In Reilly v. Marin Housing Authority, a divided Supreme Court today holds that payments by the state In-Home Supportive Services program to a mother caring for her severely disabled adult daughter are not counted as income when determining the amount of assistance a family is entitled to under the federal Section 8 Housing Choice Voucher program.

The majority opinion by Justice Ming Chin says the intent of a federal regulation “was to encourage families to provide in-home care to, and avoid institutionalization of, developmentally disabled family members” and that the “intent is fully realized only when in-home payments for services needed to keep the developmentally disabled member at home — are excluded from income for purposes of the Section 8 program, i.e., whether those payments are ultimately made to a family member or to a third party provider.”

Chief Justice Tani Cantil-Sakauye dissents for herself and Justices Carol Corrigan and Leondra Kruger.  She prefers a “narrower interpretation” of federal law that “is the one urged on us by the United States Department of Housing and Urban Development (HUD), the federal agency that drafted the regulation.”  The Chief Justice also claims that the majority’s holding “will divert . . . all-too-scarce low-income housing assistance away from other needy families.”

The court reverses the First District, Division Two, Court of Appeal.  It disagrees with a 2009 unpublished Fifth Circuit Court of Appeals decision and a 2020 Minnesota Supreme Court decision.

As mentioned, because retiring Justice Chin is in a 4-3 majority, today’s opinion might not be the final Supreme Court word in the case.  A rehearing is a possibility.