The Vermont Supreme Court has dismissed an appeal brought by the Department for Children and Families (DCF) concerning eligibility for the state’s Emergency Housing Program, ruling that the case is now moot because the underlying issue is no longer a “live controversy” between the parties.
The dispute centered on H.D.’s eligibility for the Vermont General Assistance Emergency Housing Program, which typically provides up to eighty days of emergency shelter. The core disagreement involved how to count those eighty days under the Fiscal Year 2026 Appropriations Act (Act 27).
The Initial Dispute Over Counting Days
DCF had determined that H.D. exceeded the eighty-day limit by including days H.D. received assistance prior to the start of Fiscal Year 2026 (FY26). H.D. appealed this decision to the Human Services Board.
The Board sided with H.D., interpreting the plain language of Act 27 to mean that only emergency housing days received *during* FY26 counted toward the eighty-day cap. Based on this interpretation, the Board found H.D. eligible for the program at the time of her application. DCF then appealed this reversal to the Supreme Court.
Mootness Doctrine Applies
However, before the Supreme Court could rule on the statutory interpretation, the circumstances changed. As the Court noted, H.D. has since exhausted her eighty days of emergency housing for FY26, even applying the Board’s favorable interpretation. H.D. is no longer living in emergency housing and is ineligible for further benefits under the program at issue.
Under Vermont law, the mootness doctrine requires that an actual controversy must exist “at all stages of review,” not just when the case was initially filed. Since H.D. has received the maximum benefit allowable and is no longer seeking relief, the controversy between her and DCF has evaporated.
DCF’s Argument for an Exception Fails
DCF argued that the appeal should proceed under the “capable of repetition, yet evading review” exception to mootness. This exception applies when an issue is too short-lived to be fully litigated before it expires, and there is a reasonable expectation that the *same complaining party* will face the identical situation again.
DCF pointed to the high volume of fair hearings requested since July 2025 regarding the eighty-day cap application and noted that many applicants are repeat users of the service. DCF asserted that because housing benefits last only eighty days, these cases are inherently too brief for full litigation before they terminate.
The Court disagreed, finding DCF failed to meet the crucial “capable of repetition” prong.
Chief Justice Reiber, writing for the Court, emphasized that the mootness inquiry is “person-specific.” Citing a previous ruling, *In re S.S.*, the Court clarified that simply showing *other* people will face similar problems is insufficient. To meet the exception, DCF needed to show a “reasonable degree of likelihood that the issue will be the basis of a continuing controversy between the two parties”—meaning H.D. herself would likely face the same dispute again. DCF did not provide this evidence.
Distinguishing Precedent
DCF cited a 1998 case (*In re PCB File No. 92.27*) where the Court allowed an appeal to proceed despite compliance with the challenged order. The Court distinguished that precedent, noting that in the PCB case, the same party—Bar Counsel—was facing identical orders from different hearing panel chairs in separate disciplinary matters. In the current case, there is no indication H.D. will face this specific type of dispute again.
The Court concluded that this situation was more analogous to *In re S.S.*, where a petitioner challenging a temporary housing ineligibility period ultimately failed to overcome mootness despite arguing the agency’s procedures would negatively affect others later.
No Basis for Declaratory Judgment
Ultimately, the Court stated it lacked the constitutional authority to issue an opinion on the proper calculation of the eighty-day cap for future applicants. Ruling on the merits now, without a live controversy between adverse litigants, would result in an advisory opinion, which the Court is constitutionally prohibited from rendering.
Therefore, the appeal was dismissed as moot.