Figgs v. Bos. Hous. Auth.

• Decision Date: 18 August 2014
• Docket Number: SJC–11532.
• Citation: 14 N.E.3d 229,469 Mass. 354
• Parties: Trenea FIGGS v. BOSTON HOUSING AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 354

14 N.E.3d 229

Trenea FIGGS

v.BOSTON HOUSING AUTHORITY.

SJC–11532.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 8, 2014.

Decided Aug. 18, 2014.

Michael J. Louis & Angela Marcolina for the defendant.

Jeremy T. Robin, Boston, for the plaintiff.

Jeffrey C. Turk, Braintree, for Greater Boston Real Estate Board & another. James M. McCreight, Alex Munevar, & Quinten Steenhuis for Massachusetts Coalition for the Homeless & others, amicus curiae, submitted a brief.

Esme Caramello, Deena Greenberg, & Melanie Zuch for Charles Hamilton Houston Institute & another, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

SPINA

, J.

Trenea Figgs is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8,” administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012)

and implementing HUD regulations.² On November 22, 2011, the BHA notified Figgs of its intent to terminate her participation in the Section 8 program due to allegations of serious or repeated violations of her lease. Several weeks earlier, Boston police officers had executed a search warrant for Figgs's apartment in connection with a criminal investigation of her brother, Damon Nunes, and had discovered, among other things, two plastic bags of marijuana, a .380 caliber Ruger pistol, and five rounds of ammunition. Figgs appealed the proposed termination. Following an informal hearing on February 22, 2012, a hearing officer, by decision dated August 6, 2012, upheld the termination of Figgs's Section 8 housing subsidy.

On August 24, 2012, Figgs filed a verified complaint in the Housing Court for injunctive and declaratory relief. She sought to enjoin the BHA from terminating her Section 8 housing subsidy on the ground that the informal hearing failed to satisfy her procedural due process rights under the Fourteenth Amendment to the United States Constitution, and she sought a declaration that the bases for her termination were insufficient. In response,

the BHA filed a motion for judgment on the pleadings. On March 19, 2013, a judge reversed the decision of the hearing officer, and he ordered the BHA to reinstate Figgs's Section 8 housing subsidy back to November 22, 2011.³ The BHA appealed the judge's decision, the case was entered in the Appeals Court, and we transferred it to this court on our own motion. We conclude that, notwithstanding the enactment of G.L. c. 94C, § 32L

, which decriminalized the possession of one ounce or less of marijuana, the BHA properly terminated Figgs's participation in the Section 8 program due to evidence of other criminal activity in her rental premises, which constituted a serious lease violation. Accordingly, we reverse the judgment of the Housing Court.⁴

1. Background. Figgs and her three minor children are the authorized occupants of a subsidized apartment on Woolson Street in the Mattapan section of Boston. Nunes would visit her there and, on occasion, would babysit her children. Pursuant to paragraph 10(a) of her lease, Figgs agreed “to refrain from engaging in and to cause Household member(s), guest(s), or any person under any Household member's control to refrain from engaging in any criminal or illegal activity in the rental Premises.” BHA model lease § 10(a)

. As a participant in the Section 8 program, Figgs also signed a document entitled “Family Obligations of the Housing Choice Voucher Program,” which stated,

among its provisions, that “[t]he family may not commit any serious or repeated violation of the lease.”⁵ By signing this document, she certified that she understood her obligations under the Section 8 program, and that her failure to comply with these obligations “may result in the termination of [her] participation in the program.” According to Figgs, prior to the commencement of the underlying proceedings, she had been a participant in the Section 8 program for approximately ten years without incident.

On October 18, 2011, members of the Boston police department initiated an investigation into Nunes after a confidential informant (CI) told officers that the CI had observed a black .380 caliber firearm in Nunes's bedroom at the apartment where Figgs lived with her children. The CI believed that Nunes also lived there. The CI told officers that Nunes had been in possession of this firearm “for some time,” and that Nunes had been known on occasion to hide the firearm on the back porch of the apartment outside his bedroom window. As part of the investigation, officers independently observed Nunes entering and leaving the house in which the apartment was located several times over the course of approximately one week. Detective Rodney Best then applied for and obtained from a judge in the Superior Court a search warrant for Figgs's apartment.

On the evening of October 24, members of the Boston police department assigned to the youth violence strike force detained Nunes outside Figgs's apartment and executed the search warrant. The apartment was unoccupied at the time of the search. From the room that they understood to be Nunes's bedroom, officers recovered two bags of a leafy green substance believed to be marijuana,⁶ $653 in cash, a box of sandwich bags, a Massachusetts photographic identification card of Nunes, a Rhode Island medical card for Nunes, a red cellular telephone, and an “iPod,” a portable media player.⁷ The police incident report did not indicate the amount or weight of the marijuana. In a separate

bedroom, officers found a Massachusetts electronic bank transfer (EBT) card. They also recovered a sneaker from the back porch of the apartment, inside of which was a .380 caliber Ruger pistol that contained five rounds of ammunition. Nunes was arrested and charged with possession of a class D substance with intent to distribute, commission of this offense within a school zone, unlawful possession of a firearm and of ammunition, and improper storage of a firearm.

On November 22, the BHA notified Figgs of its intent to terminate her participation in the Section 8 housing program. Among the stated reasons for the proposed termination were “[s]erious or repeated violations of the lease,” specifically paragraph 10(a), committed on October 24 when police discovered marijuana and a loaded firearm in her apartment.⁸ As authority for its decision, the BHA relied on 24 C.F.R. § 982.551(e) (2010)

(obligation not to commit serious violation of lease), and 24 C.F.R. § 982.552(c)(1)(i) (2010) (authority to terminate assistance for violation of any family obligation). Figgs appealed the proposed termination and requested an informal hearing.

Following a hearing on February 22, 2012, at which Figgs was represented by counsel and presented evidence on her own behalf, a hearing officer upheld the BHA's decision.⁹ He stated that the police reports contained “substantial indicia of reliability to warrant a finding that Mr. Nunes was involved in crimes of drugs and unlawful possession of [a] firearm in [Figgs's] apartment.” Notwithstanding the fact that the firearm was found on the back porch, he continued, that area was still part of the apartment.

Given Figgs's acknowledgement that Nunes was permitted to go to her apartment, the hearing officer found that Nunes was Figgs's invitee and, as such, was under her control when he engaged in criminal activities in her apartment.¹⁰ Based on these findings, the hearing officer concluded that Figgs had violated paragraph 10(a) of her lease.

The hearing officer next considered whether the lease violation was “serious,” such that it warranted Figgs's termination from the Section 8 program. The hearing officer said that Nunes was involved in an activity that threatened the safety of others because a firearm containing five rounds of ammunition was recovered in the apartment. Moreover, he continued, the quantity of marijuana, the drug paraphernalia, the large amount of cash, and the firearm permitted an inference not only that Nunes was in possession of drugs, but also that he intended to distribute or sell drugs in the apartment and to use the apartment as a storage place for his firearm. The hearing officer determined that the BHA had sufficient grounds to propose termination of Figgs's Section 8 housing subsidy for a serious lease violation.

Finally, in accordance with 24 C.F.R. § 982.552(c)(2) (2010)

, the hearing officer considered whether there were mitigating circumstances that would warrant an outcome other than Figgs's termination from the Section 8 program. He stated that Figgs's claimed lack of knowledge about Nunes's behavior and her positive history as a Section 8 tenant did not offset the seriousness of the criminal activities in her apartment. The hearing officer found that Figgs had failed to exercise proper control in her apartment, which would have forestalled such criminal activities in the first place. He also found that because Figgs was not disabled, had graduated from a computer technology program, and was actively looking for employment, her termination from the Section 8 program would not cause a severe hardship to her family. Accordingly, the hearing officer concluded that termination of Figgs's Section 8 housing subsidy was proper in light of

her serious lease violation.¹¹

In reversing the hearing officer's decision and entering judgment in favor of Figgs, the Housing Court judge concluded that the hearing officer committed legal errors that adversely affected Figgs's material rights. The judge determined that there was insufficient reliable evidence in the administrative record to support an inference that Nunes either engaged in drug-related criminal activity in Figgs's apartment or kept an illegal firearm and ammunition there. With regard to the marijuana, he pointed out that the police officers did not include in their written reports any...