-: SJC-13495, Commonwealth v. Quasim L. Hastings.
(paper rustling)
-: Okay, Attorney Dehmand? -: Dehmand, yes.
Good morning, Your Honor.
May it please the Court, my name is Sharon Dehmand,
and I represent Mr. Quasim Hastings.
In 2017, this Court, in Crowell versus Parole Board
made Parole Board responsible for modifications
to its policy in order to accommodate prisoners
with mental disability (attendee coughing)
once they're aware of such disability.
The Court also said, "Providing an expert
to come up to put together a post-release parole plan
is such an example to this modification."
The Court went on to say that the prisoner
with the mental disability is not responsible
for asking for such modification
and put the responsibility on the Parole Board.
Since then, the Parole Board
has been fulfilling that obligation
by asking the Committee for Public Counsel
to appoint counsel to cases such as Mr. Hastings,
and counsel in turn has been enlisting the help of experts
in order to provide Parole Board with such modifications
so they can fairly and adequately hear these cases.
-: [Justice Wendlandt] And they've been doing that
under Section 27B?
-: They've been, yes.
-: And so what about, so just tell me
what language in 27B permits this?
-: So the language in 27B, two things.
The 27BA essentially puts forth reasonable court costs,
extra court costs, which includes experts,
and also, as my brother cited in his brief,
27B also says, "This court cost is allowed
with subsequent motions for funding
in other proceeding elsewhere," quote/unquote.
So with those wording in the statute,
the Court has been allowing for these funds until recently,
where they do in some cases and don't in the other,
creating a disparity in treatment.
Now, the question before this Court is essentially
whether or not this funding is allowed
under the indigency statute, and to that, I'd say this Court
already answered that question in the affirmative
in Diatchenko II,
when the Court essentially held that it was appropriate
to construe that particular statute to-
-: Can I ask you, Crowell didn't depend upon this statute,
right, 'cause Crowell was a remedy
under the ADA, correct?
-: In particular, Crowell did not address the funding.
Crowell did address the fact that the Parole Board
needed to make modifications.
The funding was already answered two years earlier
in Diatchenko II- -: With respect to...
-: With respect to 27B, which is why-
-: With regard to Article 26,
which was constitutionally mandated
for juveniles to have this meaningful access to parole.
I'm wondering why.
I struggle with the words of the statute.
Is it one of those situations where we just sprinkle
magic pixie dust and say, "Regardless of the words
of the statute, we're gonna construe it
in order to abide by the ADA and Article 119."
Is that what your argument is?
-: So my argument is- -: 'Cause it doesn't seem
like you're looking at the words of the statute I am,
but I don't see your argument as addressing those.
-: The, two, (laughs) let me step back and say
there are two grounds upon which I am relying.
One is the ADA and Article 114,
but the other is the right to parole itself.
So I say this: in Diatchenko, it is true
that this Court based construing 27B on Article 26, right,
based on a constitutional dimension.
I would say same thing applies here.
Now, there are two different aspects of constitution.
One is Mr. Hastings or cohorts like him
that are entitled to a parole hearing
and their right to funding to that modification
to that hearing, so as far- -: Can you tell us,
can you tell us where in the statute we find this?
-: So his right to a parole hearing
is constitutionally based. -: No, no, no, no, no,
in the funding statute, I'm sorry.
-: So in the funding statute, right,
the wording of the funding statute, I'd say is twofold,
and again, I'm gonna defer that to my brother
to dive into that because that was mostly his argument,
but in the statute itself, this Court,
it was the same statute that this Court construed
in Diatchenko II with the same wording.
The wording hasn't changed,
but this Court chose to construe 27B
to include funding for those cohorts in Diatchenko II
based on Article 26, as Your Honor put it.
-: Now, any time there's a constitutional right at stake,
we should construe 27B to cover the cost
for whatever is required to fix the constitutional right.
-: No. -: No.
-: Only when there is an additional protection
under disability, only when there is
an additional requirement based
on State Constitution Article 114
and federal constitutional, American with Disability Act.
So you have a twofold- -: Well, the ADA
is not federal constitutional.
-: It's statutory. It's federal statutory.
The- -: So when there is
a federal statute or a constitutional provision at stake,
we construe 27B regardless of its words
to cover fees to allow a superior court judge
to cover the fees.
-: That's what this Court did in Diatchenko, yes.
So by- -: And there's,
and if I said to you, "Why not limit it to Diatchenko II?"
-: Because in this case, there is a mental disability,
and mental disability plus the constitutional right
to a parole hearing pushes this case over the threshold,
and I'll say this, so-
-: What is the constitutional right to a parole hearing?
I thought that was not constitutional.
-: So here's how I submit we get there, right.
Mr. Hastings and cohorts like him are given a sentence.
That sentence is a final judgment in a criminal case.
That sentence requires under the wording of statute
that he shall have a right, second degree murder,
he shall have a right to a parole hearing,
not parole, but to a parole hearing after 15 years,
in this case.
That, that sentencing, those words,
gives him a right to a parole hearing
that's constitutionally protected
by his Fifth Amendment- -: But, well, yeah,
so that's my issue. -: Right.
-: Why is that constitutionally protected
if it's provided by statute?
-: Because if you were to take it away from him,
his right to double jeopardy, Fifth Amendment,
and post ex facto laws will prohibit
the taking away of that right.
So this Court cannot, as the Court has held
in cases such as Clay versus Parole Board,
Rubero versus Parole Board,
that the right to a parole hearing,
or not necessarily in those words,
but that the- -: You can't change
his punishment after it's
been issued. -: Right, exactly,
and most recently, I believe, in 2023,
this Court upheld in a legal sentence
relying on the same principle.
So once he is sentenced, the statutory word says
he shall be given a parole hearing.
That right cannot be taken away from him
without violating his constitutional right
to double jeopardy or ex post facto.
All that's protected by Article-
-: Well, that may be true,
but why is it that the funding comes from 27B?
Why isn't it the Parole Board
that has to come up with the funding?
-: Well, two things.
Number one is that, again, in Diatchenko,
same thing applied, and this Court
construed the statute to include the funding.
Secondly, Parole Board doesn't have the infrastructure.
This has been working by the infrastructure,
by the Committee for Public Counsel infrastructure,
that's been in place since the 1980s.
They have the ability to disperse these funds
after a trial court judge serves as a gatekeeper
and can determine whether these funds
are reasonably necessary
under the guidance of this Court in Lockley,
setting forth what constitutes reasonably necessary.
The word of the statute itself allows
for that extra cost and fees to include expert funds,
and the committee has a whole department designed
for audit and oversight to determine how these funds
are dispersed, and it's been working since 1980s.
-: Why wouldn't your interpretation apply
to everyone seeking parole?
-: It wouldn't. It would apply to people with disability.
-: Okay, that's what I was gonna get to.
-: It is narrow. We're not-
-: There's a reading that the Attorney General makes
that I think is a little broad
that's gonna open the door for everyone.
-: Let me be clear: we are not asking
to open the door for everyone.
I'm asking for Mr. Hastings and his cohorts
that have a mental disability that is protected
by the constitutional- -: Basically, you want us
to look at Diatchenko and plug in the ADA violation
with the Article 26 violation in Diatchenko to-
-: It's as simple as that.
It's as simple as that. (laughs)
-: What's the limiting principle
on those constitutional provisions
that can be read into 27B?
-: It will be the additional right
for those disabled individuals, so.
-: Well, that's the expansion.
What's the limiting principle
that lets it be limited to the disabled?
-: Well, the fact that'll make it limited
would be reasonably necessary.
So the trial court judges are still gatekeepers
to this statute.
So they are still there in order to determine
whether those expert funds that are allowed under 27A,
I believe, will extend to those cohorts.
So once they make that reasonably necessary determination,
which this Court has, again, set out a number of factors
that they can consider in order to come to that conclusion.
So once they determine that,
then that is a trial court judge's discretion
in order to allow that.
So again, there is a safety valve
built into the statute,
and then this Court held the statute,
construed the statute to apply,
so then, reasonably, we can just follow the same guidelines
as this Court applied in Diatchenko with the trial judge,
as the gatekeeper, and read the wording of the statute
to include funding for the experts,
and then those fundings have to be necessary,
reasonably necessary, and then once they are,
then 27B and C will allow the disbursement of the funds
because it is to protect the constitutional right
of a disabled person, which is constitutionally mandated.
To that, I would say, (paper rustling)
if anything, Diatchenko is amplified for people
with disability because of the fact that their very chance
of getting a hearing depends on these experts.
Without these experts, as this Court held in Crowell,
the Parole Board won't be in a position
to be able to evaluate and fulfill their commitment
under the statute to see whether or not
they can release these individuals with disability,
with mental disability, to live in the society
under the constraints of not violate the laws
and that whose release will be in compliance
with welfare of the society.
So for them to fulfill their statutory mandate,
they need this, and this Court held in Crowell
that that is a modification.
So again, I go back to my first argument,
saying this is very simple,
and I submit this has already been answered by this Court,
is that by virtue of Diatchenko and then later by Crowell
and the funding statute that's been placed
for quite some time, this is an easy answer,
and it's already been answered by the Court.
Now, the other dimension to this that I submit
will make this also a constitutional argument
would be the Sixth Amendment,
that once counsel is appointed to these cohorts,
counsel is obligated to provide effective assistance.
Counsel can't provide effective assistance
because we are not trained to be social workers.
At least, this counsel was never trained to be
a social worker or a mental health expert,
so we will need the assistance of
the appropriate experts which- -: A counsel only appointed
in disability cases?
-: Yes, Your Honor, so then, we will need
those funds to be able to procure these expert,
just like it was the intent of the legislature in 1974,
when they enacted the statute itself,
and it was the intent of this Court, I submit,
in other cases such as Canseco case,
where the Court extended it.
Now, granted, it was by statute and is in the context
of a 30B motion, motions for a new trial,
but the spirit is the same.
The intent is the same, where the Court held
where you are not constitutionally entitled
to post-conviction proceedings,
but in order to have a meaningful access,
you need to have access to these funds
and then made the funds available under the same statute.
So if we're looking at the intent of the statute
and the intent of this Court in order to make
so that the indigent cohorts will not be at a disadvantage,
this is the very core of that,
is that it will put them in a disadvantage
because, again, their very chance to gain liberty
is to have access to this funding,
which is the purpose I submit.
I see that I'm running outta time,
but I would just give you this summary,
is that we have the statutory scheme.
We have the infrastructure that's in place
through the Committee for Public Counsel.
They have audit and oversight.
They have been disbursing these funds since the '80s,
and this Court gave us the precedent in Diatchenko
and then Crowell to just follow the same reasoning
and apply the availability
and letting the trial court judges
or authorizing trial court judges
to approve these fundings under the statute.
I'm happy to answer any other questions.
If not, I see that I'm outta time,
and I'll rest on my brief. -: Thank you.
(paper rustling) -: Thank you.
(podium rattling) -: Okay, Attorney Janiszewski.
(furniture rattling)
(papers rustling) (Andre sniffing)
(microphone rattling) (papers rustlings)
-: Madam Chief Justice, and may it please the Court.
Andre Janiszewski, Assistant Attorney General
for the Parole Board.
I agree with much of what my sister just said
in summary there, and Justice Wendlandt,
I don't wanna sprinkle magic pixie dust onto this statute,
and I think that's why, in our brief,
we've tried to stick with the plain language.
-: Yeah, but the argument made by the Parole Board
requires us to say that a criminal case
is not final.
That is, it remains pending through sentencing
until the person is let out,
and that just is inconsistent
with all sorts of case law that I know of.
I mean, the finality is, you know,
once the appellate period is over.
-: I certain- -: At that point,
DOC takes over, and it's no longer a pending case at all.
-: I understand that it may not be the most natural reading
of the word pending, and it does butt up against precedent.
This argument about the statutory language
has never been made to this court,
so part of what we are trying to do
is show at a minimum that the language is ambiguous,
and we can turn to some extrinsic sources here.
But I think also, the word pending
should be informed by elsewhere.
The word elsewhere that the legislature chose to use
is extremely broad.
In fact, I don't think they could've chosen
a more broad word, and if they had wanted elsewhere
to apply to that second paragraph,
which has never been cited in a case,
if they wanted that to apply to the same set
of circumstances as the first,
they certainly would've said so. (sniffs)
And so I think when you combine elsewhere
and still pending together,
you sort of get to
very broad application and reach of this statute,
and of course, like as Justice, and in response
to Justice Gaziano's question,
it talked about we could just substitute Article 26
with the right tier at issue.
We've tried to at least make
a statutory text argument first.
Of course, we could do that. -: But let me ask you
about being careful about what you wish for.
If that's the case,
in the limiting principle for this situation
under one proposal is it applies
to Diatchenko defendants and it applies
to people who have ADA concerns.
As you read the statute, (microphone rattling)
applies to everyone seeking parole, correct?
-: I think- -: But now, the superior courts
can be flooded with anybody who has a parole hearing pending
and they want funds.
-: So I wanna be- -: That's what
my parade of horribles is.
-: To be as candid with the Court of that as possible,
I think if you interpret the statute
that it can apply to parole hearings,
that would mean anybody who is eligible
for a parole hearing could seek the funds,
but that does not necessarily mean
that the funds are therefore available to that person.
And so the judges in their discretion could deny funds
to certain people if they don't meet a showing
that the funds were actually necessary.
I think in CPCS' amicus brief, there's some data about this,
and maybe in the addendum, I wanna say,
and I guess, to that point,
most of the requests have to do
when there is a mental disability
at issue here, so- -: Yeah, but think of
how many people are eligible for parole,
and why wouldn't you ask for an expert?
(robes rustling)
-: I certainly understand that concern,
but again, I guess, to avoid,
or at least to go on as consistent
with the statutory text as possible,
I think that argument would have to, you know,
it would have to be available to everyone,
and then the question would become,
"Is there an actual entitlement to the funds thereunder?"
And then, that's where we would argue based
on the protections in the law for people
with mental disabilities
as well as this Court's decision in Crowell.
Because if we don't come up with the answer
to not go in this direction in this case,
the Court's words in Crowell, though they were dicta,
sort of become toothless.
-: So we would, the way you would write the opinion
would be to say that elsewhere,
pending is given this broad definition
that pending usually doesn't get,
so there's a statutory basis for this.
We don't have to contort the statute,
and then when we give guidance
as far as superior court goes,
so they don't throw things at us, we say, "Well,
in instances of mental disability," for example.
-: Yes. -: And then that
would comport with the ADA. -: Yes, Your Honor, yes.
I think, I mean, there of course is,
as this Court did in Diatchenko II,
it held it was just appropriate to construe the statute
in this manner, there are certainly constitutional
and statutory rights at issue here,
as there were in Diatchenko.
They're not exactly synonymous or exactly analogous,
but of course, the Court could do more
of the Diatchenko II type of analysis as well,
just try to provide as much of a basis for the Court
to do it through the statutory text
as possible in this case.
And I think by doing that, you can talk
about the purpose of the indigent court costs law.
Nothing about either the legislative history
that I could find or sorta the purpose of this statute
was really to make it narrowly construed,
or it's really to expand access.
-: Except the language of the statute itself, right?
-: Well, the- (laughs) -: Which is usually
where we start for statutory construction.
-: Yeah. -: Absolutely.
-: And what happens to our canon of statutory construction
that talks about when you go to the specific to the general?
I mean, you focus on that elsewhere,
but if you look at the words that precede that,
they're talking about courts.
-: And I understand there's precedent from this Court
that says these statutes have generally applied
to court proceedings.
I understand that's what the language
of the statute says, but there's a lot of general kind
of language in some of those cases that,
and I think in Diatchenko II, it did not come up
with a holding that said the funding statutes
could ever be applied in this manner.
And I'm certainly not arguing that a parole hearing
is a court proceeding.
Of course, I wouldn't argue that under the statute,
but I think it's so closely connected.
I cite a couple of cases where, at least in Diatchenko II,
I think footnote 12, the Court said, "Parole is a component
of the original criminal sentence."
There's some federal case law
that says it's extremely essentially closely connected.
And so the only time, you know, of course,
we'd look at the purpose of the statute
and the history and sorta the some
of the legislative developments,
assuming the Court finds the language ambiguous.
If the Court does not, if the Court thinks
that the language is unambiguous,
then we would make the Diatchenko II argument
and just say it's appropriate to construe the statute
in this manner when constitutional rights are at issue.
-: Can I ask you a sort of practical question?
How did these motions for expert funds come to being?
Is there something, you know, a complaint filed
in the nature of certiorari as there was in Crowell,
or is this like sua sponte, just a motion suddenly appears
on the docket of the superior court?
-: I think it's the latter, Your Honor.
Like, in this case, once the Parole Board referred
Mr. Hastings to CPCS and then attorney was appointed,
a motion was filed, an ex parte motion for funds.
The Commonwealth, you know,
they're not appearing here today.
They're usually not involved at all with these proceedings.
-: Is it, like, under the criminal docket number, then?
-: It is. -: It is.
-: It is; it did come up on the criminal.
I'm almost positive of that.
-: This all arose post-Crowell
as a mechanism for funding, basically.
-: Yes. -: And then,
as we saw in this case, some judges allow.
Some don't. -: Exactly.
We had one judge in this, yeah, exactly.
-: It's Judge Mulqueen allow, and Judge Wilkins said no.
-: Exactly, and so I mean, I think-
-: But if you construe that motion
as in the nature of certiorari,
then the statute does read on all fours on this
because it's "the commencing of a civil action"
in any court.
And I'm wondering if the Parole Board
has given any thought to that construction,
which would be consistent
with our statutory canons of construction.
-: I have not, I will be honest,
I have not considered that, Your Honor.
Just given the way that the motion for funds came in
in this case, it wasn't an area that I looked into at all.
I would be happy to look into it
and provide the Court with anything
in writing, if you like. -: But just 'cause it strikes
me as Crowell was in the nature of certiorari,
so it is a civil action.
-: But it was a, you know,
it was a- -: It was post-parole denial,
but yes. -: Right, and a complaint
against the Parole Board, whereas in this case,
we have just a motion was denied.
A motion for funds was denied, you know,
on the criminal docket, and then, you know,
Judge Wilkins reported the question, but it's not-
-: But isn't it, in effect, a complaint
against the Parole Board because they
don't have the funding, and this
is constitutionally required- -: I think that's-
-: And so Parole Board, you need to come up with the funding,
and then you start the civil action,
and under 27B, you get the fees.
-: That sounds like an excellent interpretation
of the statute, Your Honor.
-: You hadn't thought about it. -: That I wish
I had considered. (laughs) (papers rustling)
-: Thank you. -: I appreciate it very much.
(papers rustling)
I don't need to necessarily belabor the points
about the constitutional protections.
I think we're all certainly well aware of them,
and, you know, of course, we're not attacking
Judge Wilkins' findings here that the Parole Board
doesn't have the structures or the mechanisms
to effectuate to this result,
which I think just makes so much sense
in cases involving prisoners with mental disabilities.
And so. (podium rattling)
(papers rustling) You know,
especially in Crowell, and I think it was in footnote 16
you talked about the essential,
how essential it would be to have an expert's assistance.
And it would be difficult to imagine
how the board could proceed effectively.
Of course, that's case by case,
and every case could be a little bit different,
but I think that the general point
is that it's very important for the board
to have these funds in order
for the board to have the report
and for prisoners to have the funds for the board
to make as good of a decision as they possibly can.
And they certainly minimize the risk that prisoners
with disabilities will be discriminated against.