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<v ->SJC-13495, Commonwealth v. Quasim L. Hastings.</v>

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(paper rustling)

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<v ->Okay, Attorney Dehmand?</v>
<v ->Dehmand, yes.</v>

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Good morning, Your Honor.

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May it please the Court, my name is Sharon Dehmand,

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and I represent Mr. Quasim Hastings.

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In 2017, this Court, in Crowell versus Parole Board

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made Parole Board responsible for modifications

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to its policy in order to accommodate prisoners

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with mental disability
(attendee coughing)

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once they're aware of such disability.

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The Court also said, "Providing an expert

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to come up to put together a post-release parole plan

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is such an example to this modification."

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The Court went on to say that the prisoner

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with the mental disability is not responsible

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for asking for such modification

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and put the responsibility on the Parole Board.

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Since then, the Parole Board

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has been fulfilling that obligation

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by asking the Committee for Public Counsel

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to appoint counsel to cases such as Mr. Hastings,

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and counsel in turn has been enlisting the help of experts

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in order to provide Parole Board with such modifications

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so they can fairly and adequately hear these cases.

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<v ->[Justice Wendlandt] And they've been doing that</v>

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under Section 27B?

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<v ->They've been, yes.</v>

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<v ->And so what about, so just tell me</v>

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what language in 27B permits this?

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<v ->So the language in 27B, two things.</v>

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The 27BA essentially puts forth reasonable court costs,

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extra court costs, which includes experts,

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and also, as my brother cited in his brief,

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27B also says, "This court cost is allowed

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with subsequent motions for funding

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in other proceeding elsewhere," quote/unquote.

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So with those wording in the statute,

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the Court has been allowing for these funds until recently,

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where they do in some cases and don't in the other,

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creating a disparity in treatment.

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Now, the question before this Court is essentially

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whether or not this funding is allowed

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under the indigency statute, and to that, I'd say this Court

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already answered that question in the affirmative

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in Diatchenko II,

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when the Court essentially held that it was appropriate

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to construe that particular statute to-

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<v ->Can I ask you, Crowell didn't depend upon this statute,</v>

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right, 'cause Crowell was a remedy

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under the ADA, correct?

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<v ->In particular, Crowell did not address the funding.</v>

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Crowell did address the fact that the Parole Board

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needed to make modifications.

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The funding was already answered two years earlier

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in Diatchenko II-
<v ->With respect to...</v>

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<v ->With respect to 27B, which is why-</v>

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<v ->With regard to Article 26,</v>

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which was constitutionally mandated

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for juveniles to have this meaningful access to parole.

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I'm wondering why.

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I struggle with the words of the statute.

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Is it one of those situations where we just sprinkle

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magic pixie dust and say, "Regardless of the words

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of the statute, we're gonna construe it

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in order to abide by the ADA and Article 119."

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Is that what your argument is?

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<v ->So my argument is-</v>
<v ->'Cause it doesn't seem</v>

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like you're looking at the words of the statute I am,

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but I don't see your argument as addressing those.

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<v ->The, two, (laughs) let me step back and say</v>

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there are two grounds upon which I am relying.

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One is the ADA and Article 114,

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but the other is the right to parole itself.

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So I say this: in Diatchenko, it is true

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that this Court based construing 27B on Article 26, right,

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based on a constitutional dimension.

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I would say same thing applies here.

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Now, there are two different aspects of constitution.

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One is Mr. Hastings or cohorts like him

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that are entitled to a parole hearing

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and their right to funding to that modification

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to that hearing, so as far-
<v ->Can you tell us,</v>

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can you tell us where in the statute we find this?

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<v ->So his right to a parole hearing</v>

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is constitutionally based.
<v ->No, no, no, no, no,</v>

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in the funding statute, I'm sorry.

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<v ->So in the funding statute, right,</v>

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the wording of the funding statute, I'd say is twofold,

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and again, I'm gonna defer that to my brother

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to dive into that because that was mostly his argument,

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but in the statute itself, this Court,

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it was the same statute that this Court construed

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in Diatchenko II with the same wording.

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The wording hasn't changed,

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but this Court chose to construe 27B

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to include funding for those cohorts in Diatchenko II

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based on Article 26, as Your Honor put it.

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<v ->Now, any time there's a constitutional right at stake,</v>

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we should construe 27B to cover the cost

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for whatever is required to fix the constitutional right.

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<v ->No.</v>
<v ->No.</v>

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<v ->Only when there is an additional protection</v>

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under disability, only when there is

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an additional requirement based

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on State Constitution Article 114

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and federal constitutional, American with Disability Act.

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So you have a twofold-
<v ->Well, the ADA</v>

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is not federal constitutional.

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<v ->It's statutory. It's federal statutory.</v>

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The-
<v ->So when there is</v>

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a federal statute or a constitutional provision at stake,

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we construe 27B regardless of its words

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to cover fees to allow a superior court judge

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to cover the fees.

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<v ->That's what this Court did in Diatchenko, yes.</v>

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So by-
<v ->And there's,</v>

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and if I said to you, "Why not limit it to Diatchenko II?"

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<v ->Because in this case, there is a mental disability,</v>

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and mental disability plus the constitutional right

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to a parole hearing pushes this case over the threshold,

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and I'll say this, so-

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<v ->What is the constitutional right to a parole hearing?</v>

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I thought that was not constitutional.

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<v ->So here's how I submit we get there, right.</v>

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Mr. Hastings and cohorts like him are given a sentence.

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That sentence is a final judgment in a criminal case.

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That sentence requires under the wording of statute

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that he shall have a right, second degree murder,

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he shall have a right to a parole hearing,

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not parole, but to a parole hearing after 15 years,

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in this case.

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That, that sentencing, those words,

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gives him a right to a parole hearing

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that's constitutionally protected

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by his Fifth Amendment-
<v ->But, well, yeah,</v>

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so that's my issue.
<v ->Right.</v>

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<v ->Why is that constitutionally protected</v>

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if it's provided by statute?

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<v ->Because if you were to take it away from him,</v>

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his right to double jeopardy, Fifth Amendment,

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and post ex facto laws will prohibit

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the taking away of that right.

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So this Court cannot, as the Court has held

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in cases such as Clay versus Parole Board,

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Rubero versus Parole Board,

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that the right to a parole hearing,

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or not necessarily in those words,

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but that the-
<v ->You can't change</v>

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his punishment after it's

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been issued.
<v ->Right, exactly,</v>

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and most recently, I believe, in 2023,

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this Court upheld in a legal sentence

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relying on the same principle.

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So once he is sentenced, the statutory word says

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he shall be given a parole hearing.

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That right cannot be taken away from him

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without violating his constitutional right

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to double jeopardy or ex post facto.

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All that's protected by Article-

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<v ->Well, that may be true,</v>

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but why is it that the funding comes from 27B?

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Why isn't it the Parole Board

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that has to come up with the funding?

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<v ->Well, two things.</v>

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Number one is that, again, in Diatchenko,

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same thing applied, and this Court

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construed the statute to include the funding.

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Secondly, Parole Board doesn't have the infrastructure.

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This has been working by the infrastructure,

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by the Committee for Public Counsel infrastructure,

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that's been in place since the 1980s.

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They have the ability to disperse these funds

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after a trial court judge serves as a gatekeeper

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and can determine whether these funds

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are reasonably necessary

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under the guidance of this Court in Lockley,

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setting forth what constitutes reasonably necessary.

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The word of the statute itself allows

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for that extra cost and fees to include expert funds,

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and the committee has a whole department designed

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for audit and oversight to determine how these funds

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are dispersed, and it's been working since 1980s.

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<v ->Why wouldn't your interpretation apply</v>

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to everyone seeking parole?

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<v ->It wouldn't. It would apply to people with disability.</v>

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<v ->Okay, that's what I was gonna get to.</v>

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<v ->It is narrow. We're not-</v>

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<v ->There's a reading that the Attorney General makes</v>

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that I think is a little broad

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that's gonna open the door for everyone.

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<v ->Let me be clear: we are not asking</v>

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to open the door for everyone.

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I'm asking for Mr. Hastings and his cohorts

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that have a mental disability that is protected

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by the constitutional-
<v ->Basically, you want us</v>

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to look at Diatchenko and plug in the ADA violation

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with the Article 26 violation in Diatchenko to-

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<v ->It's as simple as that.</v>

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It's as simple as that. (laughs)

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<v ->What's the limiting principle</v>

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on those constitutional provisions

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that can be read into 27B?

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<v ->It will be the additional right</v>

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for those disabled individuals, so.

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<v ->Well, that's the expansion.</v>

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What's the limiting principle

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that lets it be limited to the disabled?

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<v ->Well, the fact that'll make it limited</v>

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would be reasonably necessary.

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So the trial court judges are still gatekeepers

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to this statute.

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So they are still there in order to determine

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whether those expert funds that are allowed under 27A,

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I believe, will extend to those cohorts.

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So once they make that reasonably necessary determination,

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which this Court has, again, set out a number of factors

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that they can consider in order to come to that conclusion.

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So once they determine that,

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then that is a trial court judge's discretion

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in order to allow that.

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So again, there is a safety valve

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built into the statute,

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and then this Court held the statute,

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construed the statute to apply,

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so then, reasonably, we can just follow the same guidelines

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as this Court applied in Diatchenko with the trial judge,

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as the gatekeeper, and read the wording of the statute

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to include funding for the experts,

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and then those fundings have to be necessary,

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reasonably necessary, and then once they are,

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then 27B and C will allow the disbursement of the funds

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because it is to protect the constitutional right

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of a disabled person, which is constitutionally mandated.

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To that, I would say,
(paper rustling)

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if anything, Diatchenko is amplified for people

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with disability because of the fact that their very chance

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of getting a hearing depends on these experts.

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Without these experts, as this Court held in Crowell,

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the Parole Board won't be in a position

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to be able to evaluate and fulfill their commitment

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under the statute to see whether or not

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they can release these individuals with disability,

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with mental disability, to live in the society

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under the constraints of not violate the laws

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and that whose release will be in compliance

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with welfare of the society.

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So for them to fulfill their statutory mandate,

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they need this, and this Court held in Crowell

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that that is a modification.

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So again, I go back to my first argument,

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saying this is very simple,

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and I submit this has already been answered by this Court,

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00:12:16.800 --> 00:12:21.630
is that by virtue of Diatchenko and then later by Crowell

255
00:12:21.630 --> 00:12:24.900
and the funding statute that's been placed

256
00:12:24.900 --> 00:12:27.990
for quite some time, this is an easy answer,

257
00:12:27.990 --> 00:12:30.690
and it's already been answered by the Court.

258
00:12:30.690 --> 00:12:34.080
Now, the other dimension to this that I submit

259
00:12:34.080 --> 00:12:36.840
will make this also a constitutional argument

260
00:12:36.840 --> 00:12:38.490
would be the Sixth Amendment,

261
00:12:38.490 --> 00:12:41.820
that once counsel is appointed to these cohorts,

262
00:12:41.820 --> 00:12:45.210
counsel is obligated to provide effective assistance.

263
00:12:45.210 --> 00:12:47.460
Counsel can't provide effective assistance

264
00:12:47.460 --> 00:12:52.460
because we are not trained to be social workers.

265
00:12:52.620 --> 00:12:55.230
At least, this counsel was never trained to be

266
00:12:55.230 --> 00:12:57.870
a social worker or a mental health expert,

267
00:12:57.870 --> 00:13:01.200
so we will need the assistance of

268
00:13:01.200 --> 00:13:03.690
the appropriate experts which-
<v ->A counsel only appointed</v>

269
00:13:03.690 --> 00:13:05.310
in disability cases?

270
00:13:05.310 --> 00:13:10.020
<v ->Yes, Your Honor, so then, we will need</v>

271
00:13:10.020 --> 00:13:13.080
those funds to be able to procure these expert,

272
00:13:13.080 --> 00:13:17.910
just like it was the intent of the legislature in 1974,

273
00:13:17.910 --> 00:13:20.190
when they enacted the statute itself,

274
00:13:20.190 --> 00:13:23.340
and it was the intent of this Court, I submit,

275
00:13:23.340 --> 00:13:25.470
in other cases such as Canseco case,

276
00:13:25.470 --> 00:13:27.120
where the Court extended it.

277
00:13:27.120 --> 00:13:30.450
Now, granted, it was by statute and is in the context

278
00:13:30.450 --> 00:13:33.150
of a 30B motion, motions for a new trial,

279
00:13:33.150 --> 00:13:34.500
but the spirit is the same.

280
00:13:34.500 --> 00:13:36.750
The intent is the same, where the Court held

281
00:13:36.750 --> 00:13:39.570
where you are not constitutionally entitled

282
00:13:39.570 --> 00:13:41.310
to post-conviction proceedings,

283
00:13:41.310 --> 00:13:44.010
but in order to have a meaningful access,

284
00:13:44.010 --> 00:13:45.750
you need to have access to these funds

285
00:13:45.750 --> 00:13:48.810
and then made the funds available under the same statute.

286
00:13:48.810 --> 00:13:51.540
So if we're looking at the intent of the statute

287
00:13:51.540 --> 00:13:56.280
and the intent of this Court in order to make

288
00:13:56.280 --> 00:14:00.870
so that the indigent cohorts will not be at a disadvantage,

289
00:14:00.870 --> 00:14:03.300
this is the very core of that,

290
00:14:03.300 --> 00:14:05.730
is that it will put them in a disadvantage

291
00:14:05.730 --> 00:14:10.500
because, again, their very chance to gain liberty

292
00:14:10.500 --> 00:14:14.010
is to have access to this funding,

293
00:14:14.010 --> 00:14:16.083
which is the purpose I submit.

294
00:14:17.670 --> 00:14:18.900
I see that I'm running outta time,

295
00:14:18.900 --> 00:14:22.140
but I would just give you this summary,

296
00:14:22.140 --> 00:14:26.010
is that we have the statutory scheme.

297
00:14:26.010 --> 00:14:28.770
We have the infrastructure that's in place

298
00:14:28.770 --> 00:14:30.390
through the Committee for Public Counsel.

299
00:14:30.390 --> 00:14:32.070
They have audit and oversight.

300
00:14:32.070 --> 00:14:35.280
They have been disbursing these funds since the '80s,

301
00:14:35.280 --> 00:14:38.340
and this Court gave us the precedent in Diatchenko

302
00:14:38.340 --> 00:14:42.000
and then Crowell to just follow the same reasoning

303
00:14:42.000 --> 00:14:44.190
and apply the availability

304
00:14:44.190 --> 00:14:46.290
and letting the trial court judges

305
00:14:46.290 --> 00:14:48.180
or authorizing trial court judges

306
00:14:48.180 --> 00:14:51.180
to approve these fundings under the statute.

307
00:14:51.180 --> 00:14:53.460
I'm happy to answer any other questions.

308
00:14:53.460 --> 00:14:55.710
If not, I see that I'm outta time,

309
00:14:55.710 --> 00:14:57.404
and I'll rest on my brief.
<v ->Thank you.</v>

310
00:14:57.404 --> 00:14:58.359
(paper rustling)
<v ->Thank you.</v>

311
00:14:58.359 --> 00:15:00.675
(podium rattling)
<v ->Okay, Attorney Janiszewski.</v>

312
00:15:00.675 --> 00:15:04.544
(furniture rattling)

313
00:15:04.544 --> 00:15:07.374
(papers rustling)
(Andre sniffing)

314
00:15:07.374 --> 00:15:09.420
(microphone rattling)
(papers rustlings)

315
00:15:09.420 --> 00:15:11.460
<v ->Madam Chief Justice, and may it please the Court.</v>

316
00:15:11.460 --> 00:15:13.530
Andre Janiszewski, Assistant Attorney General

317
00:15:13.530 --> 00:15:14.673
for the Parole Board.

318
00:15:15.660 --> 00:15:19.620
I agree with much of what my sister just said

319
00:15:19.620 --> 00:15:23.250
in summary there, and Justice Wendlandt,

320
00:15:23.250 --> 00:15:26.790
I don't wanna sprinkle magic pixie dust onto this statute,

321
00:15:26.790 --> 00:15:28.950
and I think that's why, in our brief,

322
00:15:28.950 --> 00:15:31.770
we've tried to stick with the plain language.

323
00:15:31.770 --> 00:15:36.210
<v ->Yeah, but the argument made by the Parole Board</v>

324
00:15:36.210 --> 00:15:40.740
requires us to say that a criminal case

325
00:15:40.740 --> 00:15:42.300
is not final.

326
00:15:42.300 --> 00:15:46.680
That is, it remains pending through sentencing

327
00:15:46.680 --> 00:15:48.390
until the person is let out,

328
00:15:48.390 --> 00:15:50.370
and that just is inconsistent

329
00:15:50.370 --> 00:15:52.530
with all sorts of case law that I know of.

330
00:15:52.530 --> 00:15:54.600
I mean, the finality is, you know,

331
00:15:54.600 --> 00:15:57.060
once the appellate period is over.

332
00:15:57.060 --> 00:15:58.110
<v ->I certain-</v>
<v ->At that point,</v>

333
00:15:58.110 --> 00:16:03.110
DOC takes over, and it's no longer a pending case at all.

334
00:16:03.570 --> 00:16:07.020
<v ->I understand that it may not be the most natural reading</v>

335
00:16:07.020 --> 00:16:10.050
of the word pending, and it does butt up against precedent.

336
00:16:10.050 --> 00:16:12.240
This argument about the statutory language

337
00:16:12.240 --> 00:16:14.370
has never been made to this court,

338
00:16:14.370 --> 00:16:16.500
so part of what we are trying to do

339
00:16:16.500 --> 00:16:18.990
is show at a minimum that the language is ambiguous,

340
00:16:18.990 --> 00:16:21.480
and we can turn to some extrinsic sources here.

341
00:16:21.480 --> 00:16:25.410
But I think also, the word pending

342
00:16:25.410 --> 00:16:28.080
should be informed by elsewhere.

343
00:16:28.080 --> 00:16:31.530
The word elsewhere that the legislature chose to use

344
00:16:31.530 --> 00:16:32.790
is extremely broad.

345
00:16:32.790 --> 00:16:34.320
In fact, I don't think they could've chosen

346
00:16:34.320 --> 00:16:36.930
a more broad word, and if they had wanted elsewhere

347
00:16:36.930 --> 00:16:39.720
to apply to that second paragraph,

348
00:16:39.720 --> 00:16:41.700
which has never been cited in a case,

349
00:16:41.700 --> 00:16:43.380
if they wanted that to apply to the same set

350
00:16:43.380 --> 00:16:44.790
of circumstances as the first,

351
00:16:44.790 --> 00:16:47.640
they certainly would've said so. (sniffs)

352
00:16:47.640 --> 00:16:51.210
And so I think when you combine elsewhere

353
00:16:51.210 --> 00:16:52.830
and still pending together,

354
00:16:52.830 --> 00:16:54.580
you sort of get to

355
00:16:56.250 --> 00:17:00.720
very broad application and reach of this statute,

356
00:17:00.720 --> 00:17:03.930
and of course, like as Justice, and in response

357
00:17:03.930 --> 00:17:05.190
to Justice Gaziano's question,

358
00:17:05.190 --> 00:17:08.190
it talked about we could just substitute Article 26

359
00:17:08.190 --> 00:17:09.750
with the right tier at issue.

360
00:17:09.750 --> 00:17:11.700
We've tried to at least make

361
00:17:11.700 --> 00:17:15.420
a statutory text argument first.

362
00:17:15.420 --> 00:17:16.800
Of course, we could do that.
<v ->But let me ask you</v>

363
00:17:16.800 --> 00:17:19.203
about being careful about what you wish for.

364
00:17:20.100 --> 00:17:21.510
If that's the case,

365
00:17:21.510 --> 00:17:25.560
in the limiting principle for this situation

366
00:17:25.560 --> 00:17:30.420
under one proposal is it applies

367
00:17:30.420 --> 00:17:32.220
to Diatchenko defendants and it applies

368
00:17:32.220 --> 00:17:35.793
to people who have ADA concerns.

369
00:17:36.660 --> 00:17:38.070
As you read the statute,
(microphone rattling)

370
00:17:38.070 --> 00:17:41.250
applies to everyone seeking parole, correct?

371
00:17:41.250 --> 00:17:42.600
<v ->I think-</v>
<v ->But now, the superior courts</v>

372
00:17:42.600 --> 00:17:47.600
can be flooded with anybody who has a parole hearing pending

373
00:17:47.880 --> 00:17:49.290
and they want funds.

374
00:17:49.290 --> 00:17:50.910
<v ->So I wanna be-</v>
<v ->That's what</v>

375
00:17:50.910 --> 00:17:52.590
my parade of horribles is.

376
00:17:52.590 --> 00:17:55.320
<v ->To be as candid with the Court of that as possible,</v>

377
00:17:55.320 --> 00:17:57.090
I think if you interpret the statute

378
00:17:57.090 --> 00:17:59.490
that it can apply to parole hearings,

379
00:17:59.490 --> 00:18:02.160
that would mean anybody who is eligible

380
00:18:02.160 --> 00:18:04.080
for a parole hearing could seek the funds,

381
00:18:04.080 --> 00:18:05.700
but that does not necessarily mean

382
00:18:05.700 --> 00:18:08.580
that the funds are therefore available to that person.

383
00:18:08.580 --> 00:18:12.000
And so the judges in their discretion could deny funds

384
00:18:12.000 --> 00:18:14.610
to certain people if they don't meet a showing

385
00:18:14.610 --> 00:18:16.800
that the funds were actually necessary.

386
00:18:16.800 --> 00:18:21.800
I think in CPCS' amicus brief, there's some data about this,

387
00:18:21.938 --> 00:18:25.173
and maybe in the addendum, I wanna say,

388
00:18:26.760 --> 00:18:30.480
and I guess, to that point,

389
00:18:30.480 --> 00:18:32.430
most of the requests have to do

390
00:18:32.430 --> 00:18:34.560
when there is a mental disability

391
00:18:34.560 --> 00:18:35.610
at issue here, so-
<v ->Yeah, but think of</v>

392
00:18:35.610 --> 00:18:39.270
how many people are eligible for parole,

393
00:18:39.270 --> 00:18:42.100
and why wouldn't you ask for an expert?

394
00:18:42.100 --> 00:18:42.933
(robes rustling)

395
00:18:42.933 --> 00:18:45.420
<v ->I certainly understand that concern,</v>

396
00:18:45.420 --> 00:18:47.520
but again, I guess, to avoid,

397
00:18:47.520 --> 00:18:50.250
or at least to go on as consistent

398
00:18:50.250 --> 00:18:52.350
with the statutory text as possible,

399
00:18:52.350 --> 00:18:55.230
I think that argument would have to, you know,

400
00:18:55.230 --> 00:18:56.670
it would have to be available to everyone,

401
00:18:56.670 --> 00:18:58.147
and then the question would become,

402
00:18:58.147 --> 00:19:01.350
"Is there an actual entitlement to the funds thereunder?"

403
00:19:01.350 --> 00:19:02.970
And then, that's where we would argue based

404
00:19:02.970 --> 00:19:07.380
on the protections in the law for people

405
00:19:07.380 --> 00:19:08.760
with mental disabilities

406
00:19:08.760 --> 00:19:11.610
as well as this Court's decision in Crowell.

407
00:19:11.610 --> 00:19:15.840
Because if we don't come up with the answer

408
00:19:15.840 --> 00:19:18.690
to not go in this direction in this case,

409
00:19:18.690 --> 00:19:21.930
the Court's words in Crowell, though they were dicta,

410
00:19:21.930 --> 00:19:23.340
sort of become toothless.

411
00:19:23.340 --> 00:19:25.830
<v ->So we would, the way you would write the opinion</v>

412
00:19:25.830 --> 00:19:29.070
would be to say that elsewhere,

413
00:19:29.070 --> 00:19:32.130
pending is given this broad definition

414
00:19:32.130 --> 00:19:34.140
that pending usually doesn't get,

415
00:19:34.140 --> 00:19:35.970
so there's a statutory basis for this.

416
00:19:35.970 --> 00:19:38.280
We don't have to contort the statute,

417
00:19:38.280 --> 00:19:40.680
and then when we give guidance

418
00:19:40.680 --> 00:19:44.010
as far as superior court goes,

419
00:19:44.010 --> 00:19:47.130
so they don't throw things at us, we say, "Well,

420
00:19:47.130 --> 00:19:50.610
in instances of mental disability," for example.

421
00:19:50.610 --> 00:19:51.450
<v ->Yes.</v>
<v ->And then that</v>

422
00:19:51.450 --> 00:19:54.270
would comport with the ADA.
<v ->Yes, Your Honor, yes.</v>

423
00:19:54.270 --> 00:19:57.183
I think, I mean, there of course is,

424
00:19:58.710 --> 00:20:00.600
as this Court did in Diatchenko II,

425
00:20:00.600 --> 00:20:03.060
it held it was just appropriate to construe the statute

426
00:20:03.060 --> 00:20:05.370
in this manner, there are certainly constitutional

427
00:20:05.370 --> 00:20:07.980
and statutory rights at issue here,

428
00:20:07.980 --> 00:20:09.180
as there were in Diatchenko.

429
00:20:09.180 --> 00:20:14.160
They're not exactly synonymous or exactly analogous,

430
00:20:14.160 --> 00:20:18.120
but of course, the Court could do more

431
00:20:18.120 --> 00:20:21.270
of the Diatchenko II type of analysis as well,

432
00:20:21.270 --> 00:20:23.910
just try to provide as much of a basis for the Court

433
00:20:23.910 --> 00:20:25.500
to do it through the statutory text

434
00:20:25.500 --> 00:20:27.990
as possible in this case.

435
00:20:27.990 --> 00:20:30.060
And I think by doing that, you can talk

436
00:20:30.060 --> 00:20:33.810
about the purpose of the indigent court costs law.

437
00:20:33.810 --> 00:20:36.300
Nothing about either the legislative history

438
00:20:36.300 --> 00:20:38.700
that I could find or sorta the purpose of this statute

439
00:20:38.700 --> 00:20:41.760
was really to make it narrowly construed,

440
00:20:41.760 --> 00:20:44.490
or it's really to expand access.

441
00:20:44.490 --> 00:20:46.860
<v ->Except the language of the statute itself, right?</v>

442
00:20:46.860 --> 00:20:48.690
<v ->Well, the- (laughs)</v>
<v ->Which is usually</v>

443
00:20:48.690 --> 00:20:50.850
where we start for statutory construction.

444
00:20:50.850 --> 00:20:51.990
<v ->Yeah.</v>
<v ->Absolutely.</v>

445
00:20:51.990 --> 00:20:55.050
<v ->And what happens to our canon of statutory construction</v>

446
00:20:55.050 --> 00:20:58.920
that talks about when you go to the specific to the general?

447
00:20:58.920 --> 00:21:01.710
I mean, you focus on that elsewhere,

448
00:21:01.710 --> 00:21:04.860
but if you look at the words that precede that,

449
00:21:04.860 --> 00:21:07.350
they're talking about courts.

450
00:21:07.350 --> 00:21:09.840
<v ->And I understand there's precedent from this Court</v>

451
00:21:09.840 --> 00:21:11.850
that says these statutes have generally applied

452
00:21:11.850 --> 00:21:13.470
to court proceedings.

453
00:21:13.470 --> 00:21:14.842
I understand that's what the language

454
00:21:14.842 --> 00:21:19.440
of the statute says, but there's a lot of general kind

455
00:21:19.440 --> 00:21:21.960
of language in some of those cases that,

456
00:21:21.960 --> 00:21:25.890
and I think in Diatchenko II, it did not come up

457
00:21:25.890 --> 00:21:28.200
with a holding that said the funding statutes

458
00:21:28.200 --> 00:21:30.933
could ever be applied in this manner.

459
00:21:34.568 --> 00:21:36.780
And I'm certainly not arguing that a parole hearing

460
00:21:36.780 --> 00:21:38.280
is a court proceeding.

461
00:21:38.280 --> 00:21:43.230
Of course, I wouldn't argue that under the statute,

462
00:21:43.230 --> 00:21:46.110
but I think it's so closely connected.

463
00:21:46.110 --> 00:21:50.340
I cite a couple of cases where, at least in Diatchenko II,

464
00:21:50.340 --> 00:21:53.190
I think footnote 12, the Court said, "Parole is a component

465
00:21:53.190 --> 00:21:54.600
of the original criminal sentence."

466
00:21:54.600 --> 00:21:55.830
There's some federal case law

467
00:21:55.830 --> 00:21:59.850
that says it's extremely essentially closely connected.

468
00:21:59.850 --> 00:22:02.850
And so the only time, you know, of course,

469
00:22:02.850 --> 00:22:04.647
we'd look at the purpose of the statute

470
00:22:04.647 --> 00:22:06.300
and the history and sorta the some

471
00:22:06.300 --> 00:22:08.310
of the legislative developments,

472
00:22:08.310 --> 00:22:11.400
assuming the Court finds the language ambiguous.

473
00:22:11.400 --> 00:22:13.920
If the Court does not, if the Court thinks

474
00:22:13.920 --> 00:22:16.200
that the language is unambiguous,

475
00:22:16.200 --> 00:22:18.780
then we would make the Diatchenko II argument

476
00:22:18.780 --> 00:22:21.030
and just say it's appropriate to construe the statute

477
00:22:21.030 --> 00:22:24.573
in this manner when constitutional rights are at issue.

478
00:22:26.250 --> 00:22:28.260
<v ->Can I ask you a sort of practical question?</v>

479
00:22:28.260 --> 00:22:31.890
How did these motions for expert funds come to being?

480
00:22:31.890 --> 00:22:35.280
Is there something, you know, a complaint filed

481
00:22:35.280 --> 00:22:39.630
in the nature of certiorari as there was in Crowell,

482
00:22:39.630 --> 00:22:43.620
or is this like sua sponte, just a motion suddenly appears

483
00:22:43.620 --> 00:22:45.150
on the docket of the superior court?

484
00:22:45.150 --> 00:22:47.220
<v ->I think it's the latter, Your Honor.</v>

485
00:22:47.220 --> 00:22:51.030
Like, in this case, once the Parole Board referred

486
00:22:51.030 --> 00:22:55.080
Mr. Hastings to CPCS and then attorney was appointed,

487
00:22:55.080 --> 00:22:58.800
a motion was filed, an ex parte motion for funds.

488
00:22:58.800 --> 00:22:59.910
The Commonwealth, you know,

489
00:22:59.910 --> 00:23:01.470
they're not appearing here today.

490
00:23:01.470 --> 00:23:04.590
They're usually not involved at all with these proceedings.

491
00:23:04.590 --> 00:23:07.718
<v ->Is it, like, under the criminal docket number, then?</v>

492
00:23:07.718 --> 00:23:08.804
<v ->It is.</v>
<v ->It is.</v>

493
00:23:08.804 --> 00:23:10.560
<v ->It is; it did come up on the criminal.</v>

494
00:23:10.560 --> 00:23:12.360
I'm almost positive of that.

495
00:23:12.360 --> 00:23:14.130
<v ->This all arose post-Crowell</v>

496
00:23:14.130 --> 00:23:16.620
as a mechanism for funding, basically.

497
00:23:16.620 --> 00:23:17.520
<v ->Yes.</v>
<v ->And then,</v>

498
00:23:17.520 --> 00:23:19.620
as we saw in this case, some judges allow.

499
00:23:19.620 --> 00:23:21.090
Some don't.
<v ->Exactly.</v>

500
00:23:21.090 --> 00:23:23.257
We had one judge in this, yeah, exactly.

501
00:23:23.257 --> 00:23:26.674
<v ->It's Judge Mulqueen allow, and Judge Wilkins said no.</v>

502
00:23:26.674 --> 00:23:27.987
<v ->Exactly, and so I mean, I think-</v>

503
00:23:27.987 --> 00:23:30.060
<v ->But if you construe that motion</v>

504
00:23:30.060 --> 00:23:33.750
as in the nature of certiorari,

505
00:23:33.750 --> 00:23:37.590
then the statute does read on all fours on this

506
00:23:37.590 --> 00:23:41.040
because it's "the commencing of a civil action"

507
00:23:41.040 --> 00:23:42.750
in any court.

508
00:23:42.750 --> 00:23:44.760
And I'm wondering if the Parole Board

509
00:23:44.760 --> 00:23:47.970
has given any thought to that construction,

510
00:23:47.970 --> 00:23:49.830
which would be consistent

511
00:23:49.830 --> 00:23:52.863
with our statutory canons of construction.

512
00:23:54.380 --> 00:23:55.980
<v ->I have not, I will be honest,</v>

513
00:23:55.980 --> 00:23:58.230
I have not considered that, Your Honor.

514
00:23:58.230 --> 00:24:00.570
Just given the way that the motion for funds came in

515
00:24:00.570 --> 00:24:04.710
in this case, it wasn't an area that I looked into at all.

516
00:24:04.710 --> 00:24:06.810
I would be happy to look into it

517
00:24:06.810 --> 00:24:08.482
and provide the Court with anything

518
00:24:08.482 --> 00:24:09.720
in writing, if you like.
<v ->But just 'cause it strikes</v>

519
00:24:09.720 --> 00:24:12.690
me as Crowell was in the nature of certiorari,

520
00:24:12.690 --> 00:24:14.610
so it is a civil action.

521
00:24:14.610 --> 00:24:15.844
<v ->But it was a, you know,</v>

522
00:24:15.844 --> 00:24:17.670
it was a-
<v ->It was post-parole denial,</v>

523
00:24:17.670 --> 00:24:19.290
but yes.
<v ->Right, and a complaint</v>

524
00:24:19.290 --> 00:24:21.600
against the Parole Board, whereas in this case,

525
00:24:21.600 --> 00:24:23.610
we have just a motion was denied.

526
00:24:23.610 --> 00:24:25.590
A motion for funds was denied, you know,

527
00:24:25.590 --> 00:24:28.860
on the criminal docket, and then, you know,

528
00:24:28.860 --> 00:24:30.930
Judge Wilkins reported the question, but it's not-

529
00:24:30.930 --> 00:24:32.550
<v ->But isn't it, in effect, a complaint</v>

530
00:24:32.550 --> 00:24:34.050
against the Parole Board because they

531
00:24:34.050 --> 00:24:35.430
don't have the funding, and this

532
00:24:35.430 --> 00:24:37.557
is constitutionally required-
<v ->I think that's-</v>

533
00:24:37.557 --> 00:24:40.590
<v ->And so Parole Board, you need to come up with the funding,</v>

534
00:24:40.590 --> 00:24:42.420
and then you start the civil action,

535
00:24:42.420 --> 00:24:45.540
and under 27B, you get the fees.

536
00:24:45.540 --> 00:24:47.460
<v ->That sounds like an excellent interpretation</v>

537
00:24:47.460 --> 00:24:48.510
of the statute, Your Honor.

538
00:24:48.510 --> 00:24:49.830
<v ->You hadn't thought about it.</v>
<v ->That I wish</v>

539
00:24:49.830 --> 00:24:51.420
I had considered. (laughs)
(papers rustling)

540
00:24:51.420 --> 00:24:54.610
<v ->Thank you.</v>
<v ->I appreciate it very much.</v>

541
00:24:54.610 --> 00:24:56.061
(papers rustling)

542
00:24:56.061 --> 00:24:58.230
I don't need to necessarily belabor the points

543
00:24:58.230 --> 00:25:00.150
about the constitutional protections.

544
00:25:00.150 --> 00:25:03.030
I think we're all certainly well aware of them,

545
00:25:03.030 --> 00:25:06.120
and, you know, of course, we're not attacking

546
00:25:06.120 --> 00:25:08.580
Judge Wilkins' findings here that the Parole Board

547
00:25:08.580 --> 00:25:11.520
doesn't have the structures or the mechanisms

548
00:25:11.520 --> 00:25:13.080
to effectuate to this result,

549
00:25:13.080 --> 00:25:16.110
which I think just makes so much sense

550
00:25:16.110 --> 00:25:19.833
in cases involving prisoners with mental disabilities.

551
00:25:21.600 --> 00:25:23.968
And so.
(podium rattling)

552
00:25:23.968 --> 00:25:25.410
(papers rustling)
You know,

553
00:25:25.410 --> 00:25:27.960
especially in Crowell, and I think it was in footnote 16

554
00:25:27.960 --> 00:25:29.400
you talked about the essential,

555
00:25:29.400 --> 00:25:32.760
how essential it would be to have an expert's assistance.

556
00:25:32.760 --> 00:25:34.710
And it would be difficult to imagine

557
00:25:34.710 --> 00:25:37.290
how the board could proceed effectively.

558
00:25:37.290 --> 00:25:39.768
Of course, that's case by case,

559
00:25:39.768 --> 00:25:41.910
and every case could be a little bit different,

560
00:25:41.910 --> 00:25:43.620
but I think that the general point

561
00:25:43.620 --> 00:25:46.410
is that it's very important for the board

562
00:25:46.410 --> 00:25:49.660
to have these funds in order

563
00:25:51.120 --> 00:25:52.620
for the board to have the report

564
00:25:52.620 --> 00:25:54.990
and for prisoners to have the funds for the board

565
00:25:54.990 --> 00:25:58.680
to make as good of a decision as they possibly can.

566
00:25:58.680 --> 00:26:00.870
And they certainly minimize the risk that prisoners

567
00:26:00.870 --> 00:26:03.270
with disabilities will be discriminated against.