Gordon v. Fay

• Decision Date: 06 October 1980
• Parties: Charlotte GORDON v. Stanley FAY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1094

413 N.E.2d 1094

382 Mass. 64

Charlotte GORDON v. Stanley FAY et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 6, 1980.

Dec. 4, 1980.

Matthew L. McGrath, III, Legal Asst. to the Dist. Atty., West Roxbury (Brian J. Dobie, Asst. Dist. Atty., with him), for the Commonwealth.

Daniel B. Shapiro, Boston (Lois Corman, Brookline, with him), for defendants.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

This case is before us on a report of questions of law by a judge of the Housing Court of the City of Boston. The primary issue raised is whether the procedure set forth in G.L. c. 218, § 35A, for the issuance of a criminal complaint applies to complaints issued by the Housing Court. We conclude that the statutory procedure does apply. Absent the exigent circumstances described in G.L. c. 218, § 35A, therefore, the person accused in a complaint received by the Housing Court must be given notice and an opportunity to be heard in opposition to the issuance of any process based on the complaint.

The complainant Charlotte Gordon is a tenant in a residential apartment in Boston. On October 30, 1979, she brought a criminal complaint on behalf of the Commonwealth against the defendants in the Housing Court of the City of Boston. The complaint alleges that from September 15, 1979, through October 30, 1979, the defendants wilfully or intentionally interfered with the complainant's quiet enjoyment by failing to comply with G.L. c. 186, § 14, based on the failure to provide heat and the presence of cockroaches in the apartment. ² Process issued immediately, requiring the defendants to appear in court to answer the complaint. At no time prior to the issuance of process were the defendants notified of the complaint or afforded an opportunity to appear at a hearing in opposition to the issuance of process.

Following an unsuccessful attempt at mediation, the case was scheduled for trial on November 9, 1979. On that date, the defendants moved to dismiss the complaint for failure to afford them the hearing required by G.L. c. 218, § 35A. Although initially disposed to deny the motion to dismiss, the trial judge concluded instead that "a question of law has arisen which ... is so important as to require the decision of the Supreme Judicial Court thereon before trial," and hence reported certain questions to this court pursuant to G.L. c. 278, § 30A. The text of the reported questions is set forth in the margin. ³ Because of recent changes in the interlocutory report procedure, discussed immediately below, the questions were reported first to the Appeals Court and later transferred to this court on our own motion.

1. Jurisdictional issue. Although this threshold issue has not been addressed by either party, we should decide initially whether the reported questions are properly before this court. The Housing Court judge characterized the interlocutory report as pursuant to G.L. c. 278, § 30A. General Laws c. 278, § 30A, was repealed, however, by St.1979, c. 344, §§ 48, 51, effective July 1, 1979. The reporting of questions of law in criminal cases is now governed by Mass.R.Crim.P. 34, --- Mass. --- (1979), which, like its predecessor, does not specifically authorize reports by the Housing Court. ⁴ In earlier cases involving questions reported by the Housing Court under since-repealed c. 278, §§ 30 and 30A, we have allowed the reports, based on our belief that by conferring on the Housing Court concurrent jurisdiction over certain actions and by according the Housing Court "all the powers of the superior court" over those actions, see G.L. c. 185C, § 3, the Legislature had "sufficiently indicated its intention that appellate review of decisions of the Housing Court (was) to be had directly by this court, and that the judge of the Housing Court (was) to exercise the powers of a Superior Court judge to that end." Commonwealth v. Olivo, 369 Mass. 62, 65-66, 337 N.E.2d 904 (1975), quoting Commonwealth v. Haddad, 364 Mass. 795, 797, 308 N.E.2d 899 (1974). For these same reasons, we believe Mass.R.Crim.P. 34 also applies to the Housing Court. Accordingly, we hold that judges of the Housing Court may report important or doubtful questions of law to the Appeals Court pursuant to Mass.R.Crim.P. 34.

2. Questions 1, 1A, and 1B: Commencement of criminal proceedings in the Housing Court. The first three reported questions (Questions 1, 1A, and 1B) ⁵ concern the commencement of criminal proceedings in the Housing Court and the extent to which the Housing Court must conform its procedure in criminal cases to that of the District Court. With a view to answering the questions reported, we begin by setting forth the relevant statutory provisions.

The Housing Court of the City of Boston has jurisdiction, concurrent with the District Courts and the Superior Court, of certain crimes, including crimes arising under G.L. c. 186, § 14, and under so much of any other law or regulation "as is concerned directly or indirectly with the health, safety, or welfare of any occupant of any place ... of human habitation." G.L. c. 185C, § 3, as amended by St.1979, c. 72, § 3. Criminal proceedings are commenced "by complaint in like manner as in the district court department." G.L. c. 185C, § 19. ⁶

The procedure for the commencement of criminal complaints for misdemeanors in the District Court is governed by G.L. c. 218, § 35A. ⁷ That statute requires the court, absent certain exigent circumstances, to give to the person against whom a complaint is made written notice of the complaint. The exigent circumstances that remove the need for written notice are those involving "an imminent threat of bodily injury, of the commission of a crime or of flight from the commonwealth" by the accused person. The accused person must also be given "an opportunity to be heard ... in opposition to the issuance of any process based on such complaint." Neither notice nor a hearing is required if the accused person is already under arrest for the offense on which the complaint is based.

We have been offered no good reason why the "in like manner" language of c. 185C, § 19, should be construed to mean anything other than the plain import of the term: i. e., that the Housing Court, in commencing a criminal proceeding, should follow essentially the same procedure as that outlined for the District Courts in G.L. c. 218, § 35A. From the history of G.L. c. 218, § 35A, it is apparent that the Legislature intended, in most cases involving misdemeanors, for defendants to be given notice and an opportunity to be heard before process issues. ⁸ Such a system seems particularly appropriate for cases in the Housing Court involving allegations of unsafe or unhealthy living conditions, because "(t)he primary purpose of the (sanitary) code is to prevent violations rather than to punish past violations as criminal offences." Commonwealth v. Haddad, 364 Mass. 795, 799, 308 N.E.2d 899 (1974). Many criminal cases filed in the Housing Court result in dismissals following the defendant's elimination of the violations. ⁹ See Snyder, Crime and Community Mediation-The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program, 1978 Wis.L.Rev. 737, 746-747 (noting that "(t)he implicit purpose of the 35A hearings is to enable the court clerk to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution ..."). Informal dispute settlement processes available to the parties, such as referral to a housing specialist for mediation (as was done in this case after process had issued), are likely to be more successful if entered into before the issuance of a summons against the defendant. See Dulin v. Johnson, Cr. No. 29466 (Housing Court Dept., City of Boston Div., October 19, 1979). A further reason to hold c. 218, § 35A, applicable to the Housing Court stems from our recognition of the risk of abuse of statutory provisions allowing tenants and other private citizens to bring criminal complaints against landlords. Commonwealth v. Haddad, supra. In Haddad, we observed that "(t)he danger of harassment is mitigated by (the § 35A requirement) that the person against whom a complaint is made may oppose the issuance of process based on the complaint." Id. at 799, 308 N.E.2d 899.

We conclude, therefore, that G.L. c. 218, § 35A, as amended, is applicable to the Housing Court. The Housing Court need not "exactly duplicate" the procedure followed in the District Court, however, and hence we answer reported question 1 with a qualified "Yes." An example of permissible deviation from District Court procedure, offered by the Commonwealth in its brief, is that a complainant in the Housing Court swears out a complaint, while the District Court requires an application for a complaint to issue. See also G.L. c. 185C, § 7 (mandating that the administrative justice of the Housing Court "shall from time to time make general rules and forms of procedure," to be approved by this court). Any such minor differences in the complaint procedure between the Housing Court and the District Court are allowable. Such minor differences aside, the Housing Court must adhere to the notice and hearing procedure set forth in G.L. c. 218, § 35A, and thus we answer "Yes" to reported question 1A, and "No" to reported question 1B.

3. Questions 2, 3, 3A, and 3B: Continuing violations of the Sanitary Code. The remaining questions (Questions 2, 3, 3A and 3B) ¹⁰ all concern the notice and hearing requirements when complaints allege continuing violations of the Sanitary Code. The Commonwealth concedes that the Housing Court is required to follow c. 218, § 35A, as a general rule, but asserts that when a complaint alleges a continuing violation of the Sanitary Code, such as the failure to provide heat in the present case, there is no requirement...