WEBVTT
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SJC-13513.
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Rosanna Garcia et al.,
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the Executive Office of Housing and Livable Communities.
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(papers rustling)
(justices whispering)
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Okay, Attorney Gelfman, whenever you're ready.
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Good afternoon, Your Honors, and may it please the court.
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My name is Ilana Gelfman,
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and I represent the appellants and cross-appellees,
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a class of applicants to and participants in
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the Commonwealth's Emergency Assistance Shelter Program.
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This appeal addresses the meaning
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of the Immediate Placement Clause,
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and I'd like to start with a point
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on which I think both parties agree,
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which is that the ultimate goal of the clause
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is to ensure that actually eligible families
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aren't relegated to sleeping on sidewalks
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and in T stops because, and in a time of crisis,
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they lack the third party verifications
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to show that they're eligible.
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But where the parties differ
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is whether the word families in the clause
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creates an exception for third-party verifications
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of identity and family relationships.
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But the clause itself answers that question.
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Regardless of word order,
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a word such as families can't be construed
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to conflict with its modifying clauses.
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So consider the phrase, "Children up to age 21."
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The words up to age 21 are a subsequent modifying clause,
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just like the clauses here.
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That doesn't mean that the word children can be construed
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out of the context of that clause
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or independently of that clause.
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In many contexts, children could be construed
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to mean minors.
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In the context of a phrase, "Children up to age 21,"
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clearly it doesn't.
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The modifying clause impacts the meaning of the word
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that it modifies.
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And the same rule is applicable
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in the Immediate Placement Clause.
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The word families can't be construed
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to conflict with the clauses that modify it,
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and there are two of them.
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So HLC suggests that the word families
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must be construed or impliedly construed to mean
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families that have submitted third-party verifications
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of family status.
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But if that's what the word meant or implied,
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then the statute would have to read differently.
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It would have to say, "Families that have submitted
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third-party verifications of family status,
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but who need additional time to obtain
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any other third-party verifications."
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Or families who have submitted third-party verification-
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Isn't it simpler than that?
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I mean, I'm just reading the language.
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"Shall immediately provide shelter for up to 30 days
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to families who appear to be eligible for shelter,"
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quote, "Based on the statements provided by the family."
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I mean, isn't that what this, I mean,
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and it's 30 days of shelter,
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and it's if they say they're a family
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and there's any other information there that supports it,
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isn't that enough?
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I mean, I just can't, I don't follow the antecedents
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and the other things.
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It just says, "Who appear to be eligible for shelter
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based on the statements provided by the family."
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That's absolutely correct, Your Honor.
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It is that simple.
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And I think that the legislature added another clause
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to make really clear that information
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that is possessed by HLC,
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that doesn't include third-party verifications
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that are not possessed by HLC,
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but fundamentally it boils down to
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presumptive eligibility is based on apparent eligibility.
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And how do we determine it?
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The statute tells us,
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it's based on the statements provided by the family itself
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and any other information in the possession of HLC.
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It isn't based on this third category
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of third-party verifications that HLC would like to collect.
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So that's absolutely right, Your Honor,
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it is a very simple statute.
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Nonetheless, HLC does make a number of arguments
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about the meaning of the word families.
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For instance, HLC suggests that the word families
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must either mean third-party family, third, excuse me,
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families that have submitted third-party verifications,
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or at least create the discretion for HLC to require them,
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because otherwise, according to HLC,
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the legislature would've used the word applicant
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or the word person.
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But that would've created ambiguity in the statute,
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because that would've made it unclear
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whether the legislature was requiring HLC
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to provide shelter to the entire family.
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And similarly, if the statute had included the phrase
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applicant group instead of families,
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it would've created ambiguity as well,
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because that would've created ambiguity about
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whether the immediate placement clause
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applies to pregnant women.
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Certainly on its face, it's unclear that a pregnant woman
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is an applicant group, so-
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But isn't the argument that the agency gets
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is tasked with figuring out who is a family?
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Like a group of people come up
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and they're supposed to say, "This is what a family is,"
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and whether or not this group of people
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fits that definition.
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So, Your Honor, it's true that
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when a group of people arrives,
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HLC can't know for sure about whether they're lying
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and whether they are in fact definitely a family.
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But the flip side of that is that HLC can't tell for sure
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that they're not a family.
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So we consider how that applies as a practical matter.
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And this is a common situation.
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You have a mother with two children,
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and they're fleeing from DV in the middle of the night,
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and the mother doesn't have access
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to any of the underlying paperwork,
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because her abuser locks her away from it
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as part of the exercise of coercive control.
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And that mother and her children are a real family
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by any definition of the word family.
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And they also are actually eligible,
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but they lack those particular third-party verifications.
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So when they come into HLC, HLC will say,
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"No, you're not presumptively eligible,
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because you're missing those verifications."
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And then under the plain text of the statute,
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HLC is denying shelter to a family
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that appears eligible based on its own statements
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and any other information
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in the possession of the executive office.
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But they're still doing,
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they're gonna have to make that determine,
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I mean, when 20 people show up
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and they don't look like each other,
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and they say they're a family,
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you understand that there's gonna raise some concerns here
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that it's, you know, that neighborhood has showed up
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and not a family.
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But at least in that 30-day period,
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it seems like they get the benefit of the doubt.
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I mean, I understand the agencies gets to dig in,
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but we're really dealing with this
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sort of emergency period, right?
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Just the first 30 days.
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We are dealing with an emergency period.
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And then additionally, I would say if two people
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who are obviously 90 years old show up
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and they say, "Oh, he's my son,"
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and he's only 10, arguably that's other information
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in the possession of the agency.
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What is clear from the statute that they can't require-
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But it seems to meet the definition, right?
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The 90-year-old, two 90 year olds show up,
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and, "This is my daughter," it is based on their statements.
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Can see why that gives them some concern, right?
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I can, but I do think that there is reason to believe
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that if it's very obvious that there is no minor
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and there's no minor child-
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It's other information
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in the possession of the department,
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which means they can't dig into it,
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but if they have information that's apparent on its face,
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they can exclude.
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Exactly.
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So the information that they might have is,
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"Oh my goodness, there's two 90-year-old people
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in front of us.
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There's very obvious to us that there is no minor here."
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And they're not even claiming to be pregnant women.
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But in other circumstances,
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HLC might demand third-party verifications,
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and that's the part that's clearly prohibited.
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That is a part that doesn't count as other information
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in the possession of the agency.
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Obviously they don't have those-
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In possession of the department
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means they can't do any digging.
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Yes.
Basically.
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Yes, and the department does, I should say,
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a little bit of digging, because there is some information
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that they have available to them,
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both from their own databases and also from
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the Department of Transitional Assistance's database.
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So they do have-
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Or perhaps I should be more clear,
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ask for third-party verification, not-
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Yes, exactly.
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That's where the line is.
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And that's what the statute made really clear,
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is it set up a dichotomy.
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And on one side of the dichotomy is
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the statements that are made by the families
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who are applying, and other information
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that's in the hands of HLC.
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And on the other side of the dichotomy
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is third-party verifications, and HLC, despite that,
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asks for third-party verifications and demands them
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and then denies shelter in violation of
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the Immediate Placement Clause.
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So the judge basically said that
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when you get to the word families,
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families was a precondition
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before you get to the rest of it.
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Yes, and so that was why I started talking about
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the highfalutin grammar things,
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which is the fact that the word families
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precedes these other clauses
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doesn't mean that it can conflict with them.
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How do we-
Could it-
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Sorry.
No, go ahead.
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How do we get to the conclusion that families,
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as used in the budget acts, includes pregnant women?
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Because they appear to be two different categories
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in the core legislation.
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I forget the statute.
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So it says needy families and pregnant women.
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So how do we then get pregnant women
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within the word families in the requirement
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that they get emergency shelter?
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So for most, but not all
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of the rest of the enabling statute,
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the statute does speak just in terms of families
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in a way that if it didn't include pregnant women,
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would mean that the shelter program
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weren't available at all for pregnant women.
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So many times when the statute used the word family,
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it means all of those types of families.
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And that includes not only families with children,
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but also pregnant women.
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Is that just a common matter of construction
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or is that a matter of language somewhere?
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If you look at the statute itself,
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it never defines the term family, if that's your question.
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The regulations actually do define the word family,
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but the statute does not define the word families.
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Instead, if you look at the layout of the statute,
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which starts with that sentence,
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and then follows, it's using families to include
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both of those groups, except for in subsection G,
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where the enabling act often says
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families and pregnant women and divides them out again.
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Counselor, I'm still struggling a little bit
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with getting around the issue of the ambiguity
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and recognizing that the Feds have curtailed
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agency deference.
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It's still alive and well here in the Commonwealth.
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And so I'm still struggling with,
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if we begin with that there is this ambiguity.
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I know we're getting into kind of
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all of the construction language and what modifies what,
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but they have dealt with this, and we have said repeatedly
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that their interpretations are entitled to this deference.
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And you say that it's entitled to no deference.
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Could you talk to me about why that would be no deference?
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And that's the sort of language that this court has used
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when it says that the test does not reach step two.
267
00:11:54.780 --> 00:11:58.080
So when a statute is unambiguous,
268
00:11:58.080 --> 00:12:00.870
this court has said that agencies deserve no deference.
269
00:12:00.870 --> 00:12:03.150
And that's the situation here, because when you imply-
270
00:12:03.150 --> 00:12:04.737
But let's see if we disagree with you on that,
271
00:12:04.737 --> 00:12:07.320
'cause we're getting into these hyper-technical
272
00:12:07.320 --> 00:12:08.580
what goes with what.
273
00:12:08.580 --> 00:12:10.800
But let's say we disagree with you,
274
00:12:10.800 --> 00:12:14.400
and say that it is ambiguous, and that here's the agency
275
00:12:14.400 --> 00:12:15.870
that's charged with implementation
276
00:12:15.870 --> 00:12:17.850
and all of the other things,
277
00:12:17.850 --> 00:12:20.460
and coupled with the realities of
278
00:12:20.460 --> 00:12:25.460
there's only a finite money to administer all of these.
279
00:12:26.477 --> 00:12:28.950
So what do we do with that?
280
00:12:28.950 --> 00:12:30.300
Assuming we disagree with you
281
00:12:30.300 --> 00:12:35.157
that the text of the statute itself is ambiguous?
282
00:12:36.050 --> 00:12:38.700
If the court determines that this statute is ambiguous,
283
00:12:38.700 --> 00:12:42.270
the proper disposition is to remand the case
284
00:12:42.270 --> 00:12:43.312
to the superior court,
285
00:12:43.312 --> 00:12:46.170
because the superior court did not consider
286
00:12:46.170 --> 00:12:48.480
and said it was legally irrelevant,
287
00:12:48.480 --> 00:12:51.570
whether at the time that the statute was enacted,
288
00:12:51.570 --> 00:12:55.890
the agency that was then in charge of the shelter system
289
00:12:55.890 --> 00:12:58.080
interpreted it differently than HLC does.
290
00:12:58.080 --> 00:13:00.270
But this court has rejected that multiple times
291
00:13:00.270 --> 00:13:02.550
and said, "No, you can't just disregard that,"
292
00:13:02.550 --> 00:13:05.280
because how we determine agency deference
293
00:13:05.280 --> 00:13:07.200
and the appropriate weight to give to
294
00:13:07.200 --> 00:13:09.642
an agency interpretation depends on
295
00:13:09.642 --> 00:13:12.180
whether the agency was involved in the drafting,
296
00:13:12.180 --> 00:13:14.340
depends on whether that interpretation
297
00:13:14.340 --> 00:13:17.760
is contemporaneous with the enactment of the statute,
298
00:13:17.760 --> 00:13:18.990
and whether the interpretation
299
00:13:18.990 --> 00:13:20.610
has been consistent throughout.
300
00:13:20.610 --> 00:13:23.160
And the parties stipulated that, in fact,
301
00:13:23.160 --> 00:13:24.900
we disagreed about whether or not
302
00:13:24.900 --> 00:13:26.580
the Department of Transitional Assistance,
303
00:13:26.580 --> 00:13:28.770
which then was in charge of the shelter program,
304
00:13:28.770 --> 00:13:32.910
interpreted the statute in the same way that HLC does.
305
00:13:32.910 --> 00:13:34.117
But because we both thought,
306
00:13:34.117 --> 00:13:36.060
"Oh, this statute is unambiguous,
307
00:13:36.060 --> 00:13:38.008
let's get an answer without going through,"
308
00:13:38.008 --> 00:13:41.820
all of this discovery and probably an evidentiary hearing,
309
00:13:41.820 --> 00:13:44.520
we asked the court, "Can you determine it based on
310
00:13:44.520 --> 00:13:47.137
the number of facts that we've stipulated?"
311
00:13:47.137 --> 00:13:51.479
So if you think that the statute is ambiguous,
312
00:13:51.479 --> 00:13:54.570
based on the record of stipulated facts,
313
00:13:54.570 --> 00:13:56.430
then the proper response would be to remand it
314
00:13:56.430 --> 00:13:59.069
to the superior court where the parties have agreed
315
00:13:59.069 --> 00:14:03.120
that we would engage in limited discovery about that issue
316
00:14:03.120 --> 00:14:05.280
and then either engage in a second round
317
00:14:05.280 --> 00:14:08.520
of summary judgment briefing or an evidentiary hearing.
318
00:14:08.520 --> 00:14:11.070
Because it seems to me that you're both saying
319
00:14:11.070 --> 00:14:12.600
it's unambiguous.
Yes.
320
00:14:12.600 --> 00:14:15.450
But arriving to two very different conclusions,
321
00:14:15.450 --> 00:14:18.750
which seems to suggest that it's ambiguous.
322
00:14:18.750 --> 00:14:20.010
I don't think so, Your Honor.
323
00:14:20.010 --> 00:14:21.540
I think there's actually a lot of case law
324
00:14:21.540 --> 00:14:23.490
in which this court says no.
325
00:14:23.490 --> 00:14:25.110
The fact that there are two opinions
326
00:14:25.110 --> 00:14:27.723
doesn't mean that they're both reasonably right.
327
00:14:29.824 --> 00:14:33.120
Your Honors, I do just wanna touch on one other issue,
328
00:14:33.120 --> 00:14:35.490
because obviously the briefs have lots of information
329
00:14:35.490 --> 00:14:36.420
about the grammar rules
330
00:14:36.420 --> 00:14:38.730
and about the meaning of the word families.
331
00:14:38.730 --> 00:14:40.440
But I did wanna touch on one issue
332
00:14:40.440 --> 00:14:43.560
at the end of HLC's reply brief,
333
00:14:43.560 --> 00:14:48.150
which is its suggestion that line items should be construed
334
00:14:48.150 --> 00:14:51.960
as if they are renegotiated, reinterpreted.
335
00:14:51.960 --> 00:14:54.900
The research is done about them each year
336
00:14:54.900 --> 00:14:55.920
so that they're interpreted as
337
00:14:55.920 --> 00:14:57.570
completely new statutes every year.
338
00:14:57.570 --> 00:14:58.590
And the reason I wanna talk about it
339
00:14:58.590 --> 00:15:03.300
is because I think that that approach both is novel,
340
00:15:03.300 --> 00:15:07.020
but would also do serious damage to the budgeting process.
341
00:15:07.020 --> 00:15:09.720
If you look at the way the budget actually works,
342
00:15:09.720 --> 00:15:12.300
for instance, the shelter line item,
343
00:15:12.300 --> 00:15:15.270
most years, the entire thing is either the same every year
344
00:15:15.270 --> 00:15:17.010
or one provision has been added
345
00:15:17.010 --> 00:15:18.675
or one provision has been deleted.
346
00:15:18.675 --> 00:15:20.867
It's a lot more like an amendment process
347
00:15:20.867 --> 00:15:24.180
than a process of renegotiating every year.
348
00:15:24.180 --> 00:15:27.180
And the difficulty particularly is that HLC asks this court
349
00:15:27.180 --> 00:15:31.350
to assume that each year when the legislature enacts
350
00:15:31.350 --> 00:15:32.940
the line items and the provisions,
351
00:15:32.940 --> 00:15:35.040
and there are 900 pages of the budget,
352
00:15:35.040 --> 00:15:37.290
it looks at the regulations relating to
353
00:15:37.290 --> 00:15:39.930
all of those line items and all of those provisions
354
00:15:39.930 --> 00:15:41.730
and determines, "Oh, is this consistent?"
355
00:15:41.730 --> 00:15:43.558
And if not, it changes the statute.
356
00:15:43.558 --> 00:15:45.298
But that's just not happening,
357
00:15:45.298 --> 00:15:47.485
and to require that of the legislature
358
00:15:47.485 --> 00:15:51.900
would make the budgeting process unworkable.
359
00:15:51.900 --> 00:15:54.930
Again, the budget is already 900 pages long,
360
00:15:54.930 --> 00:15:57.150
and as you know, the legislature is already
361
00:15:57.150 --> 00:16:00.030
late on it most years, so I urge Your Honors
362
00:16:00.030 --> 00:16:04.140
not to adopt the presumption that's been suggested by HLC,
363
00:16:04.140 --> 00:16:06.203
because I do not think it would lead to
364
00:16:06.203 --> 00:16:08.280
a workable budgeting process.
365
00:16:08.280 --> 00:16:11.190
And I also don't think it would lead to interpretations
366
00:16:11.190 --> 00:16:15.393
that are geared at arriving at the legislative intent.
367
00:16:16.350 --> 00:16:19.830
Your Honors, if you have no further questions,
368
00:16:19.830 --> 00:16:20.970
we rest on our briefs.
369
00:16:20.970 --> 00:16:22.593
Okay.
Thank you very much.
370
00:16:24.660 --> 00:16:25.803
Attorney Parr.
371
00:16:33.690 --> 00:16:37.080
Good afternoon, Chief Justice Budd, Associate Justices.
372
00:16:37.080 --> 00:16:39.150
Assistant Attorney General Kim Parr
373
00:16:39.150 --> 00:16:42.690
for the Executive Office of Housing and Livable Communities.
374
00:16:42.690 --> 00:16:45.360
The immediate placement clause unambiguously reflects
375
00:16:45.360 --> 00:16:48.000
the legislative intent to provide shelter
376
00:16:48.000 --> 00:16:50.790
to people who are families, not anyone else,
377
00:16:50.790 --> 00:16:52.680
and who appear to be eligible for shelter
378
00:16:52.680 --> 00:16:54.000
based on their own statements
379
00:16:54.000 --> 00:16:56.326
and information in the agency's possession,
380
00:16:56.326 --> 00:16:59.040
but who need more time to definitively establish
381
00:16:59.040 --> 00:17:00.630
their eligibility.
382
00:17:00.630 --> 00:17:03.540
HLC's interpretation gives effect to that intent
383
00:17:03.540 --> 00:17:04.380
in two ways.
384
00:17:04.380 --> 00:17:07.282
First, it confirms that applicants are families,
385
00:17:07.282 --> 00:17:09.780
that adults seeking shelter with a child
386
00:17:09.780 --> 00:17:12.600
has some cognizable relationship to the child,
387
00:17:12.600 --> 00:17:15.643
that an adult seeking shelter without a child is pregnant,
388
00:17:15.643 --> 00:17:18.300
and that every applicant is who they say they are,
389
00:17:18.300 --> 00:17:21.390
so that the agency may confirm their family status.
390
00:17:21.390 --> 00:17:24.300
And then second, for those applicants who are families,
391
00:17:24.300 --> 00:17:27.390
the agency determines whether they appear to satisfy
392
00:17:27.390 --> 00:17:31.500
the eligibility criteria set by statute and regulation.
393
00:17:31.500 --> 00:17:33.570
These are things like the income threshold,
394
00:17:33.570 --> 00:17:35.310
their reasons for homelessness,
395
00:17:35.310 --> 00:17:38.058
whether they lack feasible alternative housing.
396
00:17:38.058 --> 00:17:40.650
And if the families do appear to satisfy
397
00:17:40.650 --> 00:17:42.239
those eligibility criteria,
398
00:17:42.239 --> 00:17:45.090
they qualify for immediate placement with 30 days
399
00:17:45.090 --> 00:17:49.050
to obtain whatever eligibility verifications may be missing.
400
00:17:49.050 --> 00:17:51.150
That's what the Immediate Placement Clause says,
401
00:17:51.150 --> 00:17:53.040
and that's what the regulation does.
402
00:17:53.040 --> 00:17:55.870
I guess the question I've got is,
403
00:17:55.870 --> 00:17:59.843
other than families being a precondition,
404
00:17:59.843 --> 00:18:04.843
the clause says that families, then it says who appear,
405
00:18:05.490 --> 00:18:08.097
which means there's some level of speculation,
406
00:18:08.097 --> 00:18:10.530
to be eligible for such shelter
407
00:18:10.530 --> 00:18:11.790
based upon their own statements
408
00:18:11.790 --> 00:18:15.206
and/or information in the possession of the department,
409
00:18:15.206 --> 00:18:18.720
meaning that there's no, those two clauses mean
410
00:18:18.720 --> 00:18:21.570
there's no third-party verification.
411
00:18:21.570 --> 00:18:24.180
And your position is it does require
412
00:18:24.180 --> 00:18:27.270
a third-party verification for eligibility.
413
00:18:27.270 --> 00:18:31.560
'Cause the point of it is presumptive eligibility.
414
00:18:31.560 --> 00:18:32.578
I'm sorry, I didn't hear that last part.
415
00:18:32.578 --> 00:18:35.370
The point of it is presumptive eligibility, right?
416
00:18:35.370 --> 00:18:38.160
Eligibility, not family status.
417
00:18:38.160 --> 00:18:40.279
The entire statutory scheme is set up
418
00:18:40.279 --> 00:18:42.900
so that this program is provided only to
419
00:18:42.900 --> 00:18:45.450
families with children and pregnant people.
420
00:18:45.450 --> 00:18:48.937
So could you address the phrase,
421
00:18:48.937 --> 00:18:51.178
"Who appeared to be eligible,"
422
00:18:51.178 --> 00:18:54.411
and also address the two criteria
423
00:18:54.411 --> 00:18:56.885
based on statements provided by the family
424
00:18:56.885 --> 00:18:58.230
and other information
425
00:18:58.230 --> 00:19:01.890
in the present possession of the department?
426
00:19:01.890 --> 00:19:05.070
Yes, and both of those are anchored in the word family.
427
00:19:05.070 --> 00:19:07.178
So I do just wanna make the preliminary comment
428
00:19:07.178 --> 00:19:11.610
that in framing the Immediate Placement Clause this way,
429
00:19:11.610 --> 00:19:14.520
the legislature contemplated the reality in which we exist,
430
00:19:14.520 --> 00:19:17.100
that some people are families and some are not.
431
00:19:17.100 --> 00:19:19.380
And if the legislature had intended to include
432
00:19:19.380 --> 00:19:20.790
people who were not families,
433
00:19:20.790 --> 00:19:22.345
but who appeared to be families
434
00:19:22.345 --> 00:19:25.140
within the benefit of this clause,
435
00:19:25.140 --> 00:19:27.240
it would've used different language,
436
00:19:27.240 --> 00:19:29.850
such as the word applicant, groups of applicants,
437
00:19:29.850 --> 00:19:31.590
to cover the concern plaintiffs raised
438
00:19:31.590 --> 00:19:33.690
about the status of pregnant women.
439
00:19:33.690 --> 00:19:35.820
And we know that the agency is that
440
00:19:35.820 --> 00:19:37.980
the legislature is able to do that.
441
00:19:37.980 --> 00:19:39.900
There are examples where the legislature
442
00:19:39.900 --> 00:19:43.170
has referred to recipients and applicants.
443
00:19:43.170 --> 00:19:46.607
That's in General Law chapter 23b, section 30b e,
444
00:19:46.607 --> 00:19:49.350
and that actually requires the agency
445
00:19:49.350 --> 00:19:52.080
to notify recipients and applicants of the circumstances
446
00:19:52.080 --> 00:19:53.940
when third-party affidavits may be used
447
00:19:53.940 --> 00:19:55.860
to satisfy verification requirements.
448
00:19:55.860 --> 00:19:59.670
I think the question is why is it
449
00:19:59.670 --> 00:20:03.566
that this provision does not allow,
450
00:20:03.566 --> 00:20:07.440
even if it's a threshold determination
451
00:20:07.440 --> 00:20:11.430
as to whether the group of people constitutes a family,
452
00:20:11.430 --> 00:20:15.660
it appears from this language that the verification of that
453
00:20:15.660 --> 00:20:18.543
can come from that group of people alone.
454
00:20:19.560 --> 00:20:22.710
Why is that not what this language means?
455
00:20:22.710 --> 00:20:25.740
Why is it that determining,
456
00:20:25.740 --> 00:20:30.570
what language are you relying on to say that
457
00:20:30.570 --> 00:20:34.470
if you're determining whether the group is a family,
458
00:20:34.470 --> 00:20:39.090
that requires different proof
459
00:20:39.090 --> 00:20:40.773
other than your own regulation?
460
00:20:41.970 --> 00:20:43.500
Yes, thank you, Your Honor.
461
00:20:43.500 --> 00:20:45.630
We point to the structure of the statute.
462
00:20:45.630 --> 00:20:50.630
So families is addressing the universe of people
463
00:20:51.420 --> 00:20:52.890
who may be eligible for shelter,
464
00:20:52.890 --> 00:20:55.080
and then the clauses who appear to be eligible
465
00:20:55.080 --> 00:20:56.100
based on their statements
466
00:20:56.100 --> 00:20:59.220
and information in the possession of the department,
467
00:20:59.220 --> 00:21:00.360
but who need additional time
468
00:21:00.360 --> 00:21:02.130
to obtain any third-party verifications
469
00:21:02.130 --> 00:21:05.790
is further narrowing that pool of families.
470
00:21:05.790 --> 00:21:08.677
But then we go back down later to the language that says,
471
00:21:08.677 --> 00:21:11.640
"Provided further, dot, dot, dot,
472
00:21:11.640 --> 00:21:14.520
and shall accept verifications from a family
473
00:21:14.520 --> 00:21:16.560
whenever reasonable."
474
00:21:16.560 --> 00:21:21.560
So why doesn't that also allow family verification
475
00:21:21.748 --> 00:21:25.200
for the fact of being a family?
476
00:21:25.200 --> 00:21:28.860
That still contemplates that there will be a family
477
00:21:28.860 --> 00:21:30.630
and not some other type of group,
478
00:21:30.630 --> 00:21:33.840
so it still reiterates that threshold requirement
479
00:21:33.840 --> 00:21:36.870
that the legislature contemplates throughout the EA statute
480
00:21:36.870 --> 00:21:39.410
and the line item that this program is meant
481
00:21:39.410 --> 00:21:41.937
for families with children and pregnant people.
482
00:21:41.937 --> 00:21:46.170
But it's not just with families with children,
483
00:21:46.170 --> 00:21:48.420
it's families in crisis.
484
00:21:48.420 --> 00:21:51.657
So I'm still trying to figure out how is it that
485
00:21:51.657 --> 00:21:54.423
this threshold gating requirement,
486
00:21:55.679 --> 00:22:00.679
how do you justify the potential harm
487
00:22:01.680 --> 00:22:06.680
that might happen to otherwise vulnerable families
488
00:22:07.020 --> 00:22:09.333
who find themselves in crisis?
489
00:22:10.170 --> 00:22:13.410
Based on the plain language of the immediate clause,
490
00:22:13.410 --> 00:22:15.550
I think we see a legislative intent
491
00:22:15.550 --> 00:22:20.550
to recognize that crisis and that difficulty
492
00:22:20.550 --> 00:22:23.430
for people who are actually families,
493
00:22:23.430 --> 00:22:24.930
and to loosen the requirements.
494
00:22:24.930 --> 00:22:27.690
But if there's any ambiguity, as you've had suggested
495
00:22:27.690 --> 00:22:30.512
in the previous conversation,
496
00:22:30.512 --> 00:22:33.080
then the reason for requiring identity
497
00:22:33.080 --> 00:22:37.350
in family relationships is well-supported
498
00:22:37.350 --> 00:22:42.090
by HLC's concerns around safety.
499
00:22:42.090 --> 00:22:46.470
So this is a program that does bring eligible recipients
500
00:22:46.470 --> 00:22:48.150
into close proximity to each other.
501
00:22:48.150 --> 00:22:50.550
It's providing physical shelter space
502
00:22:50.550 --> 00:22:53.220
so that adults and children who apply together
503
00:22:53.220 --> 00:22:55.050
are put into a shelter unit together.
504
00:22:55.050 --> 00:22:56.760
And they're put in close proximity
505
00:22:56.760 --> 00:22:59.550
to other adults and children that they don't know,
506
00:22:59.550 --> 00:23:01.253
often under the same roof in a congregate shelter.
507
00:23:01.253 --> 00:23:03.630
I mean, I think we could say safely
508
00:23:03.630 --> 00:23:06.212
that you both have great policy arguments, frankly,
509
00:23:06.212 --> 00:23:09.210
and you both are operating under limited budgets
510
00:23:09.210 --> 00:23:12.240
and in the housing crisis.
511
00:23:12.240 --> 00:23:14.550
So I don't know which way the policy cuts,
512
00:23:14.550 --> 00:23:16.193
actually, on this.
513
00:23:16.193 --> 00:23:18.960
I think if we get to ambiguity,
514
00:23:18.960 --> 00:23:21.090
it's deference owed to the policy judgements
515
00:23:21.090 --> 00:23:22.680
as made by the agency-
No, I-
516
00:23:22.680 --> 00:23:24.090
Even if the court were to reach a different decision.
517
00:23:24.090 --> 00:23:26.252
Right, if we get to ambiguity,
518
00:23:26.252 --> 00:23:27.822
you're right.
This still speaks to why-
519
00:23:27.822 --> 00:23:31.230
But I don't even get, so, okay, so they state,
520
00:23:31.230 --> 00:23:33.150
you're concerned that a group of people
521
00:23:33.150 --> 00:23:36.270
will state that they're a family even though they're not,
522
00:23:36.270 --> 00:23:38.700
which will create a safety issue.
523
00:23:38.700 --> 00:23:43.447
But I take it you're gonna be unwilling to say,
524
00:23:43.447 --> 00:23:45.360
"Oh, these, this is my family
525
00:23:45.360 --> 00:23:47.399
with a bunch of people you don't know."
526
00:23:47.399 --> 00:23:49.620
'Cause what, I mean-
527
00:23:49.620 --> 00:23:50.670
We don't know that, Your Honor.
528
00:23:50.670 --> 00:23:52.500
The agency can't make that assumption.
529
00:23:52.500 --> 00:23:55.530
The agency can't be expected to tell its frontline workers,
530
00:23:55.530 --> 00:23:58.983
who are often on the phone taking these applications,
531
00:23:58.983 --> 00:24:01.350
based on what my own lived experience,
532
00:24:01.350 --> 00:24:04.530
I'm gonna guess whether or not I can trust these folks
533
00:24:04.530 --> 00:24:07.050
are an actual family because they kind of look alike.
534
00:24:07.050 --> 00:24:09.912
What if you don't look like your child?
535
00:24:09.912 --> 00:24:12.570
What if just what Justice Gaziano asked you earlier,
536
00:24:12.570 --> 00:24:16.200
okay, so the statements, they state they're a family,
537
00:24:16.200 --> 00:24:18.973
but there's some objective issues here
538
00:24:18.973 --> 00:24:21.240
that suggest they may not be,
539
00:24:21.240 --> 00:24:23.927
then you are making a determination
540
00:24:23.927 --> 00:24:27.000
without requiring them to produce paperwork.
541
00:24:27.000 --> 00:24:30.330
Which, you know, as Justice Georges points out,
542
00:24:30.330 --> 00:24:31.830
these are families in crisis
543
00:24:31.830 --> 00:24:34.683
often running out of their house with nothing.
544
00:24:35.790 --> 00:24:38.580
You know, I couldn't find my kids' birth certificates
545
00:24:38.580 --> 00:24:39.780
if my life depended on it.
546
00:24:39.780 --> 00:24:44.780
I mean, so how do you do that, you know?
547
00:24:44.880 --> 00:24:47.700
That speaks to how the agency is implementing this.
548
00:24:47.700 --> 00:24:49.890
And as the record shows,
549
00:24:49.890 --> 00:24:53.670
that agency has established processes
550
00:24:53.670 --> 00:24:55.980
by which it's not a requirement
551
00:24:55.980 --> 00:24:57.930
that you present a birth certificate.
552
00:24:57.930 --> 00:25:00.675
There has to be some documents or other evidence.
553
00:25:00.675 --> 00:25:03.600
We're moving under the settlement agreement
554
00:25:03.600 --> 00:25:06.570
to a process by which it could be oral confirmation
555
00:25:06.570 --> 00:25:08.220
to a school.
556
00:25:08.220 --> 00:25:10.710
The legislature, pardon me, the agency
557
00:25:10.710 --> 00:25:14.940
is not insisting on these identity and family verifications
558
00:25:14.940 --> 00:25:16.170
to keep people out of shelter,
559
00:25:16.170 --> 00:25:18.420
it's to keep people safe in shelter.
560
00:25:18.420 --> 00:25:22.080
Plaintiffs acknowledge that this is a child welfare program.
561
00:25:22.080 --> 00:25:23.880
I don't think anyone's suggesting
562
00:25:23.880 --> 00:25:28.230
that the agency's interpretation is an, you know,
563
00:25:28.230 --> 00:25:32.850
unreasonable or ill-founded as a matter of policy.
564
00:25:32.850 --> 00:25:37.113
It's just whether that's driven by the language itself.
565
00:25:38.079 --> 00:25:39.960
And our position is that it is.
566
00:25:39.960 --> 00:25:43.140
The legislature chose to extend the benefit of the clause
567
00:25:43.140 --> 00:25:45.330
to families who appear to be eligible,
568
00:25:45.330 --> 00:25:48.120
not to people or applicants who appear to be families
569
00:25:48.120 --> 00:25:49.590
who appear to be eligible.
570
00:25:49.590 --> 00:25:52.740
That is what plaintiff's reading would suggest.
571
00:25:52.740 --> 00:25:56.910
Family status is something that exists on its own
572
00:25:56.910 --> 00:25:59.460
through the, it's a threshold showing
573
00:25:59.460 --> 00:26:02.610
that has to be made at every point in the statute.
574
00:26:02.610 --> 00:26:05.490
If you look through General Law chapter 23b, section 30,
575
00:26:05.490 --> 00:26:07.943
the first sentence is that this program was established
576
00:26:07.943 --> 00:26:12.937
for families with children and pregnant women.
577
00:26:12.937 --> 00:26:15.240
As Attorney Gelfman said, once you continue
578
00:26:15.240 --> 00:26:16.200
going through that statute,
579
00:26:16.200 --> 00:26:18.413
it's a constant refrain and presumption
580
00:26:18.413 --> 00:26:21.240
that families will be the ones who are eligible for
581
00:26:21.240 --> 00:26:24.146
and can obtain shelter.
582
00:26:24.146 --> 00:26:28.230
As discussed in a reply, I'm not sure if the court
583
00:26:28.230 --> 00:26:31.230
has to reach this question of how to define families,
584
00:26:31.230 --> 00:26:36.230
because the operative question is how operative, pardon me,
585
00:26:36.360 --> 00:26:40.830
because the dispositive question is how families intend,
586
00:26:40.830 --> 00:26:42.840
how the word families is intended to operate
587
00:26:42.840 --> 00:26:44.730
in the context of the clause.
588
00:26:44.730 --> 00:26:47.250
Was ambiguity argued below?
589
00:26:47.250 --> 00:26:48.083
It was.
590
00:26:48.083 --> 00:26:51.180
Did you argue that the statute was ambiguous?
591
00:26:51.180 --> 00:26:53.040
We argued first that the plain language
592
00:26:53.040 --> 00:26:54.510
supports the agency's position,
593
00:26:54.510 --> 00:26:56.040
and then if it was ambiguous-
594
00:26:56.040 --> 00:26:58.200
[Justice Wolohojian] So you made that in the alternative?
595
00:26:58.200 --> 00:27:00.450
Yes, it's entitled to substantial deference
596
00:27:00.450 --> 00:27:04.140
because it comports with the plain language of the statute,
597
00:27:04.140 --> 00:27:05.760
or at least the Immediate Placement Clause
598
00:27:05.760 --> 00:27:09.450
does not unambiguously bar the agency's approach.
599
00:27:09.450 --> 00:27:11.610
It harmonizes the immediate placement clause
600
00:27:11.610 --> 00:27:13.770
with the rest of the statutory scheme
601
00:27:13.770 --> 00:27:15.441
that contemplates putting people,
602
00:27:15.441 --> 00:27:17.430
that contemplates providing shelter
603
00:27:17.430 --> 00:27:18.960
to certain types of families.
604
00:27:18.960 --> 00:27:21.886
And it's supported by these important policy rationales
605
00:27:21.886 --> 00:27:24.242
that are supported in the record appendix
606
00:27:24.242 --> 00:27:29.242
where in the HSN DHCD, HLC's predecessor,
607
00:27:29.370 --> 00:27:31.890
describes situations where people have sought shelter
608
00:27:31.890 --> 00:27:33.300
who are not related.
609
00:27:33.300 --> 00:27:36.840
They raise concerns about people coming in, adults coming in
610
00:27:36.840 --> 00:27:38.910
without an authorized relationship with a child,
611
00:27:38.910 --> 00:27:41.670
perhaps for an improper purpose.
612
00:27:41.670 --> 00:27:43.333
And it also recognizes the fact that
613
00:27:43.333 --> 00:27:46.170
some families with children who are eligible for shelter-
614
00:27:46.170 --> 00:27:49.080
Was any of that, there's a legislative history discussion
615
00:27:49.080 --> 00:27:53.010
in this case too, by the other side,
616
00:27:53.010 --> 00:27:56.220
saying that what prompted this language
617
00:27:56.220 --> 00:28:01.220
was not what you're describing, but rather, you know,
618
00:28:01.283 --> 00:28:04.830
mothers sleeping in cars with their kids,
619
00:28:04.830 --> 00:28:07.950
sort of the conventional family
620
00:28:07.950 --> 00:28:10.350
being deprived of the shelter
621
00:28:10.350 --> 00:28:13.401
because they didn't have the paperwork, right?
622
00:28:13.401 --> 00:28:16.200
I don't think that's supported by the record,
623
00:28:16.200 --> 00:28:18.570
that's just an assertion that plaintiff's counsel has made.
624
00:28:18.570 --> 00:28:22.380
I thought they submitted drafts that, again,
625
00:28:22.380 --> 00:28:23.640
I've gotta go back and look,
626
00:28:23.640 --> 00:28:26.530
but I thought they've put in documentation
627
00:28:28.740 --> 00:28:30.810
including sort of the lobbying efforts
628
00:28:30.810 --> 00:28:33.990
and other things that went into this statute.
629
00:28:33.990 --> 00:28:38.250
Mass Coalition for the Homeless did submit an amicus brief
630
00:28:38.250 --> 00:28:40.560
that included its own advocacy
631
00:28:40.560 --> 00:28:44.760
for what the legislature should do, back in 2005, I think,
632
00:28:44.760 --> 00:28:47.940
but that only reflects one organization's views
633
00:28:47.940 --> 00:28:48.960
of what should be done.
634
00:28:48.960 --> 00:28:51.060
It's not anything from the legislature.
635
00:28:51.060 --> 00:28:52.710
It's not the type of legislative debate-
636
00:28:52.710 --> 00:28:53.718
By the way,
637
00:28:53.718 --> 00:28:54.690
is there any legislative history here?
638
00:28:54.690 --> 00:28:56.100
If we-
No.
639
00:28:56.100 --> 00:28:57.180
There's none.
640
00:28:57.180 --> 00:28:59.670
So you've been to the State House library.
641
00:28:59.670 --> 00:29:03.060
You guys have been to the state archives on this one.
642
00:29:03.060 --> 00:29:06.670
'Cause this is, one of the issues about ambiguity
643
00:29:07.920 --> 00:29:11.370
is we also can turn to legislative history
644
00:29:11.370 --> 00:29:14.344
if the statutory language is ambiguous.
645
00:29:14.344 --> 00:29:16.020
Have you done that yet?
646
00:29:16.020 --> 00:29:19.950
We've been litigating this issue for years now,
647
00:29:19.950 --> 00:29:22.230
and I believe back in the superior court,
648
00:29:22.230 --> 00:29:23.670
I definitely did a deep dive
649
00:29:23.670 --> 00:29:25.447
looking for legislative history.
650
00:29:25.447 --> 00:29:27.069
I didn't go to the state house
651
00:29:27.069 --> 00:29:29.640
when I was preparing the appeal,
652
00:29:29.640 --> 00:29:31.549
but as far as I know, neither side has found
653
00:29:31.549 --> 00:29:33.436
legislative debates on this topic.
654
00:29:33.436 --> 00:29:34.890
Plaintiffs-
655
00:29:34.890 --> 00:29:37.240
Counsel, could I interject one question on that though,
656
00:29:37.240 --> 00:29:42.240
because your opposing counsel says if we find ambiguity,
657
00:29:45.180 --> 00:29:48.233
your construction, or the agency's construction
658
00:29:48.233 --> 00:29:52.200
doesn't control, and that an order of remand
659
00:29:52.200 --> 00:29:54.329
is the appropriate remedy.
660
00:29:54.329 --> 00:29:56.460
I take it you disagree with that?
661
00:29:56.460 --> 00:29:57.480
I do disagree.
662
00:29:57.480 --> 00:30:01.200
And we did not agree that that should be the remedy
663
00:30:01.200 --> 00:30:02.550
at the superior court level.
664
00:30:02.550 --> 00:30:05.100
I think there was some suggestion that the parties agreed
665
00:30:05.100 --> 00:30:07.020
that if the court found it was ambiguous,
666
00:30:07.020 --> 00:30:09.780
it should go directly to additional discovery.
667
00:30:09.780 --> 00:30:10.830
We did not agree to that.
668
00:30:10.830 --> 00:30:12.690
That's reflected in the joint statement
669
00:30:12.690 --> 00:30:14.520
in the record appendix.
670
00:30:14.520 --> 00:30:16.290
The case law that plaintiffs cite
671
00:30:16.290 --> 00:30:21.290
about this appropriate weighing
672
00:30:21.570 --> 00:30:26.023
of a contemporaneous interpretation of a statute
673
00:30:27.240 --> 00:30:29.490
as opposed to a later adopted one
674
00:30:29.490 --> 00:30:31.428
doesn't fit neatly into this case.
675
00:30:31.428 --> 00:30:35.460
I don't think we are arguing for a general rule
676
00:30:35.460 --> 00:30:38.520
that line items must always be construed
677
00:30:38.520 --> 00:30:40.469
as these dynamic organisms
678
00:30:40.469 --> 00:30:43.980
that this rule could never apply to.
679
00:30:43.980 --> 00:30:46.440
But it doesn't fit well into this case,
680
00:30:46.440 --> 00:30:47.940
because we do have this history
681
00:30:47.940 --> 00:30:52.940
where it was first enacted in 2005,
682
00:30:53.220 --> 00:30:55.830
and then that was while the program was at DTA,
683
00:30:55.830 --> 00:30:59.037
then it went to DHCD, now it's with HLC,
684
00:30:59.037 --> 00:31:03.987
and the current interpretation has been in place since 2012.
685
00:31:03.987 --> 00:31:07.848
And in that time, the legislature has had ample opportunity
686
00:31:07.848 --> 00:31:11.610
to respond to what the agency has been doing.
687
00:31:11.610 --> 00:31:16.000
And if HLC got it wrong,
688
00:31:18.660 --> 00:31:20.580
the legislature knows how to fix it.
689
00:31:20.580 --> 00:31:25.530
There's at least one example from fiscal year 2020
690
00:31:25.530 --> 00:31:27.120
in which the legislature amended
691
00:31:27.120 --> 00:31:28.174
the EA line item to directly address-
692
00:31:28.174 --> 00:31:29.858
Can I ask a follow up on that?
693
00:31:29.858 --> 00:31:30.691
Yes.
694
00:31:30.691 --> 00:31:32.640
So given it's being hotly litigated
695
00:31:32.640 --> 00:31:35.130
during this entire time period,
696
00:31:35.130 --> 00:31:39.571
they're saying it means this, you're saying it means that.
697
00:31:39.571 --> 00:31:43.500
The legislature may just be waiting for the outcome.
698
00:31:43.500 --> 00:31:46.260
Is that possible too? (chuckles)
699
00:31:46.260 --> 00:31:49.560
Possibly, but if you look through the years,
700
00:31:49.560 --> 00:31:51.060
even in the past few years,
701
00:31:51.060 --> 00:31:54.570
the legislature's very involved in this particular program.
702
00:31:54.570 --> 00:31:56.280
It's making many tweaks.
703
00:31:56.280 --> 00:31:58.170
It's intervening when it sees fit.
704
00:31:58.170 --> 00:32:00.450
It's adding over time, different provisions
705
00:32:00.450 --> 00:32:03.090
for what the agency must report or do
706
00:32:03.090 --> 00:32:05.100
with families in shelter,
707
00:32:05.100 --> 00:32:07.710
always presupposing it's families in shelter.
708
00:32:07.710 --> 00:32:11.700
And to the example that I just started to reference,
709
00:32:11.700 --> 00:32:14.010
for the fiscal year 2022 budget,
710
00:32:14.010 --> 00:32:15.900
the legislature amended the line item
711
00:32:15.900 --> 00:32:18.420
to directly address another EA regulation
712
00:32:18.420 --> 00:32:20.460
regarding feasible alternative housing.
713
00:32:20.460 --> 00:32:22.283
So the line item refers specifically
714
00:32:22.283 --> 00:32:27.060
to 760 CMR 67.061 b.
715
00:32:27.060 --> 00:32:31.170
If the legislature thought HLC was getting it wrong here,
716
00:32:31.170 --> 00:32:32.520
it could have taken action
717
00:32:32.520 --> 00:32:37.520
in the past 12 or 13 fiscal years to course correct.
718
00:32:37.860 --> 00:32:40.350
But it hasn't, and under Falmouth and the other cases
719
00:32:40.350 --> 00:32:43.260
cited in our briefs, that's really telling
720
00:32:43.260 --> 00:32:45.810
and important evidence that HLC got it right.
721
00:32:45.810 --> 00:32:47.489
So how's it working practically?
722
00:32:47.489 --> 00:32:50.317
A group of people come up and say,
723
00:32:50.317 --> 00:32:52.530
"We're a family, we need emergency shelter."
724
00:32:52.530 --> 00:32:56.883
What kind of third-party verification is is requested?
725
00:32:59.400 --> 00:33:02.400
I hesitate only because-
As an example.
726
00:33:02.400 --> 00:33:03.510
We're an at in-between,
727
00:33:03.510 --> 00:33:06.150
because there's the HSN that was in place,
728
00:33:06.150 --> 00:33:08.550
and the agency is moving toward implementing
729
00:33:08.550 --> 00:33:09.870
the settlement agreement.
730
00:33:09.870 --> 00:33:12.480
And so I'm cautious to speak off the record.
731
00:33:12.480 --> 00:33:13.650
Okay.
But it's,
732
00:33:13.650 --> 00:33:16.110
it's kind of a combination of the two.
733
00:33:16.110 --> 00:33:18.884
So when somebody presents themselves for shelter,
734
00:33:18.884 --> 00:33:22.920
which is happening kind of, it's a split between in person
735
00:33:22.920 --> 00:33:24.428
and on the phone, I believe,
736
00:33:24.428 --> 00:33:27.120
the agency asks the applicants
737
00:33:27.120 --> 00:33:28.950
for the type of documents they have,
738
00:33:28.950 --> 00:33:30.322
tells them what would be needed
739
00:33:30.322 --> 00:33:34.650
to confirm their identity and family status or pregnancy.
740
00:33:34.650 --> 00:33:39.650
On identity of a adult, they require a photo ID.
741
00:33:41.550 --> 00:33:45.690
And there's examples of all sorts of things in the record.
742
00:33:45.690 --> 00:33:46.950
It could be your license,
743
00:33:46.950 --> 00:33:48.692
it could be a firearm identification card.
744
00:33:48.692 --> 00:33:52.230
But what about relationship between two people?
745
00:33:52.230 --> 00:33:53.317
And it's not-
746
00:33:53.317 --> 00:33:54.712
Relationship between two people,
747
00:33:54.712 --> 00:33:57.540
they do look for birth certificates
748
00:33:57.540 --> 00:34:00.150
or even medical records under the settlement agreement.
749
00:34:00.150 --> 00:34:01.865
The agency will start making phone calls
750
00:34:01.865 --> 00:34:04.920
to places like a school or a doctor,
751
00:34:04.920 --> 00:34:08.550
reliable third-party contacts who know this family
752
00:34:08.550 --> 00:34:13.230
and can say, "Oh yes, I know Jane Doe is Jimmy's mother.
753
00:34:13.230 --> 00:34:15.120
I can send you that information."
754
00:34:15.120 --> 00:34:16.770
I'm just confused now.
755
00:34:16.770 --> 00:34:19.140
So there's potential that this is gonna be mooted out
756
00:34:19.140 --> 00:34:21.240
by a settlement agreement?
757
00:34:21.240 --> 00:34:23.700
No, Your Honor, the settlement agreement,
758
00:34:23.700 --> 00:34:25.590
I will give due credit to plaintiff's counsel
759
00:34:25.590 --> 00:34:28.191
who've reserved their rights thoroughly
760
00:34:28.191 --> 00:34:30.150
in the portion of the settlement agreement
761
00:34:30.150 --> 00:34:31.710
discussing this process.
762
00:34:31.710 --> 00:34:35.889
So we did talk through the ways the agency should implement
763
00:34:35.889 --> 00:34:39.258
the confirmation of identity and family status
764
00:34:39.258 --> 00:34:42.180
for presumptive eligibility.
765
00:34:42.180 --> 00:34:44.970
But it constantly says this is still subject.
766
00:34:44.970 --> 00:34:47.850
If DHCD gets the authority from the court to do this,
767
00:34:47.850 --> 00:34:48.810
this is what they will do.
768
00:34:48.810 --> 00:34:49.643
Okay.
Okay.