Another Opinion, Editorial

There’s Probably a Humanitarian Disaster Happening, But the Judge Said It Was Okay

EAST MONTPELIER – Truly bizarre happenings over the last 24 hours, even by the bizarre standards of this seemingly never-ending crisis of housing and homelessness. We’ll get to the judge’s decision allowing Gov. Phil Scott’s ridiculous policy to go forward, but first a note from an official in the city of Burlington, timestamped 4:45 p.m. Friday, March 23: There are 192-plus folks outside in Chittenden County; 0-5 motel rooms available.

This was after the Scott administration had decided to close its four temporary shelters on schedule Friday morning. And almost four hours before the administration reversed course, announcing at around 8:30 p.m. that the Burlington shelter would reopen at least for Friday and Saturday night.

I guess they decided it was a bad look to close a shelter in the face of a severe winter storm with close to 200 people known to be unsheltered in Vermont’s most prosperous county.

Too often, it seems as though administration policy is designed to be cruel until the optics get too bad, and then they change course just enough to limit the damage. So they opened the shelter unexpectedly at 8:30 p.m.

How many more people could have accessed the shelter if it had never closed in the first place? How many didn’t find out the shelter was available at all or couldn’t make their way to Cherry Street that late in the evening? Or, God have mercy on our souls, how many had already found a refrigerator box or an overpass or other makeshift shelter and didn’t want to lose their spot?

The good thing, from the administration’s point of view, is that this is all happening on a weekend when our news media are essentially unstaffed. As of Saturday afternoon I’d seen no coverage from VTDigger, Vermont Public or Seven Days. Don’t even ask about the Free Press, whose top story right now is “Chittenden County Irish Pub Closes.” There’s a brief item on WCAX-TV’s website announcing the shelter’s reopening, but that’s about all.

Now for the court ruling, which denied Vermont Legal Aid’s (VLA) petition to reopen the state’s Adverse Weather Conditions (AWC) program as amended in the Budget Adjustment Act. Judge Helen Toor was probably looking for an excuse to not force a change in government policy; courts are generally loath to do so if they can find a way to avoid it.

Her decision is an exercise in judicial logic, which has its own rules and processes that don’t always align with common sense, much less compassion or, I don’t know, justice? The word “Pharisaical” came to mind while reading her 10-page decision.

If that seems harsh, well, Toor’s ruling lays out the Keystone Kops nature of the “process,” and I use that word advisedly. And yet she decided not to intervene, for reasons that make sense to a judge but not to those untutored in the law.

Toor’s ruling does serve as a useful document detailing exactly what happened in the days leading up to March 15, when roughly 500 people were exited from state-paid motel rooms. Here’s a brief timeline as the judge lays it out.

March 1: The Legislature gives final approval to the Budget Adjustment Act, sending it to the governor. The BAA includes a significant expansion of eligibility for those with disabilities, clearing the way for their continued housing after March 15, when the Adverse Weather Conditions program is due to expire.

March 12: The Department of Children and Families (DCF) sent notices of the pending expiration of AWC to participating motels and hotels and “asked them to convey that information to residents housed by DCF.” Reminder that Human Services Secretary Jenney Samuelson later asserted, repeatedly, that her agency was “working very closely” with voucher clients. This was a lie, per Judge Toor’s account.

March 13: DCF Commissioner Chris Winters announces the temporary shelter plan.

March 13: Gov. Phil Scott finally signs the BAA.

March 14: DCF staff went to some of the motels (the judge’s word) to share information on the temporary shelters.

March 14: “Letters were also sent to the [clients], but… too late to reach them before they had to check out of motels.”

March 15: Nearly 500 people were to be exited with the expiration of the BAA. More than 100 saw their eligibility extended after helping agencies (most notably End Homelessness Vermont) assisted them in filing required paperwork.

March 15: 371 individuals were exited. By March 20, more than half had been approved for vouchers via a disability variance form.

March 15: Temporary shelters opened in Berlin, Brattleboro, Burlington and Rutland.

Just get a load of that timeline. Last-minute changes to the voucher program were made only 48 hours before the deadline. Some of those changes flouted the terms of the BAA.

Judge Toor found that DCF actually broke the law on one point: It took the existing disability variance form, which had been specified in the BAA, and added a requirement that a medical practitioner sign each person’s form. This had not been required before! Until now, each individual simply signed their own form, attesting to its accuracy.

Otherwise, Judge Toor found that DCF may not have followed the best procedure, but it acted within the bounds of its discretion. “The fact that there were other options, even much better options, does not mean an agency’s choice is arbitrary,” she wrote.

The bar is high for restraining orders. A plaintiff must show that “irreparable harm” would occur without such an order. VLA met that standard with regard to three individuals who joined the suit, but not for the helping agencies who were also parties. A plaintiff must also show that it is likely to prevail in the long run on the merits of the case. And since Judge Toor had ruled that DCF was within its discretionary authority, it couldn’t be said that the plaintiffs were likely to prevail.

The judge closed her opinion with a scathing rebuke of the entire emergency housing effort:

“It appears to the court, however, that the current approach to homelessness in Vermont is an overly complicated bureaucratic and financial maze. The sort of chaos created here by the last-minute legislative changes—for all of the plaintiffs and other motel residents, but also for hardworking DCF staff—cannot be the best way to manage the problem. One would have to be blind and isolated from the news not to acknowledge that homelessness, and its companion issues of mental health, trauma, and substance abuse, are a crisis that must be better addressed.”

Not addressed in her decision: The fact that the Legislature has repeatedly begged the administration, over a period of years, to come up with a new plan for dealing with homelessness — and the administration has failed to do so. This is why the program has become “an overly complicated bureaucratic and financial maze.” Legislatures have had to patch and fill the program, often at the very last minute, because the administration had failed to act.

Which makes the next paragraph of the ruling seem misguided. Judge Toor called on DCF and the helping organizations around the state to “work together to design a big-picture approach to the problem rather than continuing to cobble together short-term solutions while in crisis mode.”

Yep, she both-sidesed the issue, implying that the administration and nonprofits deserve equal blame and overlooking the administration’s refusal to “design a big-picture approach” with or without the help of nonprofits or the Vermont Legislature.

Judge Toor could have done something heroic, quite literally life-saving. Instead, she took a safer, non-confrontational course even as she pointed out the ridiculousness of the administration’s approach. And at the end of the day she went to her warm, comfortable home and slept that night in her very own bed.

Hundreds of vulnerable Vermonters should be so lucky.

John Walters is the sole author of The Vermont Political Observer, readable for free (but donations cheerfully accepted) at Walters has had a long career in print and broadcast journalism. He’s been an observer of Vermont politics since 2011, including a three-year stint as political columnist for Seven Days. He lives in East Montpelier with his loyal spouse, two house rabbits and two cockatiels.

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