.
•Unexplained need for money or financial problems. May borrow or steal to get it.
•Engaging in secretive or suspicious behaviors.
•Sudden change in friends, favorite hangouts, and hobbies.
•Frequently getting into trouble (fights, accidents, illegal activities).
•Unexplained change in personality or attitude.
•Sudden mood swings, irritability, or angry outbursts.
•Periods of unusual hyperactivity, agitation, or giddiness.
•Lack of motivation; appears lethargic or “spaced out.”
•Appears fearful, anxious, or paranoid, with no reason.


If you suspect that a fellow attorney is abusing drugs, contact your State's Lawyer Assistance Program. 


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Another Attorney Arrested for DUI

Media in the Southeast (see here and here, for instance), reported on the arrest of a prominent Alabama attorney on DUI charges.  The attorney was arrested after he allegedly drove his Lamborghini 20 mile per hour faster than the posted speed limit at around 3:30 in the morning.  The media reports that the attorney refused a sobriety test. 

We don’t pass judgement on the attorney, and note that being arrested is not the same thing as being found guilty.  Who knows if the attorney had been drinking or was intoxicated.  Those are facts yet to be proven.  We just post this as a reminder that drinking and driving don’t mix. 

Heavy drinking increases the chances of injury or death.  As we have written, alcohol use is a contributing factor in about forty percent of fatal motor vehicle crashes, suicides, and falls; sixty percent of fatal burn injuries, drownings, and homicides; and fifty percent of severe trauma injuries and sexual assaults.

Return to Substance Abuse CLE.