-: SJC-13513.
Rosanna Garcia et al.,
the Executive Office of Housing and Livable Communities.
(papers rustling) (justices whispering)
-: Okay, Attorney Gelfman, whenever you're ready.
-: Good afternoon, Your Honors, and may it please the court.
My name is Ilana Gelfman,
and I represent the appellants and cross-appellees,
a class of applicants to and participants in
the Commonwealth's Emergency Assistance Shelter Program.
This appeal addresses the meaning
of the Immediate Placement Clause,
and I'd like to start with a point
on which I think both parties agree,
which is that the ultimate goal of the clause
is to ensure that actually eligible families
aren't relegated to sleeping on sidewalks
and in T stops because, and in a time of crisis,
they lack the third party verifications
to show that they're eligible.
But where the parties differ
is whether the word families in the clause
creates an exception for third-party verifications
of identity and family relationships.
But the clause itself answers that question.
Regardless of word order,
a word such as families can't be construed
to conflict with its modifying clauses.
So consider the phrase, "Children up to age 21."
The words up to age 21 are a subsequent modifying clause,
just like the clauses here.
That doesn't mean that the word children can be construed
out of the context of that clause
or independently of that clause.
In many contexts, children could be construed
to mean minors.
In the context of a phrase, "Children up to age 21,"
clearly it doesn't.
The modifying clause impacts the meaning of the word
that it modifies.
And the same rule is applicable
in the Immediate Placement Clause.
The word families can't be construed
to conflict with the clauses that modify it,
and there are two of them.
So HLC suggests that the word families
must be construed or impliedly construed to mean
families that have submitted third-party verifications
of family status.
But if that's what the word meant or implied,
then the statute would have to read differently.
It would have to say, "Families that have submitted
third-party verifications of family status,
but who need additional time to obtain
any other third-party verifications."
Or families who have submitted third-party verification-
-: Isn't it simpler than that?
I mean, I'm just reading the language.
"Shall immediately provide shelter for up to 30 days
to families who appear to be eligible for shelter,"
quote, "Based on the statements provided by the family."
I mean, isn't that what this, I mean,
and it's 30 days of shelter,
and it's if they say they're a family
and there's any other information there that supports it,
isn't that enough?
I mean, I just can't, I don't follow the antecedents
and the other things.
It just says, "Who appear to be eligible for shelter
based on the statements provided by the family."
-: That's absolutely correct, Your Honor.
It is that simple.
And I think that the legislature added another clause
to make really clear that information
that is possessed by HLC,
that doesn't include third-party verifications
that are not possessed by HLC,
but fundamentally it boils down to
presumptive eligibility is based on apparent eligibility.
And how do we determine it?
The statute tells us,
it's based on the statements provided by the family itself
and any other information in the possession of HLC.
It isn't based on this third category
of third-party verifications that HLC would like to collect.
So that's absolutely right, Your Honor,
it is a very simple statute.
Nonetheless, HLC does make a number of arguments
about the meaning of the word families.
For instance, HLC suggests that the word families
must either mean third-party family, third, excuse me,
families that have submitted third-party verifications,
or at least create the discretion for HLC to require them,
because otherwise, according to HLC,
the legislature would've used the word applicant
or the word person.
But that would've created ambiguity in the statute,
because that would've made it unclear
whether the legislature was requiring HLC
to provide shelter to the entire family.
And similarly, if the statute had included the phrase
applicant group instead of families,
it would've created ambiguity as well,
because that would've created ambiguity about
whether the immediate placement clause
applies to pregnant women.
Certainly on its face, it's unclear that a pregnant woman
is an applicant group, so-
-: But isn't the argument that the agency gets
is tasked with figuring out who is a family?
Like a group of people come up
and they're supposed to say, "This is what a family is,"
and whether or not this group of people
fits that definition.
-: So, Your Honor, it's true that
when a group of people arrives,
HLC can't know for sure about whether they're lying
and whether they are in fact definitely a family.
But the flip side of that is that HLC can't tell for sure
that they're not a family.
So we consider how that applies as a practical matter.
And this is a common situation.
You have a mother with two children,
and they're fleeing from DV in the middle of the night,
and the mother doesn't have access
to any of the underlying paperwork,
because her abuser locks her away from it
as part of the exercise of coercive control.
And that mother and her children are a real family
by any definition of the word family.
And they also are actually eligible,
but they lack those particular third-party verifications.
So when they come into HLC, HLC will say,
"No, you're not presumptively eligible,
because you're missing those verifications."
And then under the plain text of the statute,
HLC is denying shelter to a family
that appears eligible based on its own statements
and any other information
in the possession of the executive office.
-: But they're still doing,
they're gonna have to make that determine,
I mean, when 20 people show up
and they don't look like each other,
and they say they're a family,
you understand that there's gonna raise some concerns here
that it's, you know, that neighborhood has showed up
and not a family.
But at least in that 30-day period,
it seems like they get the benefit of the doubt.
I mean, I understand the agencies gets to dig in,
but we're really dealing with this
sort of emergency period, right?
Just the first 30 days.
-: We are dealing with an emergency period.
And then additionally, I would say if two people
who are obviously 90 years old show up
and they say, "Oh, he's my son,"
and he's only 10, arguably that's other information
in the possession of the agency.
What is clear from the statute that they can't require-
-: But it seems to meet the definition, right?
The 90-year-old, two 90 year olds show up,
and, "This is my daughter," it is based on their statements.
Can see why that gives them some concern, right?
-: I can, but I do think that there is reason to believe
that if it's very obvious that there is no minor
and there's no minor child-
-: It's other information
in the possession of the department,
which means they can't dig into it,
but if they have information that's apparent on its face,
they can exclude.
-: Exactly.
So the information that they might have is,
"Oh my goodness, there's two 90-year-old people
in front of us.
There's very obvious to us that there is no minor here."
And they're not even claiming to be pregnant women.
But in other circumstances,
HLC might demand third-party verifications,
and that's the part that's clearly prohibited.
That is a part that doesn't count as other information
in the possession of the agency.
Obviously they don't have those-
-: In possession of the department
means they can't do any digging.
-: Yes. -: Basically.
-: Yes, and the department does, I should say,
a little bit of digging, because there is some information
that they have available to them,
both from their own databases and also from
the Department of Transitional Assistance's database.
So they do have-
Justice Gaziano: Or perhaps I should be more clear,
ask for third-party verification, not-
-: Yes, exactly.
That's where the line is.
And that's what the statute made really clear,
is it set up a dichotomy.
And on one side of the dichotomy is
the statements that are made by the families
who are applying, and other information
that's in the hands of HLC.
And on the other side of the dichotomy
is third-party verifications, and HLC, despite that,
asks for third-party verifications and demands them
and then denies shelter in violation of
the Immediate Placement Clause.
-: So the judge basically said that
when you get to the word families,
families was a precondition
before you get to the rest of it.
-: Yes, and so that was why I started talking about
the highfalutin grammar things,
which is the fact that the word families
precedes these other clauses
doesn't mean that it can conflict with them.
-: How do we- -: Could it-
-: Sorry. -: No, go ahead.
-: How do we get to the conclusion that families,
as used in the budget acts, includes pregnant women?
Because they appear to be two different categories
in the core legislation.
I forget the statute.
So it says needy families and pregnant women.
So how do we then get pregnant women
within the word families in the requirement
that they get emergency shelter?
-: So for most, but not all
of the rest of the enabling statute,
the statute does speak just in terms of families
in a way that if it didn't include pregnant women,
would mean that the shelter program
weren't available at all for pregnant women.
So many times when the statute used the word family,
it means all of those types of families.
And that includes not only families with children,
but also pregnant women.
-: Is that just a common matter of construction
or is that a matter of language somewhere?
-: If you look at the statute itself,
it never defines the term family, if that's your question.
The regulations actually do define the word family,
but the statute does not define the word families.
Instead, if you look at the layout of the statute,
which starts with that sentence,
and then follows, it's using families to include
both of those groups, except for in subsection G,
where the enabling act often says
families and pregnant women and divides them out again.
-: Counselor, I'm still struggling a little bit
with getting around the issue of the ambiguity
and recognizing that the Feds have curtailed
agency deference.
It's still alive and well here in the Commonwealth.
And so I'm still struggling with,
if we begin with that there is this ambiguity.
I know we're getting into kind of
all of the construction language and what modifies what,
but they have dealt with this, and we have said repeatedly
that their interpretations are entitled to this deference.
And you say that it's entitled to no deference.
Could you talk to me about why that would be no deference?
-: And that's the sort of language that this court has used
when it says that the test does not reach step two.
So when a statute is unambiguous,
this court has said that agencies deserve no deference.
And that's the situation here, because when you imply-
-: But let's see if we disagree with you on that,
'cause we're getting into these hyper-technical
what goes with what.
But let's say we disagree with you,
and say that it is ambiguous, and that here's the agency
that's charged with implementation
and all of the other things,
and coupled with the realities of
there's only a finite money to administer all of these.
So what do we do with that?
Assuming we disagree with you
that the text of the statute itself is ambiguous?
-: If the court determines that this statute is ambiguous,
the proper disposition is to remand the case
to the superior court,
because the superior court did not consider
and said it was legally irrelevant,
whether at the time that the statute was enacted,
the agency that was then in charge of the shelter system
interpreted it differently than HLC does.
But this court has rejected that multiple times
and said, "No, you can't just disregard that,"
because how we determine agency deference
and the appropriate weight to give to
an agency interpretation depends on
whether the agency was involved in the drafting,
depends on whether that interpretation
is contemporaneous with the enactment of the statute,
and whether the interpretation
has been consistent throughout.
And the parties stipulated that, in fact,
we disagreed about whether or not
the Department of Transitional Assistance,
which then was in charge of the shelter program,
interpreted the statute in the same way that HLC does.
But because we both thought,
"Oh, this statute is unambiguous,
let's get an answer without going through,"
all of this discovery and probably an evidentiary hearing,
we asked the court, "Can you determine it based on
the number of facts that we've stipulated?"
So if you think that the statute is ambiguous,
based on the record of stipulated facts,
then the proper response would be to remand it
to the superior court where the parties have agreed
that we would engage in limited discovery about that issue
and then either engage in a second round
of summary judgment briefing or an evidentiary hearing.
-: Because it seems to me that you're both saying
it's unambiguous. -: Yes.
-: But arriving to two very different conclusions,
which seems to suggest that it's ambiguous.
-: I don't think so, Your Honor.
I think there's actually a lot of case law
in which this court says no.
The fact that there are two opinions
doesn't mean that they're both reasonably right.
Your Honors, I do just wanna touch on one other issue,
because obviously the briefs have lots of information
about the grammar rules
and about the meaning of the word families.
But I did wanna touch on one issue
at the end of HLC's reply brief,
which is its suggestion that line items should be construed
as if they are renegotiated, reinterpreted.
The research is done about them each year
so that they're interpreted as
completely new statutes every year.
And the reason I wanna talk about it
is because I think that that approach both is novel,
but would also do serious damage to the budgeting process.
If you look at the way the budget actually works,
for instance, the shelter line item,
most years, the entire thing is either the same every year
or one provision has been added
or one provision has been deleted.
It's a lot more like an amendment process
than a process of renegotiating every year.
And the difficulty particularly is that HLC asks this court
to assume that each year when the legislature enacts
the line items and the provisions,
and there are 900 pages of the budget,
it looks at the regulations relating to
all of those line items and all of those provisions
and determines, "Oh, is this consistent?"
And if not, it changes the statute.
But that's just not happening,
and to require that of the legislature
would make the budgeting process unworkable.
Again, the budget is already 900 pages long,
and as you know, the legislature is already
late on it most years, so I urge Your Honors
not to adopt the presumption that's been suggested by HLC,
because I do not think it would lead to
a workable budgeting process.
And I also don't think it would lead to interpretations
that are geared at arriving at the legislative intent.
Your Honors, if you have no further questions,
we rest on our briefs.
-: Okay. -: Thank you very much.
Attorney Parr.
-: Good afternoon, Chief Justice Budd, Associate Justices.
Assistant Attorney General Kim Parr
for the Executive Office of Housing and Livable Communities.
The immediate placement clause unambiguously reflects
the legislative intent to provide shelter
to people who are families, not anyone else,
and who appear to be eligible for shelter
based on their own statements
and information in the agency's possession,
but who need more time to definitively establish
their eligibility.
HLC's interpretation gives effect to that intent
in two ways.
First, it confirms that applicants are families,
that adults seeking shelter with a child
has some cognizable relationship to the child,
that an adult seeking shelter without a child is pregnant,
and that every applicant is who they say they are,
so that the agency may confirm their family status.
And then second, for those applicants who are families,
the agency determines whether they appear to satisfy
the eligibility criteria set by statute and regulation.
These are things like the income threshold,
their reasons for homelessness,
whether they lack feasible alternative housing.
And if the families do appear to satisfy
those eligibility criteria,
they qualify for immediate placement with 30 days
to obtain whatever eligibility verifications may be missing.
That's what the Immediate Placement Clause says,
and that's what the regulation does.
-: I guess the question I've got is,
other than families being a precondition,
the clause says that families, then it says who appear,
which means there's some level of speculation,
to be eligible for such shelter
based upon their own statements
and/or information in the possession of the department,
meaning that there's no, those two clauses mean
there's no third-party verification.
And your position is it does require
a third-party verification for eligibility.
'Cause the point of it is presumptive eligibility.
Kim: I'm sorry, I didn't hear that last part.
-: The point of it is presumptive eligibility, right?
-: Eligibility, not family status.
The entire statutory scheme is set up
so that this program is provided only to
families with children and pregnant people.
-: So could you address the phrase,
"Who appeared to be eligible,"
and also address the two criteria
based on statements provided by the family
and other information
in the present possession of the department?
-: Yes, and both of those are anchored in the word family.
So I do just wanna make the preliminary comment
that in framing the Immediate Placement Clause this way,
the legislature contemplated the reality in which we exist,
that some people are families and some are not.
And if the legislature had intended to include
people who were not families,
but who appeared to be families
within the benefit of this clause,
it would've used different language,
such as the word applicant, groups of applicants,
to cover the concern plaintiffs raised
about the status of pregnant women.
And we know that the agency is that
the legislature is able to do that.
There are examples where the legislature
has referred to recipients and applicants.
That's in General Law chapter 23b, section 30b e,
and that actually requires the agency
to notify recipients and applicants of the circumstances
when third-party affidavits may be used
to satisfy verification requirements.
-: I think the question is why is it
that this provision does not allow,
even if it's a threshold determination
as to whether the group of people constitutes a family,
it appears from this language that the verification of that
can come from that group of people alone.
Why is that not what this language means?
Why is it that determining,
what language are you relying on to say that
if you're determining whether the group is a family,
that requires different proof
other than your own regulation?
-: Yes, thank you, Your Honor.
We point to the structure of the statute.
So families is addressing the universe of people
who may be eligible for shelter,
and then the clauses who appear to be eligible
based on their statements
and information in the possession of the department,
but who need additional time
to obtain any third-party verifications
is further narrowing that pool of families.
-: But then we go back down later to the language that says,
"Provided further, dot, dot, dot,
and shall accept verifications from a family
whenever reasonable."
So why doesn't that also allow family verification
for the fact of being a family?
-: That still contemplates that there will be a family
and not some other type of group,
so it still reiterates that threshold requirement
that the legislature contemplates throughout the EA statute
and the line item that this program is meant
for families with children and pregnant people.
-: But it's not just with families with children,
it's families in crisis.
So I'm still trying to figure out how is it that
this threshold gating requirement,
how do you justify the potential harm
that might happen to otherwise vulnerable families
who find themselves in crisis?
-: Based on the plain language of the immediate clause,
I think we see a legislative intent
to recognize that crisis and that difficulty
for people who are actually families,
and to loosen the requirements.
But if there's any ambiguity, as you've had suggested
in the previous conversation,
then the reason for requiring identity
in family relationships is well-supported
by HLC's concerns around safety.
So this is a program that does bring eligible recipients
into close proximity to each other.
It's providing physical shelter space
so that adults and children who apply together
are put into a shelter unit together.
And they're put in close proximity
to other adults and children that they don't know,
often under the same roof in a congregate shelter.
-: I mean, I think we could say safely
that you both have great policy arguments, frankly,
and you both are operating under limited budgets
and in the housing crisis.
So I don't know which way the policy cuts,
actually, on this.
-: I think if we get to ambiguity,
it's deference owed to the policy judgements
as made by the agency- -: No, I-
-: Even if the court were to reach a different decision.
Justice Gaziano: Right, if we get to ambiguity,
you're right. -: This still speaks to why-
-: But I don't even get, so, okay, so they state,
you're concerned that a group of people
will state that they're a family even though they're not,
which will create a safety issue.
But I take it you're gonna be unwilling to say,
"Oh, these, this is my family
with a bunch of people you don't know."
'Cause what, I mean-
-: We don't know that, Your Honor.
The agency can't make that assumption.
The agency can't be expected to tell its frontline workers,
who are often on the phone taking these applications,
based on what my own lived experience,
I'm gonna guess whether or not I can trust these folks
are an actual family because they kind of look alike.
What if you don't look like your child?
-: What if just what Justice Gaziano asked you earlier,
okay, so the statements, they state they're a family,
but there's some objective issues here
that suggest they may not be,
then you are making a determination
without requiring them to produce paperwork.
Which, you know, as Justice Georges points out,
these are families in crisis
often running out of their house with nothing.
You know, I couldn't find my kids' birth certificates
if my life depended on it.
I mean, so how do you do that, you know?
-: That speaks to how the agency is implementing this.
And as the record shows,
that agency has established processes
by which it's not a requirement
that you present a birth certificate.
There has to be some documents or other evidence.
We're moving under the settlement agreement
to a process by which it could be oral confirmation
to a school.
The legislature, pardon me, the agency
is not insisting on these identity and family verifications
to keep people out of shelter,
it's to keep people safe in shelter.
Plaintiffs acknowledge that this is a child welfare program.
-: I don't think anyone's suggesting
that the agency's interpretation is an, you know,
unreasonable or ill-founded as a matter of policy.
It's just whether that's driven by the language itself.
-: And our position is that it is.
The legislature chose to extend the benefit of the clause
to families who appear to be eligible,
not to people or applicants who appear to be families
who appear to be eligible.
That is what plaintiff's reading would suggest.
Family status is something that exists on its own
through the, it's a threshold showing
that has to be made at every point in the statute.
If you look through General Law chapter 23b, section 30,
the first sentence is that this program was established
for families with children and pregnant women.
As Attorney Gelfman said, once you continue
going through that statute,
it's a constant refrain and presumption
that families will be the ones who are eligible for
and can obtain shelter.
As discussed in a reply, I'm not sure if the court
has to reach this question of how to define families,
because the operative question is how operative, pardon me,
because the dispositive question is how families intend,
how the word families is intended to operate
in the context of the clause.
-: Was ambiguity argued below?
Kim: It was.
-: Did you argue that the statute was ambiguous?
-: We argued first that the plain language
supports the agency's position,
and then if it was ambiguous-
-: [Justice Wolohojian] So you made that in the alternative?
-: Yes, it's entitled to substantial deference
because it comports with the plain language of the statute,
or at least the Immediate Placement Clause
does not unambiguously bar the agency's approach.
It harmonizes the immediate placement clause
with the rest of the statutory scheme
that contemplates putting people,
that contemplates providing shelter
to certain types of families.
And it's supported by these important policy rationales
that are supported in the record appendix
where in the HSN DHCD, HLC's predecessor,
describes situations where people have sought shelter
who are not related.
They raise concerns about people coming in, adults coming in
without an authorized relationship with a child,
perhaps for an improper purpose.
And it also recognizes the fact that
some families with children who are eligible for shelter-
-: Was any of that, there's a legislative history discussion
in this case too, by the other side,
saying that what prompted this language
was not what you're describing, but rather, you know,
mothers sleeping in cars with their kids,
sort of the conventional family
being deprived of the shelter
because they didn't have the paperwork, right?
-: I don't think that's supported by the record,
that's just an assertion that plaintiff's counsel has made.
-: I thought they submitted drafts that, again,
I've gotta go back and look,
but I thought they've put in documentation
including sort of the lobbying efforts
and other things that went into this statute.
-: Mass Coalition for the Homeless did submit an amicus brief
that included its own advocacy
for what the legislature should do, back in 2005, I think,
but that only reflects one organization's views
of what should be done.
It's not anything from the legislature.
It's not the type of legislative debate-
Justice Kafker: By the way,
is there any legislative history here?
If we- -: No.
-: There's none.
So you've been to the State House library.
You guys have been to the state archives on this one.
'Cause this is, one of the issues about ambiguity
is we also can turn to legislative history
if the statutory language is ambiguous.
Have you done that yet?
-: We've been litigating this issue for years now,
and I believe back in the superior court,
I definitely did a deep dive
looking for legislative history.
I didn't go to the state house
when I was preparing the appeal,
but as far as I know, neither side has found
legislative debates on this topic.
Plaintiffs-
-: Counsel, could I interject one question on that though,
because your opposing counsel says if we find ambiguity,
your construction, or the agency's construction
doesn't control, and that an order of remand
is the appropriate remedy.
I take it you disagree with that?
-: I do disagree.
And we did not agree that that should be the remedy
at the superior court level.
I think there was some suggestion that the parties agreed
that if the court found it was ambiguous,
it should go directly to additional discovery.
We did not agree to that.
That's reflected in the joint statement
in the record appendix.
The case law that plaintiffs cite
about this appropriate weighing
of a contemporaneous interpretation of a statute
as opposed to a later adopted one
doesn't fit neatly into this case.
I don't think we are arguing for a general rule
that line items must always be construed
as these dynamic organisms
that this rule could never apply to.
But it doesn't fit well into this case,
because we do have this history
where it was first enacted in 2005,
and then that was while the program was at DTA,
then it went to DHCD, now it's with HLC,
and the current interpretation has been in place since 2012.
And in that time, the legislature has had ample opportunity
to respond to what the agency has been doing.
And if HLC got it wrong,
the legislature knows how to fix it.
There's at least one example from fiscal year 2020
in which the legislature amended
the EA line item to directly address-
Justice Kafker: Can I ask a follow up on that?
-: Yes.
-: So given it's being hotly litigated
during this entire time period,
they're saying it means this, you're saying it means that.
The legislature may just be waiting for the outcome.
Is that possible too? (chuckles)
-: Possibly, but if you look through the years,
even in the past few years,
the legislature's very involved in this particular program.
It's making many tweaks.
It's intervening when it sees fit.
It's adding over time, different provisions
for what the agency must report or do
with families in shelter,
always presupposing it's families in shelter.
And to the example that I just started to reference,
for the fiscal year 2022 budget,
the legislature amended the line item
to directly address another EA regulation
regarding feasible alternative housing.
So the line item refers specifically
to 760 CMR 67.061 b.
If the legislature thought HLC was getting it wrong here,
it could have taken action
in the past 12 or 13 fiscal years to course correct.
But it hasn't, and under Falmouth and the other cases
cited in our briefs, that's really telling
and important evidence that HLC got it right.
-: So how's it working practically?
A group of people come up and say,
"We're a family, we need emergency shelter."
What kind of third-party verification is is requested?
-: I hesitate only because- -: As an example.
-: We're an at in-between,
because there's the HSN that was in place,
and the agency is moving toward implementing
the settlement agreement.
And so I'm cautious to speak off the record.
-: Okay. -: But it's,
it's kind of a combination of the two.
So when somebody presents themselves for shelter,
which is happening kind of, it's a split between in person
and on the phone, I believe,
the agency asks the applicants
for the type of documents they have,
tells them what would be needed
to confirm their identity and family status or pregnancy.
On identity of a adult, they require a photo ID.
And there's examples of all sorts of things in the record.
It could be your license,
it could be a firearm identification card.
-: But what about relationship between two people?
And it's not-
-: Relationship between two people,
they do look for birth certificates
or even medical records under the settlement agreement.
The agency will start making phone calls
to places like a school or a doctor,
reliable third-party contacts who know this family
and can say, "Oh yes, I know Jane Doe is Jimmy's mother.
I can send you that information."
-: I'm just confused now.
So there's potential that this is gonna be mooted out
by a settlement agreement?
-: No, Your Honor, the settlement agreement,
I will give due credit to plaintiff's counsel
who've reserved their rights thoroughly
in the portion of the settlement agreement
discussing this process.
So we did talk through the ways the agency should implement
the confirmation of identity and family status
for presumptive eligibility.
But it constantly says this is still subject.
If DHCD gets the authority from the court to do this,
this is what they will do.
-: Okay. -: Okay.