Reade v. Secretary of the Commonwealth

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SJC-11776

WILLIAM F. READE, JR. vs. SECRETARY OF THE COMMONWEALTH &

others.1

Barnstable. May 4, 2015. - September 3, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Practice, Civil, Costs. Indigent. Veteran. Statute,

Construction.

Civil action commenced in the Superior Court Department on

June 10, 2013.

A hearing on a request for indigency status and a waiver of

fees and costs was had before Robert C. Rufo, J.

Leave to prosecute an interlocutory appeal was allowed in

the Appeals Court by James R. Milkey, J. The Supreme Judicial

Court on its own initiative transferred the case from the

Appeals Court.

Emily B. Kanstroom (Meredith M. Leary & Robert M. Buchholz

with her) for the plaintiff.

Daniel P. Sullivan, Special Assistant Attorney General

(Gwen A. Werner, Special Assistant Attorney General, with him)

for the intervener.

1

The Attorney General; Office of Court Management of the

Trial Court, intervener.

2

Georgia Katsoulomitis & Phillip Kassel, for Massachusetts

Law Reform Institute, Inc., & another, amici curiae, submitted a

brief.

CORDY, J. Since 1974, the Legislature has demonstrated a

commitment to ensuring that the doors of the Commonwealth's

courts will not be closed to the poor. This commitment is

embodied in the so-called Indigent Court Costs Law, G. L.

c. 261, §§ 27A-27G (§§ 27A-27G), which creates a mechanism for

indigent persons to obtain waivers or reductions of court fees

and other costs incurred during litigation. The statutory

scheme defines "[i]ndigent persons" to include those with income

below the poverty line; those who demonstrate that the payment

of fees and costs would create a hardship; and those who receive

"public assistance" under certain programs, including "veterans'

benefits programs." G. L. c. 261, § 27A. The question

presented in this appeal is whether a litigant such as the

plaintiff, who receives Federal veterans' benefits and a

Massachusetts property tax abatement that are not dependent on

his economic circumstances, is considered indigent under § 27A

and therefore entitled to a waiver despite having ample

financial resources to pay court fees and costs.2

2

By order of this court, all information submitted in an

affidavit of indigency is confidential unless otherwise stated

in a specific court order. Accordingly, the affidavits of

indigency and accompanying papers submitted in connection with

this case were impounded. See S.J.C. Rule 1:15 (2) (b), as

3

We conclude that the statute was not intended to provide

for a waiver under these circumstances. The history of the

statute reveals an unbroken chain of legislative intent to limit

the definition of indigent to persons whose limited financial

resources prevent them from obtaining meaningful access to the

Commonwealth's courts. In light of the statute's history and

purpose, we interpret the phrase "public assistance under . . .

veterans' benefits programs" as referring only to the

Massachusetts need-based programs for veterans presently

administered pursuant to G. L. c. 115, § 5. Because the

plaintiff does not participate in such a program, his request

for a waiver of fees and costs was properly denied.3

1. Background. The plaintiff, William Reade, is a retired

lieutenant colonel of the Unites States Army Reserve and a

resident of Massachusetts. In 1978, the Federal Veterans'

Administration determined that Reade suffered a ten per cent

appearing in 401 Mass. 1301 (1988) ("Unless otherwise ordered by

the appellate court . . . material impounded in the trial court

shall remain impounded in the appellate court"). Yet, because

some of the information contained in those materials is critical

to the resolution of this appeal, we now lift the order of

impoundment to the extent necessary to explain our decision

today. See Adams v. Adams, 459 Mass. 361, 362 n.1 (2011), S.C.,

466 Mass. 1015 (2013).

3

We acknowledge the amicus curiae brief submitted by the

Massachusetts Law Reform Institute, Inc., and Mental Health

Legal Advisors Committee.

4

disability as a result of an injury to his left shoulder and

elbow incurred in connection with his military service. As a

result of his injury, Reade receives a monthly disability

payment pursuant to 38 U.S.C. §§ 1110, 1114 (2012), as well as a

partial property tax abatement pursuant to a Massachusetts

program for resident disabled veterans, see G. L. c. 59, § 5,

Twenty-second. His eligibility for the disability payments and

property tax abatement is not dependent on his income or

resource levels.4

In 2013, Reade commenced an action in the Superior Court,

alleging various constitutional violations with respect to the

presidential ballot. Along with his civil complaint, Reade

filed an affidavit of indigency pursuant to § 27B,5 in which he

4

General Laws c. 59, § 5, Twenty-second, provides for a

partial property tax abatement for certain resident veterans

"who, as a result of disabilities contracted while in the line

of duty, have a disability rating of ten per cent or more as

determined by the Veterans Administration or by any branch of

the armed forces." The abatement applies to the veteran's

domicile in "the amount of [$2,000] of [its] assessed taxable

valuation or the sum of $400, whichever would result in an

abatement of the greater amount of actual taxes due." Id. In

contrast, G. L. c. 59, § 5, Eighteenth, exempts from taxation

"[a]ny portion of the estates of persons who by reason of age,

infirmity and poverty, or financial hardship resulting from a

change to active military status, not including initial

enlistment are in the judgment of the assessors unable to

contribute fully toward the public charges." Reade does not

purport to receive the more generous need-based exemption

afforded by clause Eighteenth.

5

General Laws c. 261, § 27B, provides, in relevant part,

that "[u]pon or after commencing or answering to any civil,

5

requested a waiver of normal court fees and litigation costs,6 as

well as extra fees and costs.7 As grounds, Reade indicated in

criminal or juvenile proceeding or appeal in any court, . . .

any party may file with the clerk an affidavit of indigency and

request for waiver, substitution or payment by the commonwealth

of fees and costs upon a form prescribed by the chief justice of

the supreme judicial court and in accordance with the standards

set forth in [§§ 27C-27F], inclusive, and sworn to under oath by

the affiant." A person qualifies as "[i]ndigent" under the

statutory scheme if he or she:

"(a) receives public assistance under aid to families with

dependent children, program of emergency aid for elderly

and disabled residents or veterans' benefits programs or

who receives assistance under Title XVI of the Social

Security Act or the medicaid program, 42 U.S.C.A. 1396, et

seq.;

"(b) [has an] income, after taxes, . . . 125 per cent or

less of the current poverty threshold established annually

by the Community Services Administration pursuant to

section 625 of the Economic Opportunity Act, as amended; or

"(c) . . . is unable to pay the fees and costs of the

proceeding in which he is involved or is unable to do so

without depriving himself or his dependents of the

necessities of life, including food, shelter and clothing

. . . ."

G. L. c. 261, § 27A.

6

"Normal fees and costs" are those that "a party normally

is required to pay in order to prosecute or defend the

particular type of proceeding in which he is involved,"

including, for example, "filing or entry fees"; "fees and

related costs for service of process"; "fees and costs for the

issuance or service of a subpoena and witness fees for trial or

deposition; jury trial fees; removal fees; costs assessed in a

bill of costs"; and "fees for the issuance of an injunction,

restraining order, writ or other process." G. L. c. 261, § 27A.

7

"Extra fees and costs" are those that "result when a party

employs or responds to a procedure not necessarily required in

the particular type of proceeding in which he is involved,"

6

his affidavit that his income was at or below the poverty

threshold for indigency.8 See G. L. c. 261, § 27A ("Indigent"

definition [b]). Reade also filed a letter in which he detailed

his various sources of income.9 A clerk referred the affidavit

to a judge because Reade's stated income suggested that he was

not indigent and because Reade requested a waiver of extra fees

and costs, which may be approved only by a judge. See G. L.

including, for example, "the cost of transcribing a deposition,

expert assistance and appeal bonds and appeal bond premiums."

G. L. c. 261, § 27A.

8

In his affidavit, Reade indicated a household income of

approximately $3,400 per month.

9

In his letter, Reade indicated that he received "SSI."

Assuming that this was a reference to Supplemental Security

Income, the program set forth in Title XVI of the Social

Security Act, Reade may have qualified as indigent under G. L.

c. 261, § 27A ("Indigent" definition [a]). Whether he actually

received such assistance is a matter of considerable doubt,

however, given his stated income and resource levels. See Roe

v. Rosencratz, 71 Mass. App. Ct. 901, 901 (2007) ("neither the

statute nor the [Instructions to Courts on the Administration of

the Indigency Court Costs Law (Indigency Instructions)] requires

the clerk or the judge to ignore other court filings by the

plaintiff that raise 'significant question[s]' regarding the

indigency of the plaintiff"). See also 20 C.F.R. § 416.1205

(2014) (Supplemental Security Income resource limit for

individual with spouse is $3,000). In any event, Reade does not

make this argument on appeal, and we consider it waived. See

Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 722 n.7

(2013); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921

(1975). If Reade does, in fact, receive Supplemental Security

Income, he is free to file a new affidavit so reflecting. See

G. L. c. 261, § 27B ("indigent party may subsequently file one

or more supplementary affidavits requesting the waiver,

substitution or payment by the commonwealth of fees and costs

not previously granted at any time while the case is still

pending . . .").

7

c. 261, § 27C (3). After holding a hearing, the judge denied

the waiver on the ground that Reade's income exceeded the

poverty threshold for indigency. A single justice of the

Appeals Court affirmed.

Reade then filed a second affidavit of indigency, again

requesting a waiver of both normal and extra fees and costs.

This time, however, Reade claimed indigency on the ground that

he was unable to pay the fees and costs without depriving

himself or his dependents of the necessities of life. See G. L.

c. 261, § 27A ("Indigent" definition [c]). He also submitted

the required supplement to the affidavit in which he detailed

his assets, income, and expenses.10 A clerk referred the

affidavit to the same judge, again because of Reade's stated

income and the request for extra fees and costs. The judge held

a new hearing and, on the basis of Reade's available assets,

determined that he was not indigent and again denied the waiver.

A single justice of the Appeals Court affirmed.

Undeterred, Reade filed a third affidavit of indigency

seeking a waiver of normal and extra fees, claiming indigency on

the ground that he received public assistance in the form of

veterans' benefits. See G. L. c. 261, § 27A ("Indigent"

10

In the supplement to the affidavit, Reade declared after

tax income in excess of $40,000 per year, substantial balances

in his checking and savings accounts, and more than $200,000 of

equity in his house.

8

definition [a]). Reade included documents demonstrating his

receipt of the property tax abatement for Massachusetts veterans

and the monthly disability payments from the Veterans'

Administration. A clerk again referred the affidavit to the

same judge, this time for the additional reason that the

affidavit was not "regular and complete on its face." The judge

held another hearing and, after reviewing all three affidavits,

concluded that Reade was not indigent because he had the ability

to pay the normal and extra fees and costs. A single justice of

the Appeals Court granted Reade leave to file an interlocutory

appeal, observing that whether a judge has authority to deny

indigency status to a person receiving "veteran's benefits" was

a question with "broad policy ramifications for the

administration of justice." Reade filed the appeal, the Appeals

Court allowed the Office of Court Management of the Trial Court

to intervene, and we transferred the case to this court on our

own motion.

2. Discussion. The Indigent Court Costs Law entitles an

indigent person to a waiver or reduction of certain fees and

costs incurred during litigation. G. L. c. 261, § 27C. Under

§ 27A, first definition, a person is "indigent" if, inter alia,

he or she receives "receives public assistance under . . .

veterans' benefits programs." Reade argues that because he

receives Federal disability payments and the Massachusetts

9

property tax abatement for veterans, the plain language of the

statute compels the conclusion that he is indigent and therefore

entitled to a waiver. We disagree.

"[I]t is a well-established canon of statutory construction

that a strictly literal reading of a statute should not be

adopted if the result will be to thwart or hamper the

accomplishment of the statute's obvious purpose, and if another

construction which would avoid this undesirable result is

possible." Watros v. Greater Lynn Mental Health & Retardation

Ass'n, 421 Mass. 106, 113 (1995). "The legislative intent in

enacting a statute is to be gathered from a consideration of the

words in which it is couched, giving to them their ordinary

meaning unless there is something in the statute indicating that

they should have a different significance; the subject matter of

the statute; the preexisting state of the common and statutory

law; the evil or mischief toward which the statute was

apparently directed; and the main object sought to be

accomplished by the enactment." Meunier's Case, 319 Mass. 421,

423 (1946). See Commonwealth v. De'Amicis, 450 Mass. 271, 273-

274 (2007) (interpreting indigent court costs statute in light

of purpose and history). See also Edwards, petitioner, 464

Mass. 454, 461 (2013) (same); Underwood v. Appeals Court, 427

Mass. 1012, 1013 (1998) (same). With these principles in mind,

10

we turn to the legislative history of the statute with an aim

toward gleaning the Legislature's intent in enacting it.

The seeds for the Indigent Court Costs Law were planted in

1970 by the Massachusetts Law Reform Institute, Inc. (MLRI), a

nonprofit legal advocacy group dedicated to promoting systemic

legal changes that benefit the poor. Rodgers, Rap-ups of a

Retired Reformer: Stories About How Legal Services Advocates

Transformed the Laws for Poor People in Massachusetts 81 (2013).

MLRI's efforts were focused on increasing access to the courts

for poor people who could not afford to pay filing fees and

other litigation costs. Id. These efforts eventually blossomed

into 1974 Senate Doc. No. 1099, An Act to relieve indigent

litigants of burdensome court costs in civil and criminal

proceedings. See Rodgers, supra at 81. The proposed bill

defined a litigant as "[i]ndigent" where:

"(1) he receives any federal, state or local public

assistance, including medical assistance or any rental

subsidy, or (2) his net income does not exceed the limits

set out in [§ 27E], or (3) he is otherwise indigent because

wholly unable to pay the expected total of the fees and

costs of the proceeding in which he is involved, or is

unable to do so without depriving himself or his dependents

of the necessities of life, including shelter, food and

clothing."

1974 Senate Doc. No. 1099, § 2. The legislative purpose

statement included in the bill made clear that the legislation

was focused on providing aid to the poor:

11

"The General Court hereby finds and declares that many

litigants in both civil and criminal cases are unable to

secure due process of law and equal protection of the laws

in the courts of Massachusetts by reason of being too poor

to afford the fees and costs (not including attorneys fees)

incident to such litigation.

"Therefore, the purpose of this act is to provide for

the absorption, payment or obviation of such fees and

costs, initially by the counties and ultimately by the

Commonwealth.

"This Act shall be given a liberal construction to the

end that its broad and humane purposes may be served."

1974 Senate Doc. No. 1099, § 1.

The Senate bill was ultimately superseded by 1974 House

Doc. No. 5859, which trimmed the definition of indigent to a

person who "is unable to pay the fees and costs of the

proceedings in which he is involved, or is unable to do so

without depriving himself or his dependents of the necessities

of life, including food, shelter and clothing," making it even

clearer that the statute was only intended to provide waivers to

litigants who could truly not afford to pay litigation costs.

Under this version of the statute, which was enacted into law by

St. 1974, c. 694, § 3, Reade would not have qualified as

indigent.

12

The Senate's version was resurrected in the 1980 amendments

to § 27A,11 which changed the definition of "[i]ndigent" to a

person who:

"(a) . . . receives public assistance under the

Massachusetts Aid to Families with Dependent Children,

General Relief or Veteran's Benefits programs or receives

assistance under Title XVI of the Social Security Act or

the Medicaid program, 42 U.S.C. 1396, et seq.;

"(b) [has] income, after taxes, . . . [125] per cent or

less of the current poverty threshold annually established

by the Community Services Administration pursuant to

[§ 625] of the Economic Opportunity Act, as amended; or

"(c) . . . is unable to pay the fees and costs of the

proceeding in which he is involved, or is unable to do so

without depriving himself or his dependents of the

necessities of life, including food, shelter and clothing."

St. 1980, c. 539, § 5.12 Reade's position is that the 1980

amendments reflected an intention by the Legislature to broaden

the definition of indigent to include a person who receives any

type of veterans' benefit, regardless of the origin of or reason

for that benefit. This position is not sustainable.

11

The amendments were proposed in 1980 Senate Doc. No.

2260.

12

As can be seen, the 1980 definition of indigent is

reminiscent of the original proposed definition found in 1974

Senate Doc. No. 1099, which, in light of the legislative purpose

statement, cannot be interpreted reasonably as applying to

anything other than needs-based benefits. An important

difference between those two versions, however, was in the

language of the first definition of indigent, which in the 1974

version applied broadly to a person receiving "any federal,

state or local public assistance." See id.at § 2. In contrast,

the 1980 version listed five specific public assistance

programs. See St. 1980, c. 539, § 5.

13

The 1980 definitional changes may be best understood in the

context of the amendments as a whole, particularly in tandem

with the changes made to § 27C. Prior to 1980, relief from

court fees and costs had to be approved by a judge. The 1980

amendments to § 27C altered this practice by directing the clerk

to grant relief "forthwith" where a litigant files an affidavit

that "appears regular and complete on its face and indicates

that the affiant is indigent, as defined in [§ 27A], and

requests a waiver, substitution or payment by the commonwealth,

of normal fees and costs." St. 1980, c. 539, § 7. Empowering

the clerk to grant relief clearly was intended to expedite the

waiver process in cases involving routine costs and expenses.

Without the definitional changes to § 27A, the clerk still would

have been required to engage in the cumbersome process of

determining whether the payment of fees and costs would deprive

a litigant of the "necessities of life." The definitional

changes circumvented unnecessary delays by capitalizing on

preexisting systemic determinations of financial need in the

form of income-poverty guidelines and means-tested public

assistance programs.

The first definition of indigent set out in the 1980

statute created two distinct categories of benefits: "public

assistance" under three listed programs, and "assistance" under

two other listed programs. St. 1980, c. 539, § 5. This

14

structure is significant, as "[w]ords grouped together in a

statute must be read in harmony, and we are not free to

interpret [one provision] in a way that makes it exceptionally

broader than its neighbors." Franklin Office Park Realty Corp.

v. Commissioner of the Dep't of Envtl. Protection, 466 Mass.

454, 462 (2013). The first category began with the word

"Massachusetts," followed by three programs corresponding to

statutes located in the Public Welfare section of the General

Laws: G. L. c. 115 (veterans' benefits); G. L. c. 117, repealed

by St. 1991, c. 255, § 3 (general relief); and G. L. c. 118 (aid

to families with dependent children). Importantly, each of the

three statutes -- consistent with the original intent of § 27A -

- premised the receipt of public assistance on financial need.13

That the Legislature was referring to those specific statutes in

§ 27A is reinforced by other instances in which the Legislature

has referenced them in concert. See, e.g., An Act providing

13

See St. 1936, c. 413 ("before so aiding any parent the

board of public welfare . . . shall make an immediate and

careful inquiry, including the resources of the family and the

ability of its other members, if any, to work or otherwise

contribute to its support"); St. 1961, c. 317 ("such [veterans']

benefits shall not be paid to any person who is able to support

himself or who is in receipt of income from any source

sufficient for his support"); St. 1971, c. 908 ("[general

relief] aid furnished shall be determined by the department on

the basis of the circumstances surrounding each application

[and] shall be sufficient to maintain an adequate standard of

living for the poor and indigent applicant and his immediate

family who are eligible").

15

cost-of-living adjustments for recipients of aid to families

with dependent children, general relief and veterans' benefits,

St. 1974, c. 623 (amending G. L. cc. 115, 117, and 118).14

Further, with respect to the second category, the

Legislature included only Federal programs and referred to those

programs specifically by statute. Had the Legislature intended

to premise qualification for indigency under § 27A on the

receipt of Federal veterans' benefits, we infer that it would

have done so in a manner consistent with its treatment of other

Federal programs in the same section of the statute. See

Commonwealth v. Williamson, 462 Mass. 676, 681 (2012), quoting

Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 316

(1991) ("Statutes should be read 'as a whole to produce an

internal consistency'"). It is also telling that both of the

Federal statutes referred to in the amended version of § 27A --

like the aforementioned Massachusetts statutes -- made the

receipt of benefits contingent on financial need,15 suggesting a

14

See also St. 1978, c. 367, § 54B ("An advisory committee

on the implementation of a wage reporting system is hereby

created consisting of . . . three persons to be appointed by the

chairman of the state welfare advisory board one of whom shall

be a recipient of aid to families with dependent children; one

of whom shall be a recipient of general relief; and one of whom

shall be a recipient of veterans' benefits").

15

See 42 U.S.C. § 1381a (2012) ("Every aged, blind, or

disabled individual who is determined under part A of this

subchapter to be eligible on the basis of his income and

resources shall . . . be paid benefits" [emphasis added]); 42

16

continuation of legislative intent to restrict the meaning of

16

"indigent" to persons with limited financial resources. St.

1980, c. 539, § 5. In view of the foregoing, we conclude that

the 1980 amendment tying indigency to the receipt of "Veteran's

Benefits" was intended to encompass only the receipt of

Massachusetts need-based veterans' benefits under G. L. c. 115,

§ 5. St. 1980, c. 539, § 5. Because Reade did not receive such

benefits, he would not have qualified as indigent under the 1980

version of the statute.

The next relevant modification to the statute occurred in

2000 in connection with a bill introduced pursuant to G. L.

c. 3, § 53 (§ 53). Section 53 allows counsel to the Senate and

House of Representatives, see G. L. c. 3, § 51, to make

recommendations for the "repeal of such statutory provisions as

have become obsolete or the reasons for the enactment of which

have ceased to exist," "rejection of superfluous words, [and]

condensation of all circuitous, tautological and ambiguous

phraseology into as concise and comprehensive a form as is

U.S.C. § 1396-1 (2012) ("For the purpose of enabling each State

. . . to furnish [1] medical assistance on behalf of families

with dependent children and of aged, blind, or disabled

individuals, whose income and resources are insufficient to meet

the costs of necessary medical services" [emphasis added]).

16

Similarly, S.J.C. Rule 3:10, as amended, 416 Mass. 1306

(1993) (assignment of counsel to indigent criminal defendants),

defines the term "[i]ndigent" to include, inter alia, a person

receiving "poverty related veterans' benefits."

17

consistent with the full and clear expression of the will of the

general court." In other words, linguistic changes made

pursuant to § 53 are generally of a technical, rather than

substantive, character. The changes made to § 27A in 2000 are

no exception. See St. 2000, c. 313, § 46.

The 2000 bill, entitled, "An Act making certain corrective

changes in certain general and special laws," suggested several

linguistic changes to § 27A, including the removal of the word

"Massachusetts." See 2000 Senate Doc. No. 2212. The word

"Massachusetts" was likely omitted because it was superfluous.

As observed above, where the Legislature referred to a non-

Massachusetts program in § 27A, it did so explicitly by

including a statutory citation. The omission of such a citation

when referring to the other programs sufficed to indicate their

Massachusetts origins. See G. L. c. 3, § 53. See generally

Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 283 (1991) ("As

a general rule, when the Legislature has employed specific

language in one part of a statute, but not in another part which

deals with the same topic, the earlier language should not be

implied where it is not present").17

17

The Legislature has a long history of revising statutes

to remove superfluous language. See, e.g., Commonwealth v.

Dana, 2 Met. 329, 339 (1841) ("One of the objects of the

revision of our laws was to condense them by change of

phraseology, and the rejection of all superfluous words, which

has been frequently done, where there is evidently no change of

18

Other modifications to § 27A were prompted by inaccuracies

in the existing program descriptions.18 The final language

choices in § 27A reflect an intention to conform the text to the

language of the specific statutes referenced therein, which is

consistent with the technical nature of the modifications

contemplated by § 53. See Arthur A. Johnson Corp. v.

Commonwealth, 306 Mass. 347, 353 (1940), quoting Main v.

Plymouth County, 223 Mass. 66, 69 (1916) ("It is a familiar

principle of statutory construction that mere verbal changes in

the revision of a statute do not alter its meaning and are

construed as a continuation of the previous law").

At oral argument, Reade pointed out the Commonwealth has a

long tradition of providing preferential treatment to veterans.

meaning by the change of language or the omission of the

superfluous parts of the former statutes").

18

For example, the term "Veterans' Benefits," as it is

spelled in G. L. c. 115, previously had been spelled incorrectly

as "Veteran's Benefits." The initial draft of the bill

contained an oversight, however, insofar as it retained the

reference to the obsolete general relief statute, G. L. c. 117,

which had been superseded by G. L. c. 117A. See. St. 1991,

c. 255, § 4. Correspondence from the Department of Transitional

Assistance (department) while the "draft technical correction

bill" was still in committee pointed out that "the statutory

definition presently, and as amended, incorrectly cites two

department programs." The DTA then suggested that the term

"General Relief" be replaced with "Emergency Aid to the Elderly,

Disabled and Children." This suggestion was partially adopted

by way of a handwritten modification to the bill, replacing the

term "General Relief" with "program of emergency aid for elderly

and disabled residents," which is the language used in G. L.

c. 117A, § 1.

19

That is undoubtedly true, and where the Legislature has

indicated such an intention, we have not hesitated to recognize

the legitimacy of the public interest at stake. See, e.g.,

G. L. c. 31, § 26 (affording gradations of civil service

priority based on veteran and disabled veteran status); Smith v.

Director of Civil Serv., 324 Mass. 455, 461 (1949) ("it is open

to the Legislature to say that, whereas all veterans may be

preferred because of their service in uniform, the public

interest is served by additionally preferring those who have

incurred disability in the course of their service"). However,

the Indigent Court Costs Law did not originate as a veterans'

preference law and, as the foregoing legislative history

demonstrates, the "principle embodied in the statute," as it

stands today, remains "equal justice under the law: an indigent

party should have the financial resources necessary to mount as

effective a case as a party who is not indigent." Edwards,

petitioner, 464 Mass. at 461. Reade's argument, that the

receipt of any veterans' benefits renders a litigant indigent,

is incompatible with this principle because it would allow

waivers for individuals who already have ample financial

resources to afford court fees and other litigation costs. See

Underwood, 427 Mass. at 1013. We decline to construe § 27A in

a manner that is plainly inconsistent with its central purpose,

20

notwithstanding the susceptibility of the statute's plain

language to such a construction. See Watros, 421 Mass. at 113.

Rather, we continue to read § 27A, "Indigent" definition

(a), as referring to the five specific, need-based public

assistance programs -- three of which derive from Massachusetts

law and two which derive from Federal law -- that are listed on

the form affidavit of indigency prescribed by the Chief Justice

of this court pursuant to § 27B. This includes the

"Massachusetts Veterans Benefits" program, which is presently

codified at G. L. c. 115, § 5. Accordingly, Reade's receipt of

Federal disability payments and the Massachusetts property tax

abatement for veterans, neither of which is contingent on

financial need, did not render him a "person who receives public

assistance under . . . veterans' benefits programs" within the

meaning of § 27A ("Indigent" definition [a]). Therefore, Reade

is not indigent and his request for a waiver of fees and costs

was properly denied by the judge.

The question remains, however, whether Reade's third

request for a waiver of normal fees and costs even should have

been referred to a judge. Reade contends that the clerk was

required to grant the request forthwith, without further

inspection of the circumstances, because his affidavit was (i)

regular and complete on its face; (ii) indicated that he was

indigent by virtue of his selection of "Massachusetts Veterans

21

Benefits" on the form affidavit; and (iii) requested a waiver of

normal fees and costs. We conclude that the clerk was correct

to refer the affidavit to a judge.

The "Instructions to Courts on the Administration of the

Indigent Court Costs Law" of this court direct the clerk to

refer the affidavit to a judge where there is a "significant

question about whether the applicant is indigent." Here, Reade

did not simply select "Massachusetts Veterans Benefits" on the

form affidavit. Rather, he attached a series of documents

indicating that the Massachusetts benefit he was contemplating

was a property tax abatement for disabled veterans, which, as

discussed above, is not the benefit contemplated by the form.

Thus, considered as a whole -- i.e., the form affidavit along

with the attachments -- Reade's affidavit created ambiguity as

to whether he received veterans benefits within the meaning of

the first definition of "Indigent" in § 27A.19 Moreover, the

19

Nonetheless, we reject the argument of the Office of

Court Management of the Trial Court that Reade's affidavit was

"irregular" on its face because it contained an excessive

estimate of his costs. The form affidavit instructs the

applicant to "indicate your best guess as to the cost, if

known." The Indigency Instructions recognize that "[m]ost

applicants will not know the actual costs of many of these

services. Therefore, courts should approve otherwise

appropriate applications for waiver or [S]tate payment and

insert in the approval the actual or estimated amount of the fee

or service, as it is known to the court." In other words, where

the only defect in a qualifying affidavit is an incorrect

estimation of normal fees and costs, the clerk should approve

the request at the correct amount.

22

clerk was entitled to consider Reade's past affidavits pursuant

to Roe v. Rosencratz, 71 Mass. App. Ct. 901, 903 (2007)

("previous court filings by the plaintiff for payment of entry

fees and costs, in which she had represented that she had

significant assets . . . justified further consideration by the

clerk and referral to a judge"). Those affidavits reflected

considerable income and assets, casting additional doubt on

Reade's claim that he received the need-based benefits afforded

by the Massachusetts Veterans' Benefits program, G. L. c. 115,

§ 5. In view of these significant questions about Reade's

receipt of veterans' benefits, we cannot say that the clerk

erred in referring the matter to the judge.20

20

Section 27C (3) also directs the clerk to refer the

affidavit to a judge where the applicant requests not only

normal fees and costs, but also extra fees and costs. This was,

therefore, another ground on which Reade's affidavit was

properly referred to the judge. The intervener goes one step

further, however, by arguing that even if Reade had received

veterans' benefits within the meaning of § 27A ("Indigent"

definition [a]), once the affidavit was before the judge on the

request for extra fees and costs, the judge had discretion under

§ 27C (3) to deny indigency status based on Reade's economic

circumstances. Although the judge in this case appears to have

agreed, we do not. If Reade had, in fact, received

Massachusetts veterans' benefits within the meaning of the first

definition of "[i]ndigent" under § 27A, he would be indigent and

entitled to relief. See G. L. c. 261, § 27C (4) ("If the court

makes a finding of indigency, it shall not deny any request with

respect to normal fees and costs . . ."). Under those

circumstances, the judge's discretion would be limited to

assessing Reade a reasonable partial payment as a substitute for

the waiver. See id. at § 27C (6). See also Underwood v.

Appeals Court, 427 Mass. 1013, 1013 (1998) ("Requiring litigants

23

3. Conclusion. For the reasons set forth herein, we

conclude that the "veterans' benefits" program described in the

first definition of "[i]ndigent" under G. L. c. 261, § 27A,

refers to the need-based Massachusetts veterans' benefits

program presently administered pursuant to G. L. c. 115, § 5.

Reade does not receive such benefits and therefore he is not

indigent on that ground. Consequently, we affirm the judge's

decision denying Reade's request for a waiver of normal and

extra court fees and litigation costs.

So ordered.

to pay a reasonably reduced filing fee, set within their limited

financial means, serves the important dual purpose of providing

equal access to the courts while simultaneously screening out

frivolous claims").