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SJC-13497, Raymond Frechette,
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and another, v. Elizabeth D'Andrea and others.
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(podium taps)
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[Chief Justice Budd] Okay, Attorney Wasser.
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May it please the Court,
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Attorney Brian Wasser, for the defendant, (clears throat)
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excuse me, Elizabeth D'Andrea.
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Your Honors, we're asking the Court today
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to find and rule that it's a deprivation
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of constitutional due process,
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equal protection, and Article eleven's guarantee
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of free and unfettered access to our courts
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for a trial court sitting
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in a summary process appeal context
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to fail to apply the Indigent Court Costs Law
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to otherwise unaffordable periodic payments
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issued under chapter-
Those are payments.
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Those are payments, right, for...
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(Justice Kafker chuckles)
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You know, you don't get to live for free, right?
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The mortgage here was not being paid, correct?
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It was being paid up until the mother's demise
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and then thereafter, yes.
Mother paid-
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Correct.
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the mortgage.
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But once your client was living in the house
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without the mother,
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there's no payments of the mortgage, right?
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That's correct.
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So the use and occupancy has a purpose too, which is,
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you know, there's another party involved.
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They own the house at this point.
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I understand it's being challenged,
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but the use and occupancy is not a fee or a cost,
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it's to ensure payment.
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So again, you don't live for free.
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If someone isn't able to pay those mortgage payments
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or isn't able to pay rent,
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they're gonna lose the house anyway.
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They're gonna lose their tenancy anyway, in many respects.
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So that's a factor we have to consider, isn't it?
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That adds rational basis
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to why you have to pay use and occupancy,
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even if you're indigent.
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Because even if you were not in this lawsuit,
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you would be paying rent or paying your mortgage.
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Well, I think we can't take the prospective effect
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of what's gonna happen in the future.
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But that's what...
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Use and occupancy is not focused on penalizing the case.
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It's focused on the fact
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that somebody is having to pay rent or mortgage or...
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And, you know, we can't ignore that.
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And all your briefing seems to ignore that.
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Well, I don't ignore that, Justice Kafker,
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and I appreciate the question.
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I don't view use and occupancy, excuse me.
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I don't view use and occupancy as a penalty in any way.
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And what you're talking about
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is kind of like a balancing of interest,
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and the legislature-
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It's not a cost,
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it's got a separate purpose from, you know,
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a bond or an attorney's fee, you know, or a cost.
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I just feel like it's lost in the briefing.
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And it's lost in the briefing
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that there's another party involved who owns this house
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that they're not occupying, that's paying taxes.
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But go ahead, I've cut you off.
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So yeah, ultimately we have to consider the possibility
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that they're successful on appeal,
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and then we see that they're rightfully in possession
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based on their own fee simple title.
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I think that this balancing of equities you're referring to
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is already embodied in the Indigent Court Costs Law.
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The legislator kind of contended with that
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by saying that if we do waive use and occupancy,
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or if the Commonwealth pays for it,
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then under 27E, there's an obligation to repay it.
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There's a lien on the lawsuit.
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But, (clears throat) you know,
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ultimately, it's not about how you rationalize
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what use and occupancy is for,
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you know, this court's first step.
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You concede correctly that it's not strict scrutiny,
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the constitutional analysis here,
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it's a rational basis review, right?
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No, Your Honor, I would disagree with that.
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I think it's strict scrutiny.
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I thought maybe it's the advocate's briefs
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that are applying rational basis, certainly.
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What's the basis of a strict scrutiny
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on the constitutional right here?
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Well, first stop, I would say is,
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what's the Commonwealth's state legitimate interest
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in providing, you know, post-judgment security?
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You're saying we should apply strict scrutiny.
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Is there a fundamental right or a-
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Yes, Your Honor.
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It's a fundamental right?
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Under Article 11, it's the fundamental right
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to access the courts freely without having to purchase it.
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And it's the Indigent Court Costs Law,
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is activating those fundamental rights.
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It's the legislator's expression
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to activate those fundamental rights.
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Well, we've always applied rational basis in that area,
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unless it's a fundamental right
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that's being litigated over, like incarceration or some...
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But again, we'll double check the case law,
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but you got cases
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that say that we apply strict scrutiny to Article 11
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in this kind of context?
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I believe it's in the briefing, Your Honor,
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but I can look up-
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Just go ahead. I don't mean to distract you, go ahead.
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Okay, Your honor, thank you.
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So I think the key point here, so the lower court's decision
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read section 5E's plain language
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as essentially resulting in a conclusion
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that periodic payments are ultimately exempted
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from the application of the Indigent Court Costs Law.
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Now, I'm gonna do a dive into 5E with you,
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but before we get into that,
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I think it's important for this court to understand
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that even if it agreed with the lowest court
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that the plain language suggested
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that the Indigent Court Costs Law would not apply
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to pre-periodic payments,
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that it would still have to ignore,
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it wouldn't really matter what the plain language
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of Section 5E is.
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And the reason for that
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is because this court's first loyalty
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is to the Constitution.
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So the court has to start with Article 11
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as the superior law, the supreme law,
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and then look down at these other statutes
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and make sure that they're being interpreted
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and applied in harmony with Article 11.
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[Chief Justice Budd] And again,
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that's if we're applying strict scrutiny, right?
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That's your position, right?
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Yes, Your Honor.
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What if we don't agree with you,
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and we find that it's actually rational basis?
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Do you still prevail?
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Yes, the song remains the same, Your Honor.
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As this court did in the 1971 case,
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a Damaskos versus Board of Appeals,
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that's on the other side of the spectrum
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of what we're here today.
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That had to do with constitutional non-deterrence.
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In that case, the appellant could well afford
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to pay the appeal bond,
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but the plain language of the applicable appeal bond statute
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resulted in an appeal bond that was so high
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that the court found that it was unduly deterrent
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of meritorious appeals.
That's an appeal bond
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versus use in occupancy,
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which Justice Kafker pointed out
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as a completely different purpose.
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It's completely different.
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I agree, but from the eyes,
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from the perspective of a litigant who is scared,
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struggling to be able to afford,
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to take what they consider to be a meritorious claim appeal,
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they've got a shot of this appeal being successful,
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and they're going in afraid
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that they're not gonna be able to afford it.
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All these costs are being thrown at them.
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And so from the eyes...
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You know, constitutional fundamental civil rights
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is very much a result-oriented game.
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And so when you put yourself in that person's position,
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they go into the summary process court.
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and the court says, "Well, congratulations,
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we find that you're subject to the protections
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under the Indigent Court Costs Law."
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And for a mortgage or a homeowner, waiving the appeal bond,
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the appeal bond is use and occupancy.
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And so they say, "We're gonna waive use and occupancy."
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And then they sort of do this hokey pokey, you know,
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they turn around, and they give some legal ease
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and talk about Section 5E to this poor suspecting homeowner.
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You know, we interpret the law,
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so I don't know, the hokey pokey legalese stuff
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is kind of why we're here, right?
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From the perspective of the party
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who cannot afford these expenses.
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But the litigant is gonna have
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a series of expenses, right?
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That's right.
They're gonna need to pay
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use and occupancy maybe, there's the appeal bond,
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there's the cost for a deposition,
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there's supplying-
Transcripts.
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yeah, transportation to and from the courthouse.
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There's gonna be food for daily consumption.
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There's all sorts of costs associated
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with living while you are litigating.
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I don't see the indigent court costs provisions addressing
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the regular daily life costs.
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They're costs of the expenses of the litigation,
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the expenses that arise from the litigation,
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not from living.
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And so I think what Justice Kafker was saying
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is that use and occupancy is one of those costs of living
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that really doesn't fall under litigation.
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And can you just address that?
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Why is this the same as a deposition expense?
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Because when there's a dispute
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between a mortgagor and a mortgagee, sometimes, you know,
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they need to get on the same page.
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It needs to be some resolution
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so that these payments can continue,
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and they have to come up
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with whatever the affordable payment's gonna be,
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whatever the agreement's gonna be.
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But they have different claims,
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one side saying, "You owe the money,"
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the other side saying, "You made a mistake."
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And then a lot of times, unfortunately,
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the banks ignore these processes,
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and they didn't have the in-person meeting
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that was required under FHA.
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And so during that process, that's where
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if the banks really wanna protect their interests,
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they can work with the homeowner, sort out these claims.
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Otherwise, they do have to be litigated.
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And, you know, under normal circumstances,
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the homeowner would be making payments as a mortgage,
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not as use and occupancy, but, you know...
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Yeah,
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But again, so Judge Winik,
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very experienced housing court judge,
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he wipes out all the litigation costs.
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You know, he treats your client as indigent,
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and those costs are assumed by the state,
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but he treats the use and occupancy rightfully,
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at least I think, as different,
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just as Justice Wendlandt says, "a cost of living,"
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which your client hasn't paid for indefinitely, right?
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You've lost the first case. It's on appeal.
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No payments have been made for a number of,
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how many years has it been since a payment was made
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on this house?
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And somebody else is paying for all of that.
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They're paying the mortgage, they're paying the taxes.
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And your indigency is not completely not considered
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in terms of setting the use and occupancy,
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one of the factors that a judge can consider
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in the use and occupancy, right?
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Yes, Your Honor.
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So it's not completely out of consideration,
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but again, we're focused on the fact
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that someone's living in this house
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that's not, at least at the first stage of litigation,
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the person who rightfully should be there, living for free.
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This mortgage isn't being paid.
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There's no rational basis
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for saying they have to pay use of occupancy,
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you know, if they're indigent.
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I just don't see that.
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It's because Your Honor, unfortunately...
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00:11:25.650 --> 00:11:27.240
And my client doesn't want a free house.
266
00:11:27.240 --> 00:11:30.840
She wants to pay, but sometimes you can't negotiate.
267
00:11:30.840 --> 00:11:32.970
Sometimes the banks aren't there to work with you
268
00:11:32.970 --> 00:11:35.430
and to resolve what the disputes are.
269
00:11:35.430 --> 00:11:38.730
But, you know, to dive in onto Section 5E,
270
00:11:38.730 --> 00:11:40.800
let's look at the plain language, if you will.
271
00:11:40.800 --> 00:11:43.860
It's on page 130 of our addendum, if you wanna follow along.
272
00:11:43.860 --> 00:11:45.030
But I'm gonna start reading
273
00:11:45.030 --> 00:11:47.730
from where the appeal bond has just been waived.
274
00:11:47.730 --> 00:11:49.260
Counsel, I'm sorry to interrupt you there,
275
00:11:49.260 --> 00:11:50.310
but could we just switch back
276
00:11:50.310 --> 00:11:53.280
to the indigency court cost statute
277
00:11:53.280 --> 00:11:54.507
before-
Yes.
278
00:11:54.507 --> 00:11:55.800
And could I just give you a chance
279
00:11:55.800 --> 00:11:57.810
to give your best argument
280
00:11:57.810 --> 00:12:00.540
vis-a-vis the statutory language there,
281
00:12:00.540 --> 00:12:03.247
why these kinds of payments are quote,
282
00:12:03.247 --> 00:12:06.390
"a document service or object,"
283
00:12:06.390 --> 00:12:08.730
which is the phrase that the statute uses,
284
00:12:08.730 --> 00:12:13.020
not just in 27C, but also 27F and 27G,
285
00:12:13.020 --> 00:12:15.450
to talk about the scope of the costs
286
00:12:15.450 --> 00:12:18.000
that can be waived or that the state will pay.
287
00:12:18.000 --> 00:12:20.940
Those are, you know, for documents, services, or objects.
288
00:12:20.940 --> 00:12:23.820
So, what's your best case for use and occupancy payments
289
00:12:23.820 --> 00:12:25.350
falling under that?
290
00:12:25.350 --> 00:12:26.550
Well, it's different
291
00:12:26.550 --> 00:12:28.350
depending on whether the litigants will say,
292
00:12:28.350 --> 00:12:30.753
like "landlord, tenant" or "mortgagee, mortgagor,"
293
00:12:30.753 --> 00:12:33.690
but to answer your question, Your Honor,
294
00:12:33.690 --> 00:12:36.600
this statute is supposed to be liberally construed
295
00:12:36.600 --> 00:12:38.370
to effectuate its remedial purpose.
296
00:12:38.370 --> 00:12:40.950
And its remedial purpose ultimately traces back
297
00:12:40.950 --> 00:12:44.640
to Article 11's guarantee that you'll be able to access
298
00:12:44.640 --> 00:12:46.860
and bring meritorious appeals
299
00:12:46.860 --> 00:12:47.693
even if you can't afford to pay for.
300
00:12:47.693 --> 00:12:49.890
Well, Counsel, we're not at liberty
301
00:12:49.890 --> 00:12:52.020
to just rewrite the statute.
302
00:12:52.020 --> 00:12:54.810
So are you conceding
303
00:12:54.810 --> 00:12:59.280
that there isn't really a reading of document service
304
00:12:59.280 --> 00:13:04.280
or object that includes using occupancy payments?
305
00:13:04.710 --> 00:13:07.110
Yeah, I believe that that's broadly construed.
306
00:13:07.110 --> 00:13:08.250
So I don't know how you would define
307
00:13:08.250 --> 00:13:09.930
each and every one of those terms, but, you know,
308
00:13:09.930 --> 00:13:13.680
it could be, fall under service, it could fall under object.
309
00:13:13.680 --> 00:13:16.830
I don't know what they mean by "object," specifically,
310
00:13:16.830 --> 00:13:20.580
but I can know from the legislative history that the evil,
311
00:13:20.580 --> 00:13:22.140
what they're trying to prevent,
312
00:13:22.140 --> 00:13:25.560
is any expense, however we wanna label it,
313
00:13:25.560 --> 00:13:30.560
from preventing poor litigants or people of modest means
314
00:13:31.530 --> 00:13:33.420
from getting all these expenses held up on them
315
00:13:33.420 --> 00:13:35.190
so that they can't access the courts.
316
00:13:35.190 --> 00:13:38.670
But as I look at the Indigent Court Costs Law,
317
00:13:38.670 --> 00:13:40.140
it doesn't cover...
318
00:13:40.140 --> 00:13:42.210
It has the salutary language, like you said,
319
00:13:42.210 --> 00:13:46.290
about not having the doors of the courthouse closed
320
00:13:46.290 --> 00:13:47.340
to the poor.
321
00:13:47.340 --> 00:13:48.630
But we have lots of cases
322
00:13:48.630 --> 00:13:51.457
that look at the text of the statute and say,
323
00:13:51.457 --> 00:13:53.190
"This is covered, and this,
324
00:13:53.190 --> 00:13:55.350
even though you're poor, is not covered."
325
00:13:55.350 --> 00:13:59.160
One that comes to mind is post-conviction testing,
326
00:13:59.160 --> 00:14:01.080
in a criminal context.
327
00:14:01.080 --> 00:14:03.690
There's about three or four cases that I know of
328
00:14:03.690 --> 00:14:08.670
that say it's not covered by the Indigent Court Costs Law.
329
00:14:08.670 --> 00:14:10.260
Even though, you know,
330
00:14:10.260 --> 00:14:11.970
your DNA testing probably should be done,
331
00:14:11.970 --> 00:14:15.690
but we can't cover it, the statute doesn't allow,
332
00:14:15.690 --> 00:14:18.686
and the court has closed the door
333
00:14:18.686 --> 00:14:20.970
to the indigent NEG circumstance.
334
00:14:20.970 --> 00:14:24.360
So when you say it has to be broadly construed
335
00:14:24.360 --> 00:14:26.610
to cover all circumstances,
336
00:14:26.610 --> 00:14:28.740
I don't know if that's actually true
337
00:14:28.740 --> 00:14:31.490
when you look at our cases interpreted in that statute.
338
00:14:32.400 --> 00:14:34.770
Well, I think it's part of the statutory scheme,
339
00:14:34.770 --> 00:14:36.660
and we actually can look at Section 5E-
340
00:14:36.660 --> 00:14:38.760
I agree with you, we look at the statutory scheme,
341
00:14:38.760 --> 00:14:41.250
and we look at the words as it's Justice Dewar said about,
342
00:14:41.250 --> 00:14:42.720
you know, let's look at the words
343
00:14:42.720 --> 00:14:44.880
to see what's covered or not covered.
344
00:14:44.880 --> 00:14:46.140
That's what we're trying to get you to do,
345
00:14:46.140 --> 00:14:48.840
rather than it it's an automatic,
346
00:14:48.840 --> 00:14:51.630
'cause it isn't based upon that case law.
347
00:14:51.630 --> 00:14:53.910
Well, the Indigent Court Costs Law
348
00:14:53.910 --> 00:14:56.910
provides for three remedies, waiver; substitution,
349
00:14:56.910 --> 00:14:59.520
which is basically just reducing the cost of something;
350
00:14:59.520 --> 00:15:01.080
or payment by the Commonwealth.
351
00:15:01.080 --> 00:15:05.730
And I submit that the plain language of Section 5E
352
00:15:05.730 --> 00:15:10.730
provides for those reliefs for periodic payments under-
353
00:15:12.150 --> 00:15:14.970
You don't have to pay any use in occupancy,
354
00:15:14.970 --> 00:15:16.830
or a dollar or, you know, three do...?
355
00:15:16.830 --> 00:15:18.870
I'm just trying to understand where you're going.
356
00:15:18.870 --> 00:15:20.220
No, your Honor, it's not necessarily,
357
00:15:20.220 --> 00:15:22.440
it's just that if it's waiver, then no.
358
00:15:22.440 --> 00:15:23.273
If it's-
359
00:15:23.273 --> 00:15:24.540
If you're indigent, right?
360
00:15:24.540 --> 00:15:25.733
Mm-hmm.
361
00:15:26.580 --> 00:15:29.790
Your view is nothing, right? Zero.
362
00:15:29.790 --> 00:15:32.333
I'm just trying to make sure I understand your argument.
363
00:15:34.862 --> 00:15:39.000
Any rent is just, any portion of the rent is just,
364
00:15:39.000 --> 00:15:41.310
it's gonna be a violation of your right
365
00:15:41.310 --> 00:15:45.120
to pursue a litigation under Article 11.
366
00:15:45.120 --> 00:15:45.953
Rents are special-
367
00:15:45.953 --> 00:15:48.480
Keeping in mind that Judge Winik did take a look
368
00:15:48.480 --> 00:15:49.800
at the circumstances, right,
369
00:15:49.800 --> 00:15:54.800
and looked at what made sense in this situation?
370
00:15:54.870 --> 00:15:56.940
Yes, but I think Judge Winik misread,
371
00:15:56.940 --> 00:15:59.847
with all due to respect, the plain language of Section 5E.
372
00:15:59.847 --> 00:16:02.310
But if you'll answer Justice Kafker's question,
373
00:16:02.310 --> 00:16:04.860
you're saying that as long as you're indigent,
374
00:16:04.860 --> 00:16:06.813
you don't have to pay anything?
375
00:16:07.890 --> 00:16:10.050
Well, indigent is a defined term.
376
00:16:10.050 --> 00:16:12.450
It could be that you can't pay something
377
00:16:12.450 --> 00:16:14.370
without depriving yourself of necessity.
378
00:16:14.370 --> 00:16:15.750
So you might do...
379
00:16:15.750 --> 00:16:17.250
Substitution means you're paying something.
380
00:16:17.250 --> 00:16:19.170
So it could be that you are paying something.
381
00:16:19.170 --> 00:16:20.940
Landlord and tenants is a very different situation
382
00:16:20.940 --> 00:16:22.710
in respect to my sister who'll be com-
383
00:16:22.710 --> 00:16:24.450
I just wanna make sure I get what you're saying.
384
00:16:24.450 --> 00:16:29.450
If you're indigent, your view is basically nothing,
385
00:16:30.270 --> 00:16:33.960
'cause you can't pay court costs,
386
00:16:33.960 --> 00:16:37.770
which are limited, hundreds of dollars.
387
00:16:37.770 --> 00:16:40.470
You're certainly not gonna be able to pay rent
388
00:16:40.470 --> 00:16:41.790
or mortgage payments.
389
00:16:41.790 --> 00:16:45.240
So I just wanna make sure we understand your argument.
390
00:16:45.240 --> 00:16:48.900
You're basically saying no use in occupancy
391
00:16:48.900 --> 00:16:50.730
for someone who's indigent.
392
00:16:50.730 --> 00:16:52.680
So for a tenant, that's not always the case.
393
00:16:52.680 --> 00:16:54.180
Sometimes they are continuing to pay rent
394
00:16:54.180 --> 00:16:55.680
while they're disputing their lawsuit.
395
00:16:55.680 --> 00:16:57.083
But they're not paying use and occupancy,
396
00:16:57.083 --> 00:16:58.890
they're paying their rent.
397
00:16:58.890 --> 00:17:01.290
Well, I'm talking about mortgagees, excuse me,
398
00:17:01.290 --> 00:17:03.450
mortgagor now, so yes, in that context.
399
00:17:03.450 --> 00:17:06.417
Your Honors, the plain language of Section 5E.
400
00:17:06.417 --> 00:17:08.730
It would be really helpful just to know that,
401
00:17:08.730 --> 00:17:13.260
are you arguing that an indigent plaintiff
402
00:17:13.260 --> 00:17:16.140
owes no use and occupancy?
403
00:17:16.140 --> 00:17:17.400
In some cases, yes.
404
00:17:17.400 --> 00:17:18.783
In most cases, right?
405
00:17:19.710 --> 00:17:20.880
I don't know the statistics.
406
00:17:20.880 --> 00:17:21.900
I don't know that's to be true, but-
407
00:17:21.900 --> 00:17:24.150
Take it if you're indigent.
If they're indigent, yes.
408
00:17:24.150 --> 00:17:27.570
What's the standard for indigency? How much money is it?
409
00:17:27.570 --> 00:17:29.667
Well, there's different tests for indigency,
410
00:17:29.667 --> 00:17:31.500
but the ultimate test is,
411
00:17:31.500 --> 00:17:33.540
if you can't afford to pay something
412
00:17:33.540 --> 00:17:35.430
without depriving yourself of necessities.
413
00:17:35.430 --> 00:17:37.590
So in other words, the appeal bond itself
414
00:17:37.590 --> 00:17:40.230
or the imposition of use and occupancy itself
415
00:17:40.230 --> 00:17:43.350
could cause you to become classified as indigent.
416
00:17:43.350 --> 00:17:45.153
So again, Your Honors, if I may-
417
00:17:46.140 --> 00:17:48.360
Yeah, is it in the brief?
418
00:17:48.360 --> 00:17:49.264
No.
419
00:17:49.264 --> 00:17:50.970
[Chief Justice Budd] What you're about to say?
420
00:17:50.970 --> 00:17:52.320
No, it's just, I just wanna go over it
421
00:17:52.320 --> 00:17:54.060
with the statute language, if I may, with the court.
422
00:17:54.060 --> 00:17:56.370
Oh, we've got that, though. Is everybody else set?
423
00:17:56.370 --> 00:17:57.420
Well, I'm just showing
424
00:17:57.420 --> 00:18:01.050
where the statute calls for waiver and substitutions.
425
00:18:01.050 --> 00:18:02.490
It's written right in the Section 5.
426
00:18:02.490 --> 00:18:03.660
Thank you so much.
427
00:18:03.660 --> 00:18:04.920
Thank you, Your Honor.
428
00:18:04.920 --> 00:18:06.690
It's been both a personal and professional privilege
429
00:18:06.690 --> 00:18:07.783
to argue before you today.
430
00:18:07.783 --> 00:18:09.210
Thank you.
Thank you.
431
00:18:09.210 --> 00:18:12.033
Okay, Laura Kamara.
432
00:18:17.580 --> 00:18:18.450
Good morning, Your Honors.
433
00:18:18.450 --> 00:18:20.070
May it please the court, Laura Kamara
434
00:18:20.070 --> 00:18:22.560
for amici South Coastal County's Legal Services,
435
00:18:22.560 --> 00:18:23.700
and its subsidiary,
436
00:18:23.700 --> 00:18:26.910
the Justice Center of Southeast Massachusetts.
437
00:18:26.910 --> 00:18:29.820
I'd like to jump right into the bulk of the discussion
438
00:18:29.820 --> 00:18:31.420
that this court was just having.
439
00:18:32.940 --> 00:18:37.020
Our position is that use and occupancy in this context
440
00:18:37.020 --> 00:18:41.280
is not simply a necessary life expense.
441
00:18:41.280 --> 00:18:45.750
The legislature has seen fit in 239 5E
442
00:18:45.750 --> 00:18:50.340
to make it a condition on continuing on with an appeal
443
00:18:50.340 --> 00:18:54.180
to pay all or a portion of the rent that is owed.
444
00:18:54.180 --> 00:18:56.460
And so that does separate it out
445
00:18:56.460 --> 00:18:58.650
from just being a life expense.
446
00:18:58.650 --> 00:19:01.470
It is making it a condition of the appeal.
447
00:19:01.470 --> 00:19:05.970
And for that reason, as well as the clear language
448
00:19:05.970 --> 00:19:08.280
of the Indigent Court Costs Law,
449
00:19:08.280 --> 00:19:11.460
which includes appeal bonds as a-
450
00:19:11.460 --> 00:19:13.470
This is not an appeal bond, though.
451
00:19:13.470 --> 00:19:16.200
It's different, and it serves a different purpose.
452
00:19:16.200 --> 00:19:19.350
It may have an effect on your ability to pursue,
453
00:19:19.350 --> 00:19:21.420
but again, they've been found indigent,
454
00:19:21.420 --> 00:19:26.420
so no costs are imposed, no things we consider costs,
455
00:19:26.490 --> 00:19:28.777
and anything we think, as Justice Winik said,
456
00:19:28.777 --> 00:19:31.137
"logically related to costs."
457
00:19:32.760 --> 00:19:35.730
But can I ask, your view is it's rational basis, right?
458
00:19:35.730 --> 00:19:36.810
I read your brief.
459
00:19:36.810 --> 00:19:37.643
Yes, Your Honor.
460
00:19:37.643 --> 00:19:39.510
So the constitutional standard we have to meet
461
00:19:39.510 --> 00:19:41.910
is rational basis, not strict scrutiny.
462
00:19:41.910 --> 00:19:42.870
Yes, Your Honor.
463
00:19:42.870 --> 00:19:45.483
Okay, so why is this irrational?
464
00:19:48.330 --> 00:19:52.590
It is irrational because to order someone to pay
465
00:19:52.590 --> 00:19:54.610
what they are unable to afford
466
00:19:55.680 --> 00:19:57.600
strips them of a right of appeal
467
00:19:57.600 --> 00:20:00.870
that the legislature has deemed fit to provide.
468
00:20:00.870 --> 00:20:03.900
The legislature has deemed fit,
469
00:20:03.900 --> 00:20:07.530
has said you should pay use and occupancy
470
00:20:07.530 --> 00:20:09.510
or a portion of it, right?
471
00:20:09.510 --> 00:20:11.700
They've said the exact opposite.
472
00:20:11.700 --> 00:20:16.700
And furthermore, you've gotta be able to pay your rent
473
00:20:17.190 --> 00:20:20.430
or pay your mortgage anyway.
474
00:20:20.430 --> 00:20:23.070
Isn't that something we have to consider here?
475
00:20:23.070 --> 00:20:26.370
This mortgage is not being paid, right?
476
00:20:26.370 --> 00:20:31.370
Your opponents own this house and are paying taxes,
477
00:20:31.590 --> 00:20:33.690
but don't have any rights to it.
478
00:20:33.690 --> 00:20:35.883
They can't get in it, right?
479
00:20:36.960 --> 00:20:41.960
So, does that provide for a rational basis
480
00:20:42.060 --> 00:20:45.543
for a use and occupancy payment?
481
00:20:46.740 --> 00:20:49.950
Our position is not that you should have to pay nothing.
482
00:20:49.950 --> 00:20:52.170
Our position is that the legislature provides
483
00:20:52.170 --> 00:20:54.750
that you pay all or a portion.
484
00:20:54.750 --> 00:20:58.140
It is our position that that portion,
485
00:20:58.140 --> 00:21:02.103
in order to pass rational basis, must be affordable.
486
00:21:03.210 --> 00:21:07.320
And that when you read 239 5E
487
00:21:07.320 --> 00:21:09.960
with the Indigent Court Costs Law,
488
00:21:09.960 --> 00:21:14.960
we can satisfy the purposes of the legislature in both acts,
489
00:21:15.450 --> 00:21:20.160
that we can ensure that nonfrivolous appeals are deterred.
490
00:21:20.160 --> 00:21:22.170
In this case, these are appeals
491
00:21:22.170 --> 00:21:25.140
that have already been determined to be non frivolous.
492
00:21:25.140 --> 00:21:28.290
And with utilization of the Indigent Court Costs Law,
493
00:21:28.290 --> 00:21:30.270
we can protect the plaintiff.
494
00:21:30.270 --> 00:21:33.660
How do you, again, in the abstract,
495
00:21:33.660 --> 00:21:35.610
again, under Davis and King,
496
00:21:35.610 --> 00:21:40.320
you can consider the ability to pay as a factor.
497
00:21:40.320 --> 00:21:43.200
But if this person is indigent.
498
00:21:43.200 --> 00:21:46.710
what are you saying they pay?
499
00:21:46.710 --> 00:21:48.390
I'm just trying to understand.
500
00:21:48.390 --> 00:21:50.040
You say you can do it,
501
00:21:50.040 --> 00:21:53.340
but again, there's a mortgage not being paid,
502
00:21:53.340 --> 00:21:54.940
and there's rent not being paid.
503
00:21:57.450 --> 00:21:59.100
How does this work?
504
00:21:59.100 --> 00:22:01.350
And Counsel, can I just bootstrap off of this
505
00:22:01.350 --> 00:22:03.580
because I think it's important.
506
00:22:03.580 --> 00:22:05.340
Is this a remand case?
507
00:22:05.340 --> 00:22:09.570
Because you're saying that they should have to pay something
508
00:22:09.570 --> 00:22:10.590
that they can afford,
509
00:22:10.590 --> 00:22:13.380
that whatever the use and occupancy payment is,
510
00:22:13.380 --> 00:22:15.520
it can't be something that's prohibitive
511
00:22:17.061 --> 00:22:20.100
in allowing the defendant, in this case,
512
00:22:20.100 --> 00:22:23.130
to pursue the appeal.
513
00:22:23.130 --> 00:22:25.920
Judge Winik, in this case, did give a reduced number
514
00:22:25.920 --> 00:22:28.530
from what the testimony was, the fair market,
515
00:22:28.530 --> 00:22:32.080
but there wasn't any specific finding
516
00:22:33.269 --> 00:22:34.830
that she could pay this.
517
00:22:34.830 --> 00:22:37.140
So, is this just a remand case?
518
00:22:37.140 --> 00:22:37.973
Yes, Your Honor.
519
00:22:37.973 --> 00:22:41.340
It is a remand, but we would suggest with the directive
520
00:22:41.340 --> 00:22:45.840
that use and occupancy must be set at an affordable level
521
00:22:45.840 --> 00:22:50.190
and that the Indigent Court Cost Law can be, and should be,
522
00:22:50.190 --> 00:22:53.160
resorted to where that affordable level
523
00:22:53.160 --> 00:22:55.293
unreasonably burdens the plaintiffs.
524
00:22:56.220 --> 00:22:59.910
The statutory purpose of both acts
525
00:22:59.910 --> 00:23:03.690
is to ensure that meritorious appeals go forward.
526
00:23:03.690 --> 00:23:05.937
And in the case of 239/5, to present harm-
527
00:23:05.937 --> 00:23:09.760
The rent and mortgage payments are being made
528
00:23:10.764 --> 00:23:15.150
consistent with the factors we set out in Davis,
529
00:23:15.150 --> 00:23:16.770
right, and King.
530
00:23:16.770 --> 00:23:19.950
So, and those factors are not
531
00:23:19.950 --> 00:23:22.500
that it all goes away of your indigent,
532
00:23:22.500 --> 00:23:24.630
because somebody is,
533
00:23:24.630 --> 00:23:28.890
that person would otherwise be making payments, right,
534
00:23:28.890 --> 00:23:32.313
they'd be paying their mortgage, they'd be paying rent.
535
00:23:33.330 --> 00:23:36.360
So, Your Honor, if I may just take the time to respond
536
00:23:36.360 --> 00:23:38.220
to I think what is kind of at the heart
537
00:23:38.220 --> 00:23:40.320
of part of your question,
538
00:23:40.320 --> 00:23:45.320
that indigency should be assessed as we present it.
539
00:23:46.850 --> 00:23:48.240
It should be assessed
540
00:23:48.240 --> 00:23:51.540
with the consideration of that payment.
541
00:23:51.540 --> 00:23:53.853
So, to state it more clearly,
542
00:23:56.220 --> 00:23:58.530
when considering your ability to pay,
543
00:23:58.530 --> 00:24:01.110
you're looking pursuant to 27 A
544
00:24:01.110 --> 00:24:02.610
of the Indigent Court Cost Law.
545
00:24:02.610 --> 00:24:04.110
You're looking at your ability to pay
546
00:24:04.110 --> 00:24:06.120
for the necessities of life.
547
00:24:06.120 --> 00:24:08.100
We are not suggesting
548
00:24:08.100 --> 00:24:13.100
that you would not include the use and occupancy
549
00:24:13.378 --> 00:24:16.320
as a necessity of life in making that assessment.
550
00:24:16.320 --> 00:24:19.500
So, in other words, the court should be looking at,
551
00:24:19.500 --> 00:24:21.660
in determining what use and occupancy could be
552
00:24:21.660 --> 00:24:23.797
at an affordable level, should be looking at,
553
00:24:23.797 --> 00:24:26.610
"Okay, what other expenses do you have?"
554
00:24:26.610 --> 00:24:28.470
And what does that leave
555
00:24:28.470 --> 00:24:31.560
to pay towards the use in occupancy?
556
00:24:31.560 --> 00:24:33.780
And in many cases,
557
00:24:33.780 --> 00:24:37.020
It's almost nothing, right?
558
00:24:37.020 --> 00:24:42.020
In your view, it should be 0 to 50 or 0 to...
559
00:24:42.450 --> 00:24:47.450
It's not anything to do with the rent or mortgage, right?
560
00:24:48.840 --> 00:24:51.074
I just wanna make sure I understand what your position is.
561
00:24:51.074 --> 00:24:54.330
So, I would, as a legal aid lawyer,
562
00:24:54.330 --> 00:24:56.040
speak from my personal experience,
563
00:24:56.040 --> 00:24:58.293
that my clients by definition are indigent.
564
00:24:59.550 --> 00:25:02.310
Many of them, most of them,
565
00:25:02.310 --> 00:25:05.040
pay the vast majority of their rent
566
00:25:05.040 --> 00:25:07.410
and are able to pay the vast majority of their rent
567
00:25:07.410 --> 00:25:08.700
despite being indigent.
568
00:25:08.700 --> 00:25:11.430
So then Judge Winik was correct, right?
569
00:25:11.430 --> 00:25:13.830
I'm just trying to understand, if that's the case,
570
00:25:13.830 --> 00:25:15.690
he's ordered something
571
00:25:15.690 --> 00:25:18.363
that most clients should be able to pay,
572
00:25:19.590 --> 00:25:21.270
especially those who own the home,
573
00:25:21.270 --> 00:25:23.400
which tend to be at a higher level
574
00:25:23.400 --> 00:25:24.960
than the clients you represent.
575
00:25:24.960 --> 00:25:27.930
Judge Winik could have been correct,
576
00:25:27.930 --> 00:25:31.860
but he did not consider, first,
577
00:25:31.860 --> 00:25:34.440
that he must set an affordable level.
578
00:25:34.440 --> 00:25:35.517
And that is our position.
579
00:25:35.517 --> 00:25:38.763
How do you know that, that he didn't consider that?
580
00:25:40.140 --> 00:25:42.150
Based on the decision, it does not appear
581
00:25:42.150 --> 00:25:44.100
that he specifically made a finding
582
00:25:44.100 --> 00:25:45.780
that he was setting a level
583
00:25:45.780 --> 00:25:48.060
that he perceived to be affordable.
584
00:25:48.060 --> 00:25:51.750
So, you're saying he has to make findings?
585
00:25:51.750 --> 00:25:54.783
I mean, why isn't this an abusive discretion issue?
586
00:25:56.070 --> 00:25:58.740
It is our position that the level must be set
587
00:25:58.740 --> 00:26:00.630
at an amount that is affordable
588
00:26:00.630 --> 00:26:03.570
and that there must be a finding that it is affordable
589
00:26:03.570 --> 00:26:08.570
in order to pass to pass rational basis review as applied.
590
00:26:13.560 --> 00:26:15.750
And again, you do this daily
591
00:26:15.750 --> 00:26:20.750
in those very busy housing courts where this issue comes up.
592
00:26:20.760 --> 00:26:22.302
I take it, a fair amount.
593
00:26:22.302 --> 00:26:23.820
Yes.
594
00:26:23.820 --> 00:26:25.560
You're saying they have to make
595
00:26:25.560 --> 00:26:27.633
sort of written findings on what?
596
00:26:29.940 --> 00:26:32.940
They must set the use and occupancy
597
00:26:32.940 --> 00:26:37.320
with the parameter that it is affordable.
598
00:26:37.320 --> 00:26:40.380
And so there needs to be a finding under 27A
599
00:26:40.380 --> 00:26:43.350
that the amount they are setting is affordable.
600
00:26:43.350 --> 00:26:46.860
And that amount, again, in many cases,
601
00:26:46.860 --> 00:26:51.860
is going to be close to the rent, a portion of, not zero.
602
00:26:53.250 --> 00:26:55.410
The vast majority of my clients
603
00:26:55.410 --> 00:26:58.800
as individuals already paid.
But that's Judge Winik did,
604
00:26:58.800 --> 00:27:02.160
because there was testimony as to what the fair market value
605
00:27:02.160 --> 00:27:03.990
of the monthly rent would be.
606
00:27:03.990 --> 00:27:07.710
And he didn't order 100% of that dollar.
607
00:27:07.710 --> 00:27:11.670
It was some portion there of a couple hundred bucks off.
608
00:27:11.670 --> 00:27:15.660
So if we even take your personal experience,
609
00:27:15.660 --> 00:27:18.990
what is wrong with what the amount that was set here?
610
00:27:18.990 --> 00:27:22.650
And why isn't that something that the judge could order
611
00:27:22.650 --> 00:27:26.550
for use and occupancy payments pending the appeal?
612
00:27:26.550 --> 00:27:30.360
So the amount in question represented
613
00:27:30.360 --> 00:27:32.910
about 60% of the individual's income.
614
00:27:32.910 --> 00:27:35.490
Depending on other life expenses,
615
00:27:35.490 --> 00:27:38.010
that very well could be too high.
616
00:27:38.010 --> 00:27:40.230
But I think what we are focused on
617
00:27:40.230 --> 00:27:44.370
is setting a clear standard for judges
618
00:27:44.370 --> 00:27:46.050
that it must be affordable.
619
00:27:46.050 --> 00:27:48.177
Not just a factor
620
00:27:48.177 --> 00:27:51.180
as is currently laid out in King and Comerford,
621
00:27:51.180 --> 00:27:52.890
but a controlling factor.
622
00:27:52.890 --> 00:27:54.510
Can I give you a hypothetical?
623
00:27:54.510 --> 00:27:56.250
And if we look at this case,
624
00:27:56.250 --> 00:28:00.240
and we have the mother who was the original tenant
625
00:28:00.240 --> 00:28:05.240
who had a source of income, and then we have your client,
626
00:28:05.300 --> 00:28:08.640
or the client, I'm sorry, the client that has some income;
627
00:28:08.640 --> 00:28:11.820
and your equival was with what Judge Winik did
628
00:28:11.820 --> 00:28:14.970
as far as the percentage goes and the 60%,
629
00:28:14.970 --> 00:28:18.933
If the holdover tenant,
630
00:28:19.980 --> 00:28:21.150
say the mother passes away,
631
00:28:21.150 --> 00:28:22.920
and now that we have the holdover tenant,
632
00:28:22.920 --> 00:28:24.960
and that person is unfortunate enough
633
00:28:24.960 --> 00:28:27.510
to have zero income, right?
634
00:28:27.510 --> 00:28:30.090
This is, I guess, at the extremes of this.
635
00:28:30.090 --> 00:28:32.070
Would your argument be
636
00:28:32.070 --> 00:28:36.840
that a judge could not set
637
00:28:36.840 --> 00:28:38.640
any use and occupancy
638
00:28:38.640 --> 00:28:41.910
because a person is at the extremes of indigency
639
00:28:41.910 --> 00:28:43.950
even for your clients?
640
00:28:43.950 --> 00:28:44.790
Our position would be
641
00:28:44.790 --> 00:28:49.440
that in order to comply with 239 5E to set a portion,
642
00:28:49.440 --> 00:28:51.990
the judge should in that instance set a token amount
643
00:28:51.990 --> 00:28:53.663
Okay, thank you.
for payment.
644
00:28:55.300 --> 00:28:57.030
Okay. All right.
645
00:28:57.030 --> 00:28:58.530
Thank you.
Thank you all.
646
00:29:01.410 --> 00:29:03.317
Okay, Attorney Mitson.
647
00:29:05.905 --> 00:29:08.550
(papers rustling)
648
00:29:08.550 --> 00:29:11.430
Good morning, Your Honors. My name is Robert Mitson.
649
00:29:11.430 --> 00:29:13.050
I represent the appellees.
650
00:29:13.050 --> 00:29:16.140
If I may please congratulate Justice Dewar,
651
00:29:16.140 --> 00:29:17.223
congratulate Maddie.
652
00:29:18.065 --> 00:29:19.350
Good luck to both of you.
653
00:29:19.350 --> 00:29:23.040
Judge, if I may refer to the appellees as the owners,
654
00:29:23.040 --> 00:29:26.700
the property relates to a single family residence
655
00:29:26.700 --> 00:29:28.860
located in Webster, Massachusetts,
656
00:29:28.860 --> 00:29:33.813
which my clients obtained by deed in December of 2019.
657
00:29:35.310 --> 00:29:39.330
The property was occupied by what I would fairly describe
658
00:29:39.330 --> 00:29:42.570
as holdover tenants or tenants at sufferance.
659
00:29:42.570 --> 00:29:45.150
I engaged in a summary process
660
00:29:45.150 --> 00:29:49.353
that was filed in the Worcester Central Housing Court.
661
00:29:50.250 --> 00:29:54.360
After some fairly robust discovery,
662
00:29:54.360 --> 00:29:56.973
I moved for summary judgment, which was granted.
663
00:29:57.810 --> 00:30:00.060
While that motion was pending,
664
00:30:00.060 --> 00:30:04.140
I move for interim use and occupancy payments.
665
00:30:04.140 --> 00:30:05.280
That motion was granted
666
00:30:05.280 --> 00:30:10.280
after a very sufficient evidentiary hearing.
667
00:30:10.830 --> 00:30:15.830
It included expert testimony, condition of the house,
668
00:30:15.870 --> 00:30:20.430
habitability issues, certainly the income of the occupants,
669
00:30:20.430 --> 00:30:24.660
which may I point out, at the time were four occupants.
670
00:30:24.660 --> 00:30:27.780
That may in part explain the deviation
671
00:30:27.780 --> 00:30:30.870
between the interim use and occupancy
672
00:30:30.870 --> 00:30:34.593
and the use and occupancy that was ordered post-judgment.
673
00:30:37.050 --> 00:30:39.780
I'm sorry, because some of them had vacated by then?
674
00:30:39.780 --> 00:30:41.680
Yes, Your Honor.
Okay, thank you.
675
00:30:43.088 --> 00:30:46.890
The court has some clear guidelines,
676
00:30:46.890 --> 00:30:48.810
and there are three sources.
677
00:30:48.810 --> 00:30:53.810
One guideline here is Bank of New York Mellon versus King.
678
00:30:54.810 --> 00:30:56.940
The other is Davis verses Comerford.
679
00:30:56.940 --> 00:30:59.790
And the other is the clear legislative intent
680
00:30:59.790 --> 00:31:03.573
outlined in Chapter 239, Section 5 and 6.
681
00:31:06.990 --> 00:31:10.413
The judgment was appealed, as we know.
682
00:31:11.280 --> 00:31:15.840
I moved for an appeal bond, and I pointed out to the court
683
00:31:15.840 --> 00:31:18.900
that none of the interim use and occupancy payments
684
00:31:18.900 --> 00:31:20.500
had been made, not even a penny.
685
00:31:22.560 --> 00:31:24.870
I'd also like to impress the court
686
00:31:24.870 --> 00:31:27.600
that at no time did the appellant move-
687
00:31:27.600 --> 00:31:30.232
And do we also have, in this record,
688
00:31:30.232 --> 00:31:31.320
at least the trial record,
689
00:31:31.320 --> 00:31:36.320
what the income of the tenant at sufferance was?
690
00:31:36.690 --> 00:31:37.523
Yes, Your Honor.
691
00:31:37.523 --> 00:31:39.870
And what was that in the record?
692
00:31:39.870 --> 00:31:41.707
Well, it was, I believe, Judge,
693
00:31:41.707 --> 00:31:45.870
it was $1,100 per month from Social Security.
694
00:31:45.870 --> 00:31:50.870
But the court did consider the income of the son,
695
00:31:51.000 --> 00:31:54.000
a daughter, and another household occupant.
696
00:31:54.000 --> 00:31:56.400
Oh, so I'm not interested in the mothers.
697
00:31:56.400 --> 00:31:57.720
The mothers was $1,100
698
00:31:57.720 --> 00:32:00.270
or were the person occupying the house
699
00:32:00.270 --> 00:32:01.920
after the mother's death?
700
00:32:01.920 --> 00:32:04.380
What is the income of the people living in the house
701
00:32:04.380 --> 00:32:06.550
who were not meeting the-
Yes, Sir.
702
00:32:06.550 --> 00:32:08.707
Just as I stated, please.
703
00:32:08.707 --> 00:32:10.290
$1,100 a month.
704
00:32:10.290 --> 00:32:11.220
Yes.
705
00:32:11.220 --> 00:32:15.000
And then there were, during the interim use and occupancy,
706
00:32:15.000 --> 00:32:20.000
there were four occupants, three fixed sources of income,
707
00:32:20.640 --> 00:32:24.420
and the son claimed had no income
708
00:32:24.420 --> 00:32:27.513
'cause he was in between jobs, but he was doing odd jobs.
709
00:32:28.530 --> 00:32:30.090
So what I wanted to point out
710
00:32:30.090 --> 00:32:33.360
is that in exercising his discretion,
711
00:32:33.360 --> 00:32:36.573
and I do believe this is an abuse of discretion issue,
712
00:32:40.320 --> 00:32:45.320
Judge Winik considered the household income habitability
713
00:32:45.750 --> 00:32:47.837
carrying costs such as taxes and insurance.
714
00:32:47.837 --> 00:32:49.020
How do we know that?
715
00:32:49.020 --> 00:32:50.430
'Cause he doesn't...
716
00:32:50.430 --> 00:32:54.540
He does a very careful explanation of the statute
717
00:32:54.540 --> 00:32:58.170
and why use and occupancy are not costs or fees.
718
00:32:58.170 --> 00:32:59.760
But then when he sets the award,
719
00:32:59.760 --> 00:33:02.580
we don't have a lot of detail there, right?
720
00:33:02.580 --> 00:33:07.110
The plaintiff shall pay the plaintiff $1,275
721
00:33:07.110 --> 00:33:09.360
for the monthly use and occupancy.
722
00:33:09.360 --> 00:33:11.910
How do we know he's doing what you're saying here?
723
00:33:11.910 --> 00:33:14.817
Yes, Judge, if we back up a little bit,
724
00:33:14.817 --> 00:33:19.470
Judge Winik refers to the testimony of the expert witness
725
00:33:19.470 --> 00:33:23.070
who opined that the fair market rental value
726
00:33:23.070 --> 00:33:25.653
was approximately $1,700.
727
00:33:27.060 --> 00:33:30.510
The court pointed to the carrying costs,
728
00:33:30.510 --> 00:33:35.510
and he itemized those carrying costs, which included taxes,
729
00:33:35.645 --> 00:33:39.840
insurance, and some assessments.
730
00:33:39.840 --> 00:33:44.840
So he was quite pointed in his findings of fact,
731
00:33:45.000 --> 00:33:46.773
and certainly in the colloquy,
732
00:33:47.910 --> 00:33:50.880
not only during the motion for summary judgment,
733
00:33:50.880 --> 00:33:53.320
but on the motion of the appellant
734
00:33:54.180 --> 00:33:56.430
to waive the use and occupancy.
735
00:33:56.430 --> 00:33:59.250
The colloquy was quite detailed,
736
00:33:59.250 --> 00:34:02.640
and that transcript will certainly bear that out.
737
00:34:02.640 --> 00:34:07.607
So the fact that he finds that there's $16,500 of unpaid,
738
00:34:10.500 --> 00:34:12.093
that's important.
739
00:34:13.470 --> 00:34:16.550
Certainly Judge, because under Comerford...
740
00:34:17.400 --> 00:34:21.660
Comerford allows the use and occupancy calculus
741
00:34:21.660 --> 00:34:26.220
to include how long rent has not been paid
742
00:34:26.220 --> 00:34:29.670
and the dollar amount of that unpaid rent.
743
00:34:29.670 --> 00:34:32.520
So this calculus is just not strictly affordability.
744
00:34:32.520 --> 00:34:37.520
That was not the intent of the legislature.
745
00:34:39.780 --> 00:34:43.650
And affordability is certainly a broad policy issue
746
00:34:43.650 --> 00:34:46.800
that I think implicates many, many different discussions,
747
00:34:46.800 --> 00:34:50.940
but it's clear what the legislative intent is.
748
00:34:50.940 --> 00:34:53.550
If that appeal bond is waived,
749
00:34:53.550 --> 00:34:57.480
how are we gonna balance the rights of the property owner
750
00:34:57.480 --> 00:34:58.920
with the appellant?
751
00:34:58.920 --> 00:35:01.920
Right, I'm just trying to discern, though,
752
00:35:01.920 --> 00:35:06.517
so the income based on his opinion is $22,100 per month
753
00:35:08.640 --> 00:35:09.663
for the two,
754
00:35:10.950 --> 00:35:14.910
of D'Andrea and Jennifer Wilson together, right?
755
00:35:14.910 --> 00:35:15.743
Yes, Sir.
756
00:35:15.743 --> 00:35:16.890
So that the people living in the...
757
00:35:16.890 --> 00:35:19.170
And Jennifer Wilson is living in the house as well?
758
00:35:19.170 --> 00:35:21.120
As was the son.
759
00:35:21.120 --> 00:35:22.980
Right, who's not got no earnings
760
00:35:22.980 --> 00:35:26.340
At that moment, yes, Judge. He was in between jobs.
761
00:35:26.340 --> 00:35:28.380
They're making $24,000 a year,
762
00:35:28.380 --> 00:35:32.553
and he's ordering $1,275 per month
763
00:35:34.710 --> 00:35:36.360
of use in occupancy.
Yes, Sir.
764
00:35:37.590 --> 00:35:41.940
If I may point out, it's not in his finding,
765
00:35:41.940 --> 00:35:43.800
but I think it's a fair inference
766
00:35:43.800 --> 00:35:46.560
that since his household had not paid rent
767
00:35:46.560 --> 00:35:50.790
or mortgages for 10 years, that there was an accumulation
768
00:35:50.790 --> 00:35:52.500
of household income.
769
00:35:52.500 --> 00:35:55.953
I know that's an inference, but it's certainly a fair one.
770
00:35:57.615 --> 00:36:00.840
The mortgage hasn't been paid for 10 years at this point?
771
00:36:00.840 --> 00:36:01.673
Yes, Sir.
772
00:36:06.289 --> 00:36:09.840
If I may, the foreclosure actually took place 10 years ago,
773
00:36:09.840 --> 00:36:13.260
I think, if you will, a further inference
774
00:36:13.260 --> 00:36:16.680
that there was substantial delinquency before that period.
775
00:36:16.680 --> 00:36:21.030
So, you know, these occupants have been living for free,
776
00:36:21.030 --> 00:36:21.863
literally for free.
777
00:36:21.863 --> 00:36:22.696
They paid-
778
00:36:22.696 --> 00:36:25.560
The nonfrivolous nature of the appeal
779
00:36:25.560 --> 00:36:28.890
relates to the fact that there wasn't a meeting
780
00:36:28.890 --> 00:36:30.990
with the mother 10 years ago.
781
00:36:30.990 --> 00:36:32.790
I'm just trying to understand.
782
00:36:32.790 --> 00:36:36.840
What was the nonfrivolous basis of the appeal
783
00:36:36.840 --> 00:36:40.050
that we have here in this record?
784
00:36:40.050 --> 00:36:44.433
It's hard for me to pinpoint, in all deference,
785
00:36:45.270 --> 00:36:47.040
we have a pro se litigant
786
00:36:47.040 --> 00:36:52.040
and the cohesiveness of that argument is not clearly stated.
787
00:36:52.740 --> 00:36:55.440
Also, sophisticated amicus as well, so.
788
00:36:55.440 --> 00:36:57.390
Indeed, we do.
I'm sorry.
789
00:36:57.390 --> 00:37:00.540
And so Judge, let us then at least point out
790
00:37:00.540 --> 00:37:02.070
what has been articulated.
791
00:37:02.070 --> 00:37:04.620
And that is this argument
792
00:37:04.620 --> 00:37:08.580
that there has to be a face-to-face meeting
793
00:37:08.580 --> 00:37:12.302
between the mortgage holder and the mortgagor.
794
00:37:12.302 --> 00:37:15.210
So 10 years ago, there wasn't such a meeting,
795
00:37:15.210 --> 00:37:20.100
and that provides the basis for the appeal
796
00:37:20.100 --> 00:37:23.340
that takes us out of the frivolous context.
797
00:37:23.340 --> 00:37:25.170
Is that what we're supposed to-
798
00:37:25.170 --> 00:37:26.220
That's the argument, Judge.
799
00:37:26.220 --> 00:37:30.420
Although, I think that requirement is obviated
800
00:37:30.420 --> 00:37:33.060
by the fact that the mortgagor had passed.
801
00:37:33.060 --> 00:37:37.680
So I don't see how a face-to-face could take place
802
00:37:37.680 --> 00:37:39.750
under those circumstances.
803
00:37:39.750 --> 00:37:43.290
And by the way, I hate to be picky,
804
00:37:43.290 --> 00:37:46.380
but I'm just trying to understand, do we have in the record
805
00:37:46.380 --> 00:37:50.760
that these plaintiffs are the heirs of,
806
00:37:50.760 --> 00:37:52.590
is that in the record that-
807
00:37:52.590 --> 00:37:53.670
Yes, Judge.
808
00:37:53.670 --> 00:37:54.693
Interestingly,
809
00:37:57.660 --> 00:38:02.660
this appellant filed what we call an informal probate
810
00:38:04.290 --> 00:38:06.690
in order to effectuate the transfer
811
00:38:06.690 --> 00:38:10.050
of some personal property of the decedent.
812
00:38:10.050 --> 00:38:12.960
In that, so Judge, you may know
813
00:38:12.960 --> 00:38:15.693
that if we have a fairly modest estate,
814
00:38:16.890 --> 00:38:21.890
the heirs can file something, some papers with the court,
815
00:38:22.020 --> 00:38:23.670
with very, very little cost,
816
00:38:23.670 --> 00:38:27.180
to transfer assets within a certain range,
817
00:38:27.180 --> 00:38:29.677
in this case, below $25,000.
818
00:38:30.600 --> 00:38:32.160
When the appellant filed those papers
819
00:38:32.160 --> 00:38:34.143
in the Worcester County Probate Court,
820
00:38:37.267 --> 00:38:40.620
they denied the estate owned any real estate.
821
00:38:40.620 --> 00:38:42.123
And this was years past,
822
00:38:43.380 --> 00:38:47.160
so it's hard to follow this argument
823
00:38:47.160 --> 00:38:52.160
that they have intestate ownership
824
00:38:52.230 --> 00:38:54.450
of this property in Webster
825
00:38:54.450 --> 00:38:58.350
when the same appellant denied the estate owned real estate.
826
00:38:58.350 --> 00:38:59.760
We have that again in the record,
827
00:38:59.760 --> 00:39:01.530
or are we going outside the record to do that?
828
00:39:01.530 --> 00:39:05.190
Judge, the issue is addressed
829
00:39:05.190 --> 00:39:09.750
in the ruling granting my motion for summary judgment.
830
00:39:09.750 --> 00:39:11.190
It's in this record?
831
00:39:11.190 --> 00:39:12.573
Yes, it should be, Judge.
832
00:39:14.520 --> 00:39:17.040
If I just make it back, I know the court
833
00:39:17.040 --> 00:39:21.300
and my very capable brother and sister counsel
834
00:39:21.300 --> 00:39:25.353
are implicating issues of due process and equal protection.
835
00:39:26.790 --> 00:39:30.360
I have to strenuously state
836
00:39:30.360 --> 00:39:35.360
that those guarantees are more than adequately addressed
837
00:39:36.630 --> 00:39:40.500
by the housing court, more than adequately addressed.
838
00:39:40.500 --> 00:39:41.645
Can you be more specific?
839
00:39:41.645 --> 00:39:42.478
Sure.
I mean,
840
00:39:42.478 --> 00:39:43.470
I think the argument is
841
00:39:43.470 --> 00:39:48.470
that this use and occupancy requirement is prohibiting
842
00:39:49.470 --> 00:39:54.270
the pursuit of access to the appellate court.
843
00:39:54.270 --> 00:39:55.233
Yes, Judge.
844
00:39:57.240 --> 00:40:02.240
There was the best person to decide on what you will know
845
00:40:02.730 --> 00:40:06.990
should be set at, I believe would be the trial judge.
846
00:40:06.990 --> 00:40:11.990
On two occasions, he offered very extensive dialogue
847
00:40:12.660 --> 00:40:15.180
and admissions from the appellant,
848
00:40:15.180 --> 00:40:17.100
as to what could be afforded.
849
00:40:17.100 --> 00:40:21.510
And this was, and if I may say, he was very gracious
850
00:40:21.510 --> 00:40:23.610
in allowing the pro se litigant
851
00:40:23.610 --> 00:40:28.610
to list all of her personal expenses, all of her hardships.
852
00:40:29.400 --> 00:40:31.940
Judge, there was never-
853
00:40:31.940 --> 00:40:33.210
Is it your position
854
00:40:33.210 --> 00:40:36.240
that this use and occupancy is affordable?
855
00:40:36.240 --> 00:40:37.980
Is affordable?
Affordable?
856
00:40:37.980 --> 00:40:41.100
I think that the use and occupancy complies
857
00:40:41.100 --> 00:40:42.963
with Comerford versus Davis,
858
00:40:44.788 --> 00:40:46.530
in full regard,
859
00:40:46.530 --> 00:40:47.910
because there are a number of factors,
860
00:40:47.910 --> 00:40:49.560
not only affordability.
861
00:40:49.560 --> 00:40:51.420
Right, so it seemed like your argument
862
00:40:51.420 --> 00:40:53.880
of whether or not it's affordable is neither here nor there.
863
00:40:53.880 --> 00:40:56.490
I mean, certainly the judge took a count
864
00:40:56.490 --> 00:41:01.490
of what the litigant expenses were
865
00:41:01.800 --> 00:41:03.480
and income.
866
00:41:03.480 --> 00:41:04.703
Absolutely.
867
00:41:06.030 --> 00:41:07.440
But the use and occupancy,
868
00:41:07.440 --> 00:41:10.020
let's just say for the sake of argument, is not affordable.
869
00:41:10.020 --> 00:41:12.900
Is it your position that even though it's not affordable
870
00:41:12.900 --> 00:41:15.820
and therefore preventing access to the appellate court
871
00:41:16.800 --> 00:41:19.410
that this is constitutional?
872
00:41:19.410 --> 00:41:21.960
Judge, I think I could address it very simply
873
00:41:21.960 --> 00:41:23.550
by answering the question.
874
00:41:23.550 --> 00:41:25.050
It is affordable.
875
00:41:25.050 --> 00:41:25.883
The occupants-
'Cause see,
876
00:41:25.883 --> 00:41:28.350
then that falls into the argument
877
00:41:28.350 --> 00:41:30.240
that your opposing counsel is making,
878
00:41:30.240 --> 00:41:32.010
is that it must be affordable.
879
00:41:32.010 --> 00:41:35.610
My question is, even if it isn't affordable,
880
00:41:35.610 --> 00:41:39.030
is use and occupancy that is not affordable
881
00:41:39.030 --> 00:41:41.700
and therefore precludes access to the appellate court,
882
00:41:41.700 --> 00:41:42.783
constitutional?
883
00:41:43.860 --> 00:41:46.103
Judge, it is constitutional.
884
00:41:47.760 --> 00:41:51.730
This is initially an application of statutory mandate.
885
00:41:54.270 --> 00:41:59.270
And when that statute is interpreted by King and Davis,
886
00:41:59.576 --> 00:42:03.390
the income of the appellant is only one factor.
887
00:42:03.390 --> 00:42:04.290
It's a balancing
888
00:42:04.290 --> 00:42:09.030
because we have not just access to justice issues,
889
00:42:09.030 --> 00:42:12.330
but we have the property rights of the owner
890
00:42:12.330 --> 00:42:13.830
who are sitting on the sidewalk.
891
00:42:13.830 --> 00:42:15.630
And that's actually your argument, right?
892
00:42:15.630 --> 00:42:19.410
The argument is that it's rational
893
00:42:19.410 --> 00:42:22.597
for the legislature to have said,
894
00:42:22.597 --> 00:42:25.860
"We can't just consider one side of the V here.
895
00:42:25.860 --> 00:42:28.440
We have to consider the affordability, yes,
896
00:42:28.440 --> 00:42:32.100
but also the fact that there are property rights at issue
897
00:42:32.100 --> 00:42:34.890
that now have come to quote, unquote, 'final judgment,'
898
00:42:34.890 --> 00:42:36.720
although on appeal."
899
00:42:36.720 --> 00:42:39.150
And so we're gonna set this rate
900
00:42:39.150 --> 00:42:41.040
considering all of these various factors.
901
00:42:41.040 --> 00:42:41.873
Yes, Judge.
902
00:42:41.873 --> 00:42:42.706
[Justice Wendlandt] thank you.
903
00:42:42.706 --> 00:42:43.590
Thank you, Judge.
904
00:42:43.590 --> 00:42:46.260
And even to go one step beyond that,
905
00:42:46.260 --> 00:42:49.680
not only do we have another side of the V,
906
00:42:49.680 --> 00:42:52.380
but we've also had a lot of process here.
907
00:42:52.380 --> 00:42:54.570
I mean, I understand that this is on appeal,
908
00:42:54.570 --> 00:42:57.060
but we've had a foreclosure process.
909
00:42:57.060 --> 00:43:01.620
We've had a summary process.
910
00:43:01.620 --> 00:43:06.620
You know, we're looking at sort of appellate rights here,
911
00:43:07.680 --> 00:43:10.740
you know, not sort of Matthews versus Eldridge
912
00:43:10.740 --> 00:43:12.270
initial stage issues.
913
00:43:12.270 --> 00:43:14.550
You know, it's much more complicated
914
00:43:14.550 --> 00:43:16.710
from a constitutional perspective,
915
00:43:16.710 --> 00:43:18.720
than there's no process here,
916
00:43:18.720 --> 00:43:20.370
that you're being deprived of process
917
00:43:20.370 --> 00:43:22.743
'cause you've had a lot of process.
918
00:43:23.850 --> 00:43:26.500
I do agree with you, Your Honor, and thank you all.