Com. v. Olivo

• Decision Date: 10 November 1975
• Parties: COMMONWEALTH v. Olga OLIVO (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 904

337 N.E.2d 904

369 Mass. 62

COMMONWEALTH

v. Olga OLIVO (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 16, 1975.

Decided Nov. 10, 1975.

Angel I. Olmeda, Springfield (Samuel Stonefield, Springfield, with him), for defendants.

Leonard A. Shatz. Springfield, for the Commonwealth.

Jack J. Olivero, Herbert Teitelbaum, M. D. Taracido, Kenneth Kimerling and Manuel del Valle, New York City, N.Y., for Puerto Rican Legal Defense & Education Fund, Inc., amicus curiae, submitted a brief.

Before TAURO, C. J., and REARDON, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

These cases are before us on a report from the Housing Court of the County of Hampden pursuant to G.L. c. 278, § 30. They raise novel questions in this Commonwealth regarding the adequacy of English-only notice to persons not literate in English.

Briefly, the facts found by the Housing Court judge are as follows: The defendants are natives of Puerto Rico who have resided in this country for some years. Both defendants speak little English and are unable to read English. Both resided at all material times in the Spanish-speaking north end of Springfield.

Some time prior to August 1, 1974, an inspector from the Springfield housing department inspected the apartments occupied by the defendants and their children, and condemned them as unsafe and unfit for human habitation. In addition, in the case of the defendant Olivo, the living unit was condemned due to overcrowding. Both apartments contained serious health and safety defects.

On August 14, 1974, both defendants were served in hand by a constable with notices ordering them to vacate. The notice stated the reasons for the orders and advised the defendants both of their right to an administrative hearing and of the fact that noncompliance would result in penalties as provided by law. A housing department inspector reinspected the premises on four subsequent occasions and found the defendants still residing therein. The inspector discussed the meaning of the orders to vacate with both defendants in 'broken English' and suggested places where they might seek apartments. Both defendants were unable to read or understand the written orders to vacate.

On September 16, 1674, criminal complaints were issued against both defendants for failure to comply with the housing department's orders. The defendants were arraigned on October 2, 1974, and trial was held on December 4, 1974. At all criminal proceedings, the defendants were represented by counsel.

The defendants filed motions to dismiss the complaints on the grounds that the English-only notice was constitutionally insufficient and that convictions for failure to comply therewith would violate due process and equal protection guaranties. These motions were denied, and the judge found the defendants guilty. ² He assessed a fine of $100 against each defendant, but, because the questions raised by the defense were so important or doubtful as to require decision by the Supreme Judicial Court, he stayed payment of the fines and reported the following questions to this court:

(a) 'Can a Spanish-speaking person, who is not able to read English, be convicted of the crime of refusing to comply with a written order of a Housing Department, when said written order is written entirely in English?'

(b) 'Does it violate the due process and equal protection provisions of the Fourteenth Amendment . . . (to) the U.S. Constitution to convict a Spanish-speaking person, who is not able to read English, of the crime of refusing to comply with a written order, when said written order is written entirely in English?'

(c) 'Is the Housing Department notice sufficient under due process requirements to warrant issuance of a criminal complaint when the only warning that its language gives as to the possibility of a criminal complaint is that failure to abide by the order will result in 'penalties as provided by law?"'

1. Although this jurisdictional issue has not been briefed by the parties, before answering the reported questions, we think it appropriate to address the threshold question whether G.L. c. 278, § 30, which provides for report 'upon the trial of a person convicted in the superior court,' applies to the Housing Court. We believe it does.

The Housing Court of the County of Hampden was established by G.L. c. 185B, inserted by St.1973, c. 591, § 1, and was given 'common law and statutory jurisdiction concurrent with the . . . superior court of all crimes and of all civil actions . . . (under the relevant sections).' G.L. c. 185B, § 3. We believe that, by conferring such jurisdiction on the court, 'the Legislature has sufficiently indicated its intention that appellate review of decisions of the Housing Court is to be had directly by this court, and that the judge of the Housing Court is to exercise the powers of a Superior Court judge to that end.' Commonwealth v. Haddad, --- Mass. ---, ---, ^a 308 N.E.2d 899 (1974). Accordingly, we hold that judges of the Housing Court may report important or doubtful questions of law to this court pursuant to G.L. c. 278, § 30.

2. The first question reported by the judge asks whether a Spanish-speaking person who is unable to read English can be convicted of the crime of refusing to comply with a written order, where that order is written entirely in English. In light of the fact that the second question addresses the constitutional issues raised, we construe this question to ask whether the statute, G.L. c. 185B, § 20 allows a conviction in these circumstances. ³ We believe it does.

General Laws c. 185B, § 20, inserted by St.1973, c. 591, § 1, sets out the method of initiating proceedings in the Housing Court, and provides that criminal cases are to be commenced by complaint. However it further provides that, '(n)otwithstanding that a proceeding under this chapter is commenced by complaint, if the housing court finds that the offense charged was not wilful, intentional, reckless or repeated, the proceeding shall not be deemed criminal . . ..' In the context of this statute, the use of the word shall makes this section mandatory, and requires that the judge find, 'wilful, intentional, reckless or repeated' conduct in order to convict. See Johnson v. District Attorney for the N. Dist., 342 Mass. 212, 215, 172 N.E.2d 703 (1961); Assessors of Springfield v. New England Tel. & Tel. Co., 330 Mass. 198, 201, 112 N.E.2d 260 (1953).

In light of what we have said, then, in order for a failure to comply to be deemed criminal, it must be shown that such failure was either wilful, intentional, reckless or repeated. A showing of any one of these statutory requirements will support a conviction. ⁴ We believe the convictions here may be sustained because, on the facts of this case, the judge could have found that the defendants' failure to comply with the housing department's orders was reckless.

The word 'reckless,' as used in this statute, has never been construed by this court. We have interpreted the word in other contexts. See, e.g., Hutchinson v. New England Tel. & Tel. Co., 350 Mass. 188, 214 N.E.2d 57 (1966) (construing the extent of a conditional privilege in libel cases); Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) (construing the requirements for conviction of involuntary manslaughter); Banks v. Braman, 188 Mass. 367, 74 N.E. 594 (1905) (construing the duty of care owed to trespassers). While none of these interpretations is wholly analogous to the cases before us, we draw support for our interpretation from them.

'(R)eckless conduct may consist of intentional failure to take (necessary) care in disregard of the probable harmful consequences . . ..' Commonwealth v. Welansky, supra 316 Mass. at 397, 55 N.E.2d at 909. However, '(w)hat must be intended is the conduct, not the resulting harm.' Id. at 398, 55 N.E.2d at 910. '(R)eckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences . . ..' Id. at 399, 55 N.E.2d at 910. In determining whether any given conduct may be deemed reckless, we must look to the circumstances of the particular case. Hutchinson v. New England Tel. & Tel. Co., supra 350 Mass. at 192, 214 N.E.2d 57.

In the instant cases, the defendants' apartments were inspected by a housing department inspector and numerous violations were found. Shortly thereafter, a constable came to the apartments and personally served each defendant with an official order to vacate. Subsequent to this service, an inspector from the housing department visited with the defendants four times. He reinspected the apartments and attempted to explain to the defendants the meaning of the orders to vacate and the alternatives available to them. In response to this series of official contacts, the defendants did nothing. They made no attempt to have the official notice translated, nor did they make any other effort to ascertain the meaning and significance of the orders. In the circumstances, the judge could correctly have found that the conduct of the defendants in disregarding the official orders was reckless. Accordingly, we answer the first question 'Yes.'

3. The second question asks whether it would violate the due process and equal protection provisions of the United States Constitution to convict a Spanish-speaking person who is unable to read English of the crime of failing to comply with a notice written entirely in English. We think it would not.

a. Due Process.

The United States Supreme Court has considered the question of sufficiency of notice on many occasions. It has uniformly held that the adequacy of notice so far as due process is concerned is dependent on whether the form of notice provided is 'reasonably calculated to give . . . actual notice of the proceedings and an opportunity to be heard.' Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). Acc...