The U.S. Solicitor General has criticized a divided California Supreme Court decision that interpreted federal law so as to increase the amount of a rental subsidy for certain families.

The Supreme Court’s August 2020 decision in Reilly v. Marin Housing Authority (2020) 10 Cal.5th 583 held 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 court was split.  Justice Ming Chin wrote the majority opinion and was joined by Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Joshua Groban.  Chief Justice Tani Cantil-Sakauye dissented for herself and Justices Carol Corrigan and Leondra Kruger.

The Marin Housing Authority petitioned the U.S. Supreme Court for certiorari in January of this year and the Court in June invited the Solicitor General to express the United States’s views on the case.

The Solicitor General’s brief — filed last week — says “the California Supreme Court erred . . ., misreading both the plain text and the context of [the pertinent federal] regulation and rejecting [the Department of Housing and Urban Development’s] interpretation of its own regulation.”  The brief nonetheless recommends the high Court not review the case, arguing that “the question presented is of limited and diminishing importance,” mainly because an ongoing HUD rulemaking process, once completed, will strip the state court’s decision of “any prospective effect.”

[November 22 update:  The Housing Authority today filed this supplemental brief disagreeing with the Solicitor General’s view that certiorari is not warranted.]