Katz v. King, 80-1055

• Decision Date: 01 August 1980
• Docket Number: No. 80-1055,80-1055
• Citation: 627 F.2d 568
• Parties: Raanan KATZ, Petitioner-Appellant, v. Patrick J. KING, Associate Justice of the Housing Court Department City of Boston Division of the Trial Court of the Commonwealth of Massachusetts and Mary Saunders, Respondents-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 568

627 F.2d 568

Raanan KATZ, Petitioner-Appellant, v. Patrick J. KING, Associate Justice of the Housing Court

Department City of Boston Division of the Trial

Court of the Commonwealth of

Massachusetts and Mary

Saunders,

Respondents-Appellees.

No. 80-1055.

United States Court of Appeals, First Circuit.

Argued April 18, 1980.

Decided July 29, 1980.

As Amended Aug. 1, 1980.

Leslie H. Rudnick, Boston, Mass., with whom Ring & Rudnick, Boston, Mass., was on brief, for appellant.

Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Marilyn L. Hotch, Asst. Atty. Gen., Boston, Mass., were on brief, for respondent, Patrick J. King.

Harvey S. Shapiro, Boston, Mass., on brief for appellee, Mary Saunders.

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

BOWNES, Circuit Judge.

This appeal from a denial of habeas corpus presents the question whether procedures employed by the Boston (Massachusetts) Housing Court in a criminal contempt prosecution violated petitioner's constitutional right to due process of law. Petitioner raises a host of issues, but the thrust of his appeal is directed towards alleged incompetence of counsel and the sentencing process.

Prior Proceedings

In early 1978, Raanan Katz, owner-manager of more than one thousand apartment units, sought to evict tenants, Saunders and Lynch, from their Boston apartment. Katz filed a summary process action for eviction in the Brighton District Court, and a damage action seeking back rent in the Brookline Municipal Court. Represented by counsel of the Greater Boston Legal Services, the tenants successfully moved to transfer the actions to the Boston Housing Court. They asserted counterclaims which alleged their entitlement to damages for Katz' failure to properly maintain their apartment. An important aspect of their defense and counterclaim was an alleged breach, by Katz, of the warranty of habitability because of lack of heat and hot water in their building due to a malfunctioning of the heating plant.

On April 4, 1978, the tenants' attorney, Harvey Shapiro, served Katz with interrogatories and a notice to produce documents detailing the supply of fuel and repairs to the heating system. Katz did not respond. On June 14th, the Housing Court ordered Katz to comply. Again, Katz failed to respond. The tenants made a second motion to compel and, at a hearing held on this motion on June 30, 1978, the court ordered Katz to comply within seven days. When Katz still refused to comply, the court entered judgment for the tenants on Katz' possession and damage actions and ordered Katz to produce the requested materials by August 18, 1978. When Katz once again failed to respond to the court order, defendants' attorney moved to hold Katz in criminal contempt of court. ¹ On August 23, 1978, Katz' attorney finally responded to the notice to produce documents by turning over a computer print-out of fuel deliveries by the Atlas Oil Company. ² His reply to the notice to produce indicated that the print-out was "the only such full and complete record." Thomas Wirtenan, Katz' attorney at that time, filed the answers to the April 4th interrogatories on August 28, 1978. A show cause hearing was held on the contempt motion on August 29 and September 6, 1978. At the hearing, Katz apparently testified that the delay in complying with the motion to produce arose because he had to request a computer print-out from Atlas which was not immediately available, and had to be especially prepared for him by Atlas. It is not clear from the record whether he testified that it was his usual business practice to destroy records as soon as bills were paid. ³

A supplemental response to the motion to produce, filed with the court at the September 6th hearing, offered the following explanation for Katz' inability to fully comply with the order.

With regard to copies of bills, demand, invoices and payment receipts (including cancelled checks ), requested in paragraph # 2 of the defendant's Notice to Produce, plaintiff responds further that these documents are destroyed shortly after payments are made to the Atlas Oil Company, and that as such there is no record of payment in existence or in his possession beyond the print-out produced on August 23, 1978. (emphasis added)

The judge found Katz' representations untenable, continued the contempt hearing to October 25, 1978, and ordered Katz and his office manager to produce certain records on that date. Katz was represented by Attorney Wirtenan at the August-September hearing. Joseph Provenzano, the attorney representing Katz at the October 25, 1978, hearing, stated that there was a typographical error in the supplemental response filed on September 6, 1978; the parenthetical "including cancelled checks" should have read "excluding cancelled checks." The checks were produced at the hearing on October 25, 1978.

A second contempt charge arose out of allegedly perjurious answers to two interrogatories. In response to questions seeking the identities of persons who serviced the heating plant in the apartment building, the affiant stated that only the Atlas Oil Company performed work on the heating system. The second answer, relating to a proposed sale of the building, need not concern us as the judge did not find that Katz' answer constituted perjury.

On December 15 and 19, 1978, hearings were held on both contempt motions. Evidence adduced showed that Peter Gianopolous performed work on the heating system; that Atlas Oil was not the exclusive provider of maintenance services to the heating plant; and that bills other than the disputed computer print-out were available to Katz at the time he filed his answer to the motion to produce. At the conclusion of the hearing, the judge announced that he would take the matter under advisement.

On April 24, 1979, Katz' attorney was notified that the opinion was ready and could be picked up at the Housing Court clerk's office. In his decision, the judge ruled that Katz was guilty of contempt because he "repeatedly failed to comply with the Orders of this Court and has perjured himself in his answer to interrogatory number eight and in his testimony before this Court." Noting that "ongoing, repeated, blatant and willful defiance of the authority and power of the Court," the judge held that monetary sanctions were insufficient to punish Katz. Accordingly, he defaulted Katz in the civil actions, awarded attorney fees of $2,000 to defendants, imposed a fine of $5,000, and sentenced Katz to thirty days in the Charles Street jail. As an alternative to the jail sentence, Katz was given the choice of serving eleven consecutive weekends at the jail, or serve one weekend at the jail and perform labor at the Charlestown Development of the Boston Housing Project for two consecutive eight-hour days per week for fourteen consecutive weeks. Katz chose the latter. The judge also found reason to believe that both attorneys representing Katz, Thomas Wirtenan and Joseph Provenzano, had violated Canon 7 of the Canons of Ethics, which are part of the rules of the Supreme Judicial Court of Massachusetts. He referred this matter to the Massachusetts Board of Bar Overseers.

Subsequent to the judgment, Katz' present attorneys moved in the Housing Court to vacate the decision, to stay the sentence, and for a new trial. At the hearing on these motions held on May 7 and 9, 1979, Katz' counsel argued for mitigation of the sentence. The motions were denied, but an amended order correcting errors in the judge's findings of fact was issued. No change in sentence was made, but its imposition was stayed pending appeal.

Katz appealed to the Supreme Judicial Court by writ of error. He alleged due process violations including conviction of perjury without being charged, sentencing in the absence of defendant and counsel, denial of a speedy trial, and ineffective assistance of counsel. He contended his fifth amendment rights were infringed because the court ordered him to take the witness stand and required him to produce incriminating papers. He alleged eighth amendment violations in the form of an excessive sentencing. He claimed that the defendants' private counsel had no standing to prosecute him for criminal contempt. In addition, Katz attacked the sufficiency of the evidence on the ground that, contrary to the finding of the trial judge, he did not testify that his signature appeared on the perjurious interrogatory.

The SJC rejected all contentions save the argument that counsel and defendant should have been present when sentence was imposed. It found, however, that a subsequent opportunity to present matters in mitigation of sentence cured any defect and refused to order resentencing. The court did not address the competency of counsel issue. ⁴

On December 13, 1979, counsel for appellant moved for a new trial in the Housing Court based on the alleged discovery, in May, 1979, of information tending to show that Katz had not signed the perjurious interrogatory. The judge denied the motion on December 20, 1979, by written order in which he also modified the sentence by stating that, if Katz failed to perform the labor, he would be sentenced to thirty days in the Charles Street Jail. The record does not show whether an appeal was taken from these orders.

Appellant then went forward with a habeas corpus motion which had been filed with the United States District Court for the District of Massachusetts on December 11, 1979. Prior to the hearing, the district court granted Katz' motion to depose Attorneys Wirtenan and Provanzano on the issue of conflict of interest. After a hearing on the merits of Katz' petition, the writ was denied. The court, however, was of the opinion that petitioner's claims of ineffective assistance of counsel, imposition of sentence in his absence, and excessive penalties were capable of more than one interpretation,...