-: SJC 13345 Commonwealth v Chayanne Velazquez.
-: Okay, Attorney Simmel, whenever you're ready.
-: Good morning, may it please the court,
I'm Katherine Simmel on behalf of the Commonwealth.
This case comes before the court on a reported question
from an appeals court single justice.
It's a matter of statutory interpretation,
determining essentially when the clock starts to run
for the 90 day period of pretrial detention allowed
under Section 58-B, and I would suggest
the Lynn District Court got it right when they dated
that 90 day period from the order of revocation
that was issued.
-: That has nothing to do with anything, not really.
It wasn't very pleasant to read that the clerk made
the decision and not the judge.
-: I do believe that the clerk had a very clear understanding
of what the rule was, and never having been
a trial judge myself, I can't comment on that,
perhaps as much as you, Justice Lowy,
but I think that's probably what the clerks do every day is.
Justice Cipher: Counsel, this is Justice Elspeth Cipher.
Can you hear me?
-: Yes.
Justice Cipher: Okay, so following up on
Justice Lowy's question though, with regard
to the clerk making the decision and not the judge,
certainly judges rely on clerks, and clerks rely on judges.
That's just normal.
However, what in this case would be the authority
for the clerk saying that?
And I know you've got a series of arguments in your brief
that work together, and you follow them, and you get
to your results, but if you just could explain it
in one sentence, what's the reason
that you want your date, rather the date?
Why do you want arraignment rather than a date
that the person's being held, starts being held?
Atty Simmel: Well, I think-
Justice Cipher: Why do you want
the bail revocation date rather?
-: I think that the purpose is to effectuate
the legislative intent.
In this case, I think the legislative intent was that
the 90 days starts from the date of revocation.
Justice Cipher: And that's based on what?
-: And that's based on the use of the word subsection.
Justice Cipher: So, okay, all right.
-: And I think that if you think of it in the inverse,
the one thing that this court has recognized that
different words have different meanings.
And when this legislature use uses different words
within the same statute, they mean different things.
You can't use them interchangeably.
You have to understand each in relation to each other.
So I think the one thing that that sentence,
that last sentence of 58-B cannot mean is it encompass
the entirety of 58-B, because that would just be-
-: Why not?
I mean, what are the subsections of 58-B?
-: There are no subsections of 58-B.
-: Exactly, so the word is nonsensical.
Whereas, you look at 58-A, when it uses the word subsection,
it actually refers to subsection one, subsection four,
here we have a word that refers to something
that doesn't exist.
-: I think that is absolutely true that, you know,
if we were to surmise, it was perhaps devised in 58-A
and transferred to 58-B without enough thought
about defining the subsection.
-: Well, let's assume that we agree that
that's probably right.
What's the right answer then?
Why is it from the date of the hearing
as opposed to arraignment?
-: I think that, you know, by negative inference,
the legislature did not mean the entirety of 58-B.
Justice Cipher: All right, so what I'm hearing is that
the only way we can come to your answer is through working
through the subsection statutory analysis
that there's no simple way to look at that,
or you have to walk through those arguments, right?
-: I think that's true.
I mean, certainly once you have walked
through those arguments, I think when you look at,
and which this court has done in other instances,
absent the problem of there being no subsections,
but it has worked through the analysis of what section means
and what subsection means in other cases.
-: What's your closest, yeah, what's the,
I think you're going there.
What are the cases are you relying on that have a scenario
where the legislature has used the word subsection,
but there isn't a subsection in the statute?
-: I don't think, I don't have any analogy there as I think
probably the justice was heading toward that result.
I don't have that, but I do have cases which are cited
like Milikin and Hines,
where they say section means the whole section,
and that's the common understanding that's in the title.
You know, it's section 58-B, and it's clear that it's used
in this way in section 58-B by the legislature.
So perhaps it's an inverse inference that
when they say subsection, they mean something different.
And certainly the court has conducted that kind of analysis,
said that if they say X here and say Y here,
then Y is different than X.
-: Counsel, can I ask a different question?
Why is the Commonwealth fighting this fight?
Because I don't understand.
And please help me understand it, because if we're talking
about the detention here,
why should the Commonwealth in construction of this statute,
why should that in endure to the detriment
of the defendant in this dead time?
-: So I think if, and I would like to answer your question.
I would like to clarify in my answer to Justice Lowy
that I did not mean that clerks are always making
determinations instead of judges, but I meant
that they are always making determinations of time.
Just like to make clear about of that.
Justice Georges, I think that in this case,
I did a survey of my office.
I saw the position of the clerk,
I saw the position of the judge,
clearly course of the Commonwealth have,
and the statute has been around
in this part of it for since 1994.
Course of the Commonwealth have interpreted the statute
this way, interpreted the statute-
Justice Cipher: Are you saying then that
throughout the Commonwealth, we have judges and clerks
who are counting the 90 days from the date
of the revocation, even if defendant has been held?
-: I'd push back on you on that.
-: On the days that's allowed in certain circumstances.
So like they could be held a month,
they could be a reign and for whatever reason,
this gets put off until for 30 days.
That 30 days wouldn't count?
-: It's only when there's an alternate means
of detention, correct?
Justice Cipher: When what?
-: Yes, I think that's true.
So in some circumstances that's true,
but not in all circumstances.
And I think in response to Justice Georges,
clearly it's not a clear, it's not across the board,
because we see in this case,
when Middlesex docketed the case,
they went back to the date of arraignment.
I'm not saying that there is a conclusive
and across the board consensus.
If there were, perhaps this court need not weigh in on it,
but as it is, we very much want the court to weigh in on it.
-: So how we get here procedurally, though,
if I can go back to what, I mean,
we're talking about 58-B in this instance,
but what predicated this was the dangerousness finding.
So is it the Commonwealth's view that if we were calculating
this date of detention under 58-A, and at arraignment,
the Commonwealth moved for it, and the defense wanted
their extension, and it was seven days until we had
a 58-A hearing, that upon a finding of dangerousness
that the court could not credit the time of detention
from the time the Commonwealth moved for detention
in calculating the detention period?
-: That's my understanding, Your Honor, and would say-
-: Again, I go back to we know the parade of horribles
that happens when people get detained.
They lose jobs, they lose, they may not be able
to make their appointments.
All of these things happen when we take people out.
We always talk about reentry upon the conclusion
of custodial sentences, but no one talks about what happens
when you're just detained on bail on detention periods.
Why does this make sense that the legislature would've said
if you get detained at arraignment
when the commonwealth moves for this,
that we don't get to calculate that?
Now, I have a slightly different question for you.
Is your construction of 58-B,
does that preclude the judge from running it nunc pro tunc?
-: I'm sorry?
-: If you are saying that essentially,
a defendant has to sit there with dead time,
and this is what the legislature intended
when they enacted this, that you are gonna have situations
where people are just going to sit there
and not get any credit for being detained
and being incarcerated, that the judge,
upon looking at that, saying, "I don't think that's fair,
and I'm gonna run it nunc pro tunc
to the date of arraignment."
-: I think that, I don't think that what happens with regard
to the 90 of the 120 days impacts what happens later
if the individual is sentenced.
Justice Cipher: I don't understand your answer there.
Can you expand on that?
-: I'm sorry?
Justice Cipher: I said I didn't understand your answer
to Justice Georges, can you expand on that?
-: I think that the issue of dead time is a separate issue,
which, you know, occurs at sentencing and is not part of-
-: No, no, no, no, dead time is dead time.
That is you sitting in jail and getting no credit,
whether it's the imposition of a custodial sentence
or because you've been detained because
the Commonwealth have moved were dangerousness,
or revocation period.
Dead time is dead time, and it's important
to not just discuss this as if it doesn't really matter
that people are sitting in jail,
and that's a big deal to me.
So the question I have is,
if the commonwealth were to have this,
if we were to say you're right,
does that necessarily mean that we're also telling
the judges that you can't run this nunc pro tunc?
-: No, I don't think we're telling the judges that.
And I think with regard to what the legislature did is
they set a time that you could be held after a hearing.
That's my interpretation.
And they set a very constrained time period
in which you could be held prior to that hearing.
And I do think that that's the way
the legislature set it up, and I do think
that it's within the purview of the legislature to do that.
And unless the court feels it's not within the purview
of the legislature to make that determination,
then I do think that it is important to ascertain
if the court believes that that was in fact
a legislative intent, and I would suggest
that the linguistic evidence suggests that it was,
and that to so find is certainly consistent
with the overall goals of public safety,
which are clearly attached to 58-A and 58-B both.
Justice Cipher: Yeah, I'm sorry to interrupt again.
This is Justice Cipher again.
Can I ask you please on Justice Georges' question
with regard to nunc pro tunc,
what about that answer you just gave would prevent
a judge from redating the order?
-: I'm sorry, I didn't hear the end.
Justice Cipher: What would prevent,
in the answer you just gave, what is it
that prevents a judge from doing this nunc pro tunc?
Justice Lowy: Right or wrong, your answer's a statute.
-: My answer is a statute.
Justice Cipher: Thanks, Justice Lowy.
Atty Simmel: Thank you.
-: Well, I don't know if you're gonna thank me
after this question.
(participants laughing)
You gotta hold your thank you.
So the judge got this visceral reaction to this situation
that goes right to what Justice Georges is saying.
It's like, geez, can't we do this?
I mean, and the reason he sort of says can't we do this is
because you've got a provision 58-B that allows
for a revocation here, and it's tied in many ways
for excludable delay to rule 36.
And you've got a rising out of,
I understand a rising out of this subsection.
There's no subsection, so you think it must mean
a rising out of a revocation situation,
and why isn't the judge's sort of visceral reaction right?
That the legislature did want to have
the preventative detention under these circumstances
if the judge exercises his or her discretion
on preventative detention after an offense
or after condition violated.
But they also want to limit it for all the reasons
that Justice Georges talked about to 90 days
minus excludable delay, and if there happens to be
a snow storm and you go from February 2nd to February 8th,
that defendant has to do more than the legislature said,
not 90 minus excludable delay,
but 90 days plus the snowstorm.
Why would the legislature want to wanna do that?
-: I'm not sure what the purpose.
I can't say that it serves any specific purpose,
except that the legislature has said that you should be held
for a certain number of days, and has said that there can be
continuances for the purpose of the defense,
for the purpose of the Commonwealth,
or due to natural circumstances,
and they did not include that,
I don't think, in their calculation.
-: In in this case,
there are two grounds for detention, right?
There's 58-A and 58-B.
Atty Simmel: Yes.
-: Is your answer the same if,
and I know under 58-B you have to do it on first appearance.
That's the point of it, but if they didn't do it
on first appearance, is your answer the same
if there was no independent grounds for detention?
Atty Simmel: If there were no?
Justice Gaziano: It wasn't a 58-A in this case.
-: Yes, I think my answer would be the same.
It simply is laid out that way by the legislature.
Justice Gaziano: Okay.
-: In the statute.
Justice Budd: Any other questions?
-: No.
-: Thank you.
Atty Simmel: Thank you.
Justice Budd: Attorney Levin.
-: So Attorney Levin, so that was my question
as far as the alternate grounds of detention
that are in this case in, you know, so the clock,
the 58-A started at arraignment,
and then they start the 58-B six days later.
If we rule in the Commonwealth's favor,
does it basically say no matter what,
the 58-B is gonna start whenever that imposition happens,
whenever the judge gets around to impose it,
and if they're even held on bail, the 90 days doesn't start?
-: Yes, Your Honor, so for the record,
Patrick Levin on behalf of Chayanne Velazquez.
I think the Commonwealth's position is that neither the 58-A
nor the 58-B days start until the hearing happens.
So he's held in limbo right up
until that dangerousness hearing, and you know,
I know this case is, this is a moot case.
It presents an abstract question of statutory construction.
And I do think that my reading-
-: Well, six days is six days, and it's significant
to someone that's being held for six days.
-: Well, that's what I was just gonna say is that,
you know, before I really launch in
to this abstract question,
I do want to focus on what's concretely at stake,
which is that the Commonwealth says that Mr. Velazquez,
who is presumptively innocent of all these charges,
has to sit in jail for an extra four days
before he's entitled to be tried or admitted to bail
in the Middlesex Superior Court because a snowstorm delayed
a judge of the Lynn District Court in making a finding
about his dangerousness on an arraignment
in a totally separate case.
And to me that doesn't make sense, and it doesn't make sense
to say that probably is what the legislature intended.
And so when you go back and look at the statutory language,
I don't think even setting aside this issue of what does
the word subsection mean in a statute that doesn't have any,
I don't think that the Commonwealth's reading is
the best reading of this language, that if you look at it,
what it says is that a defendant who's detained
under this subsection shall be brought to trial
as soon as reasonably possible,
but in the absence of good cause,
a person so held shall not be detained
for a period exceeding 90 days, you know,
excluding any excludable delay under rule 36.
Now, what that statute does not say
in so many words, is what the Commonwealth is saying,
which is a person shall not be detained pursuant
to this subsection for a period greater than 90 days.
What it says is the person who ultimately is detained
under this subsection shall not be detained
for a period greater than 90 days.
And so Justice Neyman recognized that once you hit May 3rd,
in this case, that's his 90th day.
If he's still sitting in jail on May 4th,
he has been detained for a period greater than 90 days,
which is what the statute forbids.
And I do think the Commonwealth is right
that this sentence has to mean
the same thing in both statutes,
and it is, it would be a permissible construction
of this statutory language in section 58-A
to have it mean what the Commonwealth is suggesting.
But it certainly, as I've just laid out,
is not the only permissible construction,
and it doesn't make any sense in the context
of section 58-B linguistically.
And so what I would suggest is the court needs to adopt
a reading of this identical statutory language
that makes sense both places that it appears linguistically.
-: I know I should be able to pronounce (indistinct),
but I can't.
Atty Levin: There were some missing apostrophes
in the docket.
-: I bet you can.
Atty Levin: It's (indistinct).
-: Yeah, thank you.
But isn't the whole point of the case
that if you're gonna have
a preventative detention statute be constitutional,
it sort of has to be fair, short-lived, and recognize
what Justice Georges was talking about,
the cost of being detained,
nevermind preventatively detained.
So does that case speak to this?
-: Well, I don't, I mean, it doesn't speak directly to this,
but I do think that the statement in that case
that pretrial detention is constitutional
precisely because it is so strictly limited, which it,
you know, that goes all the way back
through Mendonza and Aime in this court
to ultimately United States versus Solano.
And that's the only thing
that makes this statute constitutional.
And of course, the legislature, when they enact
sections 58-A and 58-B, are well aware of this,
because it's right on the heels of the Aime decision
that struck down their first attempt
to create a preventive detention scheme.
And so the language that we're looking at,
if you go back and sort of look through the history
of the different proposals from the governor on this issue,
there's one in 1992 that doesn't contain this language.
Then the legislature rejects the governor's proposal,
which is modeled on the Federal Act,
enacts the amendments to section 58 that are at issue
in Commonwealth versus Aime,
or its Aime versus Commonwealth, actually.
That is deemed unconstitutional by this court.
And some of the concerns relate to the potential length
of the detention that is authorized.
And then the governor proposes a new bill
that has this time limiting language in it,
which ultimately is adopted by the legislature.
And I think, you know,
the purpose of this language is to address
that constitutional concern and to strictly limit
the maximum total length of pretrial detention
that's authorized under statute, and so the court,
when it's trying to effectuate the legislative intent,
needs to read the language with that in mind and say,
"This is a statute in derogation of liberty.
It's gotta be strictly construed."
And the purpose of the legislature enacting
the particular clause at issue here is to have
a strict limit on the maximum length of pretrial detention.
And I don't think it makes sense to say
that certain days, although a defendant,
and a presumptively innocent defendant was detained
pretrial, don't count toward his period
of pretrial detention.
That doesn't make any sense to me at all, and-
-: So along those lines, it's not really,
I'm not saying you have to get to the rule of entity,
but it's not really the rule of entity.
It's that it's substantive due process
that for the whole constitutional scheme
that you just laid out from Solano on requires
for it to be constitutional,
the substantive due process, that it'd be limited.
-: Yes, and I'm not suggesting that
if the legislature had enacted a statute that clearly said
what the Commonwealth is saying that the statute does say.
That would not necessarily be the straw
that breaks the camel's back
in terms of rendering the entire scheme unconstitutional.
That's not what I'm saying,
but I do think it's vital for the court to read
all of the statutory language
in light of these constitutional concerns,
which the legislature plainly was aware of
at the time of the enactment.
I don't have a whole lot else necessarily to say
about this issue,
so unless there are more questions from the court,
I would rest on my brief.