Druker v. Sullivan, No. 71-1379.

• Decision Date: 04 April 1972
• Docket Number: No. 71-1379.
• Citation: 458 F.2d 1272
• Parties: Bertram A. DRUKER et al., Plaintiffs, Appellants, v. Thomas A. SULLIVAN et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

458 F.2d 1272 (1972)

Bertram A. DRUKER et al., Plaintiffs, Appellants, v. Thomas A. SULLIVAN et al., Defendants, Appellees.

No. 71-1379.

United States Court of Appeals, First Circuit.

Argued February 24, 1972.

Decided April 4, 1972.

Robert J. Sherer, Boston, Mass., with whom Michael T. Putziger and Roche, Carens & DeGiacomo, Boston, Mass., were on brief, for appellants.

Thomas G. Dignan, Jr. and Ropes & Gray, Boston, Mass., on brief for Max R. Kargman and William M. Kargman, amici curiae.

T. H. Martin, Asst. Corp. Counsel, for Thomas A. Sullivan and others, appellees.

S. Stephen Rosenfeld, Boston, Mass., with whom Thomas Carey, Donald J. Natoli, Jr., and Sidney St. F. Thaxter, Boston, Mass., were on brief, for James M. Kelly and others, appellees.

Mark Stern, Boston, Mass., and Lucien Wulsin, Jr. on brief for Greater Boston Tenants' Coalition and Joint Committee of the Brandywyne, Camelot, and High Point Tenants Unions, amici curiae.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The owners and managers of Castle Square, a housing project established under § 221(d) (3) of the National Housing Act, 12 U.S.C. § 1715l(d) (3), and located in Boston, brought this action seeking a declaratory judgment that Chapter 11 of the Boston Ordinances of 1970 ("the 1970 Ordinance") is unconstitutional under the Supremacy Clause, Article VI, § 2, insofar as it imposes rent control on Castle Square.¹ More simply, they contend that the application of the rent control ordinance by the Boston Rent Board interferes with the authority lodged in the Federal Housing Administration (FHA) to regulate maximum rent levels in § 221(d) (3) housing.²

For present purposes, the relevant facts are few. Having obtained permission from the FHA for a rent increase averaging $11 per apartment per month, effective February 1, 1971, appellants announced their intention so to raise rents. On January 4, 1971, the Rent Board informed appellants that their failure to comply with the procedural requirements of the ordinance made the rent increase ineffective. After the district court denied appellants' request for a preliminary injunction, 322 F.Supp. 1126 (D.Mass.1971), on the ground that they had not exhausted administrative remedies, they invoked the Rent Board's rent increase procedures and were allowed the lesser increase of $5 per apartment per month. Still aggrieved, appellants returned to the district court, which then stayed proceedings pending state court determination of the validity of the Rent Board's action, 334 F.Supp. 861. This appeal followed.³

The abstention doctrine announced in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and applied recently in Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L.Ed.2d 68 (1970); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970), and Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971), is an equitable doctrine premised on the "avoidance of needless friction with state policies", 312 U.S. at 500, 61 S.Ct. at 645. See also Wulp v. Corcoran, 454 F.2d 826 (1st Cir. 1972). Under its strictures, a federal court having jurisdiction over a claimed violation of federal rights by state law must nevertheless abstain from deciding that claim where a state court construction of its law may obviate the need for a decision on the federal claim. While ordinarily the federal claims in abstention cases have been purely constitutional ones, the same policies are applicable where, as here, the federal claim is in part statutory. Cf. Metlakatla Indian Community, etc. v. Egan, 363 U.S. 555, 80 S.Ct. 1321, 4 L.Ed.2d 1397 (1960).

But the mere mechanical possibility that a state court decision might make adjudication of the federal claim unnecessary does not itself make abstention appropriate. The high costs attendant upon abstention in terms of delay and frustration of federal claims are matters of equity as well, and are appropriately weighed in the equitable balance.⁴ In Pullman itself, Justice Frankfurter wrote not of "friction" but of "needless friction". In declining to order abstention in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), the Supreme Court emphasized that "the abstention rule only applies where `the issue of state law is uncertain.' Harman v. Forssenius, 380 U.S. 528, 534 , 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50", 400 U.S. at 438, 91 S.Ct. at 511, and that "where there is no ambiguity in the state statute, the federal court should not abstain . . .." 400 U.S. at 439, 91 S.Ct. at 511. See also Lavoie v. Bigwood, 457 F.2d 7, at 9 n. 1 (1st Cir., 1972). We see no substitute for a close analysis of the challenged state law.

Appellees argue that abstention was appropriate because Boston's claimed authority under Massachusetts law to regulate the rents of units in § 221(d) (3) housing projects is arguably vulnerable. Our assessment of its authority begins with Chapter 797 of the Acts of 1969 (as amended, "the Boston enabling act"), which gave Boston alone the authority "notwithstanding any provision of law to the contrary . . . by ordinance to control the rent for the use or occupancy of housing accommodations in structures having four or more dwelling units . . .."⁵ In the next session, the legislature passed Chapter 842 of the Acts of 1970, M.G.L.A. c. 40 App., §§ 1-1 to 1-14 ("the general enabling act"), under which all towns of 50,000 or more were authorized to pass rent control ordinances to apply to "controlled rental units". On the same day, the Boston enabling act was amended by Chapter 853 of the Acts of 1970, extending Boston's authority to "structures having three or more dwelling units" (§ 2) and instructing the city that any board which it established to regulate rents must set "maximum rents . . . at levels which will yield landlords a fair net operating income . . .." The 1970 Ordinance was passed by the Boston City Council on November 30, 1970, and repassed over the mayor's veto on December 28.

The case that Massachusetts has conferred clear authority on Boston can be argued on alternative theories.⁶ The first begins with the assertion that the Boston enabling act was intended to be wholly distinct from the general enabling act, and emphasizes that the ordinance itself purports to derive statutory authority solely from the Boston act. Even passing the danger that the city's interpretation of a state law delimiting its powers may be self-serving, it is not able that the ordinance gives to the Rent Board power, for example, to "refuse an upward adjustment of maximum rent if it determines that the effective sic housing accommodation does not comply with the State Sanitary Code or the Boston Building Code or Fire Prevention Code" (§ 4(e)), a power among those enumerated in the general act, § 7(d), M.G.L.A. c. 40 App. § 1-7(d), but not in the Boston act. In this connection, it may be significant that when the sentence in the Boston enabling act which begins with the phrase "notwithstanding any provision of law to the contrary" was amended by c. 863, § 2, in 1970, that emphatic phrase was deleted, arguably to make the Boston enabling act subject to the general enabling act passed on the same day. In turn, in defining "controlled rental units", the general enabling act made reference to the Boston enabling act "and any act in amendment thereof". We are thus not confident that Boston's authority can be determined independently of the general enabling act.

Appellants press more aggressively a second theory, that even if the enabling acts are to be viewed as an integrated scheme, the general enabling act specifically preserves for Boston wider authority than is allowed to other cities in the Commonwealth. If true, this would simplify an otherwise complex issue. Appellants rely on the general enabling act's definition of "controlled rental units", which encompasses

"all rental units except . . . (3) rental units of which a governmental unit, agency, or authority . . . (ii) regulates the rents, other than units regulated

(a) under the provisions of this act, or (b) under the provisions of the Boston enabling act, or

(c) under the provisions of any other general or special law authorizing municipal control of rental levels for all or certain rental units within a municipality . . .." § 3(b), M.G.L.A. c. 40 App., § 1-3(b).

The conclusion which appellants would have us draw from this draftsman's corkscrew is that no units "regulated . . . (b) under the provisions of the Boston enabling act" are "(3) rental units of which a governmental unit . . . (ii) regulates the rent", or, stated another way, that the (3) (ii) exception to "controlled rental units" does not apply to Boston.⁷ They urge, in effect, that (b) is an affirmative grant to Boston to define its own authority restrained only by the Boston enabling act.

But the riddle admits of another solution, suggested by the (a), "under the provisions of this act", with which (b), "under the provisions of the Boston enabling act", is parallel. That is, (a) may have been inserted out of an overcautious concern that "(3) rental units of which a governmental unit . . . (ii) regulates the rent" might be interpreted as including those units regulated under the authority of the very act setting out the definition. On this reading, the draftsman feared that units regulated under the act might be treated as falling within the (3) (ii) exception to "controlled rental units". Nor, for that matter, does any other interpretation occur to us. If (a) was designed to defuse...